Exhibit T3C
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LORAL SKYNET CORPORATION
Issuer
14% SENIOR SECURED NOTES DUE 2015
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INDENTURE
Dated as of [ ], 2005
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[ ]
Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------------ ------------
310(a)(1) .................................................................... 7.10
(a)(2) .................................................................... 7.10
(a)(3) .................................................................... N.A.
(a)(4) .................................................................... N.A.
(a)(5) .................................................................... 7.10
(b) .................................................................... 7.08; 7.10
(c) .................................................................... N.A.
311(a) .................................................................... 7.11
(b) .................................................................... 7.11
(c) .................................................................... N.A.
312(a) .................................................................... 2.05, 12.03
(b) .................................................................... 12.03
(c) .................................................................... 12.03
313(a) .................................................................... 7.06
(b)(1) .................................................................... N.A.
(b)(2) .................................................................... 7.06
(c) .................................................................... 12.02
(d) .................................................................... 7.06
314(a) .................................................................... 4.02; 4.03
(b) .................................................................... N.A.
(c)(1) .................................................................... 12.04
(c)(2) .................................................................... 12.04
(c)(3) .................................................................... N.A.
(d) .................................................................... 11.03
(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) .................................................................... 12.06
(a)(1)(A) .................................................................... 6.05
(a)(1)(B) .................................................................... 6.04
(a)(2) .................................................................... Section 1 of
the Note;
12.06
(b) .................................................................... Section 1 of
the Note;
6.07
(c) .................................................................... 9.04
317(a)(1) .................................................................... 6.08
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(a)(2) .................................................................... 6.09
(b) .................................................................... 2.04
318(a) .................................................................... 12.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
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TABLE OF CONTENTS
ARTICLE 1 Definitions and Incorporation by Reference................................................................... 1
SECTION 1.01. Certain Definitions................................................................ 1
SECTION 1.02. Other Definitions.................................................................. 23
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.................................. 24
SECTION 1.04. Rules of Construction.............................................................. 24
ARTICLE 2 The Notes.................................................................................................... 25
SECTION 2.01. Form and Dating.................................................................... 25
SECTION 2.02. Execution and Authentication....................................................... 25
SECTION 2.03. Registrar and Paying Agent......................................................... 26
SECTION 2.04. Paying Agent To Hold Money in Trust................................................ 26
SECTION 2.05. Noteholder Lists................................................................... 27
SECTION 2.06. Transfer and Exchange.............................................................. 27
SECTION 2.07. Replacement Notes.................................................................. 27
SECTION 2.08. Outstanding Notes.................................................................. 27
SECTION 2.09. Temporary Notes.................................................................... 28
SECTION 2.10. Cancellation....................................................................... 28
SECTION 2.11. Defaulted Interest................................................................. 28
SECTION 2.12. CUSIP Numbers...................................................................... 28
ARTICLE 3 Redemption................................................................................................... 28
SECTION 3.01. Notices to Trustee................................................................. 28
SECTION 3.02. Selection of Notes To Be Redeemed.................................................. 29
SECTION 3.03. Notice of Redemption............................................................... 29
SECTION 3.04. Effect of Notice of Redemption..................................................... 29
SECTION 3.05. Deposit of Redemption Price........................................................ 30
SECTION 3.06. Notes Redeemed in Part............................................................. 30
ARTICLE 4 Covenants.................................................................................................... 30
SECTION 4.01. Payment of Notes................................................................... 30
SECTION 4.02. Financial Reports.................................................................. 32
SECTION 4.03. Compliance Certificate............................................................. 32
SECTION 4.04. Change of Control.................................................................. 32
SECTION 4.05. Limitation on Restricted Payments.................................................. 34
SECTION 4.06. Limitation on Indebtedness......................................................... 36
SECTION 4.07. Limitation on Liens................................................................ 38
SECTION 4.08. Anti-Layering...................................................................... 38
SECTION 4.09. Limitation on Restrictions on Distributions from Restricted Subsidiaries........... 38
SECTION 4.10. Limitation on Sales of Assets and Subsidiary Stock................................. 40
SECTION 4.11. Limitation on Affiliate Transactions............................................... 42
SECTION 4.12. Guarantors......................................................................... 43
SECTION 4.13. Limitation on the Issuance and Sale of Capital Stock of Restricted Subsidiaries.... 43
SECTION 4.14. Limitation on Sale/Leaseback Transactions.......................................... 44
SECTION 4.15. Existence.......................................................................... 44
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SECTION 4.16. Payment of Taxes and Other Claims.................................................. 44
SECTION 4.17. Insurance; Maintenance of Properties............................................... 44
SECTION 4.18. Notice of Defaults................................................................. 45
SECTION 4.19. Business Activities................................................................ 46
SECTION 4.20. Payments for Consent............................................................... 46
SECTION 4.21. Use of Proceeds.................................................................... 46
SECTION 4.22. Further Instruments and Acts....................................................... 46
ARTICLE 5 Merger....................................................................................................... 46
SECTION 5.01. Merger and Consolidation........................................................... 46
ARTICLE 6 Defaults and Remedies........................................................................................ 48
SECTION 6.01. Events of Default.................................................................. 48
SECTION 6.02. Acceleration....................................................................... 49
SECTION 6.03. Other Remedies..................................................................... 50
SECTION 6.04. Waiver of Past Defaults............................................................ 50
SECTION 6.05. Control by Majority................................................................ 50
SECTION 6.06. Limitation on Suits................................................................ 51
SECTION 6.07. Rights of Holders to Receive Payment............................................... 51
SECTION 6.08. Collection Suit by Trustee......................................................... 51
SECTION 6.09. Trustee May File Proofs of Claim................................................... 51
SECTION 6.10. Priorities......................................................................... 52
SECTION 6.11. Undertaking for Costs.............................................................. 52
SECTION 6.12. Waiver of Stay or Extension Laws................................................... 52
SECTION 6.13. Payment of Premium................................................................. 52
ARTICLE 7 Trustee...................................................................................................... 53
SECTION 7.01. Duties of Trustee.................................................................. 53
SECTION 7.02. Rights of Trustee.................................................................. 54
SECTION 7.03. Individual Rights of Trustee....................................................... 54
SECTION 7.04. Trustee's Disclaimer............................................................... 54
SECTION 7.05. Notice of Defaults................................................................. 54
SECTION 7.06. Reports by Trustee to Holders...................................................... 55
SECTION 7.07. Compensation and Indemnity......................................................... 55
SECTION 7.08. Replacement of Trustee............................................................. 55
SECTION 7.09. Successor Trustee by Merger........................................................ 56
SECTION 7.10. Eligibility; Disqualification...................................................... 57
SECTION 7.11. Preferential Collection of Claims Against Company.................................. 57
ARTICLE 8 Discharge of Indenture; Defeasance........................................................................... 57
SECTION 8.01. Discharge of Liability on Notes; Defeasance........................................ 57
SECTION 8.02. Conditions to Defeasance........................................................... 58
SECTION 8.03. Application of Trust Money......................................................... 59
SECTION 8.04. Repayment to Company............................................................... 59
SECTION 8.05. Indemnity for Government Obligations............................................... 59
SECTION 8.06. Reinstatement...................................................................... 59
ARTICLE 9 Amendments................................................................................................... 60
SECTION 9.01. Without Consent of Holders......................................................... 60
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SECTION 9.02. With Consent of Holders............................................................ 60
SECTION 9.03. Compliance with Trust Indenture Act................................................ 61
SECTION 9.04. Revocation and Effect of Consents and Waivers...................................... 62
SECTION 9.05. Notation on or Exchange of Notes................................................... 62
SECTION 9.06. Trustee To Sign Amendments......................................................... 62
ARTICLE 10 Guaranties.................................................................................................. 62
SECTION 10.01. Guaranties......................................................................... 62
SECTION 10.02. Limitation on Liability............................................................ 64
SECTION 10.03. Successors and Assigns............................................................. 64
SECTION 10.04. No Waiver.......................................................................... 64
SECTION 10.05. Modification....................................................................... 65
SECTION 10.06. Release of Guarantor............................................................... 65
ARTICLE 11 Collateral.................................................................................................. 65
SECTION 11.01. Collateral Documents; Additional Collateral........................................ 65
SECTION 11.02. Recording, Registration and Opinions............................................... 67
SECTION 11.03. Release of Collateral.............................................................. 68
SECTION 11.04. Possession and Use of Collateral................................................... 69
SECTION 11.05. Specified Releases of Collateral................................................... 69
SECTION 11.06. Disposition of Collateral Without Release.......................................... 70
SECTION 11.07. Form and Sufficiency of Release.................................................... 71
SECTION 11.08. Purchaser Protected................................................................ 72
SECTION 11.09. Authorization of Actions To Be Taken by the Collateral Agent Under the Collateral
Documents........................................................................ 72
SECTION 11.10. Authorization of Receipt of Funds by the Collateral Agent Under the Collateral
Documents........................................................................ 72
ARTICLE 12 Miscellaneous............................................................................................... 72
SECTION 12.01. Trust Indenture Act Controls....................................................... 72
SECTION 12.02. Notices............................................................................ 72
SECTION 12.03. Communication by Holders with Other Holders........................................ 73
SECTION 12.04. Certificate and Opinion as to Conditions Precedent................................. 74
SECTION 12.05. Statements Required in Certificate or Opinion...................................... 74
SECTION 12.06. When Notes Disregarded............................................................. 74
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar....................................... 75
SECTION 12.08. Legal Holidays..................................................................... 75
SECTION 12.09. Governing Law...................................................................... 75
SECTION 12.10. No Recourse Against Others......................................................... 75
SECTION 12.11. Successors......................................................................... 75
SECTION 12.12. Multiple Originals................................................................. 75
SECTION 12.13. Table of Contents; Headings........................................................ 75
Appendix A - Provisions Relating to the Notes
Appendix B - Form of Notes
Appendix C - Form of Security Agreement
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INDENTURE dated as of [ ], 2005, by and among Loral Skynet
Corporation (formerly known as Loral Orion, Inc.), a Delaware corporation (the
"COMPANY"), the Guarantors from time to time parties hereto, and [ ], as trustee
and as collateral agent.
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Certain Definitions.
"ADDITIONAL ASSETS" means:
(1) any property, plant or equipment used in a Related Business;
(2) the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the
Company or a Restricted Subsidiary; or
(3) Capital Stock constituting a minority interest in any Person
that at such time is a Restricted Subsidiary;
provided, however, that any such Restricted Subsidiary described in clause (2)
or (3) above is primarily engaged in a Related Business.
"ADDITIONAL NOTES" means Notes issued from time to time after the
Issue Date pursuant to Section 4.01(b) of this Indenture.
"AFFILIATE" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the foregoing.
"ASSET DISPOSITION" means any sale, lease, issuance, transfer or
other disposition (or series of related sales, leases, issuances, transfers or
dispositions) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "DISPOSITION"), of, and any
Event of Loss with respect to:
(1) any shares of Capital Stock of a Restricted Subsidiary;
(2) all or substantially all the assets of any division or line of
business of the Company or any Restricted Subsidiary; or
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(3) any other assets of the Company or any Restricted Subsidiary
outside the ordinary course of business of the Company or such Restricted
Subsidiary.
Notwithstanding the foregoing, the following shall be deemed not to
be Asset Dispositions:
(A) a disposition to the Company or a Subsidiary Guarantor;
(B) for purposes of Section 4.10 only, (i) a disposition that
constitutes a Restricted Payment permitted by Section 4.05 or
a Permitted Investment and (ii) a transaction governed by, and
consummated in compliance with, Section 5.01;
(C) the granting of a Permitted Lien;
(D) dispositions of obsolete, damaged or worn out equipment no
longer used or useful to the business of the Company and its
Restricted Subsidiaries; and
(E) a disposition of assets with a fair market value of less than
[$1.0 million].
"ATTRIBUTABLE DEBT" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Notes, compounded semi-annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended); provided, however, that if such
Sale/Leaseback Transaction results in a Capital Lease Obligation, the amount of
Indebtedness represented thereby will be determined in accordance with the
definition of "Capital Lease Obligation."
"AVERAGE LIFE" means, as of the date of determination, with respect
to any Indebtedness, the quotient obtained by dividing:
(1) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment
of or redemption or similar payment with respect to such Indebtedness
multiplied by the amount of such payment, by
(2) the sum of all such payments.
"BANKRUPTCY INTEREST" means, with respect to any Indebtedness, all
interest accruing thereon after the filing of a petition by or against the
Company or any of its Subsidiaries under any Bankruptcy Law, in accordance with
and at the rate (including any rate applicable upon any default or event of
default, to the extent lawful) specified in the documents evidencing or
governing such Indebtedness, whether or not the claim for such interest is
allowed as a claim after such filing in any proceeding under such Bankruptcy
Law.
"BOARD OF DIRECTORS" with respect to a Person means the board of
directors of such Person or any committee thereof duly authorized to act on
behalf of such board, and unless
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specified to the contrary or inappropriate in the context, refers to the Board
of Directors of the Company.
"BUSINESS DAY" means each day which is not a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means an obligation that is required to
be classified and accounted for as a capital lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"CAPITAL STOCK" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, partnership interests and limited liability company interests but
excluding any debt securities convertible into such equity.
"CHANGE OF CONTROL" means the occurrence of any of the following
events:
(1) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than one or more Permitted Holders, is or
becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that for purposes of this clause (1) such person
(the "SPECIFIED PERSON") shall be deemed to have "beneficial ownership" of
all shares that such specified person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than [50%] of the total voting power of
the Voting Stock of the Company (for the purposes of this clause (1), such
specified person shall be deemed to beneficially own any Voting Stock of
the Company or any other Person held by any entity (a "PARENT ENTITY") if
such specified person is the beneficial owner (as defined in this clause
(1)), directly or indirectly, of more than [50%] of the voting power of
the Voting Stock of such parent entity;
(2) individuals who on the Issue Date constituted the Parent Board
or the Company Board (together with any new directors whose election by
such Board of Directors or whose nomination for election by the
stockholders of the Parent or the Company, as the case may be, was
approved by (A) a vote of a majority of the directors of the Parent or the
Company, as the case may be, then still in office who were either
directors on the Issue Date or whose election or nomination for election
was previously so approved or (B) the Permitted Holders) cease for any
reason to constitute a majority of such Board of Directors then in office;
(3) the adoption of a plan under Bankruptcy Law relating to the
liquidation or dissolution of the Company; or
(4) the merger or consolidation of the Parent, the Company or any
Person through which the Parent, directly or indirectly, holds the Capital
Stock of the Company (an "INTERMEDIATE HOLDING COMPANY"), with or into
another Person or the merger of another Person with or into the Parent, an
Intermediate Holding Company or the
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Company, or the sale of all or substantially all the assets of the Parent,
an Intermediate Holding Company or the Company (determined on a
consolidated basis) to another Person other than (A) a transaction in
which the survivor or transferee is a Person that is controlled by the
Permitted Holders or (B) a transaction following which (i) in the case of
a merger or consolidation transaction, holders of securities that
represented 100% of the Voting Stock of the Parent or the Company
immediately prior to such transaction (or other securities into which such
securities are converted as part of such merger or consolidation
transaction) own directly or indirectly at least [a majority] of the
voting power of the Voting Stock of the surviving Person in such merger or
consolidation transaction immediately after such transaction and in
substantially the same proportion as before the transaction and [(ii) in
the case of a sale of assets transaction, each transferee Person becomes
an obligor in respect of the Notes and a Subsidiary of the transferor of
such assets.]
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" means any assets of the Company or any Guarantor
defined as "Collateral" in any Collateral Document or otherwise subject to a
security interest or lien in favor of the Collateral Agent to secure the payment
of obligations under this Indenture or the Notes.
"COLLATERAL AGENT" means [ ] in its capacity as collateral agent
under any Collateral Document until a successor replaces it, and thereafter
means the successor.
"COLLATERAL DOCUMENTS" means, collectively, the Security Agreement
and all other security agreements, pledge agreements, mortgages, deeds of trust,
collateral agreements, control agreements, assignments, instruments, financing
statements, filings and other documents that grant, evidence, set forth, provide
notice of, govern or limit any security interest or lien in favor of the
Collateral Agent in the Collateral, and all amendments thereto from time to
time.
"COMPANY" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"COMPANY BOARD" means the Board of Directors of the Company.
"CONSOLIDATED COVERAGE RATIO" as of any date of determination means
the ratio of (x) the aggregate amount of EBITDA of the Company for the period of
the most recent four consecutive fiscal quarters ending at least [45] days prior
to the date of such determination to (y) Consolidated Interest Expense of the
Company for such four fiscal quarters; provided, however, that:
(1) if the Company or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of such period that remains outstanding
or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both,
then EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such
4
Indebtedness and the use of proceeds thereof as if such Indebtedness had
been Incurred on the first day of such period and such proceeds had been
applied as of such date;
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since the
beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on the
date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, then EBITDA and Consolidated Interest Expense
for such period shall be calculated on a pro forma basis as if such
discharge had occurred on the first day of such period and as if the
Company or such Restricted Subsidiary had not earned the interest income
actually earned, if any, during such period in respect of cash or
Temporary Cash Investments used to repay, repurchase, defease or otherwise
discharge such Indebtedness;
(3) if, since the beginning of such period, the Company or any
Restricted Subsidiary shall have made any Asset Disposition, then EBITDA
for such period shall be reduced by an amount equal to EBITDA (if
positive) directly attributable to the assets which were the subject of
such Asset Disposition for such period, or increased by an amount equal to
EBITDA (if negative) directly attributable thereto for such period, and
Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable to
any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the Company
and its continuing Restricted Subsidiaries in connection with such Asset
Disposition for such period (or, if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest Expense for such period
directly attributable to the Indebtedness of such Restricted Subsidiary to
the extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale);
(4) if, since the beginning of such period, the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person which becomes a
Restricted Subsidiary) or an acquisition of assets having a fair market
value and a purchase price in excess of $_________, then EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any
Indebtedness) as if such Investment or acquisition had occurred on the
first day of such period; and
(5) if, since the beginning of such period, any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period)
shall have made any Asset Disposition, any Investment or acquisition of
assets that would have required an adjustment pursuant to clause (3) or
(4) above if made by the Company or a Restricted Subsidiary during such
period, then EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition had occurred on the first day of
such period.
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For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
Incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible financial or accounting Officer of the Company.
If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated as
if the rate in effect on the date of determination had been the applicable rate
for the entire period (taking into account any Interest Rate Agreement
applicable to such Indebtedness, but if the remaining term of such Interest Rate
Agreement is less than twelve months, then such Interest Rate Agreement shall
only be taken into account for that portion of the period equal to the remaining
term thereof).
The Consolidated Interest Expense attributable to interest on any
Indebtedness under a revolving credit facility the outstanding principal balance
of which is required to be computed on a pro forma basis in accordance with the
foregoing shall be computed based on the average daily balance of such
Indebtedness during the applicable period, provided, that such average daily
balance shall take into account the amount of any repayment of Indebtedness
under such revolving credit facility during the applicable period, to the extent
such repayment permanently reduced the commitments or amounts available to be
borrowed under such facility.
If the calculation of the Consolidated Coverage Ratio as of any date
of determination would include any period prior to the Issue Date, Consolidated
Interest Expense for such four fiscal quarter period shall be determined (i) by
annualizing the Consolidated Interest Expense for all completed fiscal quarters
starting after the Issue Date and ending prior to such date of determination for
which financial statements are available or (ii) if no fiscal quarters have
started after the Issue Date and ended prior to such date of determination for
which financial statements are available, by using the Indebtedness and Capital
Lease Obligations balances and expense amounts as of such date of determination
and for the period from the Issue Date to such date of determination.
"CONSOLIDATED INTEREST EXPENSE" of the Company means, for any
period, the total interest expense of the Company and its consolidated
Restricted Subsidiaries, plus, to the extent not included in such total interest
expense, and to the extent incurred by the Company or its Restricted
Subsidiaries, without duplication:
(1) interest expense attributable to Capital Lease Obligations and
the interest expense attributable to leases constituting part of a
Sale/Leaseback Transaction;
(2) amortization of debt discount and debt issuance cost;
(3) capitalized interest;
(4) non-cash interest expense;
(5) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing;
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(6) net payments pursuant to Interest Rate Agreements;
(7) dividends in respect of all Preferred Stock held by Persons
other than the Company or a Wholly Owned Subsidiary (other than dividends
payable solely in Capital Stock (other than Disqualified Stock) of the
Company); provided, however, that such dividends will be multiplied by a
fraction the numerator of which is one and the denominator of which is one
minus the effective combined tax rate of the issuer of such Preferred
Stock (expressed as a decimal) for such period (as estimated by the chief
financial officer of the Company in good faith);
(8) interest incurred in connection with Investments in discontinued
operations;
(9) interest accruing on any Indebtedness of any other Person to the
extent such Indebtedness is Guaranteed by (or secured by the assets of)
the Company or any Restricted Subsidiary; and
(10) the cash contributions to any employee stock ownership plan or
similar trust to the extent such contributions are used by such plan or
trust to pay interest or fees to any Person (other than the Company) in
connection with Indebtedness Incurred by such plan or trust.
"CONSOLIDATED NET INCOME" of the Company means, for any period, the
net income of the Company and its consolidated Subsidiaries; provided, however,
that there shall not be included in such Consolidated Net Income:
(1) any net income of any Person (other than the Company) if such
Person is not a Restricted Subsidiary, except that:
(A) subject to the exclusion contained in clause (3) below, the
Company's equity in the net income of any such Person for such
period shall be included in such Consolidated Net Income in an
amount equal to the aggregate amount of cash actually
distributed by such Person during such period to the Company
or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid
to a Restricted Subsidiary, to the limitations contained in
clause (2) below); and
(B) the Company's equity in a net loss of any such Person for such
period shall be included in determining such Consolidated Net
Income;
(2) any net income of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that:
(A) subject to the exclusion contained in clause (3) below, the
net income of any such Restricted Subsidiary for such period
shall be included in such
7
Consolidated Net Income in an amount equal to the aggregate
amount of cash actually distributed by such Restricted
Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid
to another Restricted Subsidiary, to the limitation contained
in this clause (2));
(B) the net loss of any such Restricted Subsidiary for such period
shall be included in determining such Consolidated Net Income;
and
(C) the net income of any such Restricted Subsidiary for such
period shall not be excluded solely as a result of the
restrictions on the payment of dividends and the making of
distributions set forth in any Credit Facility Incurred
pursuant to Section 4.06(b)(1), or any Credit Linked Hedge
related to any such Credit Facility;
(3) any gain or loss (other than any cash loss) realized upon the
sale or other disposition of any assets of the Company, its consolidated
Subsidiaries or any other Person (including pursuant to any
sale-and-leaseback arrangement) which is not sold or otherwise disposed of
in the ordinary course of business and any gain (but not loss) realized
upon the sale or other disposition of any Capital Stock of any Person;
(4) extraordinary gains or losses;
(5) the cumulative effect of a change in accounting principles; and
(6) any non-recurring fees, charges or other expenses directly
related to the Transactions.
Notwithstanding the foregoing, for the purposes of Section 4.05
only, there shall be excluded from Consolidated Net Income any repurchases,
repayments or redemptions of Investments, proceeds realized on the sale of
Investments or return of capital to the Company or a Restricted Subsidiary to
the extent such repurchases, repayments, redemptions, proceeds or returns
increase the amount of Restricted Payments permitted under Section
4.05(a)(3)(D).
"CREDIT FACILITIES" means one or more debt facilities or commercial
paper facilities with banks or other institutional lenders providing revolving
credit loans, term loans, receivables financing (including through the sale of
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.
"CREDIT LINKED HEDGE" means, with respect to a Credit Facility, all
Hedging Obligations that (1) constitute or are directly related to Indebtedness
Incurred under such Credit Facility or are entered into with counterparties who
are lenders or Affiliates of lenders under such Credit Facility, (2) are secured
by all collateral securing such Credit Facility on an equal and ratable basis
and guaranteed by all guarantors of such Credit Facility on a pari passu basis,
in each case pursuant to common documentation, (3) contains covenants not less
favorable to the
8
Noteholders than those set forth in such Credit Facility, and (4) are permitted
under this Indenture.
"CURRENCY AGREEMENT" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement designed
to protect such Person against fluctuations in currency values.
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DISQUALIFIED STOCK" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder) or upon
the happening of any event:
(1) matures or is mandatorily redeemable (other than redeemable only
for Capital Stock of such Person which is not itself Disqualified Stock)
pursuant to a sinking fund obligation or otherwise;
(2) is convertible or exchangeable at the option of the holder for
Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the
occurrence of certain events or otherwise, in whole or in part;
in each case on or prior to the date that is 367 days after the Stated Maturity
of the Notes; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to purchase or redeem such Capital Stock upon
the occurrence of an "asset sale" or "change of control" occurring prior to the
first anniversary of the Stated Maturity of the Notes shall not constitute
Disqualified Stock if:
(A) the "asset sale" or "change of control" provisions applicable
to such Capital Stock are not more favorable to the holders of
such Capital Stock than the terms applicable to the Notes and
described in Sections 4.04 and 4.10; and
(B) any such requirement only becomes operative after compliance
with such terms applicable to the Notes, including the
purchase of any Notes tendered pursuant thereto.
The amount of any Disqualified Stock that does not have a fixed
redemption, repayment or repurchase price will be calculated in accordance with
the terms of such Disqualified Stock as if such Disqualified Stock were
redeemed, repaid or repurchased on any date on which the amount of such
Disqualified Stock is to be determined pursuant to this Indenture; provided,
however, that if such Disqualified Stock could not be required to be redeemed,
repaid or repurchased at the time of such determination, the redemption,
repayment or repurchase price will be the book value of such Disqualified Stock
as reflected in the most recent financial statements of such Person.
9
"DOMESTIC SUBSIDIARY" means any Restricted Subsidiary that is not a
Foreign Subsidiary.
"EBITDA" of the Company for any period means the sum of Consolidated
Net Income of the Company, plus the following to the extent deducted in
calculating such Consolidated Net Income:
(1) all income tax expense of the Company and its consolidated
Restricted Subsidiaries;
(2) Consolidated Interest Expense;
(3) depreciation and amortization expense of the Company and its
consolidated Restricted Subsidiaries (excluding amortization expense
attributable to a prepaid operating activity item that was paid in cash in
a prior period); and
(4) all other non-cash charges of the Company and its consolidated
Restricted Subsidiaries (excluding any such non-cash charge to the extent
that it represents an accrual of or reserve for cash expenditures in any
future period);
in each case for such period.
Notwithstanding the foregoing, the provision for taxes based on the
income or profits of, and the depreciation and amortization and non-cash charges
of, a Restricted Subsidiary shall be added to Consolidated Net Income to compute
EBITDA only to the extent (and in the same proportion, including by reason of
minority interests) that the net income of such Restricted Subsidiary was
included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Company by such Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its stockholders.
"ESOP" means any employee stock ownership plan or a trust
established by the Company or any of its Subsidiaries for the benefit of their
employees.
"EVENT OF LOSS" means, with respect to any property or asset
(tangible or intangible, real or personal), any loss, destruction or damage of
the property or asset or any actual condemnation, seizure or taking by the power
of eminent domain or otherwise of the property or asset, or confiscation of the
property or asset or the requisition of the use of the property or asset.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"FOREIGN SUBSIDIARY" means any Restricted Subsidiary that (1) is not
organized under the laws of the United States, any state thereof or the District
of Columbia and (2) conducts substantially all of its business operations
outside of the United States.
10
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date, including those set forth
in:
(1) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants;
(2) statements and pronouncements of the Financial Accounting
Standards Board;
(3) such other statements by such other entity as approved by a
significant segment of the accounting profession; and
(4) the rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the
Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
SEC.
All ratios and computations based on GAAP in this Indenture will be computed in
conformity with GAAP.
"GUARANTEE" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness of such Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase
assets, goods, securities or services, to take-or-pay or to maintain
financial statement conditions or otherwise); or
(2) entered into for the purpose of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"GUARANTOR" means any Person that Guarantees any of the Notes
pursuant to the terms of this Indenture, in each case unless and until such
Person is released from its obligations under its Guaranty pursuant to the terms
of this Indenture.
"GUARANTY" means a Guarantee by a Guarantor of the Company's
Obligations with respect to the Notes.
"HEDGING OBLIGATIONS" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
11
"HOLDER" or "NOTEHOLDER" means the Person in whose name a Note is
registered on the Registrar's books.
"INCUR" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Restricted Subsidiary. The term
"INCURRENCE" when used as a noun shall have a correlative meaning. Solely for
purposes of determining compliance with Section 4.06, (1) amortization of debt
discount or the accretion of principal with respect to a non-interest bearing or
other discount security, (2) the payment of regularly scheduled interest in the
form of additional Indebtedness of the same instrument or the payment of
regularly scheduled dividends on Capital Stock in the form of additional Capital
Stock of the same class and with the same terms, and (3) unrealized losses or
charges in respect of Hedging Obligations (including those resulting from the
application of FAS 133), in each case will be deemed not to be Incurrences of
Indebtedness.
"INDEBTEDNESS" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal in respect of (A) indebtedness of such Person for
money borrowed and (B) indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such Person is
responsible or liable, including, in each case, any premium on such
indebtedness to the extent such premium has become due and payable;
(2) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered into
by such Person;
(3) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such
Person and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable arising in the ordinary
course of business);
(4) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations (other than obligations described in clauses (1)
through (3) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if and
to the extent drawn upon, such drawing is reimbursed no later than the
tenth Business Day following payment on the letter of credit);
(5) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock of
such Person or, with respect to any Preferred Stock of any Subsidiary of
such Person, the principal amount of such Preferred Stock to be determined
in accordance with this Indenture;
(6) all obligations of the types referred to in clauses (1) through
(5) of other Persons and all dividends of other Persons for the payment of
which, in either case, such
12
Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee;
(7) all obligations of the types referred to in clauses (1) through
(6) of other Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the fair market
value of such property or assets at such date of determination and the
amount of the obligation so secured; and
(8) to the extent not otherwise included in this definition, Hedging
Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date; provided,
however, that in the case of Indebtedness sold at a discount, the amount of such
Indebtedness at any time will be the accreted value thereof at such time.
"INDENTURE" means this Indenture as amended or supplemented from
time to time.
"INDEPENDENT QUALIFIED PARTY" means an investment banking firm,
accounting firm or appraisal firm of national standing; provided, however, that
such firm is not an Affiliate of the Company.
"INTEREST PAYMENT DATE" means each interest payment date as
specified in the form of Note attached hereto as Appendix B.
"INTEREST RATE AGREEMENT" means, in respect of a Person, any
interest rate swap agreement, interest rate cap agreement or other financial
agreement or arrangement designed to reduce such Person's interest expense or
protect such Person against fluctuations in interest rates.
"INVESTMENT" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts receivable on the balance sheet of the lender) or other
extensions of credit (including by way of Guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person. Except as otherwise provided for
herein, the amount of an Investment shall be its fair value at the time the
Investment is made and without giving effect to subsequent changes in value.
For purposes of the definition of "Unrestricted Subsidiary," the definition of
"Restricted Payment" and Section 4.05:
(1) "Investment" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of
the net assets of any
13
Subsidiary of the Company at the time that such Subsidiary is designated an
Unrestricted Subsidiary; and
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its fair market value at the time of such transfer, in
each case as determined in good faith by the Board of Directors.
"ISSUE DATE" means [ ], 2005.
"LAPS(HK)" means Loral Asia Pacific Satellite (HK) Limited, a
corporation with limited liability organized under the laws of Hong Kong, and
its successors.
"LIEN" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"MHR" means MHR Fund Management LLC.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"NET AVAILABLE CASH" from an Asset Disposition means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to such properties or assets or
received in any other non-cash form), in each case net of:
(1) all legal, accounting, investment banking, title and recording
tax expenses, commissions and other fees and expenses incurred, and all
Federal, state, provincial, foreign and local taxes required to be accrued
as a liability under GAAP, as a consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by any
assets subject to such Asset Disposition, in accordance with the terms of
any Lien upon or other security agreement of any kind with respect to such
assets, or which must by its terms, or in order to obtain a necessary
consent to such Asset Disposition, or by applicable law, be repaid out of
the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made to
minority interest holders in Restricted Subsidiaries as a result of such
Asset Disposition; and
(4) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with
the property or other assets disposed in such Asset Disposition and
retained by the Company or any Restricted Subsidiary after such Asset
Disposition.
14
"NET CASH PROCEEDS" means, with respect to any issuance or sale of
Capital Stock, the cash proceeds of such issuance or sale net of attorneys'
fees, accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"NOTES" means the notes issued under this Indenture.
"OBLIGATIONS" means all obligations for principal, premium, interest
penalties, fees, indemnifications, reimbursements and other amounts payable.
"OFFICER" means the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer or the Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers.
"OPINION OF COUNSEL" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"PARENT" means [New Loral], a [Delaware] corporation, and its
successors.
"PARENT BOARD" means the Board of Directors of the Parent.
"PAYMENT DEFAULT" means a Default arising pursuant to Section
6.01(1) or 6.01(2).
"PERMITTED HOLDERS" means MHR and any Related Party of MHR.
"PERMITTED INVESTMENT" means an Investment by the Company or any
Restricted Subsidiary in:
(1) the Company, a Subsidiary Guarantor or a Person that will, upon
the making of such Investment, become a Subsidiary Guarantor; provided,
however, that the primary business of such Subsidiary Guarantor is a
Related Business;
(2) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, the Company or a Subsidiary Guarantor;
provided, however, that such Person's primary business is a Related
Business;
(3) cash and Temporary Cash Investments;
(4) receivables owing to the Company or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however,
that such trade terms may include such
15
concessionary trade terms as the Company or any such Restricted Subsidiary
reasonably deems necessary under the circumstances;
(5) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of
business;
(6) loans or advances to employees made in the ordinary course of
business of the Company or such Restricted Subsidiary not exceeding in the
aggregate at any time [$1.0 million];
(7) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of judgments;
(8) any Person to the extent such Investment represents the non-cash
portion of the consideration received for an Asset Disposition as
permitted pursuant to Section 4.10;
(9) any Person where such Investment was acquired by the Company or
any of its Restricted Subsidiaries (A) in exchange for any other
Investment or accounts receivable held by the Company or any such
Restricted Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (B) as a result of a foreclosure by
the Company or any of its Restricted Subsidiaries with respect to any
secured Investment or other transfer of title with respect to any secured
Investment in default;
(10) any Person to the extent such Investments consist of prepaid
expenses, negotiable instruments held for collection, and lease, workers'
compensation, performance and similar deposits made in the ordinary course
of business by the Company or any Restricted Subsidiary;
(11) any Person to the extent such Investments consist of Hedging
Obligations otherwise not prohibited under Section 4.06; and
(12) any Person, not otherwise permitted to be made pursuant to the
preceding clauses of this definition, in an aggregate amount which, when
taken together with all other Investments made pursuant to this clause
(12), does not exceed $[ ] million.
"PERMITTED LIENS" means (i) Liens for taxes, assessments,
governmental charges or claims with respect to amounts not yet delinquent or
amounts being contested in good faith by appropriate legal proceedings promptly
instituted and diligently conducted and for which a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made; (ii) contractual, statutory and common law Liens of landlords and
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other
similar Liens arising in the ordinary course of business and with respect to
amounts not yet delinquent or being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
16
GAAP shall have been made; (iii) Liens on cash or cash equivalents incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security; (iv)
Liens on cash or cash equivalents incurred or deposits made to secure the
performance of tenders, bids, leases, statutory or regulatory obligations,
bankers' acceptances, surety and appeal bonds, government contracts, performance
and return-of-money bonds and other obligations of a similar nature incurred in
the ordinary course of business (exclusive of obligations for the payment of
borrowed money); (v) easements, rights-of-way, municipal and zoning ordinances
and similar charges, encumbrances, title defects or other irregularities
affecting real property that do not, individually or in the aggregate,
materially interfere with the ordinary course of business of the Company or any
of its Restricted Subsidiaries; (vi) Liens (including extensions and renewals
thereof) upon real or personal property acquired after the Issue Date; provided
that (a) such Lien is created solely for the purpose of securing Indebtedness
Incurred, in accordance with Section 4.06 of this Indenture, to finance (or
refinance) the cost (including the cost of improvement, transportation,
development and design, installation, integration or construction) of the item
of property or assets subject thereto and such Lien is created prior to, at the
time of or within 6 months after the later of the acquisition, the completion of
construction or the commencement of full operation of such property, (b) the
principal amount of the Indebtedness secured by such Lien does not exceed 100%
of such cost (plus, in the case of any refinancing Indebtedness referred to
above, premiums, accrued interest, fees and expenses), and (c) any Lien
permitted by this clause shall not extend to or cover any property or assets
other than such item of property or assets, any improvements on such item, and
proceeds thereof; (vii) leases or subleases of real property granted to others
that do not materially interfere with the ordinary course of business of the
Company and its Restricted Subsidiaries; (viii) any interest or title of a
lessor in the property subject to any capitalized lease or operating lease; (ix)
Liens on property of, or on shares of Capital Stock or Indebtedness of, any
Person existing at the time such Person becomes, or such property becomes a part
of, any Restricted Subsidiary; provided that such Liens (a) do not extend to or
cover any property or assets of the Company or any Restricted Subsidiary other
than the property or assets so acquired and (b) were not incurred in
contemplation of the acquisition thereof; (x) Liens in favor of the Company or
any Restricted Subsidiary; (xi) Liens arising from the rendering of a final
judgment or order against the Company or any Restricted Subsidiary that does not
give rise to a Default or an Event of Default provided that any reserve or other
appropriate provision that shall be required in conformity with GAAP shall have
been made therefor; (xii) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of goods with respect to amounts not yet delinquent or
amounts being contested in good faith by appropriate legal proceedings promptly
instituted and diligently conducted and for which a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made; (xiii) Liens upon a satellite and components thereof during the period in
which such satellite is being constructed, provided that (a) such Liens (1) are
for the benefit of only the manufacturer of such satellite or components and (2)
secure only the obligation of the Company or any Restricted Subsidiary to pay
the purchase price for such satellite or components and (b) such Liens are
actually released upon, or prior to, the completion of construction of such
satellite and prior to the launch or commencement of full operations of such
satellite; (xiv) Liens securing the Notes; (xv) Liens arising under this
Indenture in favor of the Trustee for its own benefit and similar Liens in favor
of other trustees, agents and representatives arising under instruments
17
governing Indebtedness permitted to be incurred under this Indenture, provided,
that such Liens are solely for the benefit of the trustees, agents, or
representatives, in their capacities as such and not for the benefit of the
holders of such Indebtedness; (xvi) set-off, chargeback and other rights of
depositary and collection banks and other regulated financial institutions with
respect to money or instruments of the Company or its Restricted Subsidiaries on
deposit with or in the possession of such institutions; (xvii) Liens arising
from the deposit of funds or securities in trust for the purpose of decreasing
or defeasing Indebtedness so long as such deposit of funds or securities and
such decreasing or defeasing of Indebtedness are permitted under Section 4.05
hereof; and (xviii) Liens securing Indebtedness Incurred pursuant to and in
compliance with Section 4.06(b)(1) hereof.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PLAN" means the Debtors' Third Amended Joint Plan of Reorganization
under Chapter 11 of the Bankruptcy Code of Loral Space & Communications Ltd., et
al., as confirmed by the United States Bankruptcy Court, Southern District of
New York, including all exhibits and other attachments thereto.
"PREFERRED STOCK", as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"PRINCIPAL" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"RECORD DATE" means each record date as specified in the form of
Note attached hereto as Appendix B.
"REFINANCE" means, in respect of any Indebtedness, to refinance,
extend, renew or refund, or to issue other Indebtedness in exchange or
replacement for, such Indebtedness. "REFINANCED" and "REFINANCING" shall have
correlative meanings.
"REFINANCING INDEBTEDNESS" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on the Issue
Date or Incurred in compliance with this Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that:
(1) such Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced;
(2) such Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater than
the Average Life of the Indebtedness being Refinanced;
18
(3) such Refinancing Indebtedness has an aggregate principal amount
(or if Incurred with original issue discount, an aggregate issue price)
that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium
and defeasance costs) under the Indebtedness being Refinanced; and
(4) if at the time of Incurrence of such Refinancing Indebtedness
any or all of the interest on the Notes is payable in kind, the terms of
such Refinancing Indebtedness may not require or permit the payment of
cash interest thereon at any time when interest on the Indebtedness being
Refinanced would have been, or at the election of the Company could have
been, paid in kind or by accretion of principal with respect to
Indebtedness issued at a discount;
provided further, however, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Subsidiary that Refinances Indebtedness of the Company or (B)
Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"RELATED BUSINESS" means any business in which the Company and its
Restricted Subsidiaries were engaged on the Issue Date and any business related,
ancillary or complementary to any business in which the Company and its
Restricted Subsidiaries were engaged on the Issue Date, after giving effect to
the Restructuring Transactions (as defined in the Plan).
"RELATED PARTY" means (1) any controlling stockholder, controlling
member, general partner, majority owned Subsidiary, or spouse or immediate
family member (in the case of an individual) of any Permitted Holder, (2) any
estate, trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons holding a controlling interest of
which consist solely of one or more Permitted Holders and/or such other Persons
referred to in the immediately preceding clause (1), (3) any executor,
administrator, trustee, manager, director or other similar fiduciary of any
Person referred to in the immediately preceding clause (2) acting solely in such
capacity, (4) any investment fund or other entity controlled by, or under common
control with, MHR or the principals that control MHR, or (5) upon the
liquidation of any entity of the type described in the immediately preceding
clause (4), the former partners or beneficial owners thereof to the extent of
the Voting Stock formerly held by such entity.
"RESTRICTED PAYMENT" with respect to any Person means:
(1) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving such
Person) or similar payment to the direct or indirect holders of its
Capital Stock (other than (A) dividends or distributions payable solely in
its Capital Stock (other than Disqualified Stock), (B) dividends or
distributions payable solely to the Company or a Restricted Subsidiary,
and (C) dividends or other distributions made by a Subsidiary that is not
a Wholly Owned Subsidiary to the holders of any class of its Capital Stock
on a pro rata basis);
19
(2) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Company or the Parent held by any Person
(other than the Company or a Restricted Subsidiary) or of any Capital
Stock of a Restricted Subsidiary held by any Affiliate of the Company
(other than a Restricted Subsidiary), including the exercise of any option
to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock);
(3) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment of any Subordinated
Obligations of such Person (other than (A) payments made solely to the
Company or a Subsidiary Guarantor and (B) the refinancing of Subordinated
Obligations through the Incurrence of Refinancing Indebtedness in
anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the
date of such Incurrence); or
(4) the making of any Investment (other than a Permitted Investment)
in any Person.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company that is
not an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Group.
"SALE/LEASEBACK TRANSACTION" means an arrangement relating to
property owned by the Company or a Restricted Subsidiary on the Issue Date or
thereafter acquired by the Company or a Restricted Subsidiary whereby the
Company or a Restricted Subsidiary transfers such property to a Person and the
Company or a Restricted Subsidiary leases it from such Person.
"SEC" means the U.S. Securities and Exchange Commission.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SECURITY AGREEMENT" means the Security Agreement made by the
Company and the Subsidiary Guarantors in favor of the Collateral Agent,
substantially in the form of Appendix C attached hereto, as such may be amended,
supplemented or otherwise modified from time to time.
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary that would
be a "Significant Subsidiary" of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
"STATED MATURITY" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
20
"SUBORDINATED OBLIGATION" means, with respect to a Person, any
Indebtedness of such Person (whether outstanding on the Issue Date or thereafter
Incurred) which is subordinated in right of payment to the Notes or a Guaranty
of such Person, as the case may be, pursuant to a written agreement to that
effect.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Voting Stock is at the time owned or controlled,
directly or indirectly, by:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
Unless otherwise specified or inappropriate in the context, "Subsidiary" means a
Subsidiary of the Company.
"SUBSIDIARY GUARANTOR" means any Guarantor that is a Subsidiary of
the Company.
"SUCCESSFUL LAUNCH" means, with respect to any satellite, the
placing into orbit of such satellite in its assigned orbital position with at
least 40% of the transponder capacity fully operational.
"SUPPLEMENTAL GUARANTY AGREEMENT" means a supplemental indenture, in
a form satisfactory to the Trustee, pursuant to which a Guarantor guarantees the
Company's obligations with respect to the Notes on the terms provided for in
this Indenture.
"T18 OWNER" means [ ], a [ ] corporation, and its successors.
"TEMPORARY CASH INVESTMENTS" means any of the following:
(1) any investment in direct obligations of the United States of
America or any agency thereof or obligations guaranteed by the United
States of America or any agency thereof having maturities of not more than
[one year] from the date of acquisition;
(2) investments in demand accounts, time deposit accounts,
certificates of deposit and money market deposits maturing within [180]
days of the date of acquisition thereof issued by a bank or trust company
which is organized under the laws of the United States of America, any
State thereof or any foreign country recognized by the United States of
America, and which bank or trust company has capital, surplus and
undivided profits aggregating in excess of $500 million (or the foreign
currency equivalent thereof) and has outstanding debt which is rated "A"
(or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under
the Securities Act) or any money-market fund sponsored by a registered
broker dealer or mutual fund distributor;
21
(3) repurchase obligations with a term of not more than [30] days
for underlying securities of the types described in clause (1) above
entered into with a bank meeting the qualifications described in clause
(2) above;
(4) investments in commercial paper, maturing not more than [90]
days after the date of acquisition, issued by an entity (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United
States of America with a rating at the time as of which any investment
therein is made of "P-1" (or higher) according to Xxxxx'x or "A-1" (or
higher) according to S & P; and
(5) investments in securities with maturities of [six months] or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A"
by S&P or "A" by Xxxxx'x.
"TIA" or "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the Issue Date.
"TRANSACTIONS" means the issuance of the Notes on the Issue Date,
the Rights Offering (as defined in the Plan), and the other transactions
contemplated by the Plan.
"TRUST OFFICER" means the Chairman of the Board, the President or
any other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"TRUSTEE" means [ ] in its capacity as trustee until a successor
replaces it, and thereafter means the successor. Where appropriate in the
context, for purposes of Articles 6 and 7 of this Indenture, the term "Trustee"
shall include the Collateral Agent.
"UNIFORM COMMERCIAL CODE" means the New York Uniform Commercial Code
as in effect from time to time.
"UNRESTRICTED SUBSIDIARY" means:
(1) any Subsidiary of the Company that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors
in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary;
in each case unless and until such Subsidiary is designated a Restricted
Subsidiary for purposes of this Indenture.
The Board of Directors of the Company may designate any Subsidiary
of the Company (including any newly acquired or newly formed Subsidiary) to be
an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries
owns any Capital Stock or Indebtedness of, or holds any Lien on any property of,
the Company or any other Subsidiary of
22
the Company that is not a Subsidiary of the Subsidiary to be so designated;
provided, however, that either (A) the Subsidiary to be so designated has total
assets of $1,000 or less or (B) if such Subsidiary has assets greater than
$1,000, such designation would be permitted under Section 4.05(a) (the amount of
such Restricted Payment being calculated in the manner set forth in the
definition of the term "Investment").
The Board of Directors of the Company may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, however, that immediately
after giving effect to such designation (A) the Company could Incur $1.00 of
additional Indebtedness under Section 4.06(a) and (B) no Default or Event of
Default shall have occurred and be continuing. Any such designation by the Board
of Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"VOTING STOCK" of a Person means all classes of Capital Stock or
other interests of such Person then outstanding and normally entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof.
"WHOLLY OWNED SUBSIDIARY" means a Restricted Subsidiary all the
Capital Stock of which is owned by the Company or one or more Wholly Owned
Subsidiaries.
SECTION 1.02. Other Definitions.
Term
---- Defined in Section
"Affiliate Transaction"......................................................... 4.11(a)
"After-Acquired Property"....................................................... 11.01(b)
"Asset Disposition Offer"....................................................... 4.10(a)(3)
"Bankruptcy Law" ............................................................... 6.01
"Cash/PIK Interest"............................................................. 4.01(b)(iii)
"Change of Control Offer" ...................................................... 4.04(b)
"Consideration"................................................................. 11.05(b)(i)
"covenant defeasance option" ................................................... 8.01(b)
"Custodian" .................................................................... 6.01
"Default Rate".................................................................. 4.01(c)
"Determination Notice".......................................................... 4.01(b)(iii)
"Event of Default" ............................................................. 6.01
"Expiration Date" .............................................................. 4.01(b)(iv)
"Guaranteed Obligations" ....................................................... 10.01
23
Term
---- Defined in Section
"Interest Determination" ....................................................... 4.01(b)(iii)
"legal defeasance option" ...................................................... 8.01(b)
"Legal Holiday" ................................................................ 12.08
"Mandatory PIK Date" ........................................................... 4.01(b)(ii)
"Paying Agent" ................................................................. 2.03
"PIK Notes" .................................................................... 4.01(b)(ii)
"Redemption Date" .............................................................. 5 of the Notes
"Relevant Interest Payment Date" ............................................... 4.01(b)(iii)
"Registrar" .................................................................... 2.03
"Released Collateral"........................................................... 11.05(b)
"Requisite Objection Notice" ................................................... 4.01(b)(iv)
"Successor Company" ............................................................ 5.01(a)
"Valuation Date"................................................................ 11.05(b)(i)
In addition, terms defined in Appendix A shall have the meanings set
forth therein.
Incorporation by Reference of Trust Indenture Act. This Indenture is subject to
the mandatory provisions of the TIA which are incorporated by reference in and
made a part of this Indenture. The following TIA terms have the following
meanings:
"Commission" means the SEC;
"indenture securities" means the Notes and the Guaranties;
"indenture security holder" means a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the indenture securities means the Company and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
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;
24
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate in
right of payment to secured Indebtedness merely by virtue of its nature as
unsecured Indebtedness;
(7) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared
in accordance with GAAP;
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation preference plus accrued and unpaid dividends of such
Preferred Stock or (ii) the maximum mandatory redemption or mandatory
repurchase price with respect to such Preferred Stock, whichever is
greater;
(9) all references to the date the Notes were originally issued
shall refer to the Issue Date; and
(10) in the event of a conflict between the definitions set forth in
Section 1.01 and the definitions set forth in the first paragraph of this
Indenture, the definitions set forth in Section 1.01 shall govern.
ARTICLE 2
The Notes
Form and Dating. Provisions relating to the Notes are set forth in Appendix A
and Appendix B attached hereto which are hereby incorporated in and expressly
made part of this Indenture. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Appendix B. The Notes may
have notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject, if any (provided, that any such
notation, legend or endorsement is in a form reasonably acceptable to the
Company and the Trustee). Each Note shall be dated the date of its
authentication. The terms of the Notes set forth in Appendix B are part of the
terms of this Indenture.
Execution and Authentication. Two Officers shall sign the Notes for the Company
by manual or facsimile signature. The Company's seal, if any, may be impressed,
affixed, imprinted or reproduced on the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
25
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture. The Trustee shall authenticate Notes in the amounts and at
the times specified in Section 2.2 of Appendix A attached hereto.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Notes. Unless limited by the terms
of such appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
Registrar and Paying Agent. The Company shall maintain an office or agency where
Notes may be presented for registration of transfer or for exchange (the
"REGISTRAR") and an office or agency where Notes may be presented for payment
(the "PAYING AGENT"). The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company may have one or more co-registrars and
one or more additional paying agents. The term "REGISTRAR" includes any
appointed co-registrar and the term "PAYING AGENT" includes any additional
paying agent.
The Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any Wholly Owned Subsidiary incorporated or organized within The
United States of America may act as Paying Agent, Registrar, co-registrar or
transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Notes.
Paying Agent To Hold Money in Trust. Not less than one Business Day prior to
each due date of the principal, premium and interest on any Note, the Company
shall deposit with the Paying Agent a sum sufficient to pay such principal,
premium and interest when so becoming due. The Company shall require each Paying
Agent (other than the Trustee) to agree in writing that the Paying Agent shall
hold in trust for the benefit of Noteholders and the Trustee all money held by
the Paying Agent for the payment of principal of, premium or interest on the
Notes and shall promptly notify the Trustee of any default by the Company in
making any such payment. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed by the Paying
Agent. Upon payment in full to or a receipt by the Trustee of all the principal,
premium and interest due under this Indenture, the Paying Agent (if other than
the Company or a Subsidiary) shall have no further liability for the money
delivered to the Trustee. Upon any bankruptcy, reorganization or similar
proceeding with respect to the Company, the Trustee shall serve as Paying Agent
for the Notes.
26
Noteholder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Noteholders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee, in
writing, at least five Business Days before each payment date, including 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 Noteholders.
Transfer and Exchange. The Notes shall be issued in registered form and shall be
transferable only upon the surrender of a Note for registration of transfer, and
only to the extent permitted by, and consummated in compliance with, Section 2.3
of Appendix A. When a Note is presented to the Registrar or a co-registrar with
a request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of this Indenture and Section 8-401(a) of the
Uniform Commercial Code are met. When Notes are presented to the Registrar or a
co-registrar with a request to exchange them for an equal principal amount of
Notes of other denominations, the Registrar shall make the exchange as requested
if the same requirements are met. The Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection with the transfer or exchange of the Notes (other than any such
transfer taxes or other similar governmental charges payable upon exchange
pursuant to Section 2.07, 2.09, 3.06 or 9.05).
Replacement Notes. If a mutilated Note is surrendered to the Registrar or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue, and the Trustee shall authenticate, a
replacement Note if the requirements of Section 8-405 of the Uniform Commercial
Code are met and the Holder satisfies any other reasonable requirements of the
Trustee. If required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the reasonable judgment of the Company and the
Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and
any co-registrar from any loss which any of them may suffer if a Note is
replaced. The Company and the Trustee may charge the Holder for their expenses
in replacing a Note.
Every replacement Note shall be an additional Obligation of the
Company.
SECTION 2.01. Outstanding Notes.
(a) Notes outstanding at any time are all Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation
and those described in this Section 2.08 as not outstanding. Subject to Section
12.06, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
(b) If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a bona fide purchaser.
(c) If the Paying Agent (other than the Company or an Affiliate
thereof) segregates and holds in trust, in accordance with this Indenture, on a
redemption date or maturity date money sufficient to pay all principal and
interest payable on that date with respect to the
27
Notes (or portions thereof) to be redeemed or maturing, as the case may be, and
the Paying Agent is not prohibited from paying such money to the Noteholders on
that date pursuant to the terms of this Indenture or otherwise, then on and
after that date interest on such Notes (or portions thereof) ceases to accrue.
[Such Notes (or portions thereof) shall only cease to be outstanding upon actual
receipt by the Holders of the applicable principal and interest payable to such
Holders on such redemption date or maturity date.]
Temporary Notes. The Company may prepare, and the Trustee shall authenticate,
temporary Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Company reasonably considers
appropriate for temporary Notes. If the Company so reasonably elects, the
Company shall prepare and the Trustee shall authenticate permanent Definitive
Notes and deliver them in exchange for such temporary Notes.
Cancellation. The Company immediately upon the redemption of any Notes shall
deliver such Notes and at any other time may deliver Notes, to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel and destroy (subject to the record
retention requirements of the Exchange Act and the Trustee's policies) all Notes
surrendered for registration of transfer, exchange, payment or cancellation and
deliver a certificate of such destruction to the Company. The Company may not
issue new Notes to replace Notes it has redeemed, paid or delivered to the
Trustee for cancellation.
Defaulted Interest. If the Company defaults in a payment of interest on the
Notes, the Company shall pay defaulted interest (plus interest on such defaulted
interest to the extent lawful) in cash in any lawful manner. The Company may pay
the defaulted interest to the Persons who are Noteholders on a subsequent
special record date. The Company shall fix or cause to be fixed any such special
record date and payment date to the reasonable satisfaction of the Trustee and
shall promptly mail to each Noteholder a notice that states the special record
date, the payment date and the amount of defaulted interest to be paid.
CUSIP Numbers. The Company in issuing the Notes may use "CUSIP" numbers and
corresponding "ISINs" (if then generally in use) and, if so, the Trustee may use
"CUSIP" numbers and corresponding "ISINs" in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE 3
Redemption
Notices to Trustee. If the Company elects to redeem Notes pursuant to Section 5
of the Notes, it shall notify the Trustee in writing of the Redemption Date and
the principal amount of Notes to be redeemed.
28
The Company shall give each notice to the Trustee provided for in
this Section at least 60 days before the Redemption Date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
Selection of Notes To Be Redeemed. If fewer than all the Notes are to be
redeemed, the Trustee shall select the Notes to be redeemed pro rata. The
Trustee shall make the selection from outstanding Notes not previously called
for redemption. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. The Trustee
shall notify the Company promptly of the Notes or portions of Notes to be
redeemed.
Notice of Redemption. At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail a notice of redemption by first-class
mail to each Holder of Notes to be redeemed at such Holder's registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Notes are to be redeemed, the
identification and principal amounts of the particular Notes to be
redeemed;
(6) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, interest on the Notes (or portion
thereof) called for redemption shall cease to accrue on and after payment
in full of the redemption price;
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number or corresponding ISIN, if any, listed in such notice
or printed on the Notes; and
(8) if applicable, that the Holders have the right to object to and
prevent such redemption, and in such event, such redemption notice shall
further comply with the applicable requirements of Section 5 of the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section 3.03.
Effect of Notice of Redemption. Once notice of redemption is mailed, Notes
called for redemption shall become due and payable on the Redemption Date and at
the redemption price
29
stated in the notice. Upon surrender to the Paying Agent, such Notes shall be
paid at the redemption price stated in the notice, plus accrued interest to the
Redemption Date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on the related Interest Payment Date).
Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
Deposit of Redemption Price. One Business Day prior to the Redemption Date, the
Company shall deposit with the Paying Agent (other than the Company or an
Affiliate thereof) money sufficient to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date other than Notes or portions
of Notes called for redemption which have been delivered by the Company to the
Trustee for cancellation.
Notes Redeemed in Part. Upon surrender of a Note that is redeemed in part, the
Company shall execute and the Trustee shall authenticate for the Holder (at the
Company's expense) a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Notes.
(a) General. The Company shall promptly pay or cause to be paid
the principal of, premium, if any, and interest on the Notes on the dates and in
the manner provided in the Notes and in this Indenture. Subject to Section
2.08(c), principal, premium, if any, and interest shall be considered paid on
the date due if the Paying Agent, if other than the Company or an Affiliate
thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by
the Company in immediately available U.S. funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due. All
payments shall be made in New York, New York unless the Trustee otherwise
specifies.
(b) Payment of Interest.
(i) The Company shall pay interest on the Notes at the rate
of 14.0% per annum payable semi-annually in arrears in cash, subject only
to certain conditions specified below. In certain circumstances more
particularly described in this Section 4.01(b), a portion of the interest
from time to time due and payable on the Notes may be paid in-kind through
the issuance of Additional Notes in lieu of cash. All interest not
properly paid in-kind through the issuance of Additional Notes shall be
paid in cash.
(ii) Notwithstanding the provisions of Section 4.01(b)(i),
interest on the Notes shall not be payable in cash, but in-kind through
the issuance of Additional Notes in lieu of cash (the "PIK NOTES") if and
to the full extent that payment of such interest on any Interest Payment
Date (the "MANDATORY PIK DATE"), would exceed the amount that equals 50%
of the Company's 12-month EBITDA (as certified by the Company's Chief
Financial Officer) for the 12-month period ending as of the completed
fiscal quarter which ended at least 50 days prior to the date of Interest
Determination (as defined below) immediately preceding such Mandatory PIK
Date.
30
(iii) Notwithstanding the provisions of Section 4.01(b)(i), not
later than thirty (30) days prior to any Interest Payment Date, the Board of
Directors shall make the following determination: whether any portion or all of
the interest to be paid on such Interest Payment Date (the "RELEVANT INTEREST
PAYMENT DATE") if otherwise payable in cash in accordance with Section
4.01(b)(i) as modified by Section 4.01(b)(ii) (the entire amount of such
interest so payable in cash but for the provisions of this clause (iii), the
"CASH/PIK INTEREST") should be paid in cash or, instead, in PIK Notes (such
determination, the "INTEREST DETERMINATION"). If the Board of Directors makes
the Interest Determination that the entire amount of the Cash/PIK Interest be
paid in cash, then the Cash/PIK Interest shall be payable only in cash. If the
Board makes the Interest Determination that any portion or the entire amount of
the Cash/PIK Interest be paid in PIK Notes, a notice of such Interest
Determination (a "DETERMINATION NOTICE") shall be sent to the Holders not more
than thirty (30) nor fewer than fifteen (15) days prior to the Relevant Interest
Payment Date. The Determination Notice shall describe in reasonable detail,
among other things: (A) the Interest Determination, (B) the methods by which the
Holders may respond to such Determination Notice in accordance with Section
4.01(b)(iv) (including a contact at the Company and the address and facsimile
number of such contact), (C) the Interest Payment Date to which such
Determination Notice relates, and (D) the Expiration Date (as defined below).
(iv) If within ten (10) Business Days following the date that a
Determination Notice is sent to the Holders, written notice is received by the
Company from the Holders of at least two-thirds (2/3) in principal amount of the
then outstanding Notes directing that the Cash/PIK Interest being paid be paid
in cash and not in PIK Notes (such notices from the Holders of such two-thirds
or greater amount, collectively, the "REQUISITE OBJECTION NOTICE"), then the
entire amount of the Cash/PIK Interest shall be paid in cash. If the Requisite
Objection Notice is not received by the Company by the expiration of such ten
(10) Business Day-period (the "EXPIRATION DATE"), then the Cash/PIK Interest or
the relevant portion thereof shall be paid in PIK Notes to the extent set forth
in the Determination Notice.
(v) If the Company is permitted to pay interest in-kind through
the issuance of Additional Notes in lieu of cash pursuant to paragraph (iv)
above and elects to do so, then the Company shall promptly deliver to the
Trustee an Officers' Certificate notifying the Trustee of the aggregate amount
of such Additional Notes to be issued, and specifying the amount of Additional
Notes to be issued through the issuance of Additional Definitive Notes and the
amounts to be issued through increases in the Global Notes. On or after the date
of such Officers' Certificate but not less than 2 Business Days prior to the
Relevant Interest Payment Date, the Company shall deliver to the Trustee any
Additional Definitive Notes to be issued, which Additional Definitive Notes
shall have been duly executed by the Company in the manner provided in Section
2.02. On the Relevant Interest Payment Date the Trustee shall record increases
in the Global Notes and authenticate Additional Definitive Notes, as
appropriate, in the aggregate principal amounts required to pay such portion of
the interest.
(vi) Each Additional Note is an additional obligation of the
Company and the Guarantors and shall be governed by, and entitled to the
benefits of, this
31
Indenture and shall be subject to the terms of this Indenture (including
the Guaranty provisions), shall rank pari passu with and be subject to the
same terms (including the rate of interest from time to time payable
thereon) as all other Notes (except, as the case may be, with respect to
the issuance date and aggregate principal amount), and shall have the
benefit of all Liens securing Notes.
(c) Default Rate Interest. Notwithstanding any other provision of
this Indenture or the Notes, the Company shall pay interest (including
Bankruptcy Interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand in cash at a rate
that is 2.0% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful (the "DEFAULT RATE"). In addition, the Company shall
pay interest (including Bankruptcy Interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand in cash at the Default
Rate to the extent lawful.
Financial Reports.
(d) The Company shall provide to the Trustee and Noteholders (i)
within 50 days after the end of each of the first three fiscal quarters of each
fiscal year unaudited quarterly financial statements of the Company and its
consolidated Subsidiaries, (ii) within 90 days after the end of each fiscal year
audited annual financial statements of the Company and its consolidated
Subsidiaries, commencing with the financial statements for the first full fiscal
quarter after the Issue Date, (iii) all other reports that the Company would be
required to file with the SEC, including, without limitation, current reports on
Form 8-K, if the Company were subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, and (iv) in the context of the materials
furnished pursuant to clauses (i) and (ii), such financial information that
would be required to be contained in a filing with the SEC on Forms 10-Q and
10-K, as applicable, as if the Company were required to file such forms,
including, without limitation, a "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
(e) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph will include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, 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.
Compliance Certificate. The Company shall deliver to the Trustee within 90 days
after the end of each fiscal year of the Company an Officers' Certificate
stating that in the course of the performance by the signers of their duties as
Officers of the Company they would normally have knowledge of any Default and
whether or not the signers know of any Default that occurred during such period.
If they do, the certificate shall describe the Default, its status and what
action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with TIA Section 314(a)(4).
SECTION 4.02. Change of Control.
32
(a) Upon the occurrence of a Change of Control, each Holder shall
have the right to require that the Company repurchase such Holder's Notes at a
purchase price in accordance with the schedule set forth in Section 5 of the
Notes plus accrued and unpaid interest, if any, to the date of purchase (subject
to the right of holders of record on the relevant Record Date to receive
interest due on the relevant Interest Payment Date), in accordance with the
terms of Section 4.04(b). In the event that at the time of such Change of
Control, the terms of any Credit Facility prohibit the Company from making a
Change of Control Offer or from purchasing the Notes pursuant to this Section
4.04, the Company shall, prior to the mailing of the notice to Holders provided
for in Section 4.04(b) below but, in any event within 30 days following any
Change of Control: (1) repay in full all Indebtedness outstanding under the
relevant Credit Facility; or (2) obtain the requisite consent under the relevant
Credit Facility to permit the purchase of the Notes as provided for in Section
4.04(b).
(b) Within 30 days following any Change of Control, the Company
shall mail a notice to each Holder with a copy to the Trustee (the "CHANGE OF
CONTROL OFFER") stating:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder's Notes at a
purchase price in accordance with [the schedule set forth in Section 5 of
the Notes] plus accrued and unpaid interest, if any, to the date of
purchase (subject to the right of Holders of record on the relevant Record
Date to receive interest on the relevant Interest Payment Date);
(2) the circumstances and relevant facts regarding such Change of
Control (including information with respect to pro forma historical
income, cash flow and capitalization, in each case after giving effect to
such Change of Control);
(3) the purchase date (which shall not be earlier than 30 days nor
later than 60 days from the date such notice is mailed);
(4) the instructions, reasonably determined by the Company,
consistent with this Section 4.04, that a Holder must follow in order to
have its Notes purchased; and
(5) if applicable, that the Company has the option to redeem any
Notes not purchased in the Change of Control Offer, and setting forth the
applicable redemption price or the formula used to determine the
applicable redemption price.
(c) Holders electing to have a Note purchased will be required to
surrender the Note, with an appropriate form duly completed, to the Company at
the address specified in the notice at least three Business Days prior to the
purchase date. Holders will be entitled to withdraw their election if the
Trustee or the Company receives not later than one Business Day prior to the
purchase date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note which was delivered for
purchase by the Holder and a statement that such Holder is withdrawing its
election to have such Note purchased.
(d) On the purchase date, all Notes purchased by the Company under
this Section 4.04 shall be delivered by the Company to the Trustee for
cancellation, and the Company shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
33
(e) Notwithstanding the foregoing provisions of this Section 4.04,
the Company shall not be required to make a Change of Control Offer following a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Indenture applicable to a Change of Control Offer made by the Company
and purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
(f) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.04. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.04, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.04 by virtue of its
compliance with such securities laws or regulations.
(g) If, as of the date of any relevant supplemental indenture, no
Change of Control has occurred and the Company is not aware of any pending,
proposed or threatened Change of Control, the provisions of this Indenture and
the Notes relative to the Company's obligation to make an offer to purchase the
Notes as a result of a Change of Control may be waived or modified with the
written consent of the holders of a majority in principal amount of the Notes.
SECTION 4.03. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, make a Restricted Payment if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default or Event of Default shall have occurred and be
continuing (or would result therefrom);
(2) the Company could not Incur an additional $1.00 of
Indebtedness under Section 4.06(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Issue Date made pursuant to this Section
4.05(a)(3) and all Restricted Payments since the Issue Date made pursuant
to Section 4.05 (b)(3) and (b)(4) would exceed the sum of (without
duplication):
(A) 50% of the Consolidated Net Income of the Company
accrued during the period (treated as one accounting period) from
the beginning of the fiscal quarter immediately following the fiscal
quarter during which the Issue Date occurs to the end of the most
recent fiscal quarter ended at least [45] days prior to the date of
such Restricted Payment (or, in case such Consolidated Net Income
shall be a deficit, minus 100% of such deficit); plus
(B) 100% of the aggregate Net Cash Proceeds received by the
Company from the issuance or sale of its Capital Stock (other than
Disqualified
34
Stock) subsequent to the Issue Date (other than an issuance or sale
to a Subsidiary of the Company or to an ESOP) and 100% of any cash
capital contribution received by the Company from its stockholders
subsequent to the Issue Date; plus
(C) the amount by which Indebtedness of the Company is
reduced on the Company's balance sheet upon the conversion or
exchange (other than by a Subsidiary of the Company) subsequent to
the Issue Date of any Indebtedness of the Company convertible or
exchangeable for Capital Stock (other than Disqualified Stock) of
the Company (less the amount of any cash, or the fair value of any
other property, distributed by the Company upon such conversion or
exchange); plus
(D) an amount equal to the sum of (x) the net reduction in
the Investments (other than Permitted Investments) made by the
Company or any Restricted Subsidiary in any Person resulting from
repurchases, repayments or redemptions of such Investments by such
Person, proceeds realized on the sale of such Investment and
proceeds representing the return of capital (excluding amounts that
contribute to Consolidated Net Income), in each case received by the
Company or any Guarantor and (y) the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market
value of the net assets of an Unrestricted Subsidiary at the time
such Unrestricted Subsidiary is designated a Restricted Subsidiary;
provided, however, that the foregoing sum shall not exceed, in the
case of any such Person or Unrestricted Subsidiary, the amount of
Investments (excluding Permitted Investments) previously made (and
treated as a Restricted Payment) by the Company or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary;
but in no event shall the sum under this subparagraph (a)(3) of Section 4.05
increase as the result of any action or occurrence under Section 4.05(b).
(b) The provisions of Section 4.05(a) shall not prohibit (but in
the case of subparagraphs (b)(3) and (b)(4) of this Section 4.05, only if no
Event of Default or Payment Default has occurred and is continuing or would
result therefrom):
(1) any Restricted Payment made out of the Net Cash Proceeds of
the substantially concurrent issuance or sale of, or made by conversion
into or exchange for, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary of the Company or an ESOP);
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the
Company or a Subsidiary Guarantor made by exchange for, or out of the
proceeds of the substantially concurrent Issuance or sale of, Indebtedness
which is permitted to be Incurred pursuant to Section 4.06;
(3) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend complied with this
Section 4.05; and
35
(4) Restricted Payments in an aggregate amount which, when taken
together with all other Restricted Payments made pursuant to this clause
(4), do not exceed $[ ] million.
(c) The amount of all Restricted Payments (other than cash) shall be
the fair market value on the date of the Restricted Payment of the assets
proposed to be transferred by the Company or such Restricted Subsidiary, as the
case may be, in accordance with the Restricted Payment. The fair market value of
any non-cash Restricted Payment shall be determined in good faith by an
executive officer of the Company (if such fair market value is less than $1.0
million), or by the Board of Directors (in all other cases), in each case
pursuant to an Officers' Certificate delivered to the Trustee.
SECTION 4.04. Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur, directly or indirectly, any Indebtedness; [provided,
however, that the Company and the Subsidiary Guarantors shall be entitled to
Incur Indebtedness if, on the date of such Incurrence and after giving effect
thereto on a pro forma basis, no Default has occurred and is continuing and the
Consolidated Coverage Ratio exceeds [ ] to 1].
(b) Notwithstanding the foregoing paragraph (a), the Company and its
Restricted Subsidiaries shall be entitled to Incur any or all of the following
Indebtedness:
(1) Indebtedness of the Company and the Subsidiary Guarantors
Incurred pursuant to Credit Facilities of the Company, the Subsidiary
Guarantors or the Parent; provided, however, that after giving effect to
any such Incurrence, the aggregate principal amount of all Indebtedness of
the Company and the Subsidiary Guarantors Incurred under this clause (1)
and then outstanding does not exceed $200.0 million; [minus the amount of
any repayment thereof and permanent reduction in the related loan
commitment (if any) pursuant to Section 4.10(a)(3)(A)];
(2) Indebtedness of the Company owing to and held by a Wholly Owned
Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by
the Company or a Wholly Owned Subsidiary; provided, however, that (A) any
subsequent issuance or transfer of any Capital Stock which results in any
such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or
any subsequent transfer of such Indebtedness (other than to the Company or
a Wholly Owned Subsidiary) shall be deemed, in each case, to constitute
the Incurrence of such Indebtedness by the obligor thereon and (B) if the
Company or a Subsidiary Guarantor is the obligor on such Indebtedness,
such Indebtedness is expressly subordinated to the prior payment in full
in cash of all obligations with respect to the Notes or such Subsidiary
Guarantor's Guaranty;
(3) the Notes (including Additional Notes issued pursuant to Section
4.01(b)) and any Guaranties;
(4) Indebtedness of a Restricted Subsidiary Incurred and outstanding
on or prior to the date on which such Subsidiary was acquired by the
Company (other than Indebtedness Incurred in anticipation of or in
connection with, or to provide all or any
36
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Subsidiary became a Subsidiary or was acquired by the Company); provided,
however, that on the date of such acquisition and after giving pro forma
effect thereto, the Company would have been able to Incur at least $1.00
of additional Indebtedness pursuant to Section 4.06(a);
(5) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to Section 4.06(a) or pursuant to clause (3) or (4) of this
Section 4.06(b) or this clause (5); provided, however, that to the extent
such Refinancing Indebtedness directly or indirectly Refinances
Indebtedness of a Subsidiary Incurred pursuant to clause (4), such
Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(6) Hedging Obligations consisting of (A) Interest Rate Agreements
directly related to Indebtedness of the Company and its Restricted
Subsidiaries, and (B) Currency Agreements directly related to the revenues
or expenses of the Company and its Restricted Subsidiaries;
(7) obligations in respect of performance, bid and surety bonds
and completion guarantees provided by the Company or any Restricted
Subsidiary in the ordinary course of business;
(8) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within two Business Days
of its Incurrence;
(9) Indebtedness consisting of any Guarantee by the Company or any
Subsidiary Guarantor of Indebtedness of the Company or any Subsidiary
Guarantor Incurred after the Issue Date to the extent such Indebtedness
was permitted by this Indenture to be Incurred at the time of its
Incurrence (other than Indebtedness Incurred pursuant to Section
4.06(b)(5) (to the extent of the limitation therein));
(10) Indebtedness consisting of indemnification, adjustment of
purchase price, earn-out or similar obligations (other than Guarantees of
Indebtedness), in each case incurred in connection with the acquisition or
disposition of assets otherwise permitted by this Indenture; and
(11) Indebtedness of the Company and the Subsidiary Guarantors
(other than Indebtedness described in clauses (1)-(10)) in an aggregate
principal amount which, when taken together with all other Indebtedness of
the Company and the Subsidiary Guarantors outstanding under this clause
(11) does not exceed $[ ] million.
(c) Notwithstanding the foregoing, the Company shall not, and
shall not permit any Subsidiary Guarantor to, Incur any Indebtedness pursuant to
Section 4.06(b) if the proceeds thereof are used, directly or indirectly, to
Refinance any Subordinated Obligations of the Company or any Subsidiary
Guarantor unless such new Indebtedness shall be subordinated to the Notes or the
applicable Guaranty to at least the same extent as such Subordinated
Obligations.
37
(d) For purposes of determining compliance with this Section 4.06,
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Indebtedness described in Section 4.06(a) or 4.06(b), (1) the
Company, in its sole discretion, is entitled to classify such item of
Indebtedness at the time of Incurrence, in any manner in compliance with this
Section 4.06, (2) the Company will only be required to include the amount and
type of such Indebtedness in one of the above categories and (3) the Company
will be entitled to divide and classify an item of Indebtedness in more than one
of the categories of Indebtedness described above. Notwithstanding the first
sentence of this paragraph (d), all Indebtedness Incurred on the Issue Date or
pursuant to commitments under agreements entered into on the Issue Date shall be
deemed to have been Incurred under clause (b)(1) above.
(e) Notwithstanding Section 4.06(a) or 4.06(b), the Company shall
not, and shall not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness, unless such Indebtedness is Incurred in compliance with the other
provisions of this Indenture, including Sections 4.07, 4.08 and 4.12.
Limitation on Liens. The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
or become effective any Lien on or with respect to any of its assets, whether
owned at the Issue Date or thereafter acquired, other than Permitted Liens.
Anti-Layering. The Company shall not, and shall not permit any Subsidiary
Guarantor to, Incur any Indebtedness if such Indebtedness being Incurred is
subordinate in right of payment or priority of Lien to any Indebtedness of the
Company or such Subsidiary Guarantor, unless such Indebtedness being incurred is
expressly subordinated in right of payment to the Notes and the Guaranties.
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The
Company shall not, and shall not permit any Restricted Subsidiary to, create or
otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to (a)
pay dividends or make any other distributions on its Capital Stock to the
Company or a Restricted Subsidiary or pay any Indebtedness owed to the Company
or a Restricted Subsidiary, (b) make any loans or advances to the Company or a
Restricted Subsidiary or (c) transfer any of its property or assets to the
Company or a Restricted Subsidiary, except:
(12) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction contained in the terms of any
Credit Facility entered into pursuant to Section 4.06(b)(1) if
(i) the Company determines at the time any such Indebtedness
is Incurred (or in the case of revolving Indebtedness, at the
time such commitment is established) and at the time of any
modification of the terms of any documentation governing such
Credit Facility that any such encumbrance or restriction will
not materially affect the Company's ability to make principal
and interest payments on the Notes and (ii) the encumbrance or
restriction is not materially more disadvantageous to the
Holders than is customary in
38
comparable Credit Facilities for companies similarly situated (as
determined by the Board of Directors in good faith);
(B) [any encumbrance or restriction contained in any indenture if such
indenture is substantially identical to this Indenture;]
(C) any encumbrance or restriction with respect to a Restricted Subsidiary
pursuant to an agreement relating to any Indebtedness Incurred by such
Restricted Subsidiary on or prior to the date on which such Restricted
Subsidiary was acquired by the Company (other than Indebtedness Incurred
in anticipation of or in connection with, or to provide all or any portion
of the funds or credit support utilized to consummate, the transaction or
series of related transactions pursuant to which such Restricted
Subsidiary became a Restricted Subsidiary or was acquired by the Company)
and outstanding on such date;
(D) any encumbrance or restriction pursuant to an agreement effecting an
amendment, modification, restatement, renewal, replacement or Refinancing
of Indebtedness Incurred pursuant to an agreement referred to in Section
4.09(1)(B) or (C) or this clause (D) or contained in any amendment to an
agreement referred to in Section 4.09(1)(B) or (C) or this clause (D);
provided, however, that the encumbrances and restrictions with respect to
such Restricted Subsidiary contained in any such refinancing agreement or
amendment, taken as a whole, are no less favorable to the Noteholders than
encumbrances and restrictions with respect to such Restricted Subsidiary
contained in such predecessor agreements;
(E) any encumbrance or restriction arising under any applicable law, rule,
regulation or order; and
(F) any encumbrance or restriction if (i) such encumbrance or restriction is
set forth in the documentation governing a Credit Linked Hedge, (ii) such
encumbrance or restriction is not less favorable to the Noteholders than
the corresponding encumbrance or restriction set forth in the Credit
Facility related to such Credit Linked Hedge, and (iii) the corresponding
encumbrance or restriction set forth in such Credit Facility is permitted
under this covenant; and
(13) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of a customary nonassignment
provision in a lease, license or similar ordinary course of business
agreement;
(B) any restriction contained in a security agreement or mortgage securing
Indebtedness of a Restricted Subsidiary to the extent such restriction
39
restricts the transfer of the property subject to such
security agreement or mortgage; and
(C) any restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or
assets of such Restricted Subsidiary pending the closing of
such sale or disposition.
SECTION 4.05. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Disposition unless:
(1) except in the case of an Event of Loss, the Company or such
Restricted Subsidiary receives consideration at the time of such Asset
Disposition at least equal to the fair market value (including as to the
value of all non-cash consideration), as determined in good faith by an
executive officer of the Company (if such fair market value is less than
[$1.0 million]) or by the Board of Directors (in all other cases), of the
shares and assets subject to such Asset Disposition;
(2) except in the case of an Event of Loss, at least [75%] of the
consideration thereof received by the Company or such Restricted
Subsidiary is in the form of cash or cash equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Company (or such Restricted
Subsidiary, as the case may be):
(A) to the extent the Company is required to do so by the
terms of any such Indebtedness, to prepay, repay, purchase,
repurchase, redeem, defease or otherwise acquire or retire for value
Indebtedness of the Company or any Wholly Owned Subsidiary that was
secured by a Lien on the asset that was the subject of such Asset
Disposition (in each case other than (i) Indebtedness constituting
Subordinated Obligations and (ii) Indebtedness owed to the Company
or an Affiliate of the Company) from time to time within 360 days
from the later of the date of such Asset Disposition or the receipt
of such Net Available Cash;
(B) to the extent the Company elects, to acquire Additional
Assets from time to time within 360 days from the later of the date
of such Asset Disposition or the receipt of such Net Available Cash;
and
(C) to the extent of the balance of such Net Available Cash
after application in accordance with clauses (A) and (B), to make an
offer to the holders of the Notes to purchase Notes pursuant to and
subject to the conditions contained in this Indenture (an "ASSET
DISPOSITION OFFER");
provided, however, that in connection with any prepayment, repayment, purchase,
repurchase, redemption, defeasance or other acquisition of Indebtedness pursuant
to clause (A) of this
40
Section 4.10(a), the Company or such Restricted Subsidiary shall permanently
retire such Indebtedness and shall cause the related loan commitment (if any) to
be permanently reduced in an amount equal to the principal amount so prepaid,
repaid or purchased.
Notwithstanding the foregoing provisions of this Section 4.10, the
Company and the Restricted Subsidiaries shall not be required to apply any Net
Available Cash in accordance with this Section 4.10 except to the extent that
the aggregate Net Available Cash from all Asset Dispositions which is not
applied in accordance with this Section 4.10 exceeds [$10.0] million. Pending
application of Net Available Cash pursuant to this Section 4.10, such Net
Available Cash shall be invested in Temporary Cash Investments or applied to
temporarily reduce revolving credit indebtedness.
For the purposes of clause (a)(2) of this Section 4.10, the
following are deemed to be cash or cash equivalents: (1) the assumption of
Indebtedness of the Company or any Wholly Owned Subsidiary (in each case other
than (i) Indebtedness constituting Subordinated Obligations and (ii)
Indebtedness owed to the Company or an Affiliate of the Company) and the release
of the Company or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition; and (2) securities
received by the Company or any Restricted Subsidiary from the transferee that
are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase
of Notes pursuant to Section 4.10(a)(3)(C), the Company shall make such Asset
Disposition Offer to purchase Notes on or before the 370th day after the date of
such Asset Disposition, and shall purchase Notes tendered pursuant to an offer
by the Company for the Notes at a purchase price of 100% of the principal amount
thereof on the date of purchase without premium, plus accrued but unpaid
interest in accordance with the procedures set forth in this Indenture and
customary practice. If the aggregate purchase price of the Notes tendered
exceeds the Net Available Cash allotted to their purchase, the Company shall
select the Notes to be purchased on a pro rata basis but in denominations of
$1,000 principal amount or multiples thereof. The Company shall not be required
to make such an offer to purchase Notes pursuant to this Section 4.10 if the Net
Available Cash available therefor is less than [$10.0] million (which lesser
amount shall be carried forward for purposes of determining whether such an
offer is required with respect to the Net Available Cash from any subsequent
Asset Disposition). Upon completion of any application of Net Available Cash in
accordance with the foregoing provisions of clause (a) (3) of this Section 4.10,
the amount of Net Available Cash shall be reset at zero.
(c) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.10. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.10, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.10 by virtue of its
compliance with such securities laws or regulations.
(d) If, as of the date of any relevant supplemental indenture, no
Asset Disposition has occurred that would, with the passage of time and the
absence of any contrary
41
application of the Net Available Cash therefrom, give rise to the requirement to
make an Asset Disposition Offer, the Company does not have a present intent to
make any Asset Disposition that would give rise to such requirement, and the
Company is not aware of any pending, proposed or threatened Asset Disposition
that would give rise to such requirement, the provisions under this Indenture
relative to the Company's obligation to make an offer to purchase the Notes as a
result of an Asset Disposition may be waived or modified with the written
consent of the holders of a majority in principal amount of the Notes.
SECTION 4.06. Limitation on Affiliate Transactions.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property, employee compensation
arrangements or the rendering of any service) with, or for the benefit of, any
Affiliate of the Company (an "AFFILIATE TRANSACTION") unless:
(1) the terms of the Affiliate Transaction are no less favorable to
the Company or such Restricted Subsidiary than those that could be
obtained at the time of the Affiliate Transaction in arm's-length dealings
with a Person who is not an Affiliate;
(2) if such Affiliate Transaction involves an amount in excess of $[
] million, the terms of the Affiliate Transaction are set forth in writing
and a majority of the non-employee directors of the Company disinterested
with respect to such Affiliate Transaction shall have determined in good
faith that the criteria set forth in clause (1) of this Section 4.11 are
satisfied and shall have approved the relevant Affiliate Transaction as
evidenced by a resolution of the Board of Directors; and
(3) if such Affiliate Transaction involves an amount in excess of $[
] million, the Board of Directors shall also have received a written
opinion from an Independent Qualified Party to the effect that such
Affiliate Transaction is fair, from a financial standpoint, to the Company
and its Restricted Subsidiaries or is not less favorable to the Company
and its Restricted Subsidiaries than could reasonably be expected to be
obtained at the time in an arm's-length transaction with a Person who was
not an Affiliate.
(b) The provisions of Section 4.11(a) shall not prohibit:
(1) any Investment (other than a Permitted Investment) or other
Restricted Payment, in each case permitted to be made pursuant to Section
4.05;
(2) any issuance of securities, or other payments, awards or grants
in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans approved
by the Board of Directors;
(3) loans or advances to employees in the ordinary course of
business, but in any event not to exceed $[ ] million in the aggregate
outstanding at any one time;
(4) the payment of reasonable fees and compensation (including
health benefits, vacation, severance, compensation and similar benefits)
to, and provision of
42
customary indemnification on behalf of, directors, employees, consultants
and agents of the Company or any Restricted Subsidiary as determined in
good faith by the Board of Directors or the Company's senior management;
(5) any transaction (i) between or among the Company and/or its
Wholly Owned Subsidiaries or (ii) between or among the Company, a Wholly
Owned Subsidiary or any other Person that would constitute an Affiliate
Transaction solely because the Company or a Restricted Subsidiary owns an
equity interest in or otherwise controls such Person;
(6) the issuance or sale of Capital Stock (other than Disqualified
Stock) of the Company;
(7) the payment of all fees and expenses related to the
Transactions; and
[(8) management fees or other specific exceptions?]
Guarantors.
(a) The Company will cause (1) each Domestic Subsidiary that is a
Wholly Owned Subsidiary, (2) subject to receipt of all necessary consents
contemplated by paragraph (b) of this Section, each Domestic Subsidiary that is
not a Wholly Owned Subsidiary, and (3) each Subsidiary (not described in clauses
(1) or (2) above) that Guarantees any Indebtedness of the Company or a Domestic
Subsidiary, in each case, whether existing on the Issue Date or thereafter
acquired or formed, to at all times be a Guarantor, and if such Subsidiary is
not a party to the Indenture or a Supplemental Guaranty Agreement, to execute
and deliver to the Trustee a Supplemental Guaranty Agreement pursuant to which
such Subsidiary will Guarantee payment of the Notes on the same terms and
conditions as those set forth in this Indenture.
(b) In the case of a Domestic Subsidiary that is not a Wholly
Owned Subsidiary, if such Subsidiary is not permitted to Guarantee the Notes,
the Company shall, and shall cause its Subsidiaries (including such Subsidiary)
to, use commercially reasonable efforts to obtain any and all consents necessary
in order to authorize and allow such Subsidiary to make such Guarantee.
(c) The Guaranty of a Guarantor shall be released as provided in
Section 10.06.
Limitation on the Issuance and Sale of Capital Stock of Restricted Subsidiaries.
The Company will not sell, and will not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell, any shares of Capital Stock of a
Restricted Subsidiary except:
(8) to the Company or a Wholly Owned Subsidiary;
(9) issuances of directors' qualifying shares and sales to foreign
nationals of Capital Stock of Foreign Subsidiaries, in each case only to
the extent required by applicable law and only if the Company, by contract
or otherwise, controls the management and business of such Foreign
Subsidiary and derives the economic benefits
43
of ownership of such Foreign Subsidiary to substantially the same extent
as if such Foreign Subsidiary were a Wholly Owned Subsidiary; and
(10) if, immediately after giving effect to such issuance or sale,
such Restricted Subsidiary would no longer constitute a Restricted
Subsidiary, provided that any Investment in such Person remaining after
giving effect to such issuance or sale shall constitute an "Investment"
made at the time of such issuance or sale, and such issuance or sale shall
only be permitted if such Investment is permitted to be made under Section
4.05.
Limitation on Sale/Leaseback Transactions. The Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly, enter into any
Sale/Leaseback Transaction unless such transaction is otherwise permitted under
this Indenture, including Sections 4.06, 4.07 and 4.10.
Existence. Subject to Articles 4 and 5 of this Indenture, the Company will do or
cause to be done all things necessary to preserve and maintain in full force and
effect its existence and the existence of each Restricted Subsidiary in
accordance with the respective organizational documents of the Company and each
such Restricted Subsidiary and the rights (whether pursuant to charter,
partnership certificate, agreement, statute or otherwise), licenses and
franchises of the Company and each such Restricted Subsidiary, provided that the
Company shall not be required to preserve any such right, license or franchise,
or maintain the existence of any entity (other than of the Company) if the
preservation or maintenance thereof is no longer desirable in the conduct of the
business of the Company and its Restricted Subsidiaries, taken as a whole, and
the failure to preserve or maintain such right, license, franchise or entity
will not be adverse in any material respect to the Holders.
Payment of Taxes and Other Claims. The Company will pay or discharge and shall
cause each Restricted Subsidiary to pay or discharge, or cause to be paid or
discharged, before the same shall become delinquent (i) all material taxes,
assessments and governmental charges levied or imposed upon (a) the Company or
any such Restricted Subsidiary, (b) the income or profits of any such Restricted
Subsidiary which is a corporation or (c) the property of the Company or any such
Restricted Subsidiary and (ii) all material lawful claims for labor, materials
and supplies that, if unpaid, might by law become a Lien upon the property of
the Company or any such Restricted Subsidiary, provided that the Company shall
not be required to pay or discharge, or cause to be paid or discharged, any such
tax, assessment, charge or claim the amount, applicability or validity of which
is being contested in good faith by appropriate proceedings by the Company and
its Restricted Subsidiaries where the failure to effect such payment is not
adverse in any material respect to the Holders and for which adequate reserves
(to the extent required in accordance with GAAP) have been established and
maintained.
SECTION 4.07. Insurance; Maintenance of Properties.
(a) [The Company and each of its Subsidiaries shall provide or
cause to be provided, for itself and each of their respective Subsidiaries,
insurance (including appropriate self-insurance) that is adequate and
appropriate, in the good faith judgment of the Board of
44
Directors of the Company, for the conduct of the business of the Company and
such Subsidiaries in a prudent manner.]
[The Company shall maintain, and shall cause each of its
Subsidiaries to maintain, insurance with financially sound and reputable
insurance companies in such amounts and covering such risks as is customarily
maintained by companies engaged in the same or similar businesses.]
[The Company shall maintain (i) in-orbit insurance with respect to
each currently in-orbit satellite in an amount at least equal to the cost to
replace such satellite with a satellite of comparable or superior technological
capability (as estimated by the Board of Directors) and having at least as much
transmission capacity as such satellite, and (ii) with respect to each other
satellite to be launched by the Company or any Restricted Subsidiary and each
replacement satellite therefor (A) launch insurance with respect to each such
satellite covering the period from the launch of such satellite to 180 days
following such launch in an amount equal to or greater than the sum of (1) the
cost to replace such satellite pursuant to the contract pursuant to which a
replacement satellite will be constructed, (2) the cost to launch a replacement
satellite pursuant to the contract pursuant to which a replacement satellite
will be launched and (3) the cost of launch insurance for such satellite or, in
the event that the Company has reason to believe that the cost of obtaining
comparable insurance for a replacement satellite would be materially higher, the
Company's best estimate of the cost of such comparable insurance and (B) at all
times subsequent to 180 days after the launch (if it is a Successful Launch) of
each such satellite, in-orbit insurance in an amount at least equal to the cost
to replace such satellite with a satellite of comparable or superior
technological capability (as estimated by the Board of Directors) and having at
least as much transmission capacity as such satellite was designed to have. The
in-orbit insurance required by this Section 4.17 shall provide that, if 50% or
more of a satellite's initial capacity is lost, the full amount of insurance
will become due and payable, and that, if a satellite is able to maintain more
than 50% but less than 90% of its initial capacity, a pro rata portion of such
insurance will become due and payable.]
[The Company shall [further] provide or cause to be provided, for
itself and its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds, in the amounts and with
terms and conditions customarily maintained by companies similarly situated in
the same lines of business.]
(b) The Company shall cause all properties owned by the Company or
any Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 4.17
shall prevent the Company from discontinuing the maintenance of any such
properties if such discontinuance is not disadvantageous in any material respect
to the Holders.
Notice of Defaults. In the event that the Company or any Subsidiary Guarantor
becomes aware of any Event of Default, the Company shall promptly thereafter
deliver to the Trustee an
45
Officers' Certificate specifying such Event of Default and what actions the
Company is taking or proposes to take with respect thereto.
Business Activities. The Company will not, and will not permit any of its
Restricted Subsidiaries to, engage in any material business operations in
businesses other than Related Businesses.
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 for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this
Indenture, the Notes or any Collateral Document unless such consideration is
offered to be paid and is paid to all Holders that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
Use of Proceeds. The Company will use the proceeds of the issuance of the Notes
only as permitted under the Plan.
Further Instruments and Acts. Upon request of the Trustee or the Collateral
Agent, the Company will, and will cause its Subsidiaries to, execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose of this Indenture.
ARTICLE 5
Merger
SECTION 5.01. Merger and Consolidation.
(a) The Company shall not consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of transactions,
directly or indirectly, all or substantially all its assets to, any Person,
unless:
(1) the resulting, surviving or transferee Person (the "SUCCESSOR
COMPANY") shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia and the Successor Company (if not the Company) shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of the
Company under the Notes, this Indenture and the Collateral Documents;
(2) immediately after giving pro forma effect to such transaction
(and treating any Indebtedness of the Successor Company and its
Subsidiaries as having been Incurred by the Successor Company or each such
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(3) immediately after giving pro forma effect to such transaction,
the Successor Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.06(a);
46
(4) each Person that is required pursuant to the terms of this
Indenture to be a Guarantor (i) shall have become a Guarantor pursuant to
a Supplemental Guaranty Agreement or (ii) shall have confirmed its
Guaranty pursuant to a supplemental indenture in form reasonably
satisfactory to the Trustee;
(5) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture; and
(6) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain or
loss for Federal income tax purposes as a result of such transaction and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
transaction had not occurred;
provided, however, that clause (3) will not be applicable (A) to a Restricted
Subsidiary consolidating with, merging into, conveying, transferring or leasing
all or part of its assets to the Company or (B) to the Company merging with an
Affiliate of the Company solely for the purpose and with the sole effect of
reincorporating the Company in another jurisdiction within the United States of
America.
(b) The Successor Company (if not the Company) shall be the
successor to the Company and shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture, and the
predecessor Company, except in the case of a lease, shall be released from the
obligation to pay the principal of and interest on the Notes.
(c) The Company shall not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or a series of transactions, all or substantially all of its assets
to any Person (except in the case of a Subsidiary Guarantor that has been
disposed of in its entirety to another Person (other than to the Company or an
Affiliate of the Company), whether through a merger, consolidation or sale of
Capital Stock or assets, if in connection therewith the Company provides an
Officers' Certificate to the Trustee to the effect that the Company will comply
with, and the Company does comply with, its obligations under Section 4.10 in
respect of such disposition) unless:
(1) the resulting, surviving or transferee Person (if not such
Subsidiary) shall be a Person organized and existing under the laws of the
jurisdiction under which such Subsidiary was organized or under the laws
of the United States of America, or any State thereof or the District of
Columbia, and such Person shall expressly assume, by a Supplemental
Guaranty Agreement, in a form satisfactory to the Trustee, all the
obligations of such Subsidiary, if any, under its Guaranty; and
(2) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such Supplemental Guaranty Agreement, if any, complies with
this Indenture.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 5.01,
if no Default has occurred and is continuing, any Subsidiary Guarantor may
consolidate with or merge with or
47
into or convey, transfer or lease, in one transaction or a series of
transactions, all or substantially all of its assets to the Company.
ARTICLE 6
Defaults and Remedies
Events of Default. Each of the following is an "EVENT OF DEFAULT":
(1) the Company defaults in any payment of interest on any Note
when the same becomes due and payable, continued for 30 days;
(2) the Company (A) defaults in the payment of the principal of
any Note when the same becomes due and payable at its Stated Maturity,
upon optional redemption, upon declaration of acceleration or otherwise,
or (B) fails to purchase any Note when required pursuant to this Indenture
or the Notes;
(3) the Company fails to comply with Section 5.01;
(4) the Company or any Guarantor defaults in the performance of or
breaches any covenants or otherwise fails to comply with any of its
agreements in the Notes, this Indenture or any Collateral Document (other
than those referred to in clause (1), (2) or (3) above) and such default,
breach or other failure continues for [30] days after the notice specified
below;
(5) Indebtedness of the Company, any Guarantor or any Restricted
Subsidiary is not paid within any applicable grace period after the due
date thereof or is accelerated by the holders thereof because of a default
and the total amount of such Indebtedness unpaid or accelerated exceeds
[$10.0] million, or its foreign currency equivalent at the time;
(6) the Company, any Guarantor or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
48
(A) is for relief against the Company, any Guarantor or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company, any Guarantor or any
Significant Subsidiary or for any substantial part of its
property; or
(C) orders the winding up or liquidation of the Company, any
Guarantor or any Significant Subsidiary; or any similar relief
is granted under any foreign laws and the order or decree
remains unstayed and in effect for 30 days;
(8) any judgment or decree for the payment of money in excess of
[$10.0] million (or its foreign currency equivalent at the time) is
entered against the Company, a Guarantor or any Restricted Subsidiary,
remains outstanding for a period of 30 consecutive days following the
entry of such judgment or decree and is not discharged, waived or the
execution thereof stayed;
(9) a Guaranty ceases to be in full force and effect (other than
in accordance with the terms of such Guaranty) or any Guarantor denies or
disaffirms its obligations under its Guaranty; or
(10) any Collateral Document ceases to be in full force and effect
(other than in accordance with its terms), any obligor under any
Collateral Document denies or disaffirms its obligations thereunder, or
any Lien purported to be created under any Collateral Document shall cease
to be enforceable or shall cease to be of the same effect and priority as
purported to be created by such Collateral Document (other than in
accordance with the terms thereof or of this Indenture).
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "CUSTODIAN"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (4) of this Section 6.01 is not an Event of
Default until the Trustee or the Holders of at least 33.33% in principal amount
of the outstanding Notes notify the Company of the Default and the Company does
not cure such Default within the time specified after receipt of such notice.
SECTION 6.02. Acceleration.
(a) If an Event of Default (other than an Event of Default
specified in Section 6.01(6) or (7)) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 33.33% in principal amount of
the outstanding Notes by notice to the Company and the Trustee, may declare the
principal of and accrued but unpaid interest, if any, on all the Notes to
49
be due and payable. Upon such a declaration, such principal and interest shall
be due and payable immediately. If an Event of Default specified in Section
6.01(6) or (7) occurs and is continuing, the principal of and interest, if any,
on all the Notes shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Noteholders. The Holders of a majority in principal amount of the Notes, by
notice to the Trustee, may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree [and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration]. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
In the event of a declaration of acceleration of the Notes because
an Event of Default described in clause (5) of Section 6.01 has occurred and is
continuing, the declaration of acceleration of the Notes shall be automatically
annulled if (A) the event of default or payment default triggering such Event of
Default pursuant to clause (5) of Section 6.01 shall be remedied or cured by the
Company or a Restricted Subsidiary or waived by the holders of the relevant
Indebtedness within 20 days after the declaration of acceleration with respect
thereto, (B) the annulment of the acceleration of the Notes would not conflict
with any judgment or decree of a court of competent jurisdiction and (C) all
existing Events of Default, except nonpayment of principal, premium or interest
on the Notes that became due solely because of the acceleration of the Notes,
have been cured or waived.
(b) The Company agrees to pay, in addition to the amount stated
above, any and all expenses (including reasonable counsel fees and expenses)
incurred by the Trustee acting on behalf of the Noteholders in enforcing any
rights under the Notes.
Other Remedies. If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of or interest
on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
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 Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Waiver of Past Defaults. The Holders of [two-thirds] in principal amount of the
Notes by notice to the Trustee may waive an existing Default and its
consequences except (i) a Default in the payment of the principal or interest on
a Note, (ii) a Default arising from the failure to redeem or purchase any Note
when required pursuant to this Indenture or (iii) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Noteholder affected. When a Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or impair any consequent
right.
Control by Majority. The Holders of [two-thirds] in principal amount of the
outstanding Notes are given the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture
50
or, subject to Section 7.01, that the Trustee determines is unduly prejudicial
to the rights of other Noteholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
Limitation on Suits. Except to enforce the right to receive payment of principal
or interest when due, no Noteholder may pursue any remedy with respect to this
Indenture or the Notes unless:
(2) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(3) the Holders of at least [25%] in outstanding principal amount of
the Notes make a written request to the Trustee to pursue the remedy;
(4) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(5) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(6) the Holders of a majority in principal amount of the Notes do
not give the Trustee a direction inconsistent with the request during such
60-day period.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
Rights of Holders to Receive Payment. Notwithstanding any other provision of
this Indenture, the right of any Holder to receive payment of principal and
interest on the Notes held by such Holder, on or after the respective due dates
expressed in the Notes, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Collection Suit by Trustee. If an Event of Default specified in Section 6.01(1)
or (2) occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company or any Guarantor for
the whole amount then due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts provided for in Section 7.07.
Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee and the Noteholders allowed in any judicial proceedings
relative to the Company, its creditors or its property and, unless prohibited by
law or applicable regulations, may vote on behalf of the Holders in any election
of a trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable
51
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein shall be deemed to empower 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 proceedings.
Priorities. If the Trustee collects any money or property pursuant to this
Article 6, it shall pay out the money or property in the following order:
FIRST, to the Trustee for amounts due under Section 7.07;
SECOND, to Noteholders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
THIRD, to the Company or any other Person legally entitled thereto.
The Trustee may fix a record date and payment date for any payment
to Noteholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Noteholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in
principal amount of the Notes.
Waiver of Stay or Extension Laws. The Company and any Guarantor (to the extent
it may lawfully do so) covenants that it shall not at any time insist upon, or
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, which may affect the covenants or the performance of this Indenture.
The Company and any Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
Payment of Premium. In the case of any Event of Default occurring by reason of
any willful action or inaction taken or not taken by or on behalf of the
Company, any Guarantor or any Restricted Subsidiary with the intention of
avoiding payment of the premium that would be due upon an optional redemption of
the Notes, upon acceleration of the Notes following such Event of Default, to
the fullest extent permitted by law, a premium shall immediately become due and
52
payable by the Company in an amount equal to the premium that would have been
due and payable had the Company elected to optionally redeem the Notes.
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture, the Notes and the Collateral
Documents that in any way relates to the Trustee is subject to Sections 7.01 and
7.02.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
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(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01 and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Notes shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
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 its Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent, Registrar, co-registrar or co-paying agent may do the
same with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.
Trustee's Disclaimer. The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes,
and it shall not be responsible for any statement of the Company in this
Indenture or in any document issued in connection with the sale of the Notes or
in the Notes other than the Trustee's certificate of authentication.
Notice of Defaults. If a Default or Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each Noteholder
notice of the Default or Event of Default within 90 days after it occurs or as
soon as is practicable after it becomes known to the Trustee.
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Except in the case of a Default or Event of Default in payment of principal or
interest on any Note (including payments pursuant to the mandatory redemption
provisions of such Note, if any), the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is not opposed to the interests of Noteholders.
Reports by Trustee to Holders. As promptly as practicable after each [May] 15
beginning with the [May] 15 following the date of this Indenture, and in any
event prior to [July] 15 in each year, the Trustee shall mail to each Noteholder
a brief report dated as of [May] 15 that complies with TIA Section 313(a) (but
if no event described in TIA Section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be mailed). The Trustee also
shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders
shall be filed with the SEC (if appropriate) and each stock exchange (if any) on
which the Notes are listed. The Company agrees to notify promptly the Trustee
whenever the Notes become listed on any stock exchange and of any delisting
thereof.
Compensation and Indemnity. The Company shall pay to the Trustee such
compensation as shall be agreed upon in writing for its services. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents, counsel, accountants and experts. The Company
shall indemnify the Trustee against any and all loss, liability or expense
(including reasonable attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder, except
as set forth in the last sentence of this paragraph. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder unless and to the extent the Company is prejudiced by such
negligent failure. The Company shall defend the claim and the Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee's own willful misconduct, negligence
or bad faith.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal and interest on particular Notes.
The Company's payment obligations pursuant to this Section 7.07
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(6) or (7) with
respect to the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
Replacement of Trustee. The Trustee may resign at any time by so notifying the
Company in writing at least 30 days prior to the date of the proposed
resignation. The Holders of [two-thirds]
55
in principal amount of the Notes may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Company may remove the Trustee
if:
(2) the Trustee fails to comply with Section 7.10;
(3) the Trustee is adjudged bankrupt or insolvent;
(4) a receiver or other public officer takes charge of the Trustee
or its property; or
(5) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company and the Company
does not reasonably promptly appoint a successor Trustee or if the Trustee is
removed by the Holders of [two-thirds] in principal amount of the Notes and such
Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy
exists in the office of Trustee for any other reason (the Trustee in such event
being referred to herein as the retiring Trustee), the Company shall promptly
appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Noteholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Notes may petition, at the Company's expense, any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust
business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the
56
Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
Eligibility; Disqualification. The Trustee shall at all times satisfy the
requirements of TIA Section 310(a). The Trustee shall have a combined capital
and surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA Section 310(b);
provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
Preferential Collection of Claims Against Company. The Trustee shall comply with
TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Notes; Defeasance.
(a) When (1) the Company delivers to the Trustee all outstanding
Notes (other than Notes replaced pursuant to Section 2.07) for cancellation, or
(2) all outstanding Notes have become due and payable, whether at maturity or on
a redemption date as a result of the mailing of a notice of redemption pursuant
to Article 3 hereof, or (3) all outstanding Notes will become due and payable
within one year or are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee and, in the case of clauses
(a)(2) and (a)(3) of this Section 8.01, the Company irrevocably deposits with
the Trustee funds sufficient to pay at maturity or upon redemption all
outstanding Notes, including interest thereon to maturity or such redemption
date (other than Notes replaced pursuant to Section 2.07), and if in any case
the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 8.01(c), be satisfied and discharged and
cease to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company (accompanied by an
Officers' Certificate and an Opinion of Counsel stating that all conditions
precedent specified herein relating to the satisfaction and discharge of this
Indenture have been complied with and at the cost and expense of the Company).
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time
may terminate (1) all its and any Guarantors' Obligations under the Notes, the
Collateral Documents and this Indenture ("LEGAL DEFEASANCE OPTION") or (2) its
and any Guarantors' Obligations under Sections 4.02, 4.04 through 4.14, 4.17,
4.18, 4.19 and 4.20 and the operation of Sections 6.01(5), 6.01(8), 6.01(9) and
6.01(10) and the limitations contained in Sections 5.01(a)(3) and (a)(4)
("COVENANT DEFEASANCE OPTION"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
57
If the Company exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default with respect
thereto. If the Company exercises its legal defeasance option or its covenant
defeasance option, any Guarantor shall be released from all of its obligations
with respect to its Guaranty.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those Obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) of this Section 8.01, the
Company's Obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and
7.08 and in this Article 8 shall survive until the Notes have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
Conditions to Defeasance. The Company may exercise its legal defeasance option
or its covenant defeasance option only if:
(2) the Company irrevocably deposits in trust with the Trustee money
in U.S. dollars or U.S. Government Obligations for the payment of
principal and interest on the Notes to maturity or redemption, as the case
may be;
(3) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Notes to maturity or redemption, as the case may be;
(4) 123 days pass after the deposit is made and during the 123-day
period no Default or Event of Default specified in Sections 6.01(6) or (7)
with respect to the Company or any Guarantor occurs which is continuing at
the end of the period;
(5) the deposit does not constitute a default under any other
agreement binding on the Company or any of its Subsidiaries;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment
Company Act of 1940;
(7) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating 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 Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Noteholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance had not occurred;
58
(8) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Noteholders will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Notes as contemplated by this Article 8
have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article 3.
Application of Trust Money. The Trustee shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to this Article 8. It shall
apply the deposited money and the money from U.S. Government Obligations through
the Paying Agent and in accordance with this Indenture to the payment of
principal of and interest on the Notes.
Repayment to Company. The Trustee and the Paying Agent shall promptly turn over
to the Company upon request any excess money or securities held by them at any
time.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal or interest that remains unclaimed for two years,
and, thereafter, Noteholders entitled to the money must look to the Company for
payment as general creditors.
Indemnity for Government Obligations. The Company shall pay and shall indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such U.S. Government Obligations.
Reinstatement. If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with this Article 8 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 obligations under this Indenture and the Notes, and
the obligations of the Guarantors under the Guaranties, shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 8 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with this Article 8; provided,
however, that, if the Company has made any payment of interest on or principal
of 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 U.S. Government Obligations held by the Trustee or Paying
Agent.
59
ARTICLE 9
Amendments
Without Consent of Holders. The Company, the Guarantors and the Trustee may
amend this Indenture, any Collateral Document or the Notes without notice to or
consent of any Noteholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption by a Successor Company of the
Obligations of the Company or any Guarantor under this Indenture pursuant
to Article 5;
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes; provided, however, that the uncertificated Notes
are issued in registered form for purposes of Section 163(f) of the Code,
or in a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code;
(4) to add guarantees with respect to the Notes, including any
Guaranties, or to add Collateral to further secure the Notes;
(5) to add to the covenants of the Company or any Guarantor for the
benefit of the Holders or to surrender any right or power herein conferred
upon the Company or any Guarantor;
(6) to make any change that does not adversely affect the rights of
any Noteholder;
(7) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the
TIA; or
(8) to evidence the release of a Guarantor pursuant to and in
accordance with the terms of this Indenture.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Noteholders a notice briefly describing such amendment.
The failure to give such notice to all Noteholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.01.
With Consent of Holders.
(a) Except as provided in Section 9.02(b), the Company, the
Guarantors and the Trustee may amend this Indenture, any Collateral Documents or
the Notes without notice to any Noteholder but with the written consent of the
Holders of at least [two-thirds] in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Notes), including, without limitation, to reflect any
amendment to the terms, conditions and other provisions of clauses (ii) - (v) of
Section 4.01(b) of this Indenture and the defined terms used therein.
60
(b) Without the consent of each Noteholder affected thereby, an
amendment may not:
(9) reduce the amount of Notes whose Holders must consent to an
amendment;
(10) reduce the rate of or extend the time for payment of interest
on any Note;
(11) reduce the principal of or extend the Stated Maturity of any
Note;
(12) reduce the amount payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with
Article 3;
(13) make any Note payable in money other than that stated in the
Note;
(14) impair the right of any Noteholder to receive payment of
principal and interest on such Noteholder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on
or with respect to such Noteholder's Notes;
(15) impair the Company's obligation to make an offer to purchase
Notes pursuant to Section 4.04 or 4.10 except as permitted under Section
4.04(g) or 4.10(d), respectively;
(16) make any change in Section 4.04(g), Section 4.10(d), Section
6.04, 6.07 or the second sentence of this Section;
(17) make any change in the ranking or priority of any Note that
would adversely affect the Noteholders; or
(18) make any change in any Guaranty or any Collateral Document that
would adversely affect the Noteholders.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Noteholders a notice briefly describing such amendment.
The failure to give such notice to all Noteholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.02.
Pursuant to Section 12.06, in certain circumstances a Note may be
disregarded and deemed not to be outstanding for purposes of this Section.
Compliance with Trust Indenture Act. Every amendment to this Indenture or the
Notes shall comply with the TIA as then in effect.
61
Revocation and Effect of Consents and Waivers. A consent to an amendment or a
waiver by a Holder of a Note shall bind the Holder and every subsequent Holder
of that Note or portion of the Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent or waiver is not made
on the Note. However, any such Holder or subsequent Holder may revoke the
consent or waiver as to such Holder's Note or portion of the Note if the Trustee
receives the notice of revocation before the date the amendment or waiver
becomes effective. After an amendment or waiver becomes effective, it shall bind
every Noteholder. An amendment or waiver becomes effective upon the execution of
such amendment or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Noteholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Noteholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
Notation on or Exchange of Notes. If an amendment changes the terms of a Note,
the Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note regarding the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or to issue a new Note shall not affect the validity of
such amendment.
Trustee To Sign Amendments. The Trustee shall sign any amendment authorized
pursuant to this Article 9 if the amendment does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may but need not sign it. In signing such amendment the Trustee shall be
entitled to receive indemnity reasonably satisfactory to it and to receive, and
(subject to Section 7.01) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that such amendment is authorized
or permitted by this Indenture.
ARTICLE 10
Guaranties
SECTION 10.01. Guaranties.
(a) Subject to the limitations set forth in this Article 10, each
Guarantor hereby unconditionally and irrevocably guarantees, jointly and
severally, to each Holder and to the Trustee and its successors and assigns (i)
the full and punctual payment of principal of and interest on the Notes when
due, whether at maturity, by acceleration, by redemption or otherwise, and all
other monetary obligations of the Company under this Indenture and the Notes and
(ii) the full and punctual performance within applicable grace periods of all
other obligations of the Company under this Indenture, the Notes and the
Collateral Documents (all the foregoing being hereinafter collectively called
the "GUARANTEED OBLIGATIONS").
62
(b) As of the Issue Date, the Guarantors of the Notes are [LAPS(HK)
and T18 Owner].
(c) Each Guarantor further agrees that the Guaranteed Obligations
may be extended or renewed, in whole or in part, without notice or further
assent from such Guarantor and that such Guarantor will remain bound under this
Article 10 notwithstanding any extension or renewal of any Guaranteed
Obligation.
(d) Each Guarantor waives presentation to, demand of, payment from
and protest to the Company of any of the Guaranteed Obligations and also waives
notice of acceleration, notice of intent to accelerate and notice of protest for
nonpayment. Subject to Section 6.01, each Guarantor waives notice of any default
under the Notes or the Guaranteed Obligations. The obligations of each Guarantor
hereunder shall not be affected by: (i) the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any right or remedy against the
Company or any other Person under this Indenture, the Notes or any other
agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Notes or any other agreement; (iv) the release of any
security held by any Holder or the Trustee for the Guaranteed Obligations or any
of them; (v) the failure of any Holder or the Trustee to exercise any right or
remedy against any other guarantor of the Guaranteed Obligations; or (vi) except
as set forth in Section 10.06, any change in the ownership of any such
Guarantor.
(e) Each Guarantor further agrees that its Guaranty herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Guaranteed Obligations.
(f) Except as expressly set forth in Sections 8.01, 10.02 and 10.06,
the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Notes or any other agreement, by any waiver or modification of any thereof, by
any default, failure or delay, willful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
any such Guarantor or would otherwise operate as a discharge of any such
Guarantor as a matter of law or equity.
(g) Each Guarantor further agrees that its Guaranty herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Guaranteed
Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Company or otherwise.
63
(h) In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, subject to the limitations set forth in this Article
10, upon the failure of the Company to pay the principal of or interest on any
Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, or to perform or comply
with any other Guaranteed Obligation, each Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to
be paid, in cash, to the Holders or the Trustee an amount equal to the sum of
(1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid
interest on such Guaranteed Obligations (but only to the extent not prohibited
by law) and (3) all other monetary Guaranteed Obligations of the Company to the
Holders and the Trustee.
(i) Each Guarantor agrees that it shall not be entitled to any right
of subrogation in respect of any Guaranteed Obligations guaranteed under this
Indenture until payment in full of all Guaranteed Obligations. Each Guarantor
further agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (1) the maturity of the Guaranteed Obligations
guaranteed under this Indenture may be accelerated as provided in Article 6 for
the purposes of such Guarantor's Guaranty herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations guaranteed under this Indenture, and (2) in the event of
any declaration of acceleration of such Guaranteed Obligations as provided in
Article 6, such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purposes of this
Section 10.01.
(j) Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Section 10.01.
Limitation on Liability. Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Guaranteed Obligations
guaranteed hereunder by any Guarantor shall not exceed the maximum amount that
can be hereby guaranteed without rendering this Indenture, as it relates to such
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
Successors and Assigns. This Article 10 shall be binding upon each Guarantor and
its successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Notes shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions of this Indenture.
No Waiver. Neither a failure nor a delay on the part of either the Trustee or
the Holders in exercising any right, power or privilege under this Article 10
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise of any right, power or privilege.
The rights, remedies and benefits of the Trustee and the Holders herein
64
expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article 10, at law, in
equity, by statute or otherwise.
Modification. No modification, amendment or waiver of any provision of this
Article 10, nor the consent to any departure by any Guarantor therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Trustee, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on any
Guarantor in any case shall entitle such Guarantor to any other or further
notice or demand in the same, similar or other circumstances.
Release of Guarantor. The Guaranty of a Guarantor will be automatically
released:
(2) upon the sale or other disposition (including by way of
consolidation or merger) of that Guarantor to a Person that is not (either
before or after giving effect to such transaction) the Company or an
Affiliate of the Company, if such sale or other disposition complies with
Section 4.10 and Article 11;
(3) upon the sale or other disposition of all or substantially all
the assets of that Guarantor to a Person that is not (either before or
after giving effect to such transaction) the Company or an Affiliate of
the Company, if such sale or other disposition complies with Section 4.10
and Article 11;
(4) if the Company designates that Guarantor as an Unrestricted
Subsidiary in compliance with the applicable provisions of this Indenture;
or
(5) upon legal defeasance or covenant defeasance or satisfaction and
discharge of this Indenture as provided in Article 8.
ARTICLE 11
Collateral
SECTION 11.01. Collateral Documents; Additional Collateral.
(a) In order to secure the due and punctual payment of the principal
of, premium, if any, and interest on the Notes when and as the same shall be due
and payable, whether on an Interest Payment Date, at maturity, pursuant to an
Asset Disposition Offer or Change of Control Offer, or by acceleration,
redemption or otherwise, and interest on the overdue principal of and (to the
extent permitted by law) interest, if any, on the Notes and the performance of
all other obligations of the Company and the Guarantors to the Holders, the
Trustee and the Collateral Agent under this Indenture, the Notes, the Collateral
Documents and any other documents contemplated hereby, the Company, the
Guarantors and the Collateral Agent have simultaneously with the execution of
this Indenture entered into the Security Agreement, and may in the future enter
into additional Collateral Documents. The Collateral Agent, the Trustee, the
Company and the Guarantors each hereby agree that the Collateral Agent holds its
interest in the Collateral in trust for its benefit, the benefit of the Trustee
and the benefit of the Holders pursuant to the terms of the Collateral
Documents. Each of the Company and the Guarantors covenants and agrees that it
will execute, acknowledge and deliver to the Collateral
65
Agent such further assignments, transfers, assurances or other instruments and
will do or cause to be done all such acts and things as may be necessary or
proper to assure and confirm to the Collateral Agent its interest in the
Collateral, or any part thereof, as from time to time constituted, and the
right, title and interest in and to the Collateral Documents so as to render the
same available for the security and benefit of this Indenture and of the Notes.
(b) Promptly upon the acquisition or receipt by the Company or any
of the Guarantors of property and assets, whether real, personal or mixed,
tangible or intangible, and including, without limitation, property and assets
acquired or received pursuant to a merger or consolidation of any Person or
Persons with or into the Company or a Guarantor, pursuant to an Asset
Disposition, pursuant to a transaction as a result of which a Guarantor is
released as provided in Section 10.06, or pursuant to a transaction as a result
of which a Person becomes a Guarantor as provided in Section 4.12 (each such
item of property and each such asset so acquired or received being referred to
herein as "AFTER-ACQUIRED PROPERTY"):
(i) the Company or the applicable Guarantor, as the case may
be, and the Collateral Agent will enter into all supplemental indentures,
if any, required pursuant to the terms of this Indenture (including,
without limitation, Section 4.12 hereof) and all such amendments or
supplements to the Collateral Documents or such additional Collateral
Documents as shall be necessary in order to grant and create a valid first
priority Lien on and security interest in such After-Acquired Property in
favor of the Collateral Agent (subject to no prior Liens except as
permitted by this Indenture), and the Company shall cause appropriate
financing statements, mortgages and other papers to be filed in such
governmental offices as shall be necessary in order to perfect any Lien in
such After-Acquired Property as to which a Lien may, under the Uniform
Commercial Code or any other law of the applicable jurisdiction, be
perfected by filing, and, if any such After-Acquired Property consists of
stock certificates, promissory notes or other property as to which, under
the relevant Uniform Commercial Code or other law, a Lien may be perfected
by possession or control, deliver such certificates, promissory notes and
other property, together with stock powers or assignments duly endorsed in
blank, to the Collateral Agent or take such other steps as may from time
to time be necessary or desirable to grant the Collateral Agent control
over such After-Acquired Property; and
(ii) the Company or the applicable Guarantor, as the case may
be, shall also deliver to the Trustee the following:
(A) to the extent such After-Acquired Property consists of
real property or a leasehold interest in real property, a customary
title insurance policy;
(B) any Opinions of Counsel required pursuant to Section
11.02(b) below; and
(C) evidence of payment of all filing fees, recording and
registration charges, transfer taxes and other costs and expenses,
including reasonable legal fees and disbursements of counsel for the
Collateral Agent (and any local counsel), that may be incurred to
validly and effectively subject the After-
66
Acquired Property to the Lien of any applicable Collateral Document
and perfect such Lien; and
(iii) The Company shall deliver to the Collateral Agent an
Opinion of Counsel and an Officers' Certificate to the effect that the
documents that have been or are therewith delivered to the Collateral
Agent pursuant to this Section 11.01(b) (including any amendments,
supplements or other Collateral Documents referred to in paragraph (i)
above) conform to the requirements of this Indenture.
(c) Each Holder, by accepting a Note, agrees to and shall be bound
by all the terms and provisions of the Collateral Documents, as the same may be
amended or supplemented from time to time, and hereby grants the Collateral
Agent full power and authority to execute, deliver, perform and enforce all such
Collateral Documents without any consent or other action by the Holders.
SECTION 11.02. Recording, Registration and Opinions.
(a) The Company and the Guarantors shall take or cause to be taken
all action required to perfect, maintain, preserve and protect the Lien on and
security interest in the Collateral granted by the Collateral Documents (subject
only to Liens expressly permitted by this Indenture), including without
limitation, the filing of financing statements, continuation statements and any
instruments of further assurance, in such manner and in such places as may be
required by law fully to preserve and protect the rights of the Holders, the
Collateral Agent and the Trustee under this Indenture and the Collateral
Documents to all property comprising the Collateral. The Company and the
Guarantors shall from time to time promptly pay all financing and continuation
statement recording, registration and/or filing fees, charges and taxes relating
to this Indenture and the Collateral Documents, any amendments thereto and any
other instruments of further assurance required hereunder or pursuant to the
Collateral Documents.
(b) (i) The Company and the Guarantors shall furnish to the Trustee
and the Collateral Agent on the Issue Date a customary Opinion of Counsel
stating that this Indenture, the Notes and the Collateral Documents have been
duly authorized, executed and delivered by, and constitute the valid, binding
and enforceable obligations of, the Company and the Guarantors. Such Opinion of
Counsel shall address perfection of the Liens contemplated by this Indenture and
the Collateral Documents and such other issues as the Trustee and the Collateral
Agent shall reasonably request, and such Opinion of Counsel may be subject to
customary exceptions.
(ii) The Company shall furnish to the Trustee and the
Collateral Agent, promptly after the execution and delivery of this Indenture,
an Opinion of Counsel in compliance with TIA Section 314(b)(1) either (A)
substantially to the effect that, in the opinion of such counsel, this Indenture
and the grant of the Liens on and security interests in the Collateral intended
to be made by the Collateral Documents and all other instruments of further
assurance, including, without limitation, financing statements, have been
properly recorded and filed to the extent necessary to record or register (as
the case may be), and if applicable, to perfect the Liens on and security
interests in the Collateral created by the Collateral Documents, to the extent
that a Lien or security interest may be perfected by filing, and stating that as
to the Liens and security
67
interests created pursuant to the Collateral Documents, such recordings,
registrations and filings are the only recordings, registrations and filings
necessary to give notice thereof and that no re-recordings, re-registrations or
refilings are necessary to maintain such notice (other than as stated in such
opinion), or (B) to the effect that, in the opinion of such counsel, no such
action is necessary to record or register such Liens or to perfect such security
interests.
(iii) The Company or the applicable Guarantor shall furnish to
the Trustee and the Collateral Agent, at the time of execution and delivery of
any additional Collateral Documents or any amendments or supplements to existing
Collateral Documents, an Opinion of Counsel either substantially to the effect
set forth in clause (b)(ii)(A) above (but relating only to such additional
Collateral Documents or any amendments or supplements to existing Collateral
Documents and the related After-Acquired Property) or to the effect set forth in
clause (b)(ii)(B) above, and to the further effect that such additional
Collateral Documents or amendments or supplements to existing Collateral
Documents, as the case may be, and, if applicable, such Collateral Documents as
amended and supplemented thereby, have been duly authorized, executed and
delivered by, and constitute the valid, binding and enforceable obligations of
the Company or the relevant Guarantor, as the case may be, subject to customary
exceptions.
(c) The Company shall furnish to the Trustee on the anniversary of
the Issue Date in each year, beginning with 2006, an Opinion of Counsel, dated
as of such date, which complies with TIA Section 314(b)(2), either (i)(A)
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, registration, filing, re-recording, re-registration
and refiling of this Indenture and all supplemental indentures, financing
statements, continuation statements and other documents as is necessary to
maintain the Lien of the Collateral Documents and reciting with respect to the
Liens on and security interests in the Collateral the details of such action or
referring to prior Opinions of Counsel in which such details are given, and (B)
stating that, based on relevant laws as in effect on the date of such Opinion of
Counsel, all financing statements, continuation statements and other documents
have been executed and filed that are necessary as of such date and during the
succeeding 24 months fully to maintain the Liens and security interests of the
Holders and the Trustee hereunder and under the Collateral Documents with
respect to the Collateral; provided that if there is a required filing of a
continuation statement within such 24 month period and such continuation
statement is not effective if filed at the time of the opinion, such opinion may
so state and in that case the Company shall cause a continuation statement to be
timely filed so as to maintain such Liens and security interests and shall
provide a further Opinion of Counsel to the effect of this clause (i) upon the
filing of the relevant continuation statement; or (ii) stating that, in the
opinion of such counsel, no such action is necessary to maintain such Liens or
security interests.
SECTION 11.03. Release of Collateral.
(a) The Collateral Agent shall not at any time release Collateral
from the Liens created by this Indenture and the Collateral Documents unless
such release is in accordance with the provisions of this Indenture and the
Collateral Documents.
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(b) The Collateral Agent shall release Collateral from the Liens
contemplated by this Indenture and the Collateral Documents if, when and to the
extent required by Section 11.05 or 11.07 hereof.
(c) The release of any Collateral from the Lien of the Collateral
Documents shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released pursuant to this Indenture and the Collateral Documents. To the extent
applicable, the Company shall cause TIA Section 314(d) relating to the release
of property from the Lien of the Collateral Documents and relating to the
substitution therefor of any property to be subjected to the Lien of the
Collateral Documents to be complied with. Any certificate or opinion required by
TIA Section 314(d) may be made by an Officer of the Company, except in cases
where TIA Section 314(d) requires that such certificate or opinion be made by an
independent person, which person shall be an independent engineer, appraiser or
other expert selected or approved by the Trustee in the exercise of reasonable
care.
SECTION 11.04. Possession and Use of Collateral.
Subject to and in accordance with the provisions of this Indenture
and the Collateral Documents, so long as the Collateral Agent has not exercised
rights or remedies with respect to the Collateral in connection with an Event of
Default that has occurred and is continuing, the Company and the Guarantors
shall have the right to remain in possession and retain exclusive control of and
to exercise all rights with respect to the Collateral (other than monies or U.S.
Government Obligations deposited pursuant to Article 8), to operate, manage,
develop, lease, use, consume and enjoy the Collateral, to alter or repair any
Collateral so long as such alterations and repairs do not impair the Lien of the
Collateral Documents thereon, and to collect, receive, use, invest and dispose
of the reversions, remainders, interest, rents, lease payments, issues, profits,
revenues, proceeds and other income thereof.
SECTION 11.05. Specified Releases of Collateral.
(a) Satisfaction and Discharge; Defeasance. The Company and the
Guarantors shall be entitled to obtain a full release of all of the Collateral
from the Liens of this Indenture and of the Collateral Documents upon compliance
with the conditions precedent set forth in Article 8 for legal defeasance,
covenant defeasance or satisfaction and discharge. Upon delivery by the Company
to the Trustee of an Officers' Certificate and an Opinion of Counsel, each to
the effect that such conditions precedent have been complied with (and which may
be the same Officers' Certificate and Opinion of Counsel required by Article 8),
together with such documentation, if any, as may be required by the TIA
(including, without limitation, TIA Section 314(d)) prior to the release of such
Collateral, the Trustee shall forthwith take all necessary action (at the
request of and the expense of the Company) to release and reconvey to the
Company and the applicable Guarantors without recourse all of the Collateral,
and shall deliver such Collateral in its possession to the Company and the
applicable Guarantors including, without limitation, the execution and delivery
of releases and satisfactions wherever required.
(b) Dispositions of Collateral Permitted by Section 4.10. The
Company and the Guarantors, as the case may be, shall be entitled to obtain a
release of, and the Collateral Agent shall release, items of Collateral (the
"RELEASED COLLATERAL") subject to an Asset
69
Disposition upon compliance with the conditions precedent that the Company shall
have delivered to the Collateral Agent the following:
(i) An Officers' Certificate of the Company requesting release
of such Released Collateral (A) specifically describing the proposed
Released Collateral, (B) specifying the fair market value of such Released
Collateral on a date within 60 days of such Officers' Certificate (the
"VALUATION DATE"), (C) describing the consideration to be received (the
"CONSIDERATION") and stating that the Consideration is at least equal to
the fair market value of the Released Collateral or stating that such
Asset Disposition was or will be an Event of Loss, (D) stating that the
release of such Released Collateral will not impair the value of the
remaining Collateral or interfere with or impede the Collateral Agent's
ability to realize the value of the remaining Collateral and will not
impair the maintenance and operation of the remaining Collateral, (E)
except in the case of an Event of Loss, confirming the sale of, or an
agreement to sell, such Released Collateral in a bona fide sale to a
Person that is not an Affiliate of the Company or, in the event that such
sale is to a Person that is such an Affiliate, confirming that such sale
is being made in accordance with Section 4.11, (F) certifying that such
sale complies with the terms and conditions of this Indenture, including,
without limitation, Section 4.10 hereof, (G) certifying that the
Consideration will constitute After-Acquired Collateral, and that all Net
Available Cash from the sale of any of the Released Collateral will be
applied pursuant to Section 4.10, (H) certifying there is not and will not
be a Default or Event of Default in effect or continuing on the date
thereof, the Valuation Date or the date of such sale, (I) certifying that
the release of the Collateral will not result in a Default or Event of
Default hereunder and (J) certifying that all conditions precedent to such
release have been complied with;
(ii) All documentation required by the TIA (including, without
limitation, TIA Section 314(d)), if any, prior to the release of
Collateral by the Collateral Agent, and all documentation required to
subject the Consideration to the Lien of the relevant Collateral
Documents, and all documents required by Section 11.01 hereof; and
(iii) An Opinion of Counsel stating that the documents that
have been or are therewith delivered to the Trustee in connection with
such release conform to the requirements of this Indenture and that all
conditions precedent herein provided for relating to such release have
been complied with.
Upon compliance by the Company with the conditions precedent set
forth above, the Collateral Agent shall cause to be released and reconveyed to
the Company or the applicable Guarantor the Released Collateral without recourse
by executing a release in the form provided by the Company or the applicable
Guarantor and reasonably acceptable to the Collateral Agent.
SECTION 11.06. Disposition of Collateral Without Release.
Notwithstanding the provisions of Section 11.05 and subject to
Section 11.07 below, so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, the Company and the
Guarantors may, without any prior release or consent by the Collateral Agent,
conduct ordinary course activities in respect of the Collateral not
70
constituting Asset Dispositions which do not individually or in the aggregate
adversely affect the value of the Collateral taken as a whole, including (A)
selling or otherwise disposing of, in any single transaction or series of
related transactions, any property subject to the Lien of this Indenture or the
Collateral Documents which has become worn out or obsolete and which either has
an aggregate fair market value of [$100,000] or less or which is replaced by
property of substantially equivalent or greater value which becomes subject to
the Lien of the Collateral Documents as After-Acquired Property; (B) abandoning,
terminating, cancelling, releasing or making alterations in or substitutions of
any leases or contracts subject to the Lien of this Indenture or any of the
Collateral Documents; (C) surrendering or modifying any franchise, license or
permit subject to the Lien of this Indenture or any of the Collateral Documents
which it may own or under which it may be operating; (D) altering, repairing,
replacing, changing the location or position of and adding to its structures,
machinery, systems, equipment, fixtures, and appurtenances, provided, however,
that no change in the location of any such Collateral subject to the Lien of any
of the Collateral Documents shall be made which results in such Lien becoming
unperfected or otherwise impairs the Lien of the Collateral Documents; (E)
demolishing, dismantling, tearing down or scrapping any Collateral or abandoning
any thereof if, in the good faith opinion of the Board of Directors of the
Company (as evidenced by a resolution of the Board of Directors delivered to the
Collateral Agent if it involves Collateral having a fair market value in excess
of [$100,000]) such demolition, dismantling, tearing down, scrapping or
abandonment is in the best interests of the Company, will not interfere with or
impede the Collateral Agent's ability to realize the value of the remaining
Collateral and will not impair the maintenance and operation of the remaining
Collateral, and the fair market value and utility of the Collateral as an
entirety, and the security for the Notes, will not thereby be otherwise
impaired; (F) granting a nonexclusive license of any intellectual property; and
(G) abandoning intellectual property which has become obsolete and not used in
the business of the Company or its Subsidiaries.
SECTION 11.07. Form and Sufficiency of Release.
In the event that the Company or any Guarantor has sold, exchanged,
or otherwise disposed of or proposes to sell, exchange or otherwise dispose of
any portion of the Collateral that under the provisions of Section 11.05 or
11.06 may be sold, exchanged or otherwise disposed of by the Company or any
Guarantor, and the Company or such Guarantor requests the Collateral Agent to
furnish a written disclaimer, release or quitclaim of any interest in such
property under this Indenture and the Collateral Documents, upon being satisfied
that the Company or such Guarantor is selling, exchanging or otherwise disposing
of the Collateral in accordance with the provisions of Section 11.05 or 11.06
(which may include receipt of an Officers' Certificate and Opinion of Counsel
upon the request of the Collateral Agent), the Collateral Agent shall execute,
acknowledge and deliver to the Company or such Guarantor such an instrument in
the form provided by the Company and reasonably acceptable to the Collateral
Agent providing for release without recourse, promptly after satisfaction of the
conditions set forth herein for delivery of any such release and shall take such
other action as the Company or such Guarantor may reasonably request and is
necessary to effect such release. Notwithstanding the preceding sentence, all
purchasers and grantees of any property or rights purporting to be released
shall be entitled to rely upon any release executed by the Collateral Agent
hereunder as sufficient for the purpose of this Indenture and as constituting a
good and valid release of the property therein described from the Lien of this
Indenture and of the Collateral Documents.
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SECTION 11.08. Purchaser Protected.
No purchaser or grantee of any property or rights purporting to be
released shall be bound to ascertain the authority of the Collateral Agent to
execute the release or to inquire as to the existence of any conditions herein
prescribed for the exercise of such authority.
SECTION 11.09. Authorization of Actions To Be Taken by the
Collateral Agent Under the Collateral Documents.
Subject to the provisions of the Collateral Documents:
(a) the Collateral Agent may, in its sole discretion and without the
consent of the Holders, take all actions it deems necessary or appropriate in
order to (i) comply with, enforce and perform, from time to time, any of the
terms of the Collateral Documents and (ii) collect and receive any and all
amounts payable in respect of the Obligations of the Company and the Guarantors
hereunder and under the Collateral Documents; and
(b) the Collateral Agent shall have power to institute and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any act that may be unlawful or in violation of
the Collateral Documents or this Indenture, and such suits and proceedings as
the Collateral Agent may deem expedient to preserve or protect its interests and
the interests of the Holders in the Collateral (including the power to institute
and maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest thereunder or
be prejudicial to the interests of the Holders or of the Collateral Agent).
SECTION 11.10. Authorization of Receipt of Funds by the Collateral
Agent Under the Collateral Documents.
The Collateral Agent is authorized to receive any funds for the
benefit of Holders distributed under the Collateral Documents, to apply such
funds as provided in this Indenture and the Collateral Documents, and to make
further distributions of such funds to the Holders in accordance with the
provisions of Article 11 and the other provisions of this Indenture.
ARTICLE 12
Miscellaneous
Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall control. Each
Guarantor in addition to performing its obligations under its Guaranty shall
perform such other obligations as may be imposed upon it with respect to this
Indenture by the TIA.
Notices. Any notice, request or communication shall be in writing and delivered
in person or mailed by first-class mail addressed as follows:
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if to the Company or any Guarantor:
[New Skynet]
___________________________________
___________________________________
Attention: [__________________]
with a copy to:
[__________________________________]
___________________________________
___________________________________
Attention: [__________________]
if to the Trustee:
[__________________________________]
___________________________________
___________________________________
Attention: [__________________]
The Company, any Guarantor or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be mailed
to the Noteholder at the Noteholder's address as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Copies of
any such communication or notice to a Holder shall also be mailed to the
Trustee, the Registrar, co-registrar, Paying Agent and transfer agent at the
same time.
Where this Indenture provides for notice in any manner, such notice
may be expressly waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waiver of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service it shall
be impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Communication by Holders with Other Holders. Noteholders may communicate
pursuant to TIA Section 312(b) with other Noteholders with respect to their
rights under this Indenture or the Notes.
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The Company, each Guarantor, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take or refrain from taking 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 stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Statements Required in Certificate or Opinion. Each certificate or opinion with
respect to compliance with a covenant or condition provided for in this
Indenture shall include:
(3) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(4) 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;
(5) a statement that, in the opinion of such individual, 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 complied with; and
(6) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with;
provided, however, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public officials.
When Notes Disregarded. In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company
shall be disregarded and deemed not to be outstanding, except that, for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which a Trust Officer of the
Trustee knows are so owned shall be so disregarded. Also, subject to the
foregoing, only Notes outstanding at the time shall be considered in any such
determination. Notwithstanding the foregoing, subject to the last sentence of
Section 6.06, Notes owned on the Issue Date by MHR or any Related Party thereof
shall not be so disregarded so long as such Notes are owned by MHR or any
Related Party thereof.
74
Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable
rules for action by or a meeting of Noteholders. The Registrar and the Paying
Agent may make reasonable rules for their functions.
Legal Holidays. A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the State of New York. If a
payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a regular record date is a Legal Holiday, the record date
shall not be affected.
Governing Law. This Indenture and the Notes shall be governed by, and construed
in accordance with, the laws of the State of New York but 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.
No Recourse Against Others. No director, officer, employee, incorporator or
stockholder of the Company or any Guarantor will have any liability for any
obligations of the Company or any Guarantor under the Notes, any Guaranty or
this 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.
Successors. All agreements of the Company and the Guarantors in this Indenture
and the Notes shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Multiple Originals. The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement. One signed copy is enough to prove this Indenture.
Table of Contents; Headings. The table of contents, cross-reference sheet and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions hereof.
75
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
[NEW SKYNET],
as the Company
By: ______________________________________________
Name: ___________________________________________
Title: ___________________________________________
[LORAL ASIA PACIFIC SATELLITE (HK)
LIMITED], as a Guarantor
By: ______________________________________________
Name: ___________________________________________
Title: ___________________________________________
[T18 OWNER],
as a Guarantor
By: ______________________________________________
Name: ___________________________________________
Title: ___________________________________________
[ ], as Trustee and as Collateral Agent
By: ______________________________________________
Name: ___________________________________________
Title: ___________________________________________
76
APPENDIX A
PROVISIONS RELATING TO THE NOTES
1. Definitions.
1.1 Certain Definitions.
For the purposes of this Appendix A the following terms shall have
the meanings indicated below:
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the rules
and procedures of the Depository as in effect from time to time.
"DEFINITIVE NOTE" means a certificated Note that does not include
the Global Securities Legend.
"DEPOSITORY" means The Depository Trust Company, its nominees and
their respective successors.
"INITIAL NOTES" means the $126.0 million of Notes issued on the
Issue Date.
"NOTES CUSTODIAN" means the custodian with respect to a Global Note
(as appointed by the Depository), or any successor Person thereto and shall
initially be the Trustee.
"TRANSFER RESTRICTED NOTES" means Notes that bear or are required to
bear the Transfer Restriction Legend.
1.2 Other Definitions.
Defined in
Term Section
---- ----------
"Additional Definitive Notes"....................................... 2.1(a)
"Additional Global Notes"........................................... 2.1(a)
"Agent Members" .................................................... 2.1(b)
"Global Notes" ..................................................... 2.1(a)
"Global Note Legend"................................................ 2.3(g)(i)
"Initial Global Notes" ............................................. 2.1(a)
"Restricted Definitive Notes"....................................... 2.1(a)
"Restricted Global Notes" .......................................... 2.1(a)
"Transfer Restriction Legend"....................................... 2.3(g)(i)
"Unrestricted Definitive Notes" .................................... 2.1(a)
"Unrestricted Global Notes"......................................... 2.1(a)
2. The Notes.
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2.1 Form and Dating.
(a) General.
The Initial Notes shall be issued initially (i) in the form of two
or more permanent global notes in definitive, fully registered form
(collectively, the "INITIAL GLOBAL NOTES"), at least one of which shall bear the
Transfer Restriction Legend, and at least one of which shall not bear such
legend, and (ii) to the extent necessary, in the form of one or more Definitive
Notes.
Additional Notes constituting interest paid in-kind with respect to
Notes evidenced by a Global Note may be issued by the annotation of an increase
in the principal amount of such Global Note or by the issuance of one or more
additional global Notes in definitive, fully registered form ("ADDITIONAL GLOBAL
NOTES"). Additional Global Notes evidencing interest paid in-kind with respect
to Transfer Restricted Notes shall constitute Transfer Restricted Notes.
Additional Notes constituting interest paid in-kind with respect to
Notes evidenced by a Definitive Note shall be issued in the form of one or more
additional Definitive Notes ("ADDITIONAL DEFINITIVE NOTES"). Additional
Definitive Notes evidencing interest paid in-kind with respect to Transfer
Restricted Notes shall constitute Transfer Restricted Notes.
The Initial Global Notes and any Additional Global Notes are
collectively referred to herein as "GLOBAL NOTES." All Global Notes shall be
initially issued in each case without interest coupons and with the Global Note
Legend, shall be deposited on behalf of the purchasers of such Notes represented
thereby with the Notes Custodian and registered in the name of the Depository or
a nominee of the Depository, and duly executed by the Company and authenticated
by the Trustee as provided in this Indenture. The aggregate principal amount of
the Global Notes may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depository or its nominee as
hereinafter provided.
Global Notes that are Transfer Restricted Notes are referred to
herein as "RESTRICTED GLOBAL NOTES," and Global Notes that are not Transfer
Restricted Notes are referred to herein as "UNRESTRICTED GLOBAL NOTES."
Definitive Notes that are Transfer Restricted Notes are referred to herein as
"RESTRICTED DEFINITIVE NOTES," and Definitive Notes that are not Transfer
Restricted Notes are referred to herein as "UNRESTRICTED DEFINITIVE NOTES."
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a
Global Note deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(b), authenticate and deliver initially one or more Global Notes
that (a) shall be registered in the name of the Depository for such Global Note
or Global Notes or the nominee of such Depository and (b) shall be delivered by
the Trustee to such Depository or pursuant to such Depository's instructions or
held by the Trustee as custodian for the Depository.
Members of, or participants in, the Depository ("AGENT MEMBERS")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository or by the Trustee as the custodian of the
Depository or under such Global Note, and
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the Company, the Trustee and any agent of the Company or the Trustee shall be
entitled to treat the Depository as the absolute owner of such Global Note for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices of such Depository governing the
exercise of the rights of a holder of a beneficial interest in any Global Note.
(c) Certificated Notes. Except as provided in this Section 2.1 or
Section 2.3, owners of beneficial interests in Global Notes shall not be
entitled to receive physical delivery of Definitive Notes.
2.2 Authentication. The Trustee shall authenticate and deliver: (1)
on the Issue Date, $126.0 million principal amount of Notes, (2) from time to
time to the extent permitted pursuant to Section 4.01(b) of the Indenture,
Additional Notes for original issue in aggregate principal amounts specified in
Officers' Certificates of the Company pursuant to Section 4.01(b), and (3) from
time to time, Notes for issue pursuant to Sections 2.06, 2.07, 2.09, 3.06 and
9.05 of the Indenture, in each case upon receipt of an Officers' Certificate or
a written order of the Company signed by two Officers or by an Officer and
either an Assistant Treasurer or an Assistant Secretary of the Company. Such
Officers' Certificate or order shall specify the amount of the Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated.
2.3 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository,
by a nominee of the Depository to the Depository or to another nominee of the
Depository, or by the Depository or any such nominee to a successor Depository
or a nominee of such successor Depository. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depository that it is unwilling or unable to continue to act as
Depository or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depository is not appointed by the
Company within 120 days after the date of such notice from the Depository, (ii)
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 (iii) there shall have occurred and be
continuing a Default or an Event of Default and such exchange shall be requested
by a written notice given to the Depository by a Holder. Upon the occurrence of
any of the preceding events in (i), (ii) or (iii) above, Definitive Notes shall
be issued in such names as the Depository shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Section 2.07 of the Indenture. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.3(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.3(b) or (c) hereof, in each case subject to the requirements of
Section 2.3(f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the
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Depository, in accordance with the provisions of this Indenture and the
Applicable Procedures. Beneficial interests in the Restricted Global Notes shall
be subject to restrictions on transfer comparable to those set forth herein to
the extent required by the Securities Act. Transfers of beneficial interests in
the Global Notes also shall require compliance with the following, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in a 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 Section 2.3(f) hereof
and the transfer restrictions set forth in the Transfer Restriction
Legend. Beneficial interests in an Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Unrestricted Global Note.
(ii) Transfers and Exchanges of Beneficial Interests in a
Global Note for Beneficial Interests in the other Global Note. In
connection with all transfers and exchanges of beneficial interests in a
Global Note for beneficial interests in the other Global Note, the
transferor of such beneficial interest must deliver to the Registrar (A) a
written order from a Participant given to the Depository in accordance
with the Applicable Procedures directing the Depository to credit or cause
to be credited a beneficial interest in the applicable Global Note in an
amount equal to the beneficial interest to be transferred or exchanged,
(B) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase, and (C) the documentation required by Section 2.3(f)
hereof. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this
Indenture (including, without limitation, Section 2.3(f) hereof) and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Notes pursuant to
Section 2.3(h) hereof.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
If any holder of a beneficial interest in a 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 (i) delivery to the Registrar of (A) a written order
from a Participant given to the Depository in accordance with the Applicable
Procedures directing the Depository to cause to be issued a Definitive Note in
an amount equal to the beneficial interest to be transferred or exchanged, and
(B) instructions given by the Depository to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be registered to
effect such transfer or exchange, and (ii) if the beneficial interest being
transferred or exchanged is a beneficial interest in a Restricted Global Note,
satisfaction of the conditions set forth in Section 2.3(f) hereof, the Trustee
shall cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.3(h) hereof, and the Company shall
execute and, upon receipt of an authentication order pursuant to Section 2.2,
the Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.3(c) shall be registered in
A-4
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depository and the Participant. The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so
registered.
Any Definitive Note issued upon exchange or transfer of a beneficial
interest in an Unrestricted Global Note that is issued to a Person that may be
deemed to be an "underwriter" within the meaning of 11 U.S.C. Section 1145
("SECTION 1145") or an "affiliate" or a "control person" within the meaning of
the Securities Act and any Definitive Note issued upon exchange or transfer of a
beneficial interest in a Restricted Global Note shall, in each case, unless
otherwise permitted under Section 2.3(f), bear the Transfer Restriction Legend
and shall be subject to all restrictions on transfer contained therein.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
If any Holder of a Definitive Note proposes to exchange such Note
for a beneficial interest in a Global Note or to transfer such Definitive Note
to a Person who takes delivery thereof in the form of a beneficial interest in a
Global Note, then, upon (i) delivery to the Registrar of a written order and
instructions of the types described in Section 2.3(b)(ii) above and an
endorsement or instrument of transfer as described in Section 2.3(e) below, and
(ii) if the Definitive Note being transferred or exchanged is a Restricted
Definitive Note, satisfaction of the conditions set forth in Section 2.3(f)
hereof, the Trustee shall cancel the applicable Definitive Note and increase or
cause to be increased the aggregate principal amount of the applicable Global
Note.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.3(e) and, if applicable,
Section 2.3(f), the Registrar shall register the transfer or exchange of
Definitive Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the Definitive
Notes duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required
pursuant to Section 2.3(f).
Any Definitive Note issued upon exchange or transfer of an
Unrestricted Definitive Note that is issued to a Person that may be deemed to be
an "underwriter" within the meaning of Section 1145 or an "affiliate" or a
"control person" within the meaning of the Securities Act and any Definitive
Note issued upon exchange or transfer of a Restricted Definitive Note shall, in
each case, unless otherwise permitted under Section 2.3(f), bear the Transfer
Restriction Legend and shall be subject to all restrictions on transfer
contained therein.
(f) Transfers and Exchanges of Transfer Restricted Notes. No Person
may transfer or exchange a Restricted Definitive Note, a Restricted Global Note
or a beneficial interest in a Restricted Global Note (including, without
limitation, the removal of the Transfer Restriction Legend thereon) unless such
transfer or exchange is made (i) pursuant to an effective
A-5
registration statement under the Securities Act, or (ii) pursuant to an
exemption from registration requirements of the Securities Act and, in the case
of clause (ii), if the Registrar or the Company so requests, the Registrar
receives an opinion of counsel in form reasonably acceptable to the Registrar
and the Company stating that (A) such transfer or exchange is in compliance with
the Securities Act and (B) if such transferee or exchangee seeks the removal of
the Transfer Restriction Legend, the restrictions on transfer contained herein
and in the Transfer Restriction Legend are no longer required in order to
maintain compliance with the Securities Act. Upon satisfaction of the
requirements of this Section 2.3(f) with respect to the removal of the Transfer
Restriction Legend, as appropriate, such Restricted Definitive Note shall be
exchanged for an Unrestricted Definitive Note or such beneficial interest in a
Restricted Global Note shall be exchanged for a beneficial interest in a
corresponding Unrestricted Global Note, and the Trustee shall adjust the
principal balances of the Global Notes pursuant to Section 2.3(h) hereof.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture to the extent
required by the applicable provisions of this Indenture:
(i) Transfer Restriction Legend. Each Transfer Restricted Note
shall bear a legend substantially in the following form (the "TRANSFER
RESTRICTION LEGEND").
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION PURSUANT TO 11 U.S.C. SECTION 1145 AND HAS NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. THIS NOTE MAY NOT BE SOLD, OFFERED FOR SALE OR
OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS THE
COMPANY AND THE REGISTRAR OF THIS NOTE RECEIVE AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THEM THAT SUCH REGISTRATION OR
QUALIFICATION IS NOT REQUIRED."
[INCLUDE THE FOLLOWING TWO PARAGRAPHS ONLY IF THE TRANSFER
RESTRICTED NOTE IS A DEFINITIVE NOTE:]
"THE HOLDER OF THIS NOTE AGREES THAT IT WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO ABOVE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS THE REGISTRAR
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS."
A-6
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form (the "GLOBAL NOTE LEGEND"):
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN."
(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
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.10 of this
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depository at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depository at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon receipt of an authentication order. The Company
shall make available to the Trustee from time to time upon request a
reasonable supply of Definitive Notes in definitive, fully registered form
without interest coupons.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the 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 2.09, 3.06, 4.04, 4.10 and 9.05 of this
Indenture).
A-7
(iii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(iv) Neither the Company nor the Registrar shall 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 of the Indenture
and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so 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.
(v) 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, the Registrar, or the Company shall be affected by notice to the
contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.2 hereof.
(vii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.3 to
effect a registration of transfer or exchange may be submitted by
facsimile.
X-0
XXXXXXXX X
[FORM OF FACE OF NOTES]
[Insert Global Note Legend here if appropriate]
[Insert Restricted Securities Legend here if appropriate]
No. [ ] $[ ]
CUSIP No. $[ ]
ISIN No. [ ]
14% Senior Secured Notes due 2015
[NEW SKYNET], a [Delaware] corporation, promises to pay to [CEDE &
CO.](1) [ ], or registered assigns, the principal sum of [ ] DOLLARS [, or such
greater or lesser amount as may from time to time be endorsed on the Schedule of
Increases or Decreases in Global Note attached hereto (but in no event may such
amount exceed the aggregate principal amount of Notes authenticated pursuant to
Section 2.2 of Appendix A to the Indenture referred to below and then
outstanding pursuant to Section 2.08 of the Indenture),](1) on [ ], 2015.
Interest Payment Dates: [ ] and [ ], commencing [ ], 200[ ].
Record Dates: [ ]and [ ].
Additional provisions of this Note are set forth on the other side
of this Note.
Dated: [ ], 20[ ]
[NEW SKYNET]
By: ____________________________________
Name: __________________________________
Title: _________________________________
By: ____________________________________
Name: __________________________________
Title: _________________________________
----------
(1) Use if Global Note.
B-1
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
[ ],
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By: ______________________________
Authorized Signatory
B-2
[FORM OF REVERSE SIDE OF NOTES]
14% Senior Secured Notes due 2015
1. Interest and Principal
[NEW SKYNET], a [Delaware] corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "COMPANY"), promises to pay interest on the principal amount of this
Note at the rate per annum shown above. In certain circumstances, the Company
may pay all or a portion of such interest in-kind through the issuance of
Additional Notes in lieu of cash, as more particularly described in Section
4.01(b) of the Indenture. Subject to Section 4.01(c) of the Indenture, interest
on overdue principal (and, to the extent lawful, on overdue installments of
interest) shall accrue at the rate that is 2.0% per annum in excess of the rate
specified in the preceding sentence. The Company will pay interest semi-annually
in arrears on each Interest Payment Date. Interest on the Notes (including
Additional Notes) will accrue from the date of issuance of each Note or, if
interest has already been paid, from the date it was most recently paid or
provided for. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
The Notes will mature on [ ], 2015.
2. Method of Payment
The Company will pay interest on the Notes (except defaulted
interest) to the Persons who are registered holders of Notes at the close of
business on the Record Date next preceding the Interest Payment Date even if
Notes are canceled after the Record Date and on or before the Interest Payment
Date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company will pay principal, premium, if any, and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of the Notes represented by a
Global Note (including principal, premium, if any, and interest) will be made by
wire transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
certificated Note (including principal, premium, if any, and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on a certificated Note will be made by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 30 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, [ ] (the "TRUSTEE"), will act as Paying Agent and
Registrar. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Company or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
B-3
The Company issued the Notes under an Indenture dated as of [ ],
2005 (as such may be amended or supplemented from time to time, "INDENTURE"),
among the Company, the Guarantors, the Trustee and the Collateral Agent. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all such terms, and
Noteholders are referred to the Indenture and the TIA for a statement of those
terms.
The Notes are senior obligations of the Company.
The Indenture contains covenants that limit the ability of the
Company and its subsidiaries to, among other things, incur additional
indebtedness; layer indebtedness; pay dividends or distributions on, or redeem
or repurchase capital stock; make investments; engage in transactions with
affiliates; create liens on assets; transfer or sell assets; restrict dividends
or other payments from subsidiaries; and consolidate, merge or transfer all or
substantially all of its assets and the assets of its subsidiaries. These
covenants are subject to important exceptions and qualifications.
5. Optional Redemption
Except as set forth below, the Company will not be entitled to
redeem the Notes at its option.
On and after [ ], 2009, [48 months after issuance], the Company will
be entitled at its option to redeem all or a portion of the Notes upon not less
than 30 nor more than 60 days' notice, at the redemption prices set forth below
(expressed in percentages of principal amount) on the date of redemption (the
"REDEMPTION DATE"), plus accrued and unpaid interest to the Redemption Date
(subject to the right of Holders of record on the relevant Record Date to
receive interest due on the relevant Interest Payment Date), if redeemed during
the 12-month period commencing on [ ] of the years set forth below:
Redemption
Period Price
------ ----------
2009....................... 110.0%
2010....................... 108.0%
2011....................... 106.0%
2012....................... 104.0%
2013....................... 102.0%
2014....................... 100.0%
The schedule set forth above shall also be applicable to mandatory
repurchases of Notes upon a Change of Control as described in Section 7 below.
Subject to the right of Holders to object, as set forth below in
this paragraph, prior to [____________], 2009, the Company may elect to redeem
all or a portion of the Notes upon not less than 30 nor more than 60 days'
notice, at the redemption price of 110% of the principal
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amount thereof plus accrued and unpaid interest to the Redemption Date (subject
to the right of Holders of record on the relevant Record Date to receive
interest due on the relevant Interest Payment Date). In such event, (1) the
Officers' Certificate required pursuant to Section 3.01 of the Indenture shall
also certify a resolution of the Board of Directors of the Company approving
such redemption and (2) such notice of redemption shall inform the Holders of
their right to object to and prevent such redemption, and provide a reasonable
mechanism by which Holders may exercise such right. If within ten (10) Business
Days following the date that such redemption notice is sent to the Holders,
written notice is received by the Company from the Holders of at least
two-thirds (2/3) in principal amount of the then outstanding Notes objecting to
such redemption (such notices from the Holders of such two-thirds or greater
amount, collectively, the "REQUISITE OBJECTION TO REDEMPTION NOTICE"), then the
Company shall not consummate such redemption. If the Requisite Objection to
Redemption Notice is not received by the Company by the expiration of such ten
(10) Business Day-period, then the Company may consummate such redemption as
specified in such redemption notice.
6. Notice of Redemption
Notice of redemption will be mailed by first class mail at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at the Holder's registered address. Notes in denominations
of $1,000 principal amount or less may be redeemed in whole and not in part.
Notes in denominations larger than $1,000 principal amount may be redeemed in
part but only in whole multiples of $1,000. If money sufficient to pay the
redemption price of and accrued interest on all Notes (or portions thereof) to
be redeemed on the Redemption Date is deposited with the Paying Agent on or
before the Redemption Date and certain other conditions are satisfied, on and
after such date interest will cease to accrue on such Notes (or such portions
thereof) called for redemption unless the Company defaults in making the
redemption payment.
7. Put Provisions
Upon a Change of Control, each Holder will have the right to require
that the Company repurchase such Holder's Notes at a purchase price determined
in accordance with [the schedule set forth in Section 5 herein] plus accrued and
unpaid interest, if any, to the date of purchase (subject to the right of
holders of record on the relevant Record Date to receive interest due on the
related Interest Payment Date) as provided in, and subject to the terms of, the
Indenture.
In certain circumstances, the Company must use the Net Available
Cash from Asset Dispositions to make an offer to Holders to repurchase Notes at
a purchase price of 100% of the principal amount, plus accrued and unpaid
interest.
8. Guaranty
The payment by the Company of the principal of, and premium and
interest on, the Notes is fully and unconditionally guaranteed on a joint and
several senior basis by each of the Guarantors. Not all Subsidiaries of the
Company are required to be Guarantors.
9. Collateral
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Subject to certain exceptions described in the Indenture, the Notes
are secured by security interests in and liens on substantially all of the
assets of the Company and the Guarantors, including pledges of the stock of the
Company's Subsidiaries. Collateral may be released under certain circumstances
as more particularly described in the Indenture.
10. Transfer; Exchange
The Notes are in registered form without coupons. A Holder may
transfer or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Notes selected for redemption (except, in the case of a Note to be redeemed in
part, the portion of the Note not to be redeemed) or any Notes for a period of
15 days before the mailing of a notice of redemption of Notes to be redeemed or
15 days before an interest payment date, as applicable.
11. Persons Deemed Owners
The registered Holder of this Note may be treated as the Note's
owner for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time shall be
entitled to terminate some or all of its obligations under the Notes and the
Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Notes to redemption
or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture, the Collateral Documents and the Notes may be amended with the
written consent of the Holders of at least two-thirds in principal amount
outstanding of the Notes and (ii) any default or noncompliance with any
provision may be waived with the written consent of the Holders of two-thirds in
principal amount outstanding of the Notes. Subject to certain exceptions set
forth in the Indenture, without the consent of any Noteholder, the Company, the
Guarantors, and the Trustee shall be entitled to amend the Indenture, the
Collateral Documents or the Notes to cure any ambiguity, omission, defect or
inconsistency, to comply with Article 5 of the Indenture, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to add
guarantees with respect to the Notes, including any Guaranties, to add
Collateral to further secure the Notes, to add additional covenants or surrender
rights and powers conferred on the Company or any
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Guarantors, to comply with any request of the SEC in connection with qualifying
the Indenture under the TIA, to make any change that does not adversely affect
the rights of any Noteholder, or to evidence the release of a Guarantor in
accordance with the Indenture.
15. Defaults and Remedies
Under the Indenture, Events of Default include: (i) defaults in any
payment of interest on any Note when the same becomes due and payable, continued
for [30] days; (ii) default in payment of principal on the Notes at maturity,
upon optional redemption pursuant to Section 5 of the Notes, upon declaration of
acceleration or otherwise, or failure by the Company to redeem or purchase Notes
when required; (iii) failure by the Company or any Guarantor to comply with
other agreements in the Indenture or the Notes, in certain cases subject to
notice and lapse of time; (iv) certain accelerations (including failure to pay
within any grace period after final maturity) of other Indebtedness of the
Company, any Guarantor or any Subsidiary if the amount accelerated (or so
unpaid) exceeds [$10.0] million; (v) certain events of bankruptcy or insolvency
with respect to the Company, any Guarantor and the Subsidiaries; (vi) certain
judgments or decrees for the payment of money in excess of [$10.0] million; and
(vii) certain defaults with respect to Guaranties and Collateral Documents. If
an Event of Default occurs and is continuing, the Trustee or the Holders of at
least [33.33%] in principal amount of the Notes then outstanding may declare all
the Notes to be due and payable by notice in writing to the Company and the
Trustee, and upon such declaration, the Notes will be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Notes being due and payable immediately upon the
occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security against any loss,
liability or expense. Subject to certain limitations, Holders of a majority in
principal amount of the Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Noteholders notice of any
continuing Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
17. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor will have any liability for any obligations of the
Company or any Guarantor under the Notes, any Guaranty or the Indenture or for
any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and
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releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
18. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
19. Abbreviations
Customary abbreviations may be used in the name of a Noteholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. CUSIP Numbers
The Company in issuing the Notes may use "CUSIP" numbers and
corresponding "ISINs" (if then generally in use) and, if so, the Trustee may use
"CUSIP" numbers and corresponding "ISINs" in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers.
21. Governing Law
This Note shall be governed by, and construed in accordance with,
the laws of the state of New York but 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.
22. Copies
The Company will furnish to any Noteholder upon written request and
without charge to the Noteholder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to:
[New Skynet]
__________________________
__________________________
Attention: [____________]
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________________ agent to transfer
this Note on the books of the Company. The agent may
substitute another to act for him.
______________________________________________________________
Date: _____________________ Your Signature: __________________
______________________________________________________________
Sign exactly as your name appears on the other side of this Note.
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Principal amount of Signature of
Amount of decrease Amount of increase in this Global Note authorized officer
in principal amount principal amount of following such of Trustee or Notes
Date of Exchange of this Global Note this Global Note decrease or increase Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.04 or 4.10 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.04 or 4.10 of the Indenture, state the amount in
principal amount: $_____________
Date: ____________ Your Signature:_______________________________
(Sign exactly as your name
appears on the other side of
this Note.)
Signature Guarantee: _______________________________________________________
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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