EXHIBIT 4.1
Execution Version
===============================================================================
ZEUS MERGER TWO LIMITED
as Issuer
and ZEUS MERGER ONE LIMITED
as Parent Guarantor
Floating Rate Senior Notes due 2012
8-1/4% Senior Notes due 2013
8-5/8% Senior Notes due 2015
------------------------
INDENTURE
Dated as of January 28, 2005
------------------------
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
===============================================================================
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.........................................1
SECTION 1.02. OTHER DEFINITIONS..................................39
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT..42
SECTION 1.04. RULES OF CONSTRUCTION..............................42
ARTICLE 2
THE SECURITIES
SECTION 2.01. AMOUNT OF NOTES; ISSUABLE IN SERIES................43
SECTION 2.02. FORM AND DATING....................................44
SECTION 2.03. EXECUTION AND AUTHENTICATION.......................45
SECTION 2.04. REGISTRAR, PAYING AGENT AND CALCULATION AGENT......46
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST................46
SECTION 2.06. HOLDER LISTS.......................................47
SECTION 2.07. TRANSFER AND EXCHANGE..............................47
SECTION 2.08. REPLACEMENT NOTES..................................48
SECTION 2.09. OUTSTANDING NOTES..................................48
SECTION 2.10. TEMPORARY NOTES....................................48
SECTION 2.11. CANCELLATION.......................................49
SECTION 2.12. DEFAULTED INTEREST.................................49
SECTION 2.13. CUSIP NUMBERS, ISINS, ETC..........................49
SECTION 2.14. CALCULATION OF PRINCIPAL AMOUNT OF NOTES...........49
ARTICLE 3
REDEMPTION
SECTION 3.01. REDEMPTION.........................................50
SECTION 3.02. APPLICABILITY OF ARTICLE...........................50
SECTION 3.03. NOTICES TO TRUSTEE.................................50
SECTION 3.04. SELECTION OF NOTES TO BE REDEEMED..................50
SECTION 3.05. NOTICE OF OPTIONAL REDEMPTION......................51
SECTION 3.06. EFFECT OF NOTICE OF REDEMPTION.....................52
SECTION 3.07. DEPOSIT OF REDEMPTION PRICE........................52
SECTION 3.08. NOTES REDEEMED IN PART.............................52
SECTION 3.09. REDEMPTION FOR TAXATION REASONS....................52
SECTION 3.10. SPECIAL MANDATORY REDEMPTION.......................53
-i-
PAGE
SECTION 3.11. NOTICE OF SPECIAL MANDATORY REDEMPTION.............53
SECTION 3.12. EFFECT OF NOTICE OF SPECIAL MANDATORY REDEMPTION...53
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES...................................53
SECTION 4.02. REPORTS AND OTHER INFORMATION......................54
SECTION 4.03. LIMITATION ON INCURRENCE OF INDEBTEDNESS AND
ISSUANCE OF DISQUALIFIED STOCK AND PREFERRED
STOCK.............................................55
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS..................60
SECTION 4.05. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.....................................66
SECTION 4.06. ASSET SALES........................................68
SECTION 4.07. TRANSACTIONS WITH AFFILIATES.......................71
SECTION 4.08. CHANGE OF CONTROL..................................74
SECTION 4.09. COMPLIANCE CERTIFICATE.............................76
SECTION 4.10. FURTHER INSTRUMENTS AND ACTS.......................77
SECTION 4.11. FUTURE GUARANTORS..................................77
SECTION 4.12. LIENS..............................................77
SECTION 4.13. MAINTENANCE OF OFFICE OR AGENCY....................78
SECTION 4.14. MAINTENANCE OF INSURANCE...........................78
SECTION 4.15. MATTERS RELATING TO INTELSAT GENERAL CORPORATION...80
SECTION 4.16. SUSPENSION OF COVENANTS............................80
SECTION 4.17. PAYMENT OF ADDITIONAL AMOUNTS......................81
SECTION 4.18. ESCROW OF PROCEEDS; RELEASE........................82
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. WHEN ISSUER MAY MERGE OR TRANSFER ASSETS...........84
SECTION 5.02. SUCCESSOR COMPANY SUBSTITUTED......................86
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT..................................86
SECTION 6.02. ACCELERATION.......................................88
SECTION 6.03. OTHER REMEDIES.....................................88
SECTION 6.04. WAIVER OF PAST DEFAULTS............................89
SECTION 6.05. CONTROL BY MAJORITY................................89
SECTION 6.06. LIMITATION ON SUITS................................89
SECTION 6.07. RIGHTS OF THE HOLDERS TO RECEIVE PAYMENT...........90
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.........................90
-ii-
PAGE
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM...................90
SECTION 6.10. PRIORITIES.........................................90
SECTION 6.11. UNDERTAKING FOR COSTS..............................91
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS...................91
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE..................................91
SECTION 7.02. RIGHTS OF TRUSTEE..................................92
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.......................93
SECTION 7.04. TRUSTEE'S DISCLAIMER...............................93
SECTION 7.05. NOTICE OF DEFAULTS.................................93
SECTION 7.06. REPORTS BY TRUSTEE TO THE HOLDERS..................94
SECTION 7.07. COMPENSATION AND INDEMNITY.........................94
SECTION 7.08. REPLACEMENT OF TRUSTEE.............................95
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER........................96
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION......................96
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER...96
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. DISCHARGE OF LIABILITY ON NOTES; DEFEASANCE........97
SECTION 8.02. CONDITIONS TO DEFEASANCE...........................98
SECTION 8.03. APPLICATION OF TRUST MONEY.........................99
SECTION 8.04. REPAYMENT TO ISSUER................................99
SECTION 8.05. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS.........100
SECTION 8.06. REINSTATEMENT.....................................100
ARTICLE 9
AMENDMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF THE HOLDERS....................100
SECTION 9.02. WITH CONSENT OF THE HOLDERS.......................101
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT...............102
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.....102
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES..................102
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS........................103
SECTION 9.07. PAYMENT FOR CONSENT...............................103
SECTION 9.08. ADDITIONAL VOTING TERMS...........................103
-iii-
PAGE
ARTICLE 10
GUARANTEES
SECTION 10.01. GUARANTEES......................................103
SECTION 10.02. LIMITATION ON LIABILITY.........................106
SECTION 10.03. SUCCESSORS AND ASSIGNS..........................107
SECTION 10.04. NO WAIVER.......................................107
SECTION 10.05. MODIFICATION....................................107
SECTION 10.06. EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE
GUARANTORS......................................107
SECTION 10.07. NON-IMPAIRMENT..................................107
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS....................107
SECTION 11.02. NOTICES.........................................108
SECTION 11.03. COMMUNICATION BY THE HOLDERS WITH OTHER HOLDERS.109
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.....................................109
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION...109
SECTION 11.06. WHEN NOTES DISREGARDED..........................109
SECTION 11.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR....110
SECTION 11.08. LEGAL HOLIDAYS..................................110
SECTION 11.09. GOVERNING LAW...................................110
SECTION 11.10. NO RECOURSE AGAINST OTHERS......................110
SECTION 11.11. SUCCESSORS......................................110
SECTION 11.12. MULTIPLE ORIGINALS..............................110
SECTION 11.13. TABLE OF CONTENTS; HEADINGS.....................110
SECTION 11.14. INDENTURE CONTROLS..............................110
SECTION 11.15. SEVERABILITY....................................110
SECTION 11.16. JURISDICTION....................................110
SECTION 11.17. IMMUNITY........................................111
SECTION 11.18. CURRENCY OF ACCOUNT; CONVERSION OF CURRENCY;
FOREIGN EXCHANGE RESTRICTIONS.. ..............111
APPENDIX A - PROVISIONS RELATING TO INITIAL NOTES, ADDITIONAL
NOTES AND EXCHANGE NOTES
EXHIBIT INDEX
EXHIBIT A - FORM OF INITIAL 2013 NOTE
EXHIBIT B - FORM OF INITIAL 2015 NOTE
EXHIBIT C - FORM OF INITIAL FLOATING RATE NOTE
EXHIBIT D - FORM OF EXCHANGE 2013 NOTE
EXHIBIT E - FORM OF EXCHANGE 2015 NOTE
EXHIBIT F - FORM OF EXCHANGE FLOATING RATE NOTE
-iv-
EXHIBIT G - FORM OF TRANSFEREE LETTER OF REPRESENTATION - 2013 NOTES
EXHIBIT H - FORM OF TRANSFEREE LETTER OF REPRESENTATION - 2015 NOTES
EXHIBIT I - FORM OF TRANSFEREE LETTER OF REPRESENTATION - FLOATING RATE
NOTES
EXHIBIT J - FORM OF SUPPLEMENTAL INDENTURE
-v-
CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
310(a)(1)............................................. 7.10; 7.11
(a)(2)............................................. 7.10; 7.11
(a)(3)............................................. N.A.
(a)(4)............................................. N.A.
(a)(5)............................................. 7.10
(b)................................................ 7.08; 7.10
(c)................................................ N.A.
311(a)................................................ 7.11
(b)................................................ 7.11
(c)................................................ N.A.
312(a)................................................ 2.06
(b)................................................ 11.03
(c)................................................ 11.03
313(a)................................................ 7.06
(b)(1)............................................. N.A.
(b)(2)............................................. 7.06
(c)................................................ 7.06
(d)................................................ 4.02;
4.09; 7.06
314(a)................................................ 4.02; 4.09
(b)................................................ N.A.
(c)(1)............................................. 11.04
(c)(2)............................................. 11.04
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 11.05
(f)................................................ 4.10
315(a)................................................ 7.01
(b)................................................ 7.05
(c)................................................ 7.01
(d)................................................ 7.01
(e)................................................ 6.11
316(a)(last sentence)................................. 11.06
(a)(1)(A).......................................... 6.05
(a)(1)(B).......................................... 6.04
(a)(2)............................................. N.A.
(b)................................................ 6.07
(c)................................................ 2.06
317(a)(1)............................................. 6.08
(a)(2)............................................. 6.09
(b)................................................ 2.05
318(a)................................................ 11.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purposes, be deemed to be
part of this Indenture.
-2-
INDENTURE dated as of January 28, 2005 among ZEUS MERGER TWO LIMITED,
a company incorporated under the laws of Bermuda (the "ISSUER"), ZEUS MERGER ONE
LIMITED (the "PARENT GUARANTOR") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, as trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders (as defined herein) of
(a)"$875,000,000 aggregate principal amount of 8-1/4% senior notes due 2013 (the
"ORIGINAL 2013 NOTES"), $675,000,000 aggregate principal amount of 8-5/8% senior
notes due 2015 (the "ORIGINAL 2015 NOTES" and, together with the 2013 Notes, the
"ORIGINAL FIXED RATE NOTES") and $1,000,000,000 aggregate principal amount of
floating rate senior notes due 2012 (the "ORIGINAL FLOATING RATE NOTES" and,
together with the Fixed Rate Notes, the "ORIGINAL NOTES") issued on the date
hereof, (b) any Additional Notes (as defined herein) that may be issued after
the date hereof in the form of EXHIBIT A (the "INITIAL 2013 NOTES"), EXHIBIT B
(the "INITIAL 2015 NOTES" and, together with the Initial 2013 Notes, the
"INITIAL FIXED RATE NOTES") or EXHIBIT C (the "INITIAL FLOATING RATE NOTES" and,
together with the Initial Fixed Rate Notes, the "INITIAL NOTES") and (c) if and
when issued as provided in the Registration Rights Agreement (as defined in
APPENDIX A hereto (the "APPENDIX")) or otherwise registered under the Securities
Act (as defined herein) and issued, the Issuer's 8-1/4% senior notes due 2013
(the "EXCHANGE 2013 NOTES"), the Issuer's 8-5/8% senior notes due 2015 (the
"EXCHANGE 2015 NOTES" and, together with the Exchange 2013 Notes, the "EXCHANGE
FIXED RATE NOTES") and the Issuer's floating rate senior notes (the "EXCHANGE
FLOATING RATE NOTES" and, together with the Exchange Fixed Rate Notes, the
"EXCHANGE NOTES" and, together with the Initial Notes and the Original Notes,
the "NOTES") issued in the Registered Exchange Offer (as defined in the
Appendix) in exchange for any Initial Notes or otherwise registered under the
Securities Act and issued in the form of EXHIBIT D, E or F. The Original 2013
Notes, Original 2015 Notes and Original Floating Rate Notes shall be issued in
the form of Initial 2013 Notes, Initial 2015 Notes or Initial Floating Rates
Notes, as applicable and references herein to Initial 2013 Notes, Initial 2015
Notes or Initial Floating Rate Notes shall include the applicable Original
Notes. Subject to the conditions and compliance with the covenants set forth
herein, the Issuer may issue an unlimited aggregate principal amount of
Additional Notes. The Original Fixed Rate Notes, Initial Fixed Rate Notes and
Exchange Fixed Rate Notes are collectively referred to as the "FIXED RATE
NOTES." The Original Floating Rate Notes, Initial Floating Rate Notes and
Exchange Floating Rate Notes are collectively referred to as the "FLOATING RATE
NOTES." The Original 2013 Notes, Initial 2013 Notes and Exchange 2013 Notes are
collectively referred to as the "2013 NOTES." The Original 2015 Notes, Initial
2015 Notes and Exchange 2015 Notes are collectively referred to as the "2015
NOTES."
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACCEPTABLE EXCLUSIONS" means
(1) war, invasion or hostile or warlike action in time of peace or
war, including action in hindering, combating or defending against an
actual, impending or expected attack by:
(a) any government or sovereign power (de jure or de facto),
(b) any authority maintaining or using a military, naval or air
force,
(c) a military, naval or air force, or
(d) any agent of any such government, power, authority or force;
(2) any anti-satellite device, or device employing atomic or nuclear
fission or fusion, or device employing laser or directed energy beams;
(3) insurrection, strikes, labor disturbances, riots, civil
commotion, rebellion, revolution, civil war, usurpation or action taken by
a government authority in hindering, combating or defending against such
an occurrence, whether there be declaration of war or not;
(4) confiscation, nationalization, seizure, restraint, detention,
appropriation or requisition for title or use by or under the order of any
government or governmental authority or agent (whether secret or otherwise
or whether civil, military or de facto) or public or local authority or
agency;
(5) nuclear reaction, nuclear radiation or radioactive contamination
of any nature, whether such loss or damage be direct or indirect, except
for radiation naturally occurring in the space environment;
(6) electromagnetic or radio frequency interference, except for
physical damage to the Satellite directly resulting from such
interference;
(7) willful or intentional acts of the directors or officers of the
named insured, acting within the scope of their duties, designed to cause
loss or failure of the Satellite;
(8) an act of one or more individuals, whether or not agents of a
sovereign power, for political or terrorist purposes and whether the loss,
damage or failure resulting therefrom is accidental or intentional;
(9) any unlawful seizure or wrongful exercise of control of the
Satellite made by any individual or individuals acting for political or
terrorist purposes;
(10) loss of revenue, incidental damages or consequential loss;
(11) extra expenses, other than the expenses insured under such
policy;
(12) third party liability;
-2-
(13) loss of a redundant component(s) that does not cause a
transponder failure; and
(14) such other similar exclusions or modifications to the foregoing
exclusions as may be customary for policies of such type as of the date of
issuance or renewal of such coverage.
"ACQUIRED INDEBTEDNESS" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or becomes a Restricted Subsidiary of such
specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person,
in each case, other than Indebtedness Incurred as consideration in, in
contemplation of, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was otherwise acquired by such Person, or such asset was acquired
by such Person, as applicable.
"ACQUISITION" means the transactions pursuant to which Zeus Holdings
Limited becomes the owner of all of the outstanding share capital of Intelsat,
Ltd. pursuant to the Transaction Agreement.
"ACQUISITION DATE" means the date of the consummation of the
Acquisition pursuant to the Acquisition Documents.
"ACQUISITION DOCUMENTS" means the Transaction Agreement, the Credit
Agreement and, in each case, any other document entered into in connection
therewith, in each case as amended, supplemented or modified from time to time.
"ADDITIONAL 2013 NOTES" means 8-1/4% senior notes due 2013 issued
under the terms of this Indenture subsequent to the Issue Date.
"ADDITIONAL 2015 NOTES" means 8-5/8% senior notes due 2015 issued
under the terms of this Indenture subsequent to the Issue Date.
"ADDITIONAL FLOATING RATE NOTES" means floating rate senior notes due
2012 issued under the terms of this Indenture subsequent to the Issue Date.
"ADDITIONAL NOTES" means Additional 2013 Notes, Additional 2015 Notes
and Additional Floating Rate Notes.
"ADJUSTED EBITDA" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus, without
duplication, to the extent the same was deducted in calculating Consolidated Net
Income:
-3-
(1) Consolidated Taxes; PLUS
(2) Consolidated Interest Expense (including any interest expense set
forth in clause (4) of the definition thereof, whether or not the same was
deducted in calculating Consolidated Net Income); PLUS
(3) Consolidated Non-cash Charges; PLUS
(4) the amount of any restructuring charges or expenses (which, for
the avoidance of doubt, shall include retention, severance, systems
establishment costs or excess pension charges); PLUS
(5) (a) the amount of any fees or expenses incurred or paid in such
period for transition services related to satellites or other assets or
businesses acquired and (b) the amount of management, monitoring,
consulting and advisory fees and related expenses paid to the Sponsors or
any other Permitted Holder (or any accruals relating to such fees and
related expenses) during such period; PROVIDED that such amount pursuant
to subclause (b) shall not exceed in any four-quarter period the greater
of (x) $6.25 million and (y) 1.25% of Adjusted EBITDA of the Issuer and
its Restricted Subsidiaries;
LESS, without duplication,
(6) non-cash items increasing Consolidated Net Income for such period
(excluding any items which represent the reversal of any accrual of, or
cash reserve for, anticipated cash charges in any prior period and any
items for which cash was received in any prior period).
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "CONTROL"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"APPLICABLE PREMIUM" means
(A) with respect to any Fixed Rate Note on any applicable redemption
date, the greater of:
(1) 1.0% of the then outstanding principal amount of such Fixed
Rate Note; and
(2) the excess of:
(a) the present value at such redemption date of (i) the
redemption price of such Fixed Rate Note at January 15, 2009, in
the case of 2013
-4-
Notes, or at January 15, 2010, in the case of 2015 Notes (such
redemption price being set forth in the applicable table
appearing in Paragraph 5 on the reverse side of the applicable
Fixed Rate Note attached as EXHIBIT A or EXHIBIT B hereto), plus
(ii) all required interest payments due on such Fixed Rate Note
through January 15, 2009, in the case of 2013 Notes, or January
15, 2010, in the case of 2015 Notes (in each case, excluding
accrued but unpaid interest), computed using a discount rate
equal to the Treasury Rate as of such redemption date plus 50
basis points; over
(b) the then outstanding principal amount of such Fixed
Rate Note; and
(B) with respect to any Floating Rate Note on any applicable
redemption date, the greater of:
(1) 1.0% of the then outstanding principal amount of the
Floating Rate Note; and
(2) the excess of:
(a) the present value at such redemption date of (i) the
redemption price of the Floating Rate Notes at July 15, 2005
(such redemption price being set forth in the table appearing in
Paragraph 5 on the reverse side of the Floating Rate Note
attached as EXHIBIT C hereto), plus (ii) all required interest
payments due on the Floating Rate Notes (assuming that the
interest rate per annum on the Floating Rate Notes applicable on
the date on which the notice of redemption was given was in
effect for the entire period) through July 15, 2005 (excluding
accrued but unpaid interest), computed using a discount rate
equal to the Treasury Rate as of such redemption date plus 50
basis points; over
(b) the then outstanding principal amount of such Floating
Rate Note.
"ASSET SALE" means:
(1) the sale, conveyance, transfer or other disposition (whether in a
single transaction or a series of related transactions) of property or
assets (including by way of a Sale/Leaseback Transaction) of the Issuer or
any Restricted Subsidiary of the Issuer (each referred to in this
definition as a "DISPOSITION") or
(2) the issuance or sale of Equity Interests (other than directors'
qualifying shares or shares or interests required to be held by foreign
nationals) of any Restricted Subsidiary (other than to the Issuer or
another Restricted Subsidiary of the Issuer) (whether in a single
transaction or a series of related transactions),
-5-
in each case other than:
(a) a disposition of Cash Equivalents or Investment Grade Securities
or obsolete or worn out property or equipment in the ordinary course of
business including the sale or leasing (including by way of sales-type
lease) of transponders or transponder capacity and the leasing or
licensing of teleports;
(b) the disposition of all or substantially all of the assets of the
Issuer in a manner permitted pursuant to Section 5.01 or any disposition
that constitutes a Change of Control;
(c) any Restricted Payment or Permitted Investment that is permitted
to be made, and is made, under Section 4.04;
(d) any disposition of assets or issuance or sale of Equity Interests
of any Restricted Subsidiary with an aggregate Fair Market Value of less
than $20.0 million;
(e) any disposition of property or assets or the issuance of
securities by a Restricted Subsidiary of the Issuer to the Issuer or by
the Issuer or a Restricted Subsidiary of the Issuer to a Restricted
Subsidiary of the Issuer;
(f) any exchange of assets for assets (including a combination of
assets and Cash Equivalents) related to a Similar Business of comparable
or greater market value or usefulness to the business of the Issuer and
its Restricted Subsidiaries as a whole, as determined in good faith by the
Issuer, which in the event of an exchange of assets with a Fair Market
Value in excess of (1) $20.0 million shall be evidenced by an Officers'
Certificate, and (2) $40.0 million shall be set forth in a resolution
approved in good faith by at least a majority of the Board of Directors of
the Issuer;
(g) foreclosures on assets or property of the Issuer or its
Subsidiaries;
(h) any sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary;
(i) any disposition of inventory or other assets (including
transponders, transponder capacity and teleports) in the ordinary course
of business;
(j) the lease, assignment or sublease of any real or personal
property in the ordinary course of business;
(k) a sale of accounts receivable (including in respect of sales-type
leases) and related assets (including contract rights) of the type
specified in the definition of "Receivables Financing" to a Receivables
Subsidiary in a Qualified Receivables Financing or in factoring or similar
transactions;
-6-
(l) a transfer of accounts receivable and related assets of the type
specified in the definition of "Receivables Financing" (or a fractional
undivided interest therein) by a Receivables Subsidiary in a Qualified
Receivables Financing;
(m) the grant in the ordinary course of business of any license of
patents, trademarks, know-how and any other intellectual property;
(n) any Event of Loss;
(o) any sale or other disposition of assets or property in connection
with a Specified Sale/Leaseback Transaction;
(p) any sale of an Excluded Satellite; PROVIDED, that for purposes of
this clause (p) of this definition of "Asset Sale," references in the
definition of "Excluded Satellite" to $37.5 million shall be deemed to be
$25.0 million; PROVIDED, FURTHER, that any cash and Cash Equivalents
received in connection with the sale of an Excluded Satellite shall be
treated as Net Proceeds of an Asset Sale and shall be applied as provided
for in Section 4.06; and
(q) any transfer or disposition of any assets or equity of Galaxy
Satellite TV Holdings Limited or Galaxy Satellite Broadcasting Limited.
"BANK INDEBTEDNESS" means any and all amounts payable under or in
respect of the Credit Agreement or the other Senior Credit Documents, as
amended, restated, supplemented, waived, replaced, restructured, repaid,
refunded, refinanced or otherwise modified from time to time (including after
termination of the Credit Agreement), including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Issuer whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges,
expenses, reimbursement obligations, guarantees and all other amounts payable
thereunder or in respect thereof.
"BOARD OF DIRECTORS" means as to any Person, the board of directors
or managers, as applicable, of such Person (or, if such Person is a partnership,
the board of directors or other governing body of the general partner of such
Person) or any duly authorized committee thereof.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day
on which banking institutions are authorized or required by law to close in New
York City.
"CAPITAL STOCK" means:
(1) in the case of a corporation or a company, corporate stock or
shares;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
-7-
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CAPITALIZED LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized and reflected as a
liability on a balance sheet (excluding the footnotes thereto) in accordance
with GAAP.
"CASH CONTRIBUTION AMOUNT" means the aggregate amount of cash
contributions made to the capital of the Issuer or any Guarantor described in
the definition of "Contribution Indebtedness."
"CASH EQUIVALENTS" means:
(1) U.S. Dollars, pounds sterling, Euros, national currency of any
participating member state in the European Union or, in the case of any
Foreign Subsidiary that is a Restricted Subsidiary, such local currencies
held by it from time to time in the ordinary course of business;
(2) securities issued or directly and fully guaranteed or insured by
the government of the United States or any country that is a member of the
European Union or any agency or instrumentality thereof, in each case with
maturities not exceeding two years from the date of acquisition;
(3) certificates of deposit, time deposits and eurodollar time
deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances, in each case with maturities not exceeding one year
and overnight bank deposits, in each case with any commercial bank having
capital and surplus in excess of $250.0 million, or the foreign currency
equivalent thereof, and whose long-term debt is rated "A" or the
equivalent thereof by Xxxxx'x or S&P (or reasonably equivalent ratings of
another internationally recognized ratings agency);
(4) repurchase obligations for underlying securities of the types
described in clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause (3) above;
(5) commercial paper issued by a corporation (other than an Affiliate
of the Issuer) rated at least "A-1" or the equivalent thereof by Xxxxx'x
or S&P (or reasonably equivalent ratings of another internationally
recognized ratings agency) and in each case maturing within one year after
the date of acquisition;
(6) readily marketable direct obligations issued by any state of the
United States of America or any political subdivision thereof having one
of the two highest rating categories obtainable from either Xxxxx'x or S&P
(or reasonably equivalent ratings of another internationally recognized
ratings agency) in each case with maturities not exceeding two years from
the date of acquisition;
-8-
(7) Indebtedness issued by Persons (other than the Sponsors or any of
their Affiliates) with a rating of "A" or higher from S&P or "A-2" or
higher from Xxxxx'x (or reasonably equivalent ratings of another
internationally recognized ratings agency) in each case with maturities
not exceeding two years from the date of acquisition; and
(8) investment funds investing at least 95% of their assets in
securities of the types described in clauses (1) through (7) above.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, the sum, without duplication, of:
(1) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, to the extent such expense was deducted in
computing Consolidated Net Income (including amortization of original
issue discount, the interest component of Capitalized Lease Obligations,
and net payments and receipts (if any) pursuant to interest rate Hedging
Obligations and excluding amortization of deferred financing fees,
expensing of any bridge or other financing fees and any interest under
Satellite Purchase Agreements);
(2) consolidated capitalized interest of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued;
(3) commissions, discounts, yield and other fees and charges Incurred
in connection with any Receivables Financing which are payable to Persons
other than the Issuer and its Restricted Subsidiaries; and
(4) with respect to the Issuer, consolidated interest expense of any
Parent of the Issuer for such period with respect to the Existing Holdings
Notes or any refinancing thereof to the extent cash interest is paid
thereon pursuant to Section 4.04(b)(xiii)(C) hereof;
LESS interest income for such period;
PROVIDED that, for purposes of calculating Consolidated Interest Expense, no
effect shall be given to the effect of any purchase accounting adjustments in
connection with the Transactions' PROVIDED, FURTHER, that for purposes of
calculating Consolidated Interest Expense, no effect shall be given to the
discount and/or premium resulting from the bifurcation of derivatives under
Statement of Financial Accounting Standards No. 133 and related interpretations
as a result of the terms of the Indebtedness to which such Consolidated Interest
Expense relates.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis; PROVIDED, HOWEVER, that:
-9-
(1) any net after-tax extraordinary or nonrecurring or unusual gains
or losses (less all fees and expenses relating thereto), or income or
expense or charge (including, without limitation, any severance,
relocation or other restructuring costs) and fees, expenses or charges
related to any offering of equity interests of such Person, Investment,
acquisition or Indebtedness permitted to be Incurred by this Indenture (in
each case, whether or not successful), including any such fees, expenses,
charges or change in control payments related to the Transactions, in each
case, shall be excluded;
(2) any increase in amortization or depreciation or any one-time
non-cash charges resulting from purchase accounting in connection with the
Transactions or any acquisition that is consummated prior to, on or after
the Issue Date shall be excluded;
(3) the Net Income for such period shall not include the cumulative
effect of a change in accounting principles during such period;
(4) any net after-tax income or loss from discontinued operations and
any net after-tax gains or losses on disposal of discontinued operations
shall be excluded;
(5) any net after-tax gains or losses (less all fees and expenses or
charges relating thereto) attributable to business dispositions or asset
dispositions other than in the ordinary course of business (as determined
in good faith by the Board of Directors of the Issuer) shall be excluded;
(6) any net after-tax gains or losses (less all fees and expenses or
charges relating thereto) attributable to the early extinguishment of
indebtedness shall be excluded;
(7) the Net Income for such period of any Person that is not a
Subsidiary of such Person, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be included only
to the extent of the amount of dividends or distributions or other
payments paid in cash (or to the extent converted into cash) to the
referent Person or a Restricted Subsidiary thereof in respect of such
period;
(8) solely for the purpose of determining the amount of Cumulative
Credit, the Net Income for such period of any Restricted Subsidiary (other
than any Subsidiary Guarantor) shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of its Net Income is not at the date of
determination permitted without any prior governmental approval (which has
not been obtained) or, directly or indirectly, by the operation of the
terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to such
Restricted Subsidiary or its stockholders, unless such restrictions with
respect to the payment of dividends or similar distributions have been
legally waived; PROVIDED that the Consolidated Net Income of such Person
shall be increased by the amount of dividends or other distributions or
other payments actually paid in cash (or converted into cash) by any such
Restricted Subsidiary to such Person, to the extent not already included
therein;
-10-
(9) any non-cash impairment charge or asset write-off resulting from
the application of Statement of Financial Accounting Standards No. 142 and
144, and the amortization of intangibles arising pursuant to No. 141,
shall be excluded;
(10) any non-cash expenses realized or resulting from employee
benefit plans or post-employment benefit plans, grants of stock
appreciation or similar rights, stock options or other rights to officers,
directors and employees of such Person or any of its Restricted
Subsidiaries shall be excluded;
(11) any (a) severance or relocation costs or expenses, (b) one-time
non-cash compensation charges, (c) solely for purposes of calculating the
Debt to Adjusted EBITDA Ratio, the costs and expenses after the earliest
of the Issue Date, date of Release or Acquisition Date, as the case may
be, related to employment of terminated employees, (d) costs or expenses
realized in connection with, resulting from or in anticipation of the
Transactions or (e) costs or expenses realized in connection with or
resulting from stock appreciation or similar rights, stock options or
other rights existing on the Issue Date, the date of Release and the
Acquisition Date of officers, directors and employees, in each case of
such Person or any of its Restricted Subsidiaries, shall be excluded;
(12) accruals and reserves that are established within twelve months
after the Issue Date and that are so required to be established in
accordance with GAAP shall be excluded;
(13) (a)(i) the non-cash portion of "straight-line" rent expense
shall be excluded and (ii) the cash portion of "straight-line" rent
expense which exceeds the amount expensed in respect of such rent expense
shall be included and (b) non-cash gains, losses, income and expenses
resulting from fair value accounting required by Statement of Financial
Accounting Standards No. 133 and related interpretations shall be
excluded; and
(14) an amount equal to the amount of tax distributions actually made
to the holders of Capital Stock of such Person or any Parent of such
Person in respect of such period in accordance with clause (xii) of
Section 4.04(b) shall be included as though such amounts had been paid as
income taxes directly by such Person for such period.
Notwithstanding the foregoing, for the purpose of Section 4.04 only,
there shall be excluded from the calculation of Consolidated Net Income any
dividends, repayments of loans or advances or other transfers of assets from
Unrestricted Subsidiaries to the Issuer or a Restricted Subsidiary of the Issuer
in respect of or that originally constituted Restricted Investments to the
extent such dividends, repayments or transfers increase the amount of Restricted
Payments permitted under Section 4.04 pursuant to clause (5) or (6) of the
definition of "Cumulative Credit."
"CONSOLIDATED NON-CASH CHARGES" means, with respect to any Person for
any period, the aggregate depreciation, amortization, impairment, compensation,
rent and other non-cash expenses of such Person and its Restricted Subsidiaries
for such period on a consolidated basis and otherwise determined in accordance
with GAAP, but excluding (i) any such charge which consists of or requires an
accrual of, or cash reserve for, anticipated cash charges for any
-11-
future period and (ii) the non-cash impact of recording the change in fair value
of any embedded derivatives under Statement of Financial Accounting Standards
No. 133 and related interpretations as a result of the terms of any agreement or
instrument to which such Consolidated Non-Cash Charges relate.
"CONSOLIDATED TAXES" means, with respect to any Person and its
Restricted Subsidiaries on a consolidated basis for any period, provision for
taxes based on income, profits or capital, including, without limitation, state
franchise and similar taxes and including an amount equal to the amount of tax
distributions actually made to the holders of Capital Stock of such Person or
any Parent of such Person in respect of such period in accordance with Section
4.04(b)(xii), which shall be included as though such amounts had been paid as
income taxes directly by such Person.
"CONSOLIDATED TOTAL INDEBTEDNESS" means, as at any date of
determination, an amount equal to the sum of (1) the aggregate amount of all
outstanding Indebtedness of the Issuer and the Restricted Subsidiaries and (2)
the aggregate amount of all outstanding Disqualified Stock of the Issuer and all
Preferred Stock of the Restricted Subsidiaries, with the amount of such
Disqualified Stock and Preferred Stock equal to the greater of their respective
voluntary or involuntary liquidation preferences and maximum fixed repurchase
prices, in each case determined on a consolidated basis in accordance with GAAP.
For purposes hereof, the "MAXIMUM FIXED REPURCHASE PRICE" of any
Disqualified Stock or Preferred Stock that does not have a fixed price shall be
calculated in accordance with the terms of such Disqualified Stock or Preferred
Stock as if such Disqualified Stock or Preferred Stock were purchased on any
date on which Consolidated Total Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by, the
fair market value of such Disqualified Stock or Preferred Stock, such fair
market value shall be determined reasonably and in good faith by the Board of
Directors of the Issuer.
"CONTINGENT OBLIGATIONS" means, with respect to any Person, any
obligation of such Person guaranteeing any leases, dividends or other
obligations that do not constitute Indebtedness ("PRIMARY OBLIGATIONS") of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent:
(1) to purchase any such primary obligation or any property
constituting direct or indirect security therefor;
(2) to advance or supply funds:
(a) for the purchase or payment of any such primary obligation;
or
(b) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the
primary obligor; or
-12-
(3) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation
against loss in respect thereof.
"CONTRIBUTION INDEBTEDNESS" means Indebtedness of the Issuer or any
Guarantor in an aggregate principal amount not greater than twice the aggregate
amount of cash contributions (other than Excluded Contributions) made to the
capital of the Issuer or such Guarantor after the Issue Date (other than any
cash contributions in connection with the Transactions); PROVIDED that:
(1) if the aggregate principal amount of such Contribution
Indebtedness is greater than the aggregate amount of such cash
contributions to the capital of the Issuer or such Guarantor, as
applicable, the amount in excess shall be Indebtedness (other than Secured
Indebtedness) that ranks subordinate to the Notes with a Stated Maturity
later than the Stated Maturity of the Notes, and
(2) such Contribution Indebtedness (a) is Incurred within 210 days
after the making of such cash contributions and (b) is so designated as
Contribution Indebtedness pursuant to an Officers' Certificate on the date
of Incurrence thereof.
"CREDIT AGREEMENT" means (i) the credit agreement entered into in
connection with, and on or prior to, the consummation of the Acquisition among
the Issuer, Holdings, the financial institutions named therein and Deutsche Bank
Trust Company Americas (or an affiliate thereof), as Administrative Agent, as
amended, restated, supplemented, waived, replaced (whether or not upon
termination, and whether with the original lenders or otherwise), restructured,
repaid, refunded, refinanced or otherwise modified from time to time, including
any one or more agreements or indentures extending the maturity thereof,
refinancing, replacing or otherwise restructuring all or any portion of the
Indebtedness under such agreement or agreements or indenture or indentures or
any successor or replacement agreement or agreements or indenture or indentures
or increasing the amount loaned or issued thereunder or altering the maturity
thereof, and (ii) whether or not the credit agreement referred to in clause (i)
remains outstanding, if designated by the Issuer to be included in the
definition of "Credit Agreement," one or more (A) debt facilities or commercial
paper facilities, providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to lenders or to special
purpose entities formed to borrow from lenders against such receivables) or
letters of credit, (B) debt securities, indentures or other forms of debt
financing (including convertible or exchangeable debt instruments or bank
guarantees or bankers' acceptances), or (C) instruments or agreements evidencing
any other Indebtedness, in each case, with the same or different borrowers or
issuers and, in each case, as amended, supplemented, modified, extended,
restructured, renewed, refinanced, restated, replaced or refunded in whole or in
part from time to time.
"CUMULATIVE CREDIT" means the sum of (without duplication):
(1) cumulative Adjusted EBITDA of the Issuer for the period (taken as
one accounting period) from and after the first day of the fiscal quarter
during which the Issue Date (or, if later, the date of the Release) occurs
to the end of the Issuer's most recently ended fiscal quarter for which
internal financial statements are available at the time of
-13-
such Restricted Payment (or, in the case such Adjusted EBITDA for such
period is a negative, minus the amount by which cumulative Adjusted EBITDA
is less than zero), PLUS
(2) 100% of the aggregate net proceeds, including cash and the Fair
Market Value (as determined in accordance with the next succeeding
sentence) of property other than cash, received by the Issuer after the
Issue Date from the issue or sale of Equity Interests of the Issuer or any
Parent of the Issuer (excluding (without duplication) Refunding Capital
Stock, Designated Preferred Stock, Excluded Contributions, Disqualified
Stock and the Cash Contribution Amount), including Equity Interests issued
upon conversion of Indebtedness or upon exercise of warrants or options
(other than an issuance or sale to a Restricted Subsidiary of the Issuer
or an employee stock ownership plan or trust established by the Issuer or
any of its Subsidiaries), PLUS
(3) 100% of the aggregate amount of contributions to the capital of
the Issuer received in cash and the Fair Market Value (as determined in
accordance with the next succeeding sentence) of property other than cash
after the Issue Date (or, if later, the date of the Release) (other than
Excluded Contributions, Refunding Capital Stock, Designated Preferred
Stock, Disqualified Stock and the Cash Contribution Amount), PLUS
(4) the principal amount of any Indebtedness, or the liquidation
preference or maximum fixed repurchase price, as the case may be, of any
Disqualified Stock, of the Issuer or any Restricted Subsidiary thereof
issued after the Issue Date (or, if later, the date of the Release) (other
than Indebtedness or Disqualified Stock issued to a Restricted Subsidiary)
which has been converted into or exchanged for Equity Interests in the
Issuer or any Parent of the Issuer (other than Disqualified Stock), PLUS
(5) 100% of the aggregate amount received by the Issuer or any
Restricted Subsidiary in cash and the Fair Market Value (as determined in
accordance with the next succeeding sentence) of property other than cash
received by the Issuer or any Restricted Subsidiary from:
(A) the sale or other disposition (other than to the Issuer or a
Restricted Subsidiary of the Issuer) of Restricted Investments made
by the Issuer and its Restricted Subsidiaries and from repurchases
and redemptions of such Restricted Investments from the Issuer and
its Restricted Subsidiaries by any Person (other than the Issuer or
any of its Restricted Subsidiaries) and from repayments of loans or
advances which constituted Restricted Investments (other than in each
case to the extent that the Restricted Investment was made pursuant
to Section 4.04(b)(vii) or (x)),
(B) the sale (other than to the Issuer or a Restricted
Subsidiary of the Issuer) of the Capital Stock of an Unrestricted
Subsidiary or
(C) a distribution, dividend or other payment from an
Unrestricted Subsidiary, PLUS
-14-
(6) in the event any Unrestricted Subsidiary of the Issuer has been
redesignated as a Restricted Subsidiary or has been merged, consolidated
or amalgamated with or into, or transfers or conveys its assets to, or is
liquidated into, the Issuer or a Restricted Subsidiary of the Issuer, the
Fair Market Value (as determined in accordance with the next succeeding
sentence) of the Investments of the Issuer in such Unrestricted Subsidiary
at the time of such redesignation, combination or transfer (or of the
assets transferred or conveyed, as applicable) (other than in each case to
the extent that the designation of such Subsidiary as an Unrestricted
Subsidiary was made pursuant to Section 4.04(b)(vii) or (x) or constituted
a Permitted Investment).
The Fair Market Value of property other than cash covered by clauses (2), (3),
(4), (5) and (6) above shall be determined in good faith by the Issuer and
(A) in the event of property with a Fair Market Value in excess of
$20.0 million, shall be set forth in an Officers' Certificate or
(B) in the event of property with a Fair Market Value in excess of
$40.0 million, shall be set forth in a resolution approved by at least a
majority of the Board of Directors of the Issuer.
"CUMULATIVE INTEREST EXPENSE" means, in respect of any Restricted
Payment, the sum of the aggregate amount of Consolidated Interest Expense of the
Issuer and the Restricted Subsidiaries for the period from and after the first
day of the fiscal quarter during which the Issue Date (or, if later, the date of
the Release) occurs to the end of the Issuer's most recently ended fiscal
quarter for which internal financial statements are available and immediately
preceding the proposed Restricted Payment.
"DEBT TO ADJUSTED EBITDA RATIO" means, with respect to any Person for
any period, the ratio of (i) Consolidated Total Indebtedness as of the date of
calculation (the "CALCULATION DATE") to (ii) Adjusted EBITDA of such Person for
the four consecutive fiscal quarters immediately preceding such Calculation
Date. In the event that the Issuer or any of its Restricted Subsidiaries Incurs
or redeems any Indebtedness (other than in the case of revolving credit
borrowings, in which case interest expense shall be computed based upon the
average daily balance of such Indebtedness during the applicable period) or
issues or redeems Disqualified Stock or Preferred Stock subsequent to the
commencement of the period for which the Debt to Adjusted EBITDA Ratio is being
calculated but prior to the Calculation Date, then the Debt to Adjusted EBITDA
Ratio shall be calculated giving pro forma effect to such Incurrence or
redemption of Indebtedness, or such issuance or redemption of Disqualified Stock
or Preferred Stock, as if the same had occurred at the beginning of the
applicable four-quarter period.
For purposes of making the computation referred to above,
Investments, acquisitions, dispositions, mergers, amalgamations, consolidations
and discontinued operations (as determined in accordance with GAAP), in each
case with respect to an operating unit of a business, and other operational
changes that the Issuer or any of its Restricted Subsidiaries has both
determined to make and made after the Issue Date and during the four-quarter
reference period or subsequent to such reference period and on or prior to or
simultaneously with the Calculation Date shall be calculated on a pro forma
basis assuming that all such Investments, acquisitions,
-15-
dispositions, mergers, amalgamations, consolidations, discontinued operations
and other operational changes (and the change of any associated fixed charge
obligations and the change in Adjusted EBITDA resulting therefrom) had occurred
on the first day of the four-quarter reference period. If since the beginning of
such period any Person that subsequently became a Restricted Subsidiary or was
merged with or into the Issuer or any Restricted Subsidiary since the beginning
of such period shall have made any Investment, acquisition, disposition, merger,
amalgamation, consolidation, discontinued operation or operational change, in
each case with respect to an operating unit of a business, that would have
required adjustment pursuant to this definition, then the Debt to Adjusted
EBITDA Ratio shall be calculated giving pro forma effect thereto for such period
as if such Investment, acquisition, disposition, discontinued operation, merger,
amalgamation, consolidation or operational change had occurred at the beginning
of the applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be
given to any transaction, the pro forma calculations shall be made in good faith
by a responsible financial or accounting officer of the Issuer. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligations applicable to such
Indebtedness if such Hedging Obligation has a remaining term in excess of 12
months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at
an interest rate reasonably determined by a responsible financial or accounting
officer of the Issuer to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP. For purposes of making the computation
referred to above, interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period. Interest on
Indebtedness that may optionally be determined at an interest rate based upon a
factor of a prime or similar rate, a eurocurrency interbank offered rate, or
other rate, shall be deemed to have been based upon the rate actually chosen,
or, if none, then based upon such optional rate chosen as the Issuer may
designate. Any such pro forma calculation may include adjustments appropriate,
in the reasonable determination of the Issuer as set forth in an Officers'
Certificate, to reflect, among other things, (1) operating expense reductions
and other operating improvements or synergies reasonably expected to result from
any acquisition, amalgamation, merger or operational change (including, to the
extent applicable, from the Transactions) and (2) all adjustments used in
connection with the calculation of "Adjusted EBITDA" as set forth in footnote 4
to the "Summary Historical and Pro Forma Consolidated Financial Data" under
"Offering Memorandum Summary" in the Offering Memorandum to the extent such
adjustments, without duplication, continue to be applicable to such four-quarter
period.
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DESIGNATED NON-CASH CONSIDERATION" means the Fair Market Value of
non-cash consideration received by the Issuer or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officers' Certificate, setting
forth the basis of such valuation, less the amount of Cash Equivalents received
in connection with a subsequent sale of such Designated Non-cash Consideration.
-16-
"DESIGNATED PREFERRED STOCK" means Preferred Stock of the Issuer or
any Parent of the Issuer, as applicable (other than Disqualified Stock), that is
issued for cash (other than to the Issuer or any of its Subsidiaries or an
employee stock ownership plan or trust established by the Issuer or any of its
Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an
Officers' Certificate, on the issuance date thereof, the cash proceeds of which
are excluded from the calculation set forth in the definition of "Cumulative
Credit."
"DISQUALIFIED STOCK" means, with respect to any Person, any Capital
Stock of such Person which, by its terms (or by the terms of any security into
which it is convertible or for which it is redeemable or exchangeable), or upon
the happening of any event:
(1) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise (other than as a result of a change of control or
asset sale; PROVIDED that the relevant asset sale or change of control
provisions, taken as a whole, are no more favorable in any material
respect to holders of such Capital Stock than the asset sale and change of
control provisions applicable to the Notes and any purchase requirement
triggered thereby may not become operative until compliance with the asset
sale and change of control provisions applicable to the Notes (including
the purchase of any Notes tendered pursuant thereto)),
(2) is convertible or exchangeable for Indebtedness or Disqualified
Stock, or
(3) is redeemable at the option of the holder thereof, in whole or in
part,
in each case prior to 91 days after the maturity date of the applicable series
of Notes; PROVIDED, HOWEVER, that only the portion of Capital Stock which so
matures or is mandatorily redeemable, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof prior to such date shall be
deemed to be Disqualified Stock; PROVIDED, FURTHER, HOWEVER, that if such
Capital Stock is issued to any employee or to any plan for the benefit of
employees of the Issuer or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute Disqualified Stock solely
because it may be required to be repurchased by the Issuer in order to satisfy
applicable statutory or regulatory obligations or as a result of such employee's
termination, death or disability; PROVIDED, FURTHER, that any class of Capital
Stock of such Person that by its terms authorizes such Person to satisfy its
obligations thereunder by delivery of Capital Stock that is not Disqualified
Stock shall not be deemed to be Disqualified Stock.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" means any public or private sale after the
Acquisition Date of common stock or ordinary shares or Preferred Stock of the
Issuer or any Parent of the Issuer, as applicable (other than Disqualified
Stock), other than:
(1) public offerings with respect to the Issuer's or such Parent's
common stock or ordinary shares registered on Form S-8; and
-17-
(2) any such public or private sale that constitutes an Excluded
Contribution.
"EUROBOND NOTES" means the 8-1/8% notes due 2005 of Intelsat, Ltd.
"EVENT OF LOSS" means any event that results in the Issuer or its
Restricted Subsidiaries receiving proceeds from any insurance covering any
Satellite, or in the event that the Issuer or any of its Restricted Subsidiaries
receives proceeds from any insurance maintained for it by any Satellite
Manufacturer or any launch provider covering any of such Satellites.
"EVENT OF LOSS PROCEEDS" means, with respect to any proceeds from any
Event of Loss, all Satellite insurance proceeds received by the Issuer or any of
the Restricted Subsidiaries in connection with such Event of Loss, after
(1) provision for all income or other taxes measured by or resulting
from such Event of Loss,
(2) payment of all reasonable legal, accounting and other reasonable
fees and expenses related to such Event of Loss,
(3) payment of amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the Satellite that is the subject of
such Event of Loss,
(4) provision for payments to Persons who own an interest in the
Satellite (including any transponder thereon) in accordance with the terms
of the agreement(s) governing the ownership of such interest by such
Person (other than provision for payments to insurance carriers required
to be made based on projected future revenues expected to be generated
from such Satellite in the good faith determination of the Issuer as
evidenced by an Officers' Certificate), and
(5) deduction of appropriate amounts to be provided by the Issuer or
such Restricted Subsidiary as a reserve, in accordance with GAAP, against
any liabilities associated with the Satellite that was the subject of the
Event of Loss.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the registration
statement filed with the SEC in connection with the Registered Exchange Offer.
"EXCLUDED CONTRIBUTIONS" means the Cash Equivalents or other assets
(valued at their Fair Market Value as determined by the Issuer in good faith)
received by the Issuer after the date of the Release from:
(1) contributions to its common equity capital, and
(2) the sale (other than to a Subsidiary of the Issuer or pursuant to
any management equity plan or stock option plan or any other management or
employee benefit
-18-
plan or agreement of the Issuer or any of its Subsidiaries) of Capital
Stock (other than Disqualified Stock and Designated Preferred Stock) of the
Issuer,
in each case designated as Excluded Contributions pursuant to an Officers'
Certificate, which are excluded from the calculation set forth in the definition
of "Cumulative Credit."
"EXCLUDED SATELLITE" means any Satellite (or, if the entire Satellite
is not owned by the Issuer or any Restricted Subsidiary, as the case may be, the
portion of the Satellite it owns or for which it has risk of loss) (i) that is
not expected or intended, in the good faith determination of the Board of
Directors of the Issuer as evidenced by a resolution of the Board of Directors,
to earn revenue from the operation of such Satellite (or portion, as applicable)
in excess of $37.5 million for the immediately succeeding 12-month calendar
period or (ii) that has a net book value not in excess of $150.0 million or
(iii) that (1) the procurement of In-Orbit Insurance therefor in the amounts and
on the terms required by this Indenture would not be available for a price that
is, and on other terms and conditions that are, commercially reasonable or (2)
the procurement of such In-Orbit Insurance therefor would be subject to
exclusions or limitations of coverage that would make the terms of the insurance
commercially unreasonable, in either case, in the good faith determination of
the Board of Directors of the Issuer and evidenced by a resolution of the Board
of Directors delivered to the Trustee, or (iv) for which In-Orbit Contingency
Protection is available or (v) whose primary purpose is to provide In-Orbit
Contingency Protection for the Issuer's or its Subsidiaries' other Satellites
(or portions) and otherwise that is not expected or intended, in the good faith
determination of the Board of Directors of the Issuer as evidenced by a
resolution of the Board of Directors, to earn revenue from the operation of such
Satellite (or portion, as applicable) in excess of $37.5 million for the
immediately succeeding 12-month calendar period.
"EXISTING HOLDINGS NOTES" means (a) the 5-1/4% Senior Notes due 2008,
(b) the 7-5/8% Senior Notes due 2012, (c) the 6-1/2% Senior Notes due 2013, in
each case, of Intelsat, Ltd. and (d) the Eurobond Notes.
"FAIR MARKET VALUE" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction.
"FCC LICENSES" shall mean all authorizations, licenses and permits
issued by the Federal Communications Commission or any governmental authority
substituted therefor to the Issuer or any of its Subsidiaries, under which the
Issuer or any of its Subsidiaries is authorized to launch and operate any of its
Satellites or to operate any of its TT&C Earth Stations (other than
authorizations, orders, licenses or permits that are no longer in effect).
"FLOW THROUGH ENTITY" means an entity that is treated as a
partnership not taxable as a corporation, a grantor trust or a disregarded
entity for U.S. federal income tax purposes or subject to treatment on a
comparable basis for purposes of state, local or foreign tax law.
-19-
"FOREIGN SUBSIDIARY" means a Restricted Subsidiary not organized or
existing under the laws of the United States of America or any state or
territory thereof or the District of Columbia and any direct or indirect
subsidiary of such Restricted Subsidiary.
"FSS OPERATORS" means each of (i) PanAmSat Corporation, (ii) New
Skies Satellites B.V., (iii) SES Global S.A., (iv) Eutelsat S.A. and (v) any
successor entities of each of the foregoing (whether by consolidation,
amalgamation, merger with or winding up into another Person, or through the
sale, transfer, lease, conveyance or other disposition of all or substantially
all its equity, assets or properties in one or more related transactions to
another Person or otherwise).
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Issue Date. For the
purposes of this Indenture, the term "CONSOLIDATED" with respect to any Person
shall mean such Person consolidated with its Restricted Subsidiaries, and shall
not include any Unrestricted Subsidiary, but the interest of such Person in an
Unrestricted Subsidiary will be accounted for as an Investment.
"GUARANTEE" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness or other obligations.
"GUARANTEE" means any guarantee of the obligations of the Issuer
under this Indenture and the Notes by any Person in accordance with the
provisions of this Indenture.
"GUARANTOR" means any Person that Incurs a Guarantee; PROVIDED that
upon the release or discharge of such Person from its Guarantee in accordance
with this Indenture, such Person ceases to be a Guarantor.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under:
(1) currency exchange or interest rate swap agreements, cap
agreements and collar agreements; and
(2) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange or interest rates.
"HOLDER" means the Person in whose name a Note is registered on the
registrar's books.
"HOLDINGS" means Zeus Merger One Limited (which will be Intelsat,
Ltd., after giving effect to the Transactions), a Bermuda company, until a
successor replaces it and, thereafter, means the successor.
-20-
"INCUR" means issue, assume, guarantee, incur or otherwise become
liable for; PROVIDED, HOWEVER, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
amalgamation, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Subsidiary.
"INDEBTEDNESS" means, with respect to any Person:
(1) the principal and premium (if any) of any indebtedness of such
Person, whether or not contingent, (a) in respect of borrowed money, (b)
evidenced by bonds, notes, debentures or similar instruments or letters of
credit or bankers' acceptances (or, without duplication, reimbursement
agreements in respect thereof), (c) representing the deferred and unpaid
purchase price of any property, except any such balance that constitutes a
current account payable, trade payable or similar obligation Incurred, (d)
in respect of Capitalized Lease Obligations, or (e) representing any
Hedging Obligations, if and to the extent that any of the foregoing
indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability on a balance sheet (excluding the footnotes thereto)
of such Person prepared in accordance with GAAP;
(2) to the extent not otherwise included, any obligation of such
Person to be liable for, or to pay, as obligor, guarantor or otherwise,
the Indebtedness of another Person (other than by endorsement of
negotiable instruments for collection in the ordinary course of business);
(3) to the extent not otherwise included, Indebtedness of another
Person secured by a Lien on any asset owned by such Person (whether or not
such Indebtedness is assumed by such Person); PROVIDED, HOWEVER, that the
amount of such Indebtedness will be the lesser of: (a) the Fair Market
Value of such asset at such date of determination, and (b) the amount of
such Indebtedness of such other Person; and
(4) to the extent not otherwise included, with respect to the Issuer
and its Restricted Subsidiaries, the amount then outstanding (I.E.,
advanced, and received by, and available for use by, the Issuer or any of
its Restricted Subsidiaries) under any Receivables Financing (as set forth
in the books and records of the Issuer or any Restricted Subsidiary and
confirmed by the agent, trustee or other representative of the institution
or group providing such Receivables Financing);
PROVIDED, HOWEVER, that notwithstanding the foregoing, Indebtedness shall be
deemed not to include (1) Contingent Obligations incurred in the ordinary course
of business and not in respect of borrowed money; (2) deferred or prepaid
revenues; (3) purchase price holdbacks in respect of a portion of the purchase
price of an asset to satisfy warranty or other unperformed obligations of the
respective seller; (4) obligations to make payments to one or more insurers
under satellite insurance policies in respect of premiums or the requirement to
remit to such insurer(s) a portion of the future revenue generated by a
satellite which has been declared a constructive total loss, in each case in
accordance with the terms of the insurance policies relating thereto; (5)
Obligations under or in respect of any Qualified Receivables Financing; or (6)
any obligations to make progress or incentive payments or risk money payments
under any satellite manufacturing contract
-21-
or to make payments under satellite launch contracts in respect of launch
services provided thereunder, in each case, to the extent not overdue by more
than 90 days.
Notwithstanding anything in this Indenture, Indebtedness shall not
include, and shall be calculated without giving effect to, the effects of
Statement of Financial Accounting Standards No. 133 and related interpretations
to the extent such effects would otherwise increase or decrease an amount of
Indebtedness for any purpose under this Indenture as a result of accounting for
any embedded derivatives created by the terms of such Indebtedness; and any such
amounts that would have constituted Indebtedness under this Indenture but for
the application of this sentence shall not be deemed an Incurrence of
Indebtedness under this Indenture.
"INDENTURE" means this Indenture as amended or supplemented from time
to time.
"INDEPENDENT FINANCIAL ADVISOR" means an accounting, appraisal or
investment banking firm or consultant to Persons engaged in a Similar Business,
in each case of nationally recognized standing that is, in the good faith
determination of the Issuer, qualified to perform the task for which it has been
engaged.
"INITIAL PURCHASERS" means Deutsche Bank Securities Inc., Credit
Suisse First Boston LLC, Xxxxxx Brothers Inc., Banc of America Securities,
Bear, Xxxxxxx & Co. Inc., BNP Paribas Securities Corp., Xxxxxxx Xxxxx & Co.,
CIBC World Markets Corp., RBC Capital Markets Corporation, Greenwich Capital
Markets, Inc. and SG Americas Securities, LLC and such other initial
purchasers party to the purchase agreement entered into in connection with
the offer and sale of the Notes.
"IN-ORBIT CONTINGENCY PROTECTION" means transponder capacity that in
the good faith determination of the Board of Directors of the Issuer as
evidenced by a resolution of the Board of Directors, is available on a
contingency basis by the Issuer or its Subsidiaries, directly or by another
satellite operator pursuant to a contractual arrangement, to accommodate the
transfer of traffic representing at least 25% of the revenue-generating capacity
with respect to any Satellite (or, if the entire Satellite is not owned by the
Issuer or any Restricted Subsidiary, as the case may be, the portion of the
Satellite it owns or for which it has risk of loss) that may suffer actual or
constructive total loss and that meets or exceeds the contractual performance
specifications for the transponders that had been utilized by such traffic;
PROVIDED that the Satellite (or portion, as applicable) shall be deemed to be
insured for a percentage of the Satellite's (or applicable portion's) net book
value for which In-Orbit Contingency Protection is available.
"IN-ORBIT INSURANCE" means, with respect to any Satellite (or, if the
entire Satellite is not owned by the Issuer or any Restricted Subsidiary, as the
case may be, the portion of the Satellite it owns or for which it has risk of
loss), insurance (subject to a right of co-insurance in an amount up to $150.0
million) or other contractual arrangement providing for coverage against the
risk of loss of or damage to such Satellite (or portion, as applicable)
attaching upon the expiration of the launch insurance therefor (or, if launch
insurance is not procured, upon the initial completion of in-orbit testing) and
attaching, during the commercial in-orbit service of such Satellite (or portion,
as applicable), upon the expiration of the immediately preceding corresponding
policy or other contractual arrangement, as the case may be, subject to the
terms and conditions set forth in this Indenture.
-22-
"INVESTMENT GRADE RATING" means a rating equal to or higher than Baa3
(or equivalent) by Xxxxx'x or BBB- (or equivalent) by S&P, or an equivalent
rating by any other Rating Agency.
"INVESTMENT GRADE SECURITIES" means:
(1) securities issued or directly and fully guaranteed or insured by
the U.S. government or any agency or instrumentality thereof (other
than Cash Equivalents),
(2) securities that have an Investment Grade Rating, but excluding
any debt securities or loans or advances between and among the Issuer and
its Subsidiaries,
(3) investments in any fund that invests exclusively in investments
of the type described in clauses (1) and (2) which fund may also hold
immaterial amounts of cash pending investment and/or distribution, and
(4) corresponding instruments in countries other than the United
States customarily utilized for high quality investments and in each case
with maturities not exceeding two years from the date of acquisition.
"INVESTMENTS" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the form of loans
(including guarantees), advances or capital contributions (excluding accounts
receivable, trade credit and advances to customers and commission, travel and
similar advances to officers, employees and consultants made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities issued by any other Person
and investments that are required by GAAP to be classified on the balance sheet
of the Issuer in the same manner as the other investments included in this
definition to the extent such transactions involve the transfer of cash or other
property. For purposes of the definition of "Unrestricted Subsidiary" and
Section 4.04:
(1) "Investments" shall include the portion (proportionate to the
Issuer's equity interest in such Subsidiary) of the Fair Market Value of
the net assets of a Subsidiary of the Issuer at the time that such
Subsidiary is designated an Unrestricted Subsidiary; PROVIDED, HOWEVER,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
the Issuer shall be deemed to continue to have a permanent "Investment" in
an Unrestricted Subsidiary equal to an amount (if positive) equal to:
(a) the Issuer's "Investment" in such Subsidiary at the time of
such redesignation less
(b) the portion (proportionate to the Issuer's equity interest
in such Subsidiary) of the Fair Market Value of the net assets of
such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its Fair Market Value at the time of such transfer, in
each case as determined in good faith by the Board of Directors of the
Issuer.
-23-
"ISSUE DATE" means January 28, 2005, the date on which the Notes are
originally issued.
"ISSUER" means the party named as such in the Preamble to this
Indenture until a successor replaces it and, thereafter, means the successor.
"JOINT VENTURE" means any Person, other than an individual or a
Subsidiary of the Issuer, (i) in which the Issuer or a Restricted Subsidiary of
the Issuer holds or acquires an ownership interest (whether by way of Capital
Stock or otherwise) and (ii) which is engaged in a Similar Business.
"LICENSE SUBSIDIARY" shall mean one or more wholly-owned Restricted
Subsidiaries of the Issuer (i) that holds, was formed for the purpose of holding
or is designated to hold FCC Licenses for the launch and operation of Satellites
or for the operation of any TT&C Earth Station (other than any FCC License held
by Intelsat General Corporation or any of its Subsidiaries) and (ii) all of the
shares of capital stock and other ownership interests of which are held directly
by the Issuer or a Subsidiary Guarantor.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any other agreement to give a security interest and any
filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction); PROVIDED that in
no event shall an operating lease be deemed to constitute a Lien.
"LOCKHEED NOTE" means the $20.0 million note, dated November 25, 2002
from Intelsat Global Service Corporation to COMSAT Corporation.
"MOODY'S" means Xxxxx'x Investors Service, Inc. or any successor
to the rating agency business thereof.
"NET INCOME" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of Preferred Stock dividends.
"NET PROCEEDS" means the aggregate cash proceeds received by the
Issuer or any of its Restricted Subsidiaries in respect of any Asset Sale,
including, without limitation, any cash received in respect of or upon the sale
or other disposition of any Designated Non-cash Consideration received in any
Asset Sale, net of the direct costs relating to such Asset Sale and the sale or
disposition of such Designated Non-cash Consideration (including, without
limitation, legal, accounting and investment banking fees, and brokerage and
sales commissions), and any relocation expenses Incurred as a result thereof,
taxes paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements related
thereto), amounts required to be applied to the repayment of principal, premium
(if any) and interest on Indebtedness required (other than pursuant to Section
4.06(b)) to be paid as a result of such transaction (including to obtain any
consent therefor), and any deduction of appropriate
-24-
amounts to be provided by the Issuer as a reserve in accordance with GAAP
against any liabilities associated with the asset disposed of in such
transaction and retained by the Issuer after such sale or other disposition
thereof, including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction.
"NET TRANSPONDER CAPACITY" means the aggregate transponder capacity
for all in-orbit transponders then owned by the Issuer and its Restricted
Subsidiaries.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit and bankers' acceptances), damages
and other liabilities payable under the documentation governing any
Indebtedness; PROVIDED that Obligations with respect to the Notes shall not
include fees or indemnifications in favor of the Trustee and other third parties
other than the Holders of the Notes.
"OFFERING MEMORANDUM" means the offering memorandum relating to the
offering of the Original Notes dated January 24, 2005.
"OFFICER" means the Chairman of the Board, Chief Executive Officer,
Chief Financial Officer, President, any Executive Vice President, Senior Vice
President or Vice President, the Treasurer or the Secretary of the Issuer, any
Parent of the Issuer or any of the Issuer's Restricted Subsidiaries.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Issuer by two Officers of the Issuer, any Parent of the Issuer or any of the
Issuer's Restricted Subsidiaries, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Issuer, any Parent of the Issuer or any of the
Issuer's Restricted Subsidiaries, that meets the requirements set forth in this
Indenture.
"OPINION OF COUNSEL" means a written opinion from legal counsel who
is acceptable to the Trustee. The counsel may be an employee of or counsel to
the Issuer or the Trustee.
"PARENT" means, with respect to any Person, any direct or indirect
parent company of such Person.
"PARI PASSU INDEBTEDNESS" means:
(1) with respect to the Issuer, the Notes and any Indebtedness which
ranks pari passu in right of payment with the Notes; and
(2) with respect to any Guarantor, its Guarantee and any Indebtedness
which ranks pari passu in right of payment with such Guarantor's
Guarantee.
"PERMITTED HOLDERS" means, at any time, each of (i) the Sponsors and
(ii) any FSS Operator; PROVIDED, that, with respect to clause (ii), the Debt to
Adjusted EBITDA Ratio for the Issuer and
-25-
its Restricted Subsidiaries would be equal to or less than such ratio for the
Issuer and its Restricted Subsidiaries immediately prior to the transaction
involving such FSS Operator that causes a Change of Control to occur (including
any incurrence of indebtedness used to finance the acquisition thereof). Any
person or group whose acquisition of beneficial ownership constitutes a Change
of Control in respect of which a Change of Control Offer is made in accordance
with the requirements of this Indenture will thereafter, together with its
Affiliates, constitute an additional Permitted Holder.
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Issuer or any Restricted Subsidiary;
(2) any Investment in Cash Equivalents or Investment Grade
Securities;
(3) any Investment by the Issuer or any Restricted Subsidiary of the
Issuer in a Person that is primarily engaged in a Similar Business if as a
result of such Investment (a) such Person becomes a Restricted Subsidiary
of the Issuer, or (b) such Person, in one transaction or a series of
related transactions, is merged, consolidated or amalgamated with or into,
or transfers or conveys all or substantially all of its assets to, or is
liquidated into, the Issuer or a Restricted Subsidiary of the Issuer;
(4) any Investment in securities or other assets not constituting
Cash Equivalents and received in connection with an Asset Sale made
pursuant to the provisions of Section 4.06 or any other disposition of
assets not constituting an Asset Sale;
(5) any Investment existing on the Issue Date, date of Release or on
the Acquisition Date and any Investments made pursuant to binding
commitments in effect on the Issue Date, date of Release or on the
Acquisition Date;
(6) advances to employees not in excess of $15.0 million outstanding
at any one time in the aggregate;
(7) any Investment acquired by the Issuer or any of its Restricted
Subsidiaries (a) in exchange for any other Investment or accounts
receivable held by the Issuer or any such Restricted Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts
receivable, or (b) as a result of a foreclosure by the Issuer or any of
its Restricted Subsidiaries with respect to any secured Investment or
other transfer of title with respect to any secured Investment in default;
(8) Hedging Obligations permitted under Section 4.03(b)(x);
(9) any Investment by the Issuer or any of its Restricted
Subsidiaries in a Similar Business having an aggregate Fair Market Value,
taken together with all other Investments made pursuant to this clause (9)
that are at that time outstanding, not to exceed the greater of (x) $125.0
million and (y) 2.5% of Total Assets of the Issuer at the time of such
Investment (with the Fair Market Value of each Investment being measured
at the time made and without giving effect to subsequent changes in
value); PROVIDED,
-26-
HOWEVER, that if any Investment pursuant to this clause (9) is made in any
Person that is not a Restricted Subsidiary of the Issuer at the date of the
making of such Investment and such Person becomes a Restricted Subsidiary
of the Issuer after such date, such Investment shall thereafter be deemed
to have been made pursuant to clause (1) above and shall cease to have been
made pursuant to this clause (9) for so long as such Person continues to be
a Restricted Subsidiary;
(10) additional Investments by the Issuer or any of its Restricted
Subsidiaries having an aggregate Fair Market Value, taken together with
all other Investments made pursuant to this clause (10) that are at that
time outstanding, not to exceed the greater of (x) $125.0 million and (y)
2.5% of Total Assets of the Issuer at the time of such Investment (with
the Fair Market Value of each Investment being measured at the time made
and without giving effect to subsequent changes in value);
(11) loans and advances to officers, directors and employees for
business-related travel expenses, moving and relocation expenses and other
similar expenses, in each case Incurred in the ordinary course of
business;
(12) Investments the payment for which consists of Equity Interests
of the Issuer or any Parent of the Issuer (other than Disqualified Stock);
PROVIDED, HOWEVER, that such Equity Interests will not increase the amount
available for Restricted Payments under the calculation set forth in the
definition of the term "Cumulative Credit";
(13) any transaction to the extent it constitutes an Investment that
is permitted by and made in accordance with the provisions of Section
4.07(b) (except transactions described in clauses (ii)(a), (vi), (vii) and
(xi)(B) of such Section);
(14) Investments consisting of the licensing or contribution of
intellectual property pursuant to joint marketing arrangements with other
Persons;
(15) guarantees not prohibited by or required pursuant to, as the
case may be, Sections 4.03 and 4.11;
(16) any Investments by Subsidiaries that are not Restricted
Subsidiaries in other Subsidiaries that are not Restricted Subsidiaries of
the Issuer;
(17) Investments consisting of purchases and acquisitions of
inventory, supplies, materials and equipment or purchases of contract
rights or licenses or leases of intellectual property, in each case in the
ordinary course of business;
(18) any Investment in a Receivables Subsidiary or any Investment by
a Receivables Subsidiary in any other Person in connection with a
Qualified Receivables Financing, including Investments of funds held in
accounts permitted or required by the arrangements governing such
Qualified Receivables Financing or any related Indebtedness; PROVIDED,
HOWEVER, that any Investment in a Receivables Subsidiary is in the form of
a Purchase Money Note, contribution of additional receivables or an equity
interest;
-27-
(19) Investments resulting from the receipt of non-cash consideration
in a sale of assets or property that does not constitute an Asset Sale or
in an Asset Sale received in compliance with Section 4.06;
(20) additional Investments in Joint Ventures of the Issuer or any of
its Restricted Subsidiaries existing on the Acquisition Date in an
aggregate amount not to exceed $20.0 million outstanding at any one time;
(21) Investments of a Restricted Subsidiary of the Issuer acquired
after the Issue Date or of an entity merged into, amalgamated with, or
consolidated with a Restricted Subsidiary of the Issuer in a transaction
that is not prohibited by Section 5.01 after the Issue Date to the extent
that such Investments were not made in contemplation of such acquisition,
merger, amalgamation or consolidation and were in existence on the date of
such acquisition, merger, amalgamation or consolidation;
(22) Investments in Subsidiaries or Joint Ventures formed for the
purpose of selling or leasing transponders or transponder capacity to
third-party customers in the ordinary course of business of the Issuer and
its Restricted Subsidiaries which investments are in the form of transfers
to such Subsidiaries or Joint Ventures for fair market value transponders
or transponder capacity sold or to be sold or leased or to be leased by
such Subsidiaries or Joint Ventures; PROVIDED that all such Investments in
Subsidiaries and Joint Ventures do not exceed 10% of Net Transponder
Capacity; and
(23) any Investment in the Notes.
"PERMITTED LIENS" means with respect to any Person:
(1) pledges or deposits by such Person under workmen's compensation
laws, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or
deposits of cash or U.S. government bonds to secure surety or appeal bonds
to which such Person is a party, or deposits as security for contested
taxes or import duties or for the payment of rent, in each case Incurred
in the ordinary course of business;
(2) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings or other Liens arising out of
judgments or awards against such Person with respect to which such Person
shall then be proceeding with an appeal or other proceedings for review;
(3) Liens for taxes, assessments or other governmental charges not
yet due or payable or subject to penalties for nonpayment or which are
being contested in good faith by appropriate proceedings;
-28-
(4) Liens in favor of issuers of performance and surety bonds or bid
bonds or with respect to other regulatory requirements or letters of
credit issued at the request of and for the account of such Person in the
ordinary course of its business;
(5) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines and other similar purposes,
or zoning or other restrictions as to the use of real properties or Liens
incidental to the conduct of the business of such Person or to the
ownership of its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect
the value of said properties or materially impair their use in the
operation of the business of such Person;
(6) (A) Liens securing an aggregate principal amount of Pari Passu
Indebtedness not to exceed the greater of (x) the aggregate principal
amount of Pari Passu Indebtedness permitted to be Incurred pursuant to
Section 4.03(b)(i) and (y) the maximum principal amount of Indebtedness
that, as of such date, and after giving effect to the Incurrence of such
Indebtedness and the application of the proceeds therefrom on such date,
would not cause the Secured Indebtedness Leverage Ratio of the Issuer to
exceed 2.00 to 1.00 and (B) Liens securing Indebtedness permitted to be
Incurred pursuant to the Non-Guarantor Exception and Sections 4.03(b)(ii),
(iv) (PROVIDED that such Liens do not extend to any property or assets
that are not property being purchased, leased, constructed or improved
with the proceeds of such Indebtedness being Incurred pursuant to Section
4.03(b)(iv)), (xii) or (xx); PROVIDED that in the case of the
Non-Guarantor Exception and Section 4.03(b)(xx), such Lien does not extend
to the property or assets of the Issuer or any Subsidiary of the Issuer
other than a Restricted Subsidiary that is not a Guarantor;
(7) Liens existing on the Issue Date, date of Release or Acquisition
Date;
(8) Liens on assets, property or shares of stock of a Person at the
time such Person becomes a Subsidiary; PROVIDED, HOWEVER, that such Liens
are not created or Incurred in connection with, or in contemplation of,
such other Person becoming such a Subsidiary; PROVIDED, FURTHER, HOWEVER,
that such Liens may not extend to any other property owned by the Issuer
or any Subsidiary Guarantor of the Issuer;
(9) Liens on assets or property at the time the Issuer or a
Restricted Subsidiary of the Issuer acquired the assets or property,
including any acquisition by means of a merger, amalgamation or
consolidation with or into the Issuer or any Restricted Subsidiary of the
Issuer; PROVIDED, HOWEVER, that such Liens are not created or Incurred in
connection with, or in contemplation of, such acquisition; PROVIDED,
FURTHER, HOWEVER, that the Liens may not extend to any other assets or
property owned by the Issuer or any Restricted Subsidiary of the Issuer;
(10) Liens securing Indebtedness or other obligations of a Restricted
Subsidiary owing to the Issuer or another Restricted Subsidiary of the
Issuer permitted to be Incurred in accordance with Section 4.03;
-29-
(11) Liens securing Hedging Obligations permitted to be Incurred
under Section 4.03(b)(x);
(12) Liens on specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate
the purchase, shipment or storage of such inventory or other goods;
(13) leases and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the Issuer or any
of its Restricted Subsidiaries;
(14) Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Issuer and its
Restricted Subsidiaries in the ordinary course of business;
(15) Liens in favor of the Issuer or any Guarantor;
(16) Liens on equipment of the Issuer or any Restricted Subsidiary
granted in the ordinary course of business to the Issuer's client at which
such equipment is located;
(17) Liens on accounts receivable and related assets of the type
specified in the definition of "Receivables Financing" Incurred in
connection with a Qualified Receivables Financing;
(18) deposits made in the ordinary course of business to secure
liability to insurance carriers;
(19) Liens on the Equity Interests of Unrestricted Subsidiaries;
(20) grants of software and other technology licenses in the ordinary
course of business;
(21) Liens to secure any refinancing, refunding, extension, renewal
or replacement (or successive refinancings, refundings, extensions,
renewals or replacements) as a whole, or in part, of any Indebtedness
secured by any Lien referred to in the foregoing clauses (6)(B), (7), (8),
(9), (10), (11) and (15); PROVIDED, HOWEVER, that (x) such new Lien shall
be limited to all or part of the same property that secured the original
Lien (plus improvements on such property), and (y) the Indebtedness
secured by such Lien at such time is not increased to any amount greater
than the sum of (A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clauses (6)(B), (7),
(8), (9), (10), (11) and (15) at the time the original Lien became a
Permitted Lien under this Indenture, and (B) an amount necessary to pay
any fees and expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement;
-30-
(22) other Liens securing obligations Incurred in the ordinary course
of business which obligations do not exceed $20.0 million at any one time
outstanding; and
(23) Liens securing the Indebtedness in respect of the Eurobond
Notes.
"PERSON" means any individual, corporation, partnership, limited
liability company, Joint Venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PREFERRED STOCK" means any Equity Interest with preferential right
of payment of dividends or upon liquidation, dissolution or winding up.
"PRESUMED TAX RATE" means the highest effective marginal statutory
combined U.S. federal, state and local income tax rate prescribed for an
individual residing in New York City (taking into account (i) the deductibility
of state and local income taxes for U.S. federal income tax purposes, assuming
the limitation of Section 68(a)(2) of the Code applies and taking into account
any impact of Section 68(f) of the Code, and (ii) the character (long-term or
short-term capital gain, dividend income or other ordinary income) of the
applicable income).
"PURCHASE MONEY NOTE" means a promissory note of a Receivables
Subsidiary evidencing a line of credit, which may be irrevocable, from the
Issuer or any Subsidiary of the Issuer to a Receivables Subsidiary in connection
with a Qualified Receivables Financing, which note is intended to finance that
portion of the purchase price that is not paid by cash or a contribution of
equity.
"QUALIFIED RECEIVABLES FINANCING" means any Receivables Financing of
a Receivables Subsidiary that meets the following conditions:
(1) the Board of Directors of the Issuer shall have determined in
good faith that such Qualified Receivables Financing (including financing
terms, covenants, termination events and other provisions) is in the
aggregate economically fair and reasonable to the Issuer and the
Receivables Subsidiary,
(2) all sales of accounts receivable and related assets to the
Receivables Subsidiary are made at Fair Market Value (as determined in
good faith by the Issuer), and
(3) the financing terms, covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith by
the Issuer) and may include Standard Securitization Undertakings.
The grant of a security interest in any accounts receivable of the
Issuer or any of its Restricted Subsidiaries (other than a Receivables
Subsidiary) to secure Bank Indebtedness or the Eurobond Notes shall not be
deemed a Qualified Receivables Financing.
"RATING AGENCY" means (1) each of Xxxxx'x and S&P and (2) if Xxxxx'x
or S&P ceases to rate the Notes for reasons outside of the Issuer's control, a
"nationally recognized statistical rating organization" within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Ex-
-31-
change Act selected by the Issuer or any Parent of the Issuer as a replacement
agency for Xxxxx'x or S&P, as the case may be.
"RECEIVABLES FEES" means distributions or payments made directly or
by means of discounts with respect to any participation interest issued or sold
in connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Financing.
"RECEIVABLES FINANCING" means any transaction or series of
transactions that may be entered into by the Issuer or any of its Subsidiaries
pursuant to which the Issuer or any of its Subsidiaries may sell, convey or
otherwise transfer to (a) a Receivables Subsidiary (in the case of a transfer by
the Issuer or any of its Subsidiaries), and (b) any other Person (in the case of
a transfer by a Receivables Subsidiary), or may grant a security interest in,
any accounts receivable (whether now existing or arising in the future) of the
Issuer or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such accounts
receivable, proceeds of such accounts receivable and other assets which are
customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable and any Hedging Obligations entered into by the
Issuer or any such Subsidiary in connection with such accounts receivable.
"RECEIVABLES REPURCHASE OBLIGATION" means any obligation of a seller
of receivables in a Qualified Receivables Financing to repurchase receivables
arising as a result of a breach of a representation, warranty or covenant or
otherwise, including as a result of a receivable or portion thereof becoming
subject to any asserted defense, dispute, off-set or counterclaim of any kind as
a result of any action taken by, any failure to take action by or any other
event relating to the seller.
"RECEIVABLES SUBSIDIARY" means a Wholly Owned Restricted Subsidiary
of the Issuer (or another Person formed for the purposes of engaging in a
Qualified Receivables Financing with the Issuer in which the Issuer or any
Subsidiary of the Issuer makes an Investment and to which the Issuer or any
Subsidiary of the Issuer transfers accounts receivable and related assets) which
engages in no activities other than in connection with the financing of accounts
receivable of the Issuer and its Subsidiaries, all proceeds thereof and all
rights (contractual or other), collateral and other assets relating thereto, and
any business or activities incidental or related to such business, and which is
designated by the Board of Directors of the Issuer (as provided below) as a
Receivables Subsidiary and:
(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which (i) is guaranteed by the Issuer or any
other Subsidiary of the Issuer (excluding guarantees of obligations (other
than the principal of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings), (ii) is recourse to or obligates the Issuer
or any other Subsidiary of the Issuer in any way other than pursuant to
Standard Securitization Undertakings, or (iii) subjects any property or
asset of the Issuer or any other Subsidiary of the Issuer, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other
than pursuant to Standard Securitization Undertakings,
-32-
(b) with which neither the Issuer nor any other Subsidiary of the
Issuer has any material contract, agreement, arrangement or understanding
other than on terms which the Issuer reasonably believes to be no less
favorable to the Issuer or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Issuer,
and
(c) to which neither the Issuer nor any other Subsidiary of the
Issuer has any obligation to maintain or preserve such entity's financial
condition or cause such entity to achieve certain levels of operating
results.
Any such designation by the Board of Directors of the Issuer shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors of the Issuer giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"RELEVANT TAX JURISDICTION" means Bermuda, or another jurisdiction in
which the Issuer or a Guarantor, or a successor of any of them, is organized, is
resident or engaged in business for tax purposes or through which payments are
made on or in connection with the Notes.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SUBSIDIARY" means, with respect to any Person, any
Subsidiary of such Person other than an Unrestricted Subsidiary of such Person.
Unless otherwise indicated in this Indenture, all references to Restricted
Subsidiaries shall mean Restricted Subsidiaries of the Issuer.
"S&P" means Standard & Poor's Ratings Group or any successor to the
rating agency business thereof.
"SALE/LEASEBACK TRANSACTION" means an arrangement relating to
property now owned or hereafter acquired by the Issuer or a Restricted
Subsidiary whereby the Issuer or a Restricted Subsidiary transfers such property
to a Person and the Issuer or such Restricted Subsidiary leases it from such
Person, other than leases between the Issuer and a Restricted Subsidiary of the
Issuer or between Restricted Subsidiaries of the Issuer.
"SATELLITE" means any satellite owned by the Issuer or any of its
Restricted Subsidiaries and any satellite purchased by the Issuer or any of its
Restricted Subsidiaries pursuant to the terms of a Satellite Purchase Agreement,
whether such satellite is in the process of manufacture, has been delivered for
launch or is in orbit (whether or not in operational service).
"SATELLITE MANUFACTURER" means, with respect to any Satellite, the
prime contractor and manufacturer of such Satellite.
"SATELLITE PURCHASE AGREEMENT" means, with respect to any Satellite,
the agreement between the applicable Satellite Purchaser and the applicable
Satellite Manufacturer relating to the manufacture, testing and delivery of such
Satellite.
-33-
"SATELLITE PURCHASER" means the Issuer or Restricted Subsidiary that
is a party to a Satellite Purchase Agreement.
"SEC" means the Securities and Exchange Commission.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien.
"SECURED INDEBTEDNESS LEVERAGE RATIO" means, with respect to any
Person, at any date the ratio of (1) Secured Indebtedness of such Person and its
Restricted Subsidiaries as of such date of calculation (determined on a
consolidated basis in accordance with GAAP) to (2) Adjusted EBITDA of such
Person for the four full fiscal quarters for which internal financial statements
are available immediately preceding such date on which such additional
Indebtedness is Incurred. In the event that the Issuer or any of its Restricted
Subsidiaries Incurs or redeems any Indebtedness subsequent to the commencement
of the period for which the Secured Indebtedness Leverage Ratio is being
calculated but prior to the event for which the calculation of the Secured
Indebtedness Leverage Ratio is made (the "SECURED LEVERAGE CALCULATION DATE"),
then the Secured Indebtedness Leverage Ratio shall be calculated giving pro
forma effect to such Incurrence or redemption of Indebtedness as if the same had
occurred at the beginning of the applicable four-quarter period.
For purposes of making the computation referred to above,
Investments, acquisitions, dispositions, mergers, amalgamations, consolidations
and discontinued operations (as determined in accordance with GAAP), in each
case with respect to an operating unit of a business, and other operational
changes that the Issuer or any of its Restricted Subsidiaries has both
determined to make and made after the Issue Date and during the four-quarter
reference period or subsequent to such reference period and on or prior to or
simultaneously with the Secured Leverage Calculation Date shall be calculated on
a pro forma basis assuming that all such Investments, acquisitions,
dispositions, mergers, consolidations, discontinued operations and other
operational changes (and the change in Adjusted EBITDA resulting therefrom) had
occurred on the first day of the four-quarter reference period. If since the
beginning of such period any Person that subsequently became a Restricted
Subsidiary or was merged with or into the Issuer or any Restricted Subsidiary
since the beginning of such period shall have made any Investment, acquisition,
disposition, merger, amalgamation, consolidation, discontinued operation or
operational change, in each case with respect to an operating unit of a
business, that would have required adjustment pursuant to this definition, then
the Secured Indebtedness Leverage Ratio shall be calculated giving pro forma
effect thereto for such period as if such Investment, acquisition, disposition,
discontinued operation, merger, consolidation or operational change had occurred
at the beginning of the applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be
given to any transaction, the pro forma calculations shall be made in good faith
by a responsible financial or accounting officer of the Issuer. Any such pro
forma calculation may include adjustments appropriate, in the reasonable
determination of the Issuer as set forth in an Officers' Certificate, to
reflect, among other things, (1) operating expense reductions and other
operating improvements or synergies reasonably expected to result from any
acquisition, merger or operational change (including, to the extent applicable,
from the Transactions) and (2) all adjustments used in connection with the
calculation of "Adjusted EBITDA" as set forth in footnote 4 to the "Summary
-34-
Historical and Pro Forma Consolidated Financial Data" under "Offering Memorandum
Summary" in the Offering Memorandum, to the extent such adjustments, without
duplication, continue to be applicable to such four-quarter period.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"SENIOR CREDIT DOCUMENTS" means the collective reference to any
Credit Agreement, the notes issued pursuant thereto and the guarantees thereof,
and the collateral documents relating thereto, as amended, supplemented or
otherwise modified from time to time.
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary that would
be a "Significant Subsidiary" of the Issuer within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC or any successor provision.
"SIMILAR BUSINESS" means any business or activity of the Issuer or
any of its Subsidiaries currently conducted or proposed as of the Issue Date,
the date of Release or the Acquisition Date, or any business or activity that is
reasonably similar thereto or a reasonable extension, development or expansion
thereof, or is complementary, incidental, ancillary or related thereto.
"SPECIFIED SALE/LEASEBACK TRANSACTION" means one Sale/Leaseback
Transaction pursuant to which the Issuer or its Restricted Subsidiaries sell one
Satellite and related assets that is designated as a Specified Sale/Leaseback
Transaction pursuant to an Officers' Certificate.
"SPONSORS" means (1) one or more investment funds advised, managed or
controlled by Apax Partners Worldwide LLP and Apax Partners, Inc., (2) one or
more investment funds advised, managed or controlled by Apollo Management V,
L.P., (3) one or more investment funds advised, managed or controlled by Madison
Dearborn Partners and (4) one or more investment funds advised, managed or
controlled by Permira Advisers LLC and, in each case, (whether individually or
as a group) their Affiliates.
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, covenants, indemnities and guarantees of performance entered into by
the Issuer or any Subsidiary of the Issuer which the Issuer has determined in
good faith to be customary in a Receivables Financing including, without
limitation, those relating to the servicing of the assets of a Receivables
Subsidiary, it being understood that any Receivables Repurchase Obligation shall
be deemed to be a Standard Securitization Undertaking.
"STATED MATURITY" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"SUBORDINATED INDEBTEDNESS" means (a) with respect to the Issuer, any
Indebtedness of the Issuer which is by its terms subordinated in right of
payment to the Notes, and (b)
-35-
with respect to any Guarantor, any Indebtedness of such Guarantor which is by
its terms subordinated in right of payment to its Guarantee.
"SUBSIDIARY" means, with respect to any Person, (1) any corporation,
association or other business entity (other than a partnership, joint venture or
limited liability company) of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time of determination owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of such Person or a
combination thereof, (2) any partnership, joint venture or limited liability
company of which (x) more than 50% of the capital accounts, distribution rights,
total equity and voting interests or general and limited partnership interests,
as applicable, are owned or controlled, directly or indirectly, by such Person
or one or more of the other Subsidiaries of that Person or a combination
thereof, whether in the form of membership, general, special or limited
partnership interests or otherwise, and (y) such Person or any Restricted
Subsidiary of such Person is a controlling general partner or otherwise controls
such entity and (3) any Person that is consolidated in the consolidated
financial statements of the specified Person in accordance with GAAP.
"SUBSIDIARY GUARANTOR" means each Subsidiary of the Issuer that is a
Guarantor.
"TAX-AFFECTED INVESTOR" means any holder of capital stock in any
Parent of the Issuer that is subject (or if such holder is a Flow-Through
Entity, any partner in which is subject) to a tax regime (for example, as a
United States shareholder within the meaning of section 951(b) of the Code) that
requires such person to recognize on a current basis taxable income attributable
to earnings and profits of the Issuer, or its Subsidiaries in advance of any
distribution of such earnings and profits.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"TOTAL ASSETS" means, with respect to any Person, the total
consolidated assets of such Person and its Restricted Subsidiaries, as shown on
the most recent balance sheet. Notwithstanding the foregoing, until a
consolidated balance sheet of the Issuer is available following the Acquisition,
Total Assets of the Issuer shall mean Total Assets of Holdings.
"TRANSACTION AGREEMENT" means the Transaction Agreement and Plan of
Amalgamation, dated as of August 16, 2004, among Intelsat, Ltd., Intelsat
(Bermuda), Ltd., Zeus Holdings Limited, Zeus Merger One Limited and Zeus Merger
Two Limited, as amended, supplemented or modified from time to time.
"TRANSACTIONS" means the Acquisition and the transactions related
thereto as contemplated by the Acquisition Documents (including any Equity
Interest payments made in connection therewith (whether on the Issue Date or
thereafter)), the offering of Notes being offered hereby and borrowings made
pursuant to the Credit Agreement at the time of closing.
"TREASURY RATE" means with respect to the Notes, as of the applicable
redemption date, the yield to maturity as of such redemption date of United
States Treasury securities with a
-36-
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
business days prior to such redemption date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from such redemption date to July 15, 2005, in the
case of the Floating Rate Notes, January 15, 2009, in the case of 2013 Notes, or
January 15, 2010, in the case of 2015 Notes; PROVIDED, HOWEVER, that if the
period from such redemption date to July 15, 2005, in the case of the Floating
Rate Notes, January 15, 2009, in the case of 2013 Notes, or January 15, 2010, in
the case of 2015 Notes, is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year will be used.
"TRUST OFFICER" means any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject, and who shall have
direct responsibility for the administration of this Indenture.
"TRUSTEE" means the respective party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"TT&C EARTH STATION" shall mean any earth station licensed for
operation by the FCC or by any international, federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body,
authority, agency or commission or legislative body or other governmental entity
outside of the United States used for the provision of TT&C Services that is
owned and operated by the Issuer or any of its Subsidiaries.
"TT&C SERVICES" shall mean the provision of tracking, telemetry and
command services for the purposes of operational control of any Satellite.
"UNIFORM COMMERCIAL CODE" means the New York Uniform Commercial Code
as in effect from time to time.
"UNRESTRICTED SUBSIDIARY" means:
(1) any Subsidiary of the Issuer that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors
of such Person in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Issuer may designate any Subsidiary of
the Issuer (including any newly acquired or newly formed Subsidiary of the
Issuer) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any
Lien on any property of, the Issuer or any other Subsidiary of the Issuer that
is not a Subsidiary of the Subsidiary to be so designated; PROVIDED, HOWEVER,
that the
-37-
Subsidiary to be so designated and its Subsidiaries do not at the time of
designation have and do not thereafter Incur any Indebtedness pursuant to which
the lender has recourse to any of the assets of the Issuer or any of its
Restricted Subsidiaries (other than Equity Interests of Unrestricted
Subsidiaries); PROVIDED, FURTHER, HOWEVER, that either:
(a) the Subsidiary to be so designated has total consolidated assets
of $1,000 or less; or
(b) if such Subsidiary has consolidated assets greater than $1,000,
then such designation would be permitted under Section 4.04.
The Board of Directors of the Issuer may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED, HOWEVER, that immediately
after giving effect to such designation:
(x) (1) the Issuer could Incur $1.00 of additional Indebtedness
pursuant to the Debt to Adjusted EBITDA Ratio test described in Section
4.03(a) or (2) the Debt to Adjusted EBITDA Ratio for the Issuer and its
Restricted Subsidiaries would be less than such ratio for the Issuer and
its Restricted Subsidiaries immediately prior to such designation, in each
case on a pro forma basis taking into account such designation, and
(y) no Event of Default shall have occurred and be continuing.
Any such designation by the Board of Directors of the Issuer shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors of the Issuer giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. DOLLAR EQUIVALENT" means, with respect to any monetary amount
in a currency other than U.S. Dollars, at any time for the determination
thereof, the amount of U.S. Dollars obtained by converting such foreign
currency involved in such computation into U.S. Dollars at the spot rate
for the purchase of U.S. Dollars with the applicable foreign currency as
quoted by Reuters at approximately 10:00 A.M. (New York City time) on such
date of determination (or if no such quote is available on such date, on
the immediately preceding Business Day for which such a quote is
available).
"U.S. GOVERNMENT OBLIGATIONS" means securities that are:
(1) direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged, or
(2) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America,
-38-
which, in each case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect to
any such U.S. Government Obligations or a specific payment of principal of or
interest on any such U.S. Government Obligations held by such custodian for the
account of the holder of such depository receipt; PROVIDED that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligations or the specific
payment of principal of or interest on the U.S. Government Obligations evidenced
by such depository receipt.
"VOTING STOCK" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness or Disqualified Stock, as the case may be, at any date, the
quotient obtained by dividing (1) the sum of the products of the number of years
from the date of determination to the date of each successive scheduled
principal payment of such Indebtedness or redemption or similar payment with
respect to such Disqualified Stock multiplied by the amount of such payment, by
(2) the sum of all such payments.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" is any Wholly Owned Subsidiary
that is a Restricted Subsidiary.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such
Person 100% of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares or shares or interests required
to be held by foreign nationals) shall at the time be owned by such Person or by
one or more Wholly Owned Subsidiaries of such Person and one or more Wholly
Owned Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- -----------
"2013 Notes"................................ Preamble
"2015 Notes"................................ Preamble
"Additional Interest"....................... Appendix A
"Affiliate Transaction"..................... 4.07(a)
"Appendix".................................. Preamble
"Asset Sale Offer".......................... 4.06(b)
"2013 Notes"................................ Preamble
"2015 Notes"................................ Preamble
"Authorized Agent".......................... 11.16
"Bankruptcy Law"............................ 6.01
"Base Currency"............................. 11.18(b)
"Calculation Agent"......................... Exhibit C and
Exhibit F
-39-
Defined in
Term Section
---- -----------
"Calculation Date".......................... 1.01
"Change of Control"......................... 4.08(a)
"Change of Control Offer"................... 4.08(b)
"Clearstream"............................... Appendix A
"control"................................... 1.01
"consolidated".............................. 1.01
"covenant defeasance option"................ 8.01(c)
"Covenant Suspension Event"................. 4.16
"Custodian"................................. 6.01
"Deadline".................................. 4.18
"Determination Date"........................ Exhibit C
"Definitive Note"........................... Appendix A
"Depository"................................ Appendix A
"disposition"............................... 1.01
"Escrow Agent".............................. 4.18
"Escrow Agreement".......................... 4.18
"Escrowed Property"......................... 4.18
"Euroclear"................................. Appendix A
"Event of Default".......................... 6.01
"Excess Proceeds"........................... 4.06(b)
"Exchange 2013 Notes"....................... Preamble
"Exchange 2015 Notes"....................... Preamble
"Exchange Fixed Rate Notes.................. Preamble
"Exchange Floating Rate Notes............... Preamble
"Exchange Notes"............................ Preamble
"Fixed Rate Notes".......................... Preamble
"Floating Rate Notes"....................... Preamble
"Global Notes Legend"....................... Appendix A
"Guaranteed Obligations".................... 10.01(a)
"IAI"....................................... Appendix A
"incorporated provision".................... 11.01
"Initial 2013 Notes"........................ Preamble
"Initial 2015 Notes"........................ Preamble
"Initial Fixed Rate Notes".................. Preamble
"Initial Floating Rate Notes"............... Preamble
"Initial Notes"............................. Preamble
"Initial Purchasers"........................ 1.01 and
Appendix A
"Intelsat General".......................... 4.15
"Interest Period"........................... Exhibit C
"Issuer".................................... Preamble
"Judgment Currency"......................... 11.18(b)
"legal defeasance option"................... 8.01
-40-
Defined in
Term Section
---- -----------
"LIBOR"..................................... Exhibit C
"London Banking Day"........................ Exhibit C
"maximum fixed repurchase price"............ 1.01
"Net Payment"............................... 4.17
"Non-Guarantor Exception"................... 4.03(a)
"Notes"..................................... Preamble
"Offer Period".............................. 4.06(d)
"Original 2013 Notes"....................... Preamble
"Original 2015 Notes"....................... Preamble
"Original Fixed Rate Notes"................. Preamble
"Original Floating Rate Notes".............. Preamble
"Original Notes"............................ Preamble
"Paying Agent".............................. 2.04
"Permitted Debt"............................ 4.03(b)
"primary obligations"....................... 1.01
"primary obligor"........................... 1.01
"protected purchaser"....................... 2.08
"Proxy Agreement"........................... 4.15
"Purchase Agreement"........................ Appendix A
"QIB"....................................... Appendix A
"rate(s) of exchange"....................... 11.18(d)
"Refinancing Indebtedness".................. 4.03(b)
"Refunding Capital Stock.................... 4.04(b)
"Registered Exchange Offer"................. Appendix A
"Registrar"................................. 2.04
"Registration Rights Agreement"............. Appendix A
"Regulation S".............................. Appendix A
"Regulation S Notes"........................ Appendix A
"Release"................................... 4.18
"Release Certificate"....................... 4.18
"Representative Amount"..................... Exhibit C
"Restricted Notes Legend"................... Appendix A
"Restricted Payments"....................... 4.04(a)
"Restricted Period"......................... Appendix A
"Retired Capital Stock"..................... 4.04(b)
"Reversion Date"............................ 4.16
"Rule 144A"................................. Appendix A
"Rule 144A Notes"........................... Appendix A
"Rule 501".................................. Appendix A
"Secured Leverage Calculation Date"......... 1.01
"Securities Custodian"...................... Appendix A
"Shelf Registration Statement".............. Appendix A
"Special Mandatory Redemption".............. 3.10
-41-
Defined in
Term Section
---- -----------
"Special Mandatory Redemption Amount"....... 4.18
"Special Mandatory Redemption Date"......... 3.10
"Special Mandatory Redemption Price"........ 3.10
"Specified Merger/Transfer Transaction"..... 5.01(a)
"Successor Company"......................... 5.01(a)
"Successor Guarantor"....................... 5.01(b)
"Suspended Covenants"....................... 4.16
"Suspension Date"........................... 4.16
"Suspension Period"......................... 4.16
"Telerate Page 3750"........................ Exhibit C
"Transfer Restricted Notes"................. Appendix A
"Trustee"................................... Preamble
"Unrestricted Definitive Note".............. Appendix A
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
This Indenture incorporates by reference certain provisions of the TIA. The
following TIA terms have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Notes and the Guarantees.
"INDENTURE SECURITY HOLDER" means a Holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Issuer, the
Guarantors and any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
-42-
(e) words in the singular include the plural and words in the plural
include the singular;
(f) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(g) unless otherwise specified herein, the principal amount of any
non-interest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP;
(h) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater;
(i) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with GAAP;
(j) "$" and "U.S. DOLLARS" each refer to United States dollars, or
such other money of the United States of America that at the time of
payment is legal tender for payment of public and private debts;
(k) "(euro)" and "EUROS" each refer to the lawful currency of the
member states of the European Union that adopt the single currency in
accordance with the Treaty establishing the European Communities; and
(l) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Notes, such mention shall be deemed to include mention of the payment
of Additional Interest, to the extent that, in such context, Additional
Interest is, was or would be payable in respect thereof.
ARTICLE 2
THE SECURITIES
SECTION 2.01. AMOUNT OF NOTES; ISSUABLE IN SERIES. The aggregate
principal amount of Original Notes which may be authenticated and delivered
under this Indenture on the Issue Date is $875,000,000 aggregate principal
amount of 2013 Notes, $675,000,000 aggregate principal amount of 2015 Notes and
$1,000,000,000 aggregate principal amount of Floating Rate Notes. The Notes may
be issued in one or more series. All Notes of any one series shall be
substantially identical except as to denomination.
The Issuer may from time to time after the Issue Date issue
Additional Notes under this Indenture in an unlimited principal amount, so long
as (i) the Incurrence of the Indebtedness represented by such Additional Notes
is at such time permitted by Section 4.03 and (ii) such
-43-
Additional Notes are issued in compliance with the other applicable provisions
of this Indenture. With respect to any Additional Notes issued after the Issue
Date (except for Notes authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Notes pursuant to Section 2.07,
2.08, 2.09, 2.10, 3.06, 4.06(g), 4.08(c) or the Appendix), there shall be (a)
established in or pursuant to a resolution of the Board of Directors and (b) (i)
set forth or determined in the manner provided in an Officers' Certificate or
(ii) established in one or more indentures supplemental hereto, prior to the
issuance of such Additional Notes:
(1) whether such Additional Notes shall be issued as part of a new or
existing series of Notes and the title of such Additional Notes (which
shall distinguish the Additional Notes of the series from Notes of any
other series);
(2) the aggregate principal amount of such Additional Notes which may
be authenticated and delivered under this Indenture,
(3) the issue price and issuance date of such Additional Notes,
including the date from which interest on such Additional Notes shall
accrue;
(4) if applicable, that such Additional Notes shall be issuable in
whole or in part in the form of one or more Global Notes and, in such case,
the respective depositaries for such Global Notes, the form of any legend
or legends which shall be borne by such Global Notes in addition to or in
lieu of those set forth in EXHIBIT A, B or C hereto and any circumstances
in addition to or in lieu of those set forth in Section 2.2 of the Appendix
in which any such Global Note may be exchanged in whole or in part for
Additional Notes registered, or any transfer of such Global Note in whole
or in part may be registered, in the name or names of Persons other than
the depositary for such Global Note or a nominee thereof; and
(5) if applicable, that such Additional Notes that are not Transfer
Restricted Notes shall not be issued in the form of Initial Notes as set
forth in EXHIBIT A, B or C, but shall be issued in the form of Exchange
Notes as set forth in EXHIBIT D, E or F.
If any of the terms of any Additional Notes are established by action
taken pursuant to a resolution of the Board of Directors, a copy of an
appropriate record of such action shall be certified by the Secretary or
Director or any Assistant Secretary or Assistant Director of the Issuer and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate or the indenture supplemental hereto setting forth the terms of the
Additional Notes.
SECTION 2.02. FORM AND DATING. Provisions relating to the Initial
Notes and the Exchange Notes are set forth in the Appendix, which is hereby
incorporated in and expressly made a part of this Indenture. The Original 2013
Notes, Initial 2013 Notes, any Additional 2013 Notes (if issued as Transfer
Restricted Notes) and the Trustee's certificate of authentication for each shall
each be substantially in the form of EXHIBIT A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Original 2015
Notes, Initial 2015 Notes, any Additional 2015 Notes (if issued as Transfer
Restricted Notes) and the Trustee's certificate of authentication for each shall
each be substantially in the form of EXHIBIT B hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Original
Floating Rate
-44-
Notes, Initial Floating Rate Notes, any Additional Floating Rate Notes (if
issued as Transfer Restricted Notes) and the Trustee's certificate of
authentication for each shall each be substantially in the form of EXHIBIT
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Exchange 2013 Notes, any Additional 2013 Notes issued other than
as Transfer Restricted Notes and the Trustee's certificate of authentication for
each shall each be substantially in the form of EXHIBIT D hereto, which is
hereby incorporated in and expressly made a part of this Indenture. The Exchange
2015 Notes, any Additional 2015 Notes issued other than as Transfer Restricted
Notes and the Trustee's certificate of authentication for each shall each be
substantially in the form of EXHIBIT E hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Exchange Floating Rate Notes,
any Additional Floating Rate Notes issued other than as Transfer Restricted
Notes and the Trustee's certificate of authentication for each shall each be
substantially in the form of EXHIBIT F hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Issuer or any Guarantor is subject, if any, or usage (provided that
any such notation, legend or endorsement is in a form acceptable to the Issuer).
Each Note shall be dated the date of its authentication. The Notes shall be
issuable only in registered form without interest coupons and only in
denominations of $1,000 and any integral multiples thereof.
SECTION 2.03. EXECUTION AND AUTHENTICATION. The Trustee shall
authenticate and make available for delivery upon a written order of the
Issuer signed by one Officer (a) (i) Original 2013 Notes for original issue on
the date hereof in an aggregate principal amount of $875,000,000, (ii) Original
2015 Notes for original issue on the date hereof in an aggregate principal
amount of $675,000,000 and (iii) Original Floating Rate Notes for original issue
on the date hereof in an aggregate principal amount of $1,000,000,000, (b)
subject to the terms of this Indenture, Additional Notes in an aggregate
principal amount to be determined at the time of issuance and specified therein
and (c) the Exchange Notes for issue in a Registered Exchange Offer pursuant to
the Registration Rights Agreement for a like principal amount of Initial Notes
exchanged pursuant thereto or otherwise pursuant to an effective registration
statement under the Securities Act. Such order shall specify the amount of the
Notes to be authenticated, the date on which the original issue of Notes is to
be authenticated and whether the Notes are to be Initial Notes or Exchange
Notes. Notwithstanding anything to the contrary in this Indenture or the
Appendix, any issuance of Additional Notes after the Issue Date shall be in a
principal amount of at least $1,000, whether such Additional Notes are of the
same or a different series than the Original Notes.
One Officer shall sign the Notes for the Issuer by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee may appoint one or more authenticating agents reasonably
acceptable to the Issuer to authenticate the Notes. Any such appointment shall
be evidenced by an instru-
-45-
ment signed by a Trust Officer, a copy of which shall be furnished to the
Issuer. Unless limited by the terms of such appointment, an authenticating agent
may authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, Paying
Agent or agent for service of notices and demands.
The Trustee is hereby authorized to enter into a letter of
representations with the Depository in the form provided by the Issuer and to
act in accordance with such letter.
SECTION 2.04. REGISTRAR, PAYING AGENT AND CALCULATION AGENT.
(a) The Issuer shall maintain (i) an office or agency where Notes may
be presented for registration of transfer or for exchange (the "REGISTRAR"), and
(ii) an office or agency where Notes may be presented for payment (the "PAYING
AGENT") which, for so long as required by any national securities exchange
(whether or not the Issuer has any securities listed on such exchange), shall be
in the Borough of Manhattan, the City of New York, the State of New York. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Issuer may have one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrars. The term "Paying Agent"
includes the Paying Agent and any additional paying agents. In addition, the
Issuer shall appoint a Calculation Agent to determine the interest rate on the
Floating Rate Notes as provided in Section 1 of the Floating Rate Notes. The
Issuer initially appoints the Trustee as (i) Registrar, Calculation Agent and
Paying Agent in connection with the Notes and (ii) the Securities Custodian with
respect to the Global Notes.
(b) The Issuer shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or Calculation Agent not a party to this
Indenture, which shall incorporate the terms of the TIA. The agreement shall
implement the provisions of this Indenture that relate to such agent. The Issuer
shall notify the Trustee of the name and address of any such agent. If the
Issuer fails to maintain a Registrar, Paying Agent or Calculation Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.07. The Issuer or any of its Wholly Owned
Subsidiaries organized in the United States may act as Registrar, Paying Agent
or Calculation Agent.
(c) The Issuer may remove any Registrar, Paying Agent or Calculation
Agent upon written notice to such Registrar, Paying Agent or Calculation Agent
and to the Trustee; PROVIDED, HOWEVER, that no such removal shall become
effective until (i) if applicable, acceptance of an appointment by a successor
as evidenced by an appropriate agreement entered into by the Issuer and such
successor Registrar, Paying Agent or Calculation Agent, as the case may be, and
delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as Registrar, Paying Agent or Calculation Agent until the
appointment of a successor in accordance with clause (i) above. The Registrar,
Paying Agent or Calculation Agent may resign at any time upon written notice to
the Issuer and the Trustee; PROVIDED, HOWEVER, that the Trustee may resign as
Registrar, Paying Agent or Calculation Agent only if the Trustee also resigns as
Trustee in accordance with Section 7.08.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST. Prior to each
due date of the principal of and interest on any Note, the Issuer shall deposit
with each Paying Agent (or if
-46-
the Issuer or a Wholly Owned Subsidiary is acting as Paying Agent, segregate and
hold in trust for the benefit of the Persons entitled thereto) a sum sufficient
to pay such principal and interest when so becoming due. The Issuer shall
require each Paying Agent (other than the Trustee) to agree in writing that a
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
money held by a Paying Agent for the payment of principal of and interest on the
Notes, and shall notify the Trustee of any default by the Issuer in making any
such payment. If the Issuer or a Wholly Owned Subsidiary of the Issuer acts as
Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it in trust for the benefit of the Persons entitled thereto. The Issuer at any
time may require a Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed by such Paying Agent. Upon complying with
this Section, a Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.06. HOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Issuer shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Holders.
SECTION 2.07. TRANSFER AND EXCHANGE. The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note for
registration of transfer and in compliance with the Appendix. When a Note is
presented to the Registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if its requirements therefor are met.
When Notes are presented to the Registrar with a request to exchange them for an
equal principal amount of Notes of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Notes at the Registrar's request. The Issuer may
require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges in connection with any transfer or exchange pursuant to
this Section. The Issuer shall not be required to make, and the Registrar need
not register, transfers or exchanges of Notes selected for redemption (except,
in the case of Notes to be redeemed in part, the portion thereof not to be
redeemed) or of any Notes for a period of 15 days before a selection of Notes to
be redeemed.
Prior to the due presentation for registration of transfer of any
Note, the Issuer, the Guarantors, the Trustee, each Paying Agent and the
Registrar may deem and treat the Person in whose name a Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Issuer, any
Guarantor, the Trustee, a Paying Agent or the Registrar shall be affected by
notice to the contrary.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such beneficial interest, agree that transfers of beneficial
interests in such Global Note may be effected only through a book-entry system
maintained by (a) the Holder of such Global Note (or its agent) or (b) any
Holder of a beneficial interest in such Global Note, and that ownership of a
beneficial interest in such Global Note shall be required to be reflected in a
book entry.
-47-
All Notes issued upon any transfer or exchange pursuant to the terms
of this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION 2.08. REPLACEMENT NOTES. If a mutilated Note is surrendered
to the Registrar or if the Holder of a Note claims that the Note has been
lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee
shall authenticate a replacement Note if the requirements of Section 8-405 of
the Uniform Commercial Code are met, such that the Holder (a) satisfies the
Issuer or the Trustee within a reasonable time after such Holder has notice of
such loss, destruction or wrongful taking and the Registrar does not register a
transfer prior to receiving such notification, (b) makes such request to the
Issuer or the Trustee prior to the Note being acquired by a protected purchaser
as defined in Section 8-303 of the Uniform Commercial Code (a "PROTECTED
PURCHASER") and (c) satisfies any other reasonable requirements of the Trustee.
If required by the Trustee or the Issuer, such Holder shall furnish an indemnity
bond sufficient in the judgment of the Trustee to protect the Issuer, the
Trustee, a Paying Agent and the Registrar from any loss that any of them may
suffer if a Note is replaced. The Issuer and the Trustee may charge the Holder
for their expenses in replacing a Note (including, without limitation,
attorneys' fees and disbursements in replacing such Note). In the event any such
mutilated, lost, destroyed or wrongfully taken Note has become or is about to
become due and payable, the Issuer in its discretion may pay such Note instead
of issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of the Issuer.
The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.
SECTION 2.09. OUTSTANDING NOTES. Notes outstanding at any time are
all Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. Subject to Section 11.06, a Note does not cease to be outstanding
because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.08 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee and the Issuer receive proof satisfactory to them that the replaced
Note is held by a protected purchaser. A mutilated Note ceases to be outstanding
upon surrender of such Note and replacement thereof pursuant to Section 2.08.
If a Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, and no Paying
Agent is prohibited from paying such money to the Holders on that date pursuant
to the terms of this Indenture, then on and after that date such Notes (or
portions thereof) cease to be outstanding and interest on them ceases to accrue.
SECTION 2.10. TEMPORARY NOTES. In the event that Definitive Notes
are to be issued under the terms of this Indenture, until such Definitive Notes
are ready for delivery, the
-48-
Issuer may prepare and the Trustee shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of Definitive Notes but may have
variations that the Issuer considers appropriate for temporary Notes. Without
unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate
Definitive Notes and make them available for delivery in exchange for temporary
Notes upon surrender of such temporary Notes at the office or agency of the
Issuer, without charge to the Holder. Until such exchange, temporary Notes shall
be entitled to the same rights, benefits and privileges as Definitive Notes.
SECTION 2.11. CANCELLATION. The Issuer at any time may deliver
Notes to the Trustee for cancellation. The Registrar and each Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment or
cancellation and shall dispose of canceled Notes in accordance with its
customary procedures. The Issuer may not issue new Notes to replace Notes it has
redeemed, paid or delivered to the Trustee for cancellation. The Trustee shall
not authenticate Notes in place of canceled Notes other than pursuant to the
terms of this Indenture.
SECTION 2.12. DEFAULTED INTEREST. If the Issuer defaults in a
payment of interest on the Notes, the Issuer shall pay the defaulted interest
then borne by the Notes (plus interest on such defaulted interest to the extent
lawful), in any lawful manner. The Issuer may pay the defaulted interest to the
Persons who are Holders on a subsequent special record date. The Issuer shall
fix or cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each affected Holder a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP NUMBERS, ISINS, ETC. The Issuer in issuing the
Notes may use CUSIP numbers, ISINs and "Common Code" numbers (if then generally
in use) and, if so, the Trustee shall use CUSIP numbers, ISINs and "Common Code"
numbers in notices of redemption as a convenience to Holders; PROVIDED, HOWEVER,
that any such notice may state that no representation is made as to the
correctness of such numbers, either as printed on the Notes or as contained in
any notice of a redemption, that reliance may be placed only on the other
identification numbers printed on the Notes and that any such redemption shall
not be affected by any defect in or omission of such numbers. The Issuer shall
advise the Trustee of any change in the CUSIP numbers, ISINs and "Common Code"
numbers.
SECTION 2.14. CALCULATION OF PRINCIPAL AMOUNT OF NOTES. The aggregate
principal amount of the Notes, at any date of determination, shall be the
principal amount of the Notes at such date of determination. With respect to any
matter requiring consent, waiver, approval or other action of the Holders of a
specified percentage of the principal amount of all the Notes, such percentage
shall be calculated, on the relevant date of determination, by dividing (a) the
principal amount, as of such date of determination, of Notes, the Holders of
which have so consented by (b) the aggregate principal amount, as of such date
of determination, of the Notes then outstanding, in each case, as determined in
accordance with the preceding sentence, Section 2.09 and Section 11.06 of this
Indenture. Any such calculation made pursuant to this Sec-
-49-
tion 2.14 shall be made by the Issuer and delivered to the Trustee pursuant to
an Officers' Certificate.
ARTICLE 3
REDEMPTION
SECTION 3.01. REDEMPTION. The Notes may be redeemed, in whole, or
from time to time in part, subject to the conditions and at the redemption
prices set forth in Paragraph 5 of the form of Notes set forth in EXHIBIT A,
EXHIBIT B, EXHIBIT C, EXHIBIT D, EXHIBIT E and EXHIBIT F hereto, which are
hereby incorporated by reference and made a part of this Indenture, together
with accrued and unpaid interest to the redemption date. The Issuer may redeem
2013 Notes, 2015 Notes or Floating Rate Notes pursuant to the immediately
preceding sentence without redeeming the other series of Notes.
SECTION 3.02. APPLICABILITY OF ARTICLE. Redemption of Notes at the
election of the Issuer or otherwise, as permitted or required by any provision
of this Indenture, shall be made in accordance with such provision and this
Article.
SECTION 3.03. NOTICES TO TRUSTEE. If the Issuer elects to redeem
Notes pursuant to the optional redemption provisions of Paragraph 5 of the
applicable Note, it shall notify the Trustee in writing of (i) the Section of
this Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption
price. The Issuer shall give notice to the Trustee provided for in this
paragraph at least 45 days (unless a shorter period is acceptable to the
Trustee) but not more than 60 days before a redemption date if the redemption is
pursuant to Paragraph 5 of the applicable Note (except in the case of a Special
Mandatory Redemption, in which case notice shall be given promptly after the
Deadline), unless a shorter period is acceptable to the Trustee. Such notice
shall be accompanied by an Officers' Certificate and Opinion of Counsel from the
Issuer to the effect that such redemption will comply with the conditions
herein. The record date relating to any redemption shall be selected by the
Issuer and given to the Trustee, which record date shall be not fewer than 15
days after the date of notice to the Trustee. Any such notice may be canceled at
any time prior to notice of such redemption being mailed to any Holder and shall
thereby be void and of no effect.
SECTION 3.04. SELECTION OF NOTES TO BE REDEEMED. In the case of any
partial redemption, selection of the Notes for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which such Notes are listed, or if such Notes are not so
listed, on a pro rata basis, by lot or by such other method as the Trustee shall
deem fair and appropriate (and in such manner as complies with applicable legal
requirements); PROVIDED that no Notes of $1,000 or less shall be redeemed in
part. The Trustee shall make the selection from outstanding Notes not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Notes that have denominations larger than $1,000. Notes and
portions of them the Trustee selects shall be in amounts of $1,000 or a whole
multiple of $1,000. Provisions of this Indenture that apply to Notes called for
re-
-50-
demption also apply to portions of Notes called for redemption. The Trustee
shall notify the Issuer promptly of the Notes or portions of Notes to be
redeemed.
SECTION 3.05. NOTICE OF OPTIONAL REDEMPTION.
(a) At least 30 days but not more than 60 days before a redemption
date pursuant to Paragraph 5 of the applicable Note, the Issuer shall mail or
cause to be mailed by first-class mail a notice of redemption to each Holder
whose Notes are to be redeemed.
Any such notice shall identify the Notes to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest to the
redemption date;
(iii) the name and address of a Paying Agent;
(iv) that Notes called for redemption must be surrendered to a Paying
Agent to collect the redemption price, plus accrued interest;
(v) if fewer than all the outstanding Notes are to be redeemed, the
certificate numbers and principal amounts of the particular Notes to be
redeemed, the aggregate principal amount of Notes to be redeemed and the
aggregate principal amount of Notes to be outstanding after such partial
redemption;
(vi) that, unless the Issuer defaults in making such redemption
payment or any Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, interest on Notes (or portion thereof)
called for redemption ceases to accrue on and after the redemption date;
(vii) the CUSIP number, ISIN and/or "Common Code" number, if any,
printed on the Notes being redeemed;
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP number or ISIN and/or "Common Code" number, if any,
listed in such notice or printed on the Notes; and
(ix) the record date.
(b) At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at the Issuer's expense. In such
event, the Issuer shall provide the Trustee with the information required
by this Section, at least 45 days (unless a shorter period is acceptable
to the Trustee) prior to the proposed redemption date.
(c) Notice of any redemption (other than with respect to a Special
Mandatory Redemption) may be given prior to the completion thereof, and
any such redemption or notice
-51-
may, at the Issuer's discretion, be subject to one or more conditions precedent,
including, but not limited to, in the case of any Equity Offering, completion of
the related Equity Offering.
SECTION 3.06. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed in accordance with Section 3.05, Notes called for
redemption become due and payable on the redemption date and at the redemption
price stated in the notice. Upon surrender to any Paying Agent, such Notes shall
be paid at the redemption price stated in the notice, plus accrued interest to
the redemption date; PROVIDED, HOWEVER, that if the redemption date is after a
regular record date and on or prior to the interest payment date, the accrued
interest shall be payable to the Holder of the redeemed Notes registered on the
relevant record date. Failure to give notice or any defect in the notice to any
Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.07. DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m., New
York City time, on the redemption date, the Issuer shall deposit with the Paying
Agent (or, if the Issuer or a Wholly Owned Subsidiary is a Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and
accrued interest on all Notes or portions thereof to be redeemed on that date
other than Notes or portions of Notes called for redemption that have been
delivered by the Issuer to the Trustee for cancellation. On and after the
redemption date, interest shall cease to accrue on Notes or portions thereof
called for redemption so long as the Issuer has deposited with the Paying Agent
funds sufficient to pay the principal of, plus accrued and unpaid interest on,
the Notes to be redeemed, unless a Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture.
SECTION 3.08. NOTES REDEEMED IN PART. Upon surrender of a Note that
is redeemed in part, the Issuer shall execute and the Trustee shall authenticate
for the Holder (at the Issuer's expense) a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
SECTION 3.09. REDEMPTION FOR TAXATION REASONS.
(a) From and after the Issue Date, the Issuer may, at its option,
redeem any series of the Notes in whole if at any time it becomes obligated to
pay additional amounts on any Notes on the next interest payment date with
respect to such series of Notes, but only if its obligation results from a
change in, or an amendment to, the laws or treaties (including any regulations
or rulings promulgated thereunder) of a Relevant Tax Jurisdiction (or a
political subdivision or taxing authority thereof or therein), or from a change
in any official position regarding the interpretation, administration or
application of those laws, treaties, regulations or rulings (including a change
resulting from a holding, judgment or order by a court of competent
jurisdiction), that becomes effective or is announced after the Issue Date and
provided the Issuer cannot avoid the obligation after taking reasonable measures
to do so. If the Issuer redeems the Notes in these circumstances, it shall do so
at a redemption price equal to 100% of the principal amount of the Notes
redeemed, plus accrued and unpaid interest, if any, and any other amounts due to
the redemption date.
(b) If the Issuer becomes entitled to redeem the Notes pursuant to
Section 3.09(a), it may do so at any time on a redemption date of its choice.
However, the Issuer must
-52-
give the Holders of the Notes being redeemed notice of the redemption not less
than 30 days or more than 60 days before the redemption date and not more than
90 days before the next date on which it would be obligated to pay additional
amounts.
(c) The Issuer's obligation to pay additional amounts shall remain in
effect when it gives the notice of redemption. Notice of the Issuer's intent to
redeem the Notes shall not be effective until such time as it delivers to the
Trustee both a certificate signed by two of its Officers stating that the
Issuer's obligation to pay additional amounts cannot be avoided by taking
reasonable measures and an opinion of independent legal counsel or an
independent auditor stating that the Issuer is obligated to pay additional
amounts because of an amendment to or change in law, treaties or position as
described in Section 3.09(a) hereof.
SECTION 3.10. SPECIAL MANDATORY REDEMPTION. If the Escrow Agreement
is effective and Release has not occurred on or before 5:00 p.m., New York
City time, on the Deadline, then the Issuer shall, on a day not more than 10
Business Days following the Deadline (such date, the "SPECIAL MANDATORY
REDEMPTION DATE"), redeem all of the Notes (the "SPECIAL MANDATORY REDEMPTION")
at a price equal to 100% of the principal amount of the Notes plus accrued and
unpaid interest from the Issue Date (the "SPECIAL MANDATORY REDEMPTION PRICE").
SECTION 3.11. NOTICE OF SPECIAL MANDATORY REDEMPTION. Notice of the
Special Mandatory Redemption shall be mailed promptly to each Holder of Notes at
its registered address, the Trustee and the Escrow Agent.
SECTION 3.12. EFFECT OF NOTICE OF SPECIAL MANDATORY REDEMPTION.
Upon receipt of the notice of Special Mandatory Redemption, the Escrow Agent
shall liquidate all Escrowed Property held by it no later than the Business Day
prior to the Special Mandatory Redemption Date. On the Special Mandatory
Redemption Date, the Escrow Agent shall pay to a Paying Agent for payment to
each Holder of Notes the Special Mandatory Redemption Price for such Holder's
Notes and, concurrently with the payment to such Holders, deliver any excess
Escrowed Property to the Issuer.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. The Issuer shall promptly pay the
principal of and interest on the Notes on the dates and in the manner provided
in the Notes and in this Indenture. An installment of principal of or interest
on the Notes shall be considered paid on the date due if on such date the
Trustee or any Paying Agent holds in accordance with this Indenture money
sufficient to pay all principal and interest then due and the Trustee or any
Paying Agent, as the case may be, are not prohibited from paying such money to
the Holders on that date pursuant to the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the rate
specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate borne by the Notes to the extent
lawful.
-53-
SECTION 4.02. REPORTS AND OTHER INFORMATION.
(a) After the Acquisition Date, notwithstanding that the Issuer may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act
or otherwise report on an annual and quarterly basis on forms provided for such
annual and quarterly reporting pursuant to rules and regulations promulgated by
the SEC, the Issuer shall file with the SEC (unless the SEC will not accept such
a filing), and provide the Trustee and Holders with copies thereof, without cost
to each Holder, within 15 days after it files or, in the case of a Form 6-K,
furnishes (or attempts to file or furnish) them with the SEC,
(i) within 90 days after the end of each fiscal year (or such shorter
period as may be required by the SEC), an annual report (which, if
permitted under applicable rules of the SEC, may be the annual report of
Holdings) on Form 10-K or 20-F (or any successor or comparable forms)
containing the information required to be contained therein (or required in
such successor or comparable form) and
(ii) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year (or such shorter period as may be required by
the SEC), a quarterly report (which, if permitted under applicable rules of
the SEC, may be the quarterly report of Holdings) on Form 10-Q or 6-K (or
any successor or comparable forms), including a Management's Discussion and
Analysis of Financial Condition and Results of Operations or substantially
similar section (whether or not required by such form).
(b) The Issuer shall make the information required by Section 4.02(a)
available to prospective investors upon request. In addition, the Issuer shall,
for so long as any Notes remain outstanding during any period when it is not
subject to Section 13 or 15(d) of the Exchange Act, or otherwise permitted to
furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the
Exchange Act, furnish to Holders of the Notes and prospective investors, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
(c) Notwithstanding the foregoing Sections 4.02(a) and (b), the Issuer will
be deemed to have furnished the reports required by Sections 4.02(a) and (b) to
the Trustee and the Holders if it or Holdings has filed (or, in the case of a
Form 6-K, furnished) such reports with the SEC via the XXXXX filing system and
such reports are publicly available. In addition, such requirements shall be
deemed satisfied prior to the commencement of the exchange offer contemplated by
the Registration Rights Agreement or the effectiveness of the Shelf Registration
Statement by the filing with the SEC of the Exchange Offer Registration
Statement and/or Shelf Registration Statement in accordance with the provisions
of the Registration Rights Agreement, and any amendments thereto, with such
financial information (other than relating to the Intelsat Americas Transaction)
that satisfies Regulation S-X of the Securities Act and such registration
statement and/or amendments thereto are filed at times that otherwise satisfy
the time requirements set forth in Section 4.02(a) hereof.
(d) In the event that any Parent of the Issuer is or becomes a Guarantor of
the Notes, the Issuer may satisfy its obligations under this Section 4.02 with
respect to financial information relating to the Issuer by furnishing financial
information relating to such Parent; PRO-
-54-
VIDED that the same is accompanied by consolidating information that explains in
reasonable detail the differences between the information relating to such
Parent and any of its Subsidiaries other than the Issuer and its Subsidiaries,
on the one hand, and the information relating to the Issuer, the Subsidiary
Guarantors and the other Subsidiaries of the Issuer on a standalone basis, on
the other hand.
(e) In the event that the Issuer changes its fiscal year end from the
fiscal year end used by the Issuer as of the Issue Date, the Issuer shall
promptly give notice of such change to the Trustee.
SECTION 4.03. LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE
OF DISQUALIFIED STOCK AND PREFERRED STOCK. Notwithstanding anything contained in
Section 4.03(a) or 4.03(b), if the Escrow Agreement is effective, prior to the
Release, the Issuer shall not incur any Indebtedness (including Acquired
Indebtedness) or issue any shares of Disqualified Stock, except for the Notes.
(a) From and after the Release: (i) the Issuer shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any
Indebtedness (including Acquired Indebtedness) or issue any shares of
Disqualified Stock; and (ii) the Issuer shall not permit any of its Restricted
Subsidiaries to issue any shares of Preferred Stock; PROVIDED, HOWEVER, that the
Issuer and any Restricted Subsidiary may Incur Indebtedness (including Acquired
Indebtedness) or issue shares of Disqualified Stock and any Restricted
Subsidiary may issue shares of Preferred Stock, in each case if the Debt to
Adjusted EBITDA Ratio of the Issuer for the most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is Incurred or such
Disqualified Stock or Preferred Stock is issued would be less than or equal to
4.75 to 1.00 determined on a pro forma basis (including a pro forma application
of the net proceeds therefrom), as if the additional Indebtedness had been
Incurred, or the Disqualified Stock or Preferred Stock had been issued, as the
case may be, and the application of proceeds therefrom had occurred at the
beginning of such four-quarter period; PROVIDED that the amount of Indebtedness
that may be Incurred and Disqualified Stock or Preferred Stock that may be
issued pursuant to the foregoing by Restricted Subsidiaries that are not
Guarantors shall not exceed $200.0 million at any one time outstanding (the
"NON-GUARANTOR EXCEPTION").
(b) The limitations set forth in Section 4.03(a) shall not apply to
(collectively, "PERMITTED DEBT"):
(i) the Incurrence by the Issuer or its Restricted Subsidiaries of
Indebtedness under any Credit Agreement and the issuance and creation of
letters of credit and bankers' acceptances thereunder (with letters of
credit and bankers' acceptances being deemed to have a principal amount
equal to the face amount thereof) up to an aggregate principal amount of
$750.0 million outstanding at any one time;
(ii) the Incurrence by the Issuer and the Guarantors of Indebtedness
represented by the Notes (not including any Additional Notes) and the
Guarantees, as applicable (and any Exchange Notes and Guarantees thereof);
-55-
(iii) Indebtedness of the Issuer and its Restricted Subsidiaries
existing on the Acquisition Date (other than Indebtedness described in
clauses (i), (ii) and (xxii) of this Section 4.03(b));
(iv) Indebtedness (including Capitalized Lease Obligations) Incurred
by the Issuer or any of its Restricted Subsidiaries, Disqualified Stock
issued by the Issuer or any of its Restricted Subsidiaries and Preferred
Stock issued by any Restricted Subsidiaries of the Issuer to finance
(whether prior to or within 270 days after) the purchase, lease,
construction or improvement of property (real or personal) or equipment
(whether through the direct purchase of assets or the Capital Stock of any
Person owning such assets (but no other material assets)) in an aggregate
principal amount which, when aggregated with the principal amount of all
other Indebtedness, Disqualified Stock and Preferred Stock then outstanding
that was Incurred pursuant to this clause (iv), does not exceed the greater
of (x) $175.0 million and (y) 3.5% of Total Assets of the Issuer at the
time of Incurrence;
(v) Indebtedness Incurred by the Issuer or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters
of credit and bank guarantees issued in the ordinary course of business,
including, without limitation, letters of credit in respect of workers'
compensation claims, health, disability or other benefits to employees or
former employees or their families or property, casualty or liability
insurance or self-insurance, or other Indebtedness with respect to
reimbursement type obligations regarding workers' compensation claims;
(vi) Indebtedness arising from agreements of the Issuer or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, Incurred in connection with the
Transactions or the disposition of any business, assets or a Subsidiary of
the Issuer in accordance with the terms of this Indenture, other than
guarantees of Indebtedness Incurred by any Person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of financing
such acquisition;
(vii) Indebtedness of the Issuer to a Restricted Subsidiary; PROVIDED
that any such Indebtedness is subordinated in right of payment to the
obligations of the Issuer under the Notes; PROVIDED, FURTHER, that any
subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness
(except to the Issuer or another Restricted Subsidiary) shall be deemed, in
each case, to be an Incurrence of such Indebtedness;
(viii) shares of Preferred Stock of a Restricted Subsidiary issued to
the Issuer or another Restricted Subsidiary; PROVIDED that any subsequent
issuance or transfer of any Capital Stock or any other event that results
in any Restricted Subsidiary that holds such shares of Preferred Stock of
another Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
other subsequent transfer of any such shares of Preferred Stock (except to
the Issuer or another Restricted Subsidiary) shall be deemed, in each case,
to be an issuance of shares of Preferred Stock;
-56-
(ix) Indebtedness of a Restricted Subsidiary to the Issuer or another
Restricted Subsidiary; PROVIDED that if a Guarantor incurs such
Indebtedness, and such Indebtedness is owed to a Restricted Subsidiary that
is not a Guarantor, such Indebtedness is subordinated in right of payment
to the Guarantee of such Guarantor; PROVIDED, FURTHER, that any subsequent
issuance or transfer of any Capital Stock or any other event which results
in any Restricted Subsidiary holding such Indebtedness ceasing to be a
Restricted Subsidiary or any other subsequent transfer of any such
Indebtedness (except to the Issuer or another Restricted Subsidiary) shall
be deemed, in each case, to be an Incurrence of such Indebtedness;
(x) Hedging Obligations that are Incurred in the ordinary course of
business (and not for speculative purposes): (1) for the purpose of fixing
or hedging interest rate risk with respect to any Indebtedness that is
permitted by the terms of this Indenture to be outstanding; or (2) for the
purpose of fixing or hedging currency exchange rate risk with respect to
any currency exchanges;
(xi) obligations (including reimbursement obligations with respect to
letters of credit and bank guarantees) in respect of performance, bid,
appeal and surety bonds, completion guarantees and the Lockheed Note
provided by the Issuer or any Restricted Subsidiary in the ordinary course
of business;
(xii) Indebtedness or Disqualified Stock of the Issuer or any
Restricted Subsidiary of the Issuer and Preferred Stock of any Restricted
Subsidiary of the Issuer not otherwise permitted hereunder in an aggregate
principal amount which, when aggregated with the principal amount or
liquidation preference of all other Indebtedness and Disqualified Stock
then outstanding and Incurred pursuant to this clause (xii), does not
exceed $175.0 million at any one time outstanding (it being understood that
any Indebtedness, Disqualified Stock or Preferred Stock Incurred or issued
under this clause (xii) shall cease to be deemed Incurred or outstanding
for purposes of this clause (xii) but shall be deemed Incurred for purposes
of Section 4.03(a) from and after the first date on which the Issuer or the
Restricted Subsidiary, as the case may be, could have Incurred or issued
such Indebtedness, Disqualified Stock or Preferred Stock under Section
4.03(a) without reliance upon this clause (xii));
(xiii) any guarantee by the Issuer or a Restricted Subsidiary of
Indebtedness or other obligations of the Issuer or any of its Restricted
Subsidiaries so long as the Incurrence of such Indebtedness or other
Obligations by the Issuer or such Restricted Subsidiary is permitted under
the terms of this Indenture; PROVIDED that if such Indebtedness is by its
express terms subordinated in right of payment to the Notes or the
Guarantee of such Restricted Subsidiary, as applicable, any such guarantee
of such guarantor with respect to such Indebtedness shall be subordinated
in right of payment to the Notes or such Guarantor's Guarantee, as
applicable, substantially to the same extent as such Indebtedness is
subordinated to the Notes or the Guarantee of such Restricted Subsidiary,
as applicable;
(xiv) the Incurrence by the Issuer or any of its Restricted
Subsidiaries of Indebtedness or Disqualified Stock or Preferred Stock of a
Restricted Subsidiary of the Issuer
-57-
which serves to refund or refinance or defease any Indebtedness Incurred or
Disqualified Stock or Preferred Stock as permitted under Section 4.03(a)
and clauses (ii), (iii), (iv), (xiv), (xv), (xix) and (xx) of this Section
4.03(b) or any Indebtedness, Disqualified Stock or Preferred Stock Incurred
to so refund or refinance such Indebtedness, Disqualified Stock or
Preferred Stock, including any Indebtedness, Disqualified Stock or
Preferred Stock Incurred to pay premiums and fees in connection therewith
(subject to the following proviso, "REFINANCING INDEBTEDNESS") prior to its
respective maturity; PROVIDED, HOWEVER, that such Refinancing Indebtedness:
(1) has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is Incurred which is not less than the
shorter of (x) the remaining Weighted Average Life to Maturity of the
Indebtedness, Disqualified Stock or Preferred Stock being refunded or
refinanced and (y) the Weighted Average Life to Maturity that would
result if all payments of principal on the Indebtedness, Disqualified
Stock and Preferred Stock being refunded or refinanced that was due on
or after the date one year following the last maturity date of any
Notes then outstanding were instead due on such date one year
following the last date of maturity of any Notes then outstanding;
(2) has a Stated Maturity which is no earlier than the earlier of
(x) the Stated Maturity of the Indebtedness being refunded or
refinanced or (y) one year following the last maturity date of any
Notes then outstanding;
(3) to the extent such Refinancing Indebtedness refinances (a)
Indebtedness junior to the Notes or the Guarantee of such Restricted
Subsidiary, as applicable, such Refinancing Indebtedness is junior to
the Notes or the Guarantee of such Restricted Subsidiary, as
applicable, or (b) Disqualified Stock or Preferred Stock, such
Refinancing Indebtedness is Disqualified Stock or Preferred Stock;
(4) is Incurred in an aggregate principal amount (or if issued
with original issue discount, an aggregate issue price) that is equal
to or less than the aggregate principal amount (or if issued with
original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness being refinanced plus premium and fees
Incurred in connection with such refinancing;
(5) shall not include (x) Indebtedness of a Restricted Subsidiary
of the Issuer that is not a Subsidiary Guarantor that refinances
Indebtedness of the Issuer or a Restricted Subsidiary that is a
Subsidiary Guarantor, or (y) Indebtedness of the Issuer or a
Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary; and
(6) in the case of any Refinancing Indebtedness Incurred to
refinance Indebtedness outstanding under clause (iv) or (xx) of this
Section 4.03(b), shall be deemed to have been Incurred and to be
outstanding under such clause (iv) or (xx) of this Section 4.03(b), as
applicable, and not this clause (xiv) for purposes of determining
amounts outstanding under such clauses (iv) and (xx) of this Section
4.03(b);
-58-
and PROVIDED, FURTHER, that subclauses (1) and (2) of this clause (xiv)
shall not apply to any refunding, refinancing or defeasance of (A) the
Notes or (B) any Secured Indebtedness;
(xv) Indebtedness, Disqualified Stock or Preferred Stock of Persons
that are acquired by the Issuer or any of its Restricted Subsidiaries or
merged or amalgamated into the Issuer or a Restricted Subsidiary in
accordance with the terms of this Indenture; PROVIDED, HOWEVER, that such
Indebtedness, Disqualified Stock or Preferred Stock is not Incurred in
contemplation of such acquisition, merger or amalgamation; PROVIDED,
FURTHER, HOWEVER, that after giving effect to such acquisition, merger or
amalgamation:
(1) the Issuer would be permitted to Incur at least $1.00 of
additional Indebtedness pursuant to the Debt to Adjusted EBITDA Ratio
test set forth in Section 4.03(a); or
(2) the Debt to Adjusted EBITDA Ratio of the Issuer would be
less than or equal to such ratio immediately prior to such
acquisition;
(xvi) Indebtedness Incurred by a Receivables Subsidiary in a
Qualified Receivables Financing that is not recourse (except for Standard
Securitization Undertakings) to the Issuer or any Restricted Subsidiary
other than a Receivables Subsidiary;
(xvii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business; PROVIDED
that such Indebtedness is extinguished within five Business Days of its
Incurrence;
(xviii) Indebtedness of the Issuer or any Restricted Subsidiary
supported by a letter of credit or bank guarantee issued pursuant to the
Credit Agreement, in a principal amount not in excess of the stated amount
of such letter of credit or bank guarantee;
(xix) Contribution Indebtedness;
(xx) (A) if the Issuer could Incur $1.00 of additional Indebtedness
pursuant to Section 4.03(a) after giving effect to such borrowing,
Indebtedness of Restricted Subsidiaries that are not Guarantors not other-
wise permitted hereunder or (B) if the Issuer could not Incur $1.00 of
additional Indebtedness pursuant to Section 4.03(a) after giving effect to
such borrowing, Indebtedness of Restricted Subsidiaries that are not
Guarantors Incurred for working capital purposes; PROVIDED, HOWEVER,
that the aggregate principal amount of Indebtedness Incurred under this
clause (xx), when aggregated with the principal amount of all other
Indebtedness then outstanding and Incurred pursuant to this clause (xx),
does not exceed the greater of (x) $50.0 million and (y) 10% of the Total
Assets of the Restricted Subsidiaries that are not Guarantors;
(xxi) Indebtedness of the Issuer or any Restricted Subsidiary
consisting of (x) the financing of insurance premiums or (y) take-or-pay
obligations contained in supply arrangements, in each case, in the
ordinary course of business; and
-59-
(xxii) Indebtedness of the Issuer or its Restricted Subsidiaries in
respect of the Eurobond Notes.
(c) For purposes of determining compliance with this Section 4.03, in
the event that an item of Indebtedness, Disqualified Stock or Preferred Stock
meets the criteria of one or more of the categories of permitted Indebtedness,
Disqualified Stock or Preferred Stock described in clauses (i) through (xxi)
above or is entitled to be Incurred pursuant to Section 4.03(a), the Issuer
shall, in its sole discretion divide, classify or reclassify or later divide,
classify or reclassify such item of Indebtedness, Disqualified Stock or
Preferred Stock in any manner that complies with this Section 4.03 and such item
of Indebtedness, Disqualified Stock or Preferred Stock shall be treated as
having been Incurred pursuant to one or more of such clauses or pursuant to
Section 4.03(a); PROVIDED that all Indebtedness under the Credit Agreement
outstanding on the Acquisition Date shall be deemed to have been Incurred
pursuant to clause (i). Accrual of interest, the accretion of accreted value,
amortization or original issue discount, the payment of interest in the form of
additional Indebtedness with the same terms, the payment of dividends on
Preferred Stock in the form of additional shares of Preferred Stock of the same
class, the accretion of liquidation preference and increases in the amount of
Indebtedness outstanding solely as a result of fluctuations in the exchange rate
of currencies shall not be deemed to be an Incurrence of Indebtedness for
purposes of this Section 4.03. Guarantees of, or obligations in respect of
letters of credit relating to, Indebtedness which is otherwise included in the
determination of a particular amount of Indebtedness shall not be included in
the determination of such amount of Indebtedness; PROVIDED that the Incurrence
of the Indebtedness represented by such guarantee or letter of credit, as the
case may be, was in compliance with this Section 4.03.
For purposes of determining compliance with any U.S. dollar-
denominated restriction on the Incurrence of Indebtedness, the U.S. Dollar
Equivalent principal amount of Indebtedness denominated in a foreign currency
shall be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was Incurred, in the case of term debt, or first
committed or first Incurred (whichever yields the lower U.S. Dollar Equivalent),
in the case of revolving credit debt; PROVIDED that if such Indebtedness is
Incurred to refinance other Indebtedness denominated in a foreign currency, and
such refinancing would cause the applicable U.S. dollar-denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect on
the date of such refinancing, such U.S. dollar-denominated restriction shall be
deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such
Indebtedness being refinanced.
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS. Notwithstanding
anything contained in the succeeding paragraphs, if the Escrow Agreement is
effective, prior to the Release, the Issuer will not make any Restricted
Payments or any Permitted Investments, except to the extent necessary to
consummate the Transactions, the Release or the Special Mandatory Redemption and
the transactions contemplated by the Escrow Agreement (including any Investments
deemed to exist by virtue of the Escrow Agreement or the payment of fees and
expenses related to the offering of the notes and the Transactions).
(a) From and after the Release, the Issuer shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly:
-60-
(i) declare or pay any dividend or make any distribution on account of
the Issuer's or any of its Restricted Subsidiaries' Equity Interests,
including any payment with respect to such Equity Interests made in
connection with any merger, amalgamation or consolidation involving the
Issuer (other than (A) dividends or distributions by the Issuer payable
solely in Equity Interests (other than Disqualified Stock) of the Issuer;
or (B) dividends or distributions by a Restricted Subsidiary so long as, in
the case of any dividend or distribution payable on or in respect of any
class or series of securities issued by a Restricted Subsidiary other than
a Wholly Owned Restricted Subsidiary, the Issuer or a Restricted Subsidiary
receives at least its pro rata share of such dividend or distribution in
accordance with its Equity Interests in such class or series of
securities);
(ii) purchase or otherwise acquire or retire for value any Equity
Interests of the Issuer or any Parent of the Issuer;
(iii) make any principal payment on, or redeem, repurchase, defease or
otherwise acquire or retire for value, in each case prior to any scheduled
repayment or scheduled maturity, any Subordinated Indebtedness of the
Issuer or any Restricted Subsidiary (other than the payment, redemption,
repurchase, defeasance, acquisition or retirement of (A) Subordinated
Indebtedness in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year
of the date of such payment, redemption, repurchase, defeasance,
acquisition or retirement and (B) Indebtedness permitted under clauses
(vii) and (ix) of Section 4.03(b)); or
(iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of
such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(2) immediately after giving effect to such transaction on a pro forma
basis, the Issuer would be permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the Debt to Adjusted EBITDA Ratio test in Section
4.03(a); and
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Issuer and its Restricted
Subsidiaries after the date of the Release (including Restricted Payments
permitted by clauses (i), (iv) (only to the extent of one-half of the
amounts paid pursuant to such clause), (vi) and (viii) of Section 4.04(b),
but excluding all other Restricted Payments permitted by Section 4.04(b)),
is less than the amount equal to the difference between (1) the Cumulative
Credit and (2) 1.4 times Cumulative Interest Expense.
-61-
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) the payment of any dividend or distribution within 60 days after
the date of declaration thereof, if at the date of declaration such payment
would have complied with the provisions of this Indenture;
(ii) (A) the repurchase, retirement or other acquisition of any Equity
Interests ("RETIRED CAPITAL STOCK") of the Issuer or any Parent of the
Issuer or Subordinated Indebtedness of the Issuer or any Subsidiary
Guarantor in exchange for, or out of the proceeds of the substantially
concurrent sale (other than the sale of any Disqualified Stock or any
Equity Interests sold to a Restricted Subsidiary of the Issuer or to an
employee stock ownership plan or any trust established by the Issuer or
any of its Subsidiaries) of Equity Interests of the Issuer or any Parent
of the Issuer or contributions to the equity capital of the Issuer
(collectively, including any such contributions, "REFUNDING CAPITAL
STOCK") and (B) the declaration and payment of accrued dividends on the
Retired Capital Stock out of the proceeds of the substantially concurrent
sale (other than to a Subsidiary of the Issuer or to an employee stock
ownership plan or any trust established by the Issuer or any of its
Subsidiaries) of Refunding Capital Stock;
(iii) the redemption, repurchase or other acquisition or retirement of
Subordinated Indebtedness of the Issuer or any Subsidiary Guarantor made
by exchange for, or out of the proceeds of the substantially concurrent
sale of, new Indebtedness of the Issuer or any Subsidiary Guarantor which
is Incurred in accordance with Section 4.03 so long as
(A) the principal amount of such new Indebtedness does not exceed
the principal amount of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired for value (plus the amount
of any premium required to be paid under the terms of the instrument
governing the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired plus any fees incurred in connection
therewith),
(B) such Indebtedness is subordinated to the Notes or the related
Guarantee, as the case may be, at least to the same extent as such
Subordinated Indebtedness so purchased, exchanged, redeemed,
repurchased, acquired or retired for value,
(C) such Indebtedness has a final scheduled maturity date equal
to or later than the earlier of (x) final scheduled maturity date of
the Subordinated Indebtedness being so redeemed, repurchased, acquired
or retired or (y) one year following the last maturity date of any
Notes then outstanding, and
(D) such Indebtedness has a Weighted Average Life to Maturity at
the time Incurred which is not less than the shorter of (x) the
remaining Weighted Average Life to Maturity of the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired and
(y) the Weighted Average Life to Maturity that would result if all
payments of principal on the Subordinated Indebtedness being redeemed,
repurchased, acquired or retired that were due on or after the
-62-
date one year following the last maturity date of any notes then
outstanding were instead due on such date one year following the last
date of maturity of any notes then outstanding;
(iv) the repurchase, retirement or other acquisition (or dividends to
any Parent of the Issuer to finance any such repurchase, retirement or
other acquisition) for value of Equity Interests of the Issuer or any
Parent of the Issuer held by any future, present or former employee,
director or consultant of the Issuer, any Parent of the Issuer or any
Subsidiary of the Issuer pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or other
agreement or arrangement; PROVIDED, HOWEVER, that the aggregate amounts
paid under this clause (iv) do not exceed $20.0 million in any calendar
year (with unused amounts in any calendar year being permitted to be
carried over to succeeding calendar years subject to a maximum payment
(without giving effect to the following proviso) of $35.0 million in any
calendar year); PROVIDED, FURTHER, HOWEVER, that such amount in any
calendar year may be increased by an amount not to exceed:
(A) the cash proceeds received by the Issuer or any of its
Restricted Subsidiaries from the sale of Equity Interests (other than
Disqualified Stock) of the Issuer or any Parent of the Issuer (to the
extent contributed to the Issuer) to members of management, directors
or consultants of the Issuer and its Restricted Subsidiaries or any
Parent of the Issuer that occurs after the date of the Release
(PROVIDED that the amount of such cash proceeds utilized for any such
repurchase, retirement, other acquisition or dividend shall not
increase the amount available for Restricted Payments under Section
4.04(a)(3)); plus
(B) the cash proceeds of key man life insurance policies received
by the Issuer, any Parent of the Issuer (to the extent contributed to
the Issuer) or the Issuer's Restricted Subsidiaries after the date of
the Release
(PROVIDED that the Issuer may elect to apply all or any portion of the
aggregate increase contemplated by clauses (A) and (B) above in any
calendar year);
(v) the declaration and payment of dividends or distributions to
holders of any class or series of Disqualified Stock of the Issuer or any
of its Restricted Subsidiaries issued or incurred in accordance with
Section 4.03;
(vi) the declaration and payment of dividends or distributions (a) to
holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) issued after the date of Release, (b) to any Parent of
the Issuer, the proceeds of which will be used to fund the payment of
dividends to holders of any class or series of Designated Preferred Stock
(other than Disqualified Stock) of any Parent of the Issuer issued after
the date of the Release and (c) on Refunding Capital Stock in excess of
amounts permitted pursuant to clause (2) of this paragraph; PROVIDED,
HOWEVER, that (A) in the case of (a), (b) and (c) of this clause (vi), for
the most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date of
issuance of such Designated Preferred Stock, or the declaration of such
dividends on Refunding
-63-
Capital Stock, after giving effect to such issuance (and the payment of
dividends or distributions) on a pro forma basis, the Issuer would be
permitted to Incur at least $1.00 of additional Indebtedness pursuant to
the Debt to Adjusted EBITDA Ratio test in Section 4.03(a) and (B) the
aggregate amount of dividends declared and paid pursuant to subclauses (a)
and (b) of this clause (vi) does not exceed the net cash proceeds actually
received by the Issuer from any such sale of Designated Preferred Stock
(other than Disqualified Stock) issued after the date of the Release;
(vii) Investments in Unrestricted Subsidiaries having an aggregate
Fair Market Value, taken together with all other Investments made pursuant
to this clause (vii) that are at that time outstanding, not to exceed $50
million at the time of such Investment (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value);
(viii) the payment of dividends on the Issuer's ordinary shares or
common stock (or the payment of dividends to any Parent of the Issuer, as
the case may be, to fund the payment by any Parent of the Issuer of
dividends on such entity's ordinary shares or common stock) of up to 6.0%
per annum of the net proceeds received by the Issuer from any public
offering of ordinary shares or common stock or contributed to the Issuer by
any Parent of the Issuer from any public offering of ordinary shares or
common stock;
(ix) Investments that are made with Excluded Contributions;
(x) other Restricted Payments in an aggregate amount not to exceed
$75.0 million;
(xi) the distribution, as a dividend or otherwise, of shares of
Capital Stock of, or Indebtedness owed to the Issuer or a Restricted
Subsidiary of the Issuer by, Unrestricted Subsidiaries;
(xii) (A) with respect to any tax year or portion thereof that a
Tax-affected Investor would be required to recognize on a current basis
taxable income attributable to earnings and profits of the Issuer or its
Subsidiaries in advance of any distribution of such earnings and profits by
the Issuer, an amount equal to the product of (i) the amount of the income
so required to be included and (ii) the Presumed Tax Rate; PROVIDED that in
the case of any such distribution other than a distribution solely on
account of any Parent of the Issuer qualifying as a Flow Through Entity,
the Trustee shall have received an opinion of nationally recognized tax
counsel to the effect that the earnings and profits of the Issuer and its
Subsidiaries are subject to inclusion in income of a Tax-affected Investor
on a current basis in advance of any distribution of such earnings and
profits; and (B) for any taxable year, payment of dividends or other
distributions to any Parent of the Issuer if any Parent of the Issuer is
required to file a consolidated, unitary or similar tax return reflecting
income of the Issuer or its Restricted Subsidiaries in an amount equal to
the portion of such taxes attributable to the Issuer and/or its Restricted
Subsidiaries that are not payable directly by the Issuer or its Restricted
Subsidiaries, but not to exceed the amount that the Issuer or such
Restricted Subsidiaries would have been required to pay in respect
-64-
of taxes if the Issuer and such Restricted Subsidiaries had been required
to pay such taxes directly as standalone taxpayers (or a standalone group
separate from such Parent);
(xiii) the payment of dividends, other distributions or other amounts
by the Issuer to, or the making of loans to, any Parent, in amounts
required for such Parent to:
(A) pay amounts equal to the amounts required for any Parent of
the Issuer to pay fees and expenses (including franchise or similar
taxes) required to maintain its corporate existence, customary salary,
bonus and other benefits payable to, and indemnities provided on
behalf of, officers and employees of any Parent of the Issuer and
general corporate overhead expenses of any Parent of the Issuer, in
each case to the extent such fees, expenses, salaries, bonuses,
benefits and indemnities are attributable to the ownership or
operation of the Issuer and its Subsidiaries;
(B) pay amounts equal to amounts required for any Parent of the
Issuer to pay interest and/or principal on Indebtedness the proceeds
of which have been contributed to the Issuer or any of its Restricted
Subsidiaries and that has been guaranteed by, or is otherwise
considered Indebtedness of, the Issuer Incurred in accordance with
Section 4.03; and
(C) pay cash interest on the Existing Holdings Notes pursuant to
the terms of the agreements governing such Existing Holdings Notes as
in effect on the Issue Date and to pay any cash interest on any
Indebtedness refinancing the Existing Holdings Notes; PROVIDED, that
such Indebtedness remains the sole obligation of Holdings and the
principal amount of any such Indebtedness redeeming, refinancing or
replacing the Existing Holdings Notes does not exceed the principal
amount of the Indebtedness refinanced, plus any premiums, fees and
expenses payable in connection with such refinancing;
(xiv) any Restricted Payment used to fund the Transactions and the
fees and expenses related thereto or made in connection with the
consummation of the Transactions (including pursuant to or as contemplated
by the Acquisition Documents, whether on the Issue Date or thereafter), or
owed by the Issuer or any Parent of the Issuer or Restricted Subsidiaries
of the Issuer to Affiliates, in each case to the extent permitted by
Section 4.07;
(xv) repurchases of Equity Interests deemed to occur upon exercise of
stock options or warrants if such Equity Interests represent a portion of
the exercise price of such options or warrants;
(xvi) purchases of receivables pursuant to a Receivables Repurchase
Obligation in connection with a Qualified Receivables Financing and the
payment or distribution of Receivables Fees;
(xvii) the payment, purchase, redemption, defeasance or other
acquisition or retirement of Subordinated Indebtedness, Disqualified Stock
or Preferred Stock of the Is-
-65-
xxxx and its Restricted Subsidiaries, pursuant to provisions similar to
those described under Sections 4.06 and 4.08; PROVIDED that, prior to such
payment, purchase, redemption, defeasance or other acquisition or
retirement, the Issuer (or a third party to the extent permitted by the
indenture) has made a Change of Control Offer or Asset Sale Offer, as the
case may be, with respect to the notes as a result of such Change of
Control or Asset Sale, as the case may be, and has repurchased all notes
validly tendered and not withdrawn in connection with such Change of
Control Offer or Asset Sale Offer, as the case may be;
(xviii) any payments made in connection with the consummation of the
Transactions or as contemplated by the Acquisition Documents (other than
payments to any Permitted Holder or any Affiliate thereof);
(xix) the repurchase, redemption or other acquisition or retirement
for value (including repayment at maturity) of (a) Holdings' Eurobond
Notes, (b) Holdings' 5 1/4% Senior Notes due 2008 and (c) the Lockheed Note
(including any payments to any Parent of the Issuer to effect the
foregoing); PROVIDED that any Indebtedness Incurred in connection with any
such redemption, repurchase or other acquisition is Incurred in accordance
with Section 4.03; and
(xx) the repurchase, redemption or other acquisition or retirement for
value of any of the Existing Holdings Notes from the proceeds of a
Specified Sale/Leaseback Transaction (including any payments to any Parent
of the Issuer to effect the foregoing);
PROVIDED, HOWEVER, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (v), (vi), (vii), (x), (xi),
(xiii)(C), (xvii) and (xix) of this Section 4.04(b), no Default or Event of
Default shall have occurred and be continuing or would occur as a consequence
thereof.
(c) As of the Acquisition Date, all of the Issuer's Subsidiaries
shall be Restricted Subsidiaries. The Issuer shall not permit any Unrestricted
Subsidiary to become a Restricted Subsidiary except pursuant to the definition
of "Unrestricted Subsidiary." For purposes of designating any Restricted
Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the
Issuer and its Restricted Subsidiaries (except to the extent repaid) in the
Subsidiary so designated shall be deemed to be Restricted Payments or Permitted
Investments in an amount determined as set forth in the last sentence of the
definition of "Investments." Such designation shall only be permitted if
Restricted Payments or Permitted Investments in such amount would be permitted
at such time and if such Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.
SECTION 4.05. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Issuer or
any of its Restricted Subsidiaries (1) on its Capital Stock; or (2) with
respect to any other interest or
-66-
participation in, or measured by, its profits; or (ii) pay any Indebtedness
owed to the Issuer or any of its Restricted Subsidiaries;
(b) make loans or advances to the Issuer or any of its Restricted
Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the
Issuer or any of its Restricted Subsidiaries;
except in each case for such encumbrances or restrictions existing under or
by reason of:
(1) contractual encumbrances or restrictions in effect on the Issue
Date, the date of the Release and the Acquisition Date, including pursuant
to the Credit Agreement and the other Senior Credit Documents, and pursuant
to documents and agreements relating to the Existing Holdings Notes and the
Lockheed Note;
(2) this Indenture and the Notes (and any Exchange Notes and
guarantees thereof);
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument of a Person acquired by the
Issuer or any Restricted Subsidiary which was in existence at the time of
such acquisition (but not created in contemplation thereof), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including
customary restrictions with respect to a Subsidiary pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant
to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of
the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar
agreements (including customary provisions in agreements relating to any
Joint Venture);
(9) purchase money obligations for property acquired and Capitalized
Lease Obligations in the ordinary course of business that impose
restrictions of the nature discussed in clause (c) above on the property so
acquired;
-67-
(10) customary provisions contained in leases, licenses, contracts and
other similar agreements entered into in the ordinary course of business
that impose restrictions of the type described in clause (c) above on the
property subject to such lease;
(11) any encumbrance or restriction of a Receivables Subsidiary
effected in connection with a Qualified Receivables Financing that, in the
good faith judgment of the Issuer, are necessary or advisable in connection
therewith; PROVIDED, HOWEVER, that such restrictions apply only to such
Receivables Subsidiary;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of any
Restricted Subsidiary of the Issuer that is Incurred subsequent to the
Issue Date and permitted pursuant to Section 4.03; PROVIDED that such
encumbrances and restrictions contained in any agreement or instrument will
not materially affect the Issuer's ability to make anticipated principal or
interest payments on the Notes (as determined by the Issuer in good faith);
(13) any Restricted Investment not prohibited by Section 4.04 and any
Permitted Investment;
(14) any encumbrances or restrictions of the type referred to in
clauses (a), (b) and (c) above imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in
clauses (1) through (13) above; PROVIDED that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Issuer,
no more restrictive as a whole with respect to such encumbrances and
restrictions than those prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing.
For purposes of determining compliance with this covenant, (i) the
priority of any Preferred Stock in receiving dividends or liquidating
distributions prior to dividends or liquidating distributions being paid on
ordinary shares shall not be deemed a restriction on the ability to make
distributions on Capital Stock and (ii) the subordination of loans or advances
made to the Issuer or a Restricted Subsidiary of the Issuer to other
Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not
be deemed a restriction on the ability to make loans or advances.
SECTION 4.06. ASSET SALES. If the Escrow Agreement is in effect,
prior to the Release, the Issuer will not consummate an Asset Sale except to the
extent necessary to consummate the Release, the Special Mandatory Redemption and
the transactions contemplated by the Escrow Agreement.
(a) From and after the Release, the Issuer shall not, and shall not
permit any of its Restricted Subsidiaries to, cause or make an Asset Sale,
unless (x) the Issuer or any of its Restricted Subsidiaries, as the case may be,
receives consideration at the time of such Asset Sale at least equal to the Fair
Market Value (as determined in good faith by the Issuer) of the assets sold or
otherwise disposed of and (y) at least 75% of the consideration therefor
received by the
-68-
Issuer or such Restricted Subsidiary, as the case may be, is in the form of Cash
Equivalents; PROVIDED that the amount of:
(i) any liabilities (as shown on the Issuer's or such Restricted
Subsidiary's most recent balance sheet or in the notes thereto) of the
Issuer or any Restricted Subsidiary of the Issuer (other than liabilities
that are by their terms subordinated to the Notes) that are assumed by the
transferee of any such assets,
(ii) any notes or other obligations or other securities or assets
received by the Issuer or such Restricted Subsidiary of the Issuer from
such transferee that are converted by the Issuer or such Restricted
Subsidiary of the Issuer into cash within 180 days of the receipt thereof
(to the extent of the cash received), and
(iii) any Designated Non-cash Consideration received by the Issuer or
any of its Restricted Subsidiaries in such Asset Sale having an aggregate
Fair Market Value, taken together with all other Designated Non-cash
Consideration received pursuant to this clause (iii) that is at that time
outstanding, not to exceed 5% of Total Assets of the Issuer at the time of
the receipt of such Designated Non-cash Consideration (with the Fair Market
Value of each item of Designated Non-cash Consideration being measured at
the time received and without giving effect to subsequent changes in value)
shall be deemed to be Cash Equivalents for the purposes of this Section
4.06(a).
(b) Within 365 days after the Issuer's or any Restricted Subsidiary
of the Issuer's receipt of the Net Proceeds of any Asset Sale (or Event of Loss
Proceeds), the Issuer or such Restricted Subsidiary of the Issuer may apply the
Net Proceeds from such Asset Sale together with any Event of Loss Proceeds, at
its option:
(i) to permanently reduce Obligations under Secured Indebtedness or
Pari Passu Indebtedness (PROVIDED that if the Issuer or any Guarantor shall
so reduce Obligations under Pari Passu Indebtedness (other than Pari Passu
Indebtedness that is Secured Indebtedness), the Issuer shall equally and
ratably reduce Obligations under the Notes if the Notes are then prepayable
or, if the Notes may not then be prepaid, by making an offer (in accordance
with the procedures set forth below for an Asset Sale Offer) to all Holders
to purchase at a purchase price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest and additional interest, if any,
the pro rata principal amount of Notes that would otherwise be prepaid) or
Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each
case other than Indebtedness owed to the Issuer or an Affiliate of the
Issuer,
(ii) to an investment in any one or more businesses (PROVIDED that if
such investment is in the form of the acquisition of Capital Stock of a
Person, such acquisition results in such Person becoming a Restricted
Subsidiary of the Issuer), or capital expenditures or assets, in each case
used or useful in a Similar Business, and/or
(iii) to make an investment in any one or more businesses (PROVIDED
that if such investment is in the form of the acqui-
-69-
sition of Capital Stock of a Person, such acquisition results in such
Person becoming a Restricted Subsidiary of the Issuer), properties or
assets that replace the properties and assets that are the subject of such
Asset Sale or Event of Loss;
PROVIDED that in the case of clauses (ii) and (iii) above, a binding commitment
shall be treated as a permitted application of the Net Proceeds from the date of
such commitment and, in the event such binding commitment is later canceled or
terminated for any reason before such Net Proceeds are so applied, the Issuer or
such Restricted Subsidiary enters into another binding commitment within nine
months of such cancellation or termination of the prior binding commitment.
Pending the final application of any such Net Proceeds (or Event of Loss
Proceeds), the Issuer or such Restricted Subsidiary of the Issuer may
temporarily reduce Indebtedness under a revolving credit facility, if any, or
otherwise invest such Net Proceeds (or Event of Loss Proceeds) in Cash
Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale
(or Event of Loss Proceeds) that are not applied as provided and within the time
period set forth in the first sentence of this Section 4.06(b) (it being
understood that any portion of such Net Proceeds (or Event of Loss Proceeds)
used to make an offer to purchase Notes, as described in clause (i) above, shall
be deemed to have been invested whether or not such offer is accepted) shall be
deemed to constitute "EXCESS PROCEEDS." When the aggregate amount of Excess
Proceeds exceeds $25 million, the Issuer shall make an offer to all Holders of
Notes and, at the option of the Issuer, to holders of any Pari Passu
Indebtedness (an "ASSET SALE OFFER") to purchase the maximum principal amount of
Notes (and such Pari Passu Indebtedness) that is an integral multiple of $1,000
that may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the principal amount thereof (or, in the event such Pari
Passu Indebtedness was issued with significant original issue discount, 100% of
the accreted value thereof), plus accrued and unpaid interest and additional
interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser
price, if any, as may be provided for by the terms of such Pari Passu
Indebtedness), to the date fixed for the closing of such offer, in accordance
with the procedures set forth in this Section 4.06. The Issuer shall commence an
Asset Sale Offer with respect to Excess Proceeds within ten Business Days after
the date that Excess Proceeds exceed $25.0 million by mailing the notice
required pursuant to the terms of Section 4.06(f), with a copy to the Trustee.
To the extent that the aggregate amount of Notes (and such Pari Passu
Indebtedness) tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate
purposes. If the aggregate principal amount of Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes (and such Pari Passu Indebtedness) to be purchased in the manner described
in Section 4.06(e). Upon completion of any such Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero.
(c) The Issuer shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations to the extent
such laws or regulations are applicable in connection with the repurchase of the
Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Indenture,
the Issuer shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations described in this Indenture
by virtue thereof.
-70-
(d) Not later than the date upon which written notice of an Asset
Sale Offer is delivered to the Trustee as provided above, the Issuer shall
deliver to the Trustee an Officers' Certificate as to (i) the amount of the
Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales
pursuant to which such Asset Sale Offer is being made and (iii) the compliance
of such allocation with the provisions of Section 4.06(b). On such date, the
Issuer shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Issuer or a Wholly Owned Restricted Subsidiary is acting as a Paying
Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be
invested in Cash Equivalents, as directed in writing by the Issuer, and to be
held for payment in accordance with the provisions of this Section 4.06. Upon
the expiration of the period for which the Asset Sale Offer remains open (the
"OFFER PERIOD"), the Issuer shall deliver to the Trustee for cancellation the
Notes or portions thereof that have been properly tendered to and are to be
accepted by the Issuer. The Trustee (or a Paying Agent, if not the Trustee)
shall, on the date of purchase, mail or deliver payment to each tendering Holder
in the amount of the purchase price. In the event that the Excess Proceeds
delivered by the Issuer to the Trustee is greater than the purchase price of the
Notes tendered, the Trustee shall deliver the excess to the Issuer immediately
after the expiration of the Offer Period for application in accordance with this
Section 4.06.
(e) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Issuer at
the address specified in the notice at least three Business Days prior to the
purchase date. Holders shall be entitled to withdraw their election if the
Trustee or the Issuer receives not later than one Business Day prior to the
purchase date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note which was delivered by
the Holder for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased. If at the end of the Offer Period more
Notes (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale
Offer than the Issuer is required to purchase, the principal amount of the notes
(and Pari Passu Indebtedness) to be purchased will be determined pro rata based
on the principal amounts so tendered and the selection of the actual notes of
each series for purchase shall be made by the Trustee on a pro rata basis to the
extent practicable; PROVIDED, HOWEVER, that no notes (or Pari Passu
Indebtedness) of $1,000 or less shall be purchased in part.
(f) Notice of an Asset Sale Offer shall be mailed by first class
mail, postage prepaid, at least 30 but not more than 60 days before the purchase
date to each Holder of Notes at such Holder's registered address. If any Note is
to be purchased in part only, any notice of purchase that relates to such Note
shall state the portion of the principal amount thereof that has been or is to
be purchased.
(g) A new Note in principal amount equal to the unpurchased portion
of any Note purchased in part shall be issued in the name of the Holder thereof
upon cancellation of the original Note. On and after the purchase date, unless
the Issuer defaults in payment of the purchase price, interest shall cease to
accrue on Notes or portions thereof purchased.
SECTION 4.07. TRANSACTIONS WITH AFFILIATES. If the Escrow Agreement
is effective, prior to the Release, the Issuer will not enter into or
permit to exist any Affiliate Transac-
-71-
tion other than to the extent necessary to consummate the Transactions, the
Escrow Agreement, the Release or the Special Mandatory Redemption and Affiliate
Transactions related thereto.
(a) From and after the Release, the Issuer shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly, make any payment
to, or sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase any property or assets from, or enter into or make or
amend any transaction or series of transactions, contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate of the Issuer (each of the foregoing, an "AFFILIATE TRANSACTION")
involving aggregate consideration in excess of $5.0 million, unless:
(i) such Affiliate Transaction is on terms that are not materially
less favorable to the Issuer or the relevant Restricted Subsidiary than
those that could have been obtained in a comparable transaction by the
Issuer or such Restricted Subsidiary with an unrelated Person; and
(ii) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$10.0 million, the Issuer delivers to the Trustee a resolution adopted in
good faith by the majority of the Board of Directors of the Issuer or any
Parent of the Issuer approving such Affiliate Transaction and set forth in
an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above.
(b) The provisions of Section 4.07(a) shall not apply to the following:
(i) (A) transactions between or among the Issuer and/or any of its
Restricted Subsidiaries and (B) any merger or amalgamation of the Issuer
and any direct parent company of Issuer; PROVIDED that such parent company
shall have no material liabilities and no material assets other than cash,
Cash Equivalents and the Capital Stock of the Issuer and such merger or
amalgamation is otherwise in compliance with the terms of this Indenture
and effected for a bona fide business purpose;
(ii) (a) Restricted Payments permitted by Section 4.04 and b)
Investments under the definition of "Permitted Investments";
(iii) the entering into of any agreement to pay, and the payment of,
management, consulting, monitoring and advisory fees and expenses to the
Sponsors in an aggregate amount in any fiscal year not to exceed the
greater of (x) $6.25 million and (y) 1.25% of Adjusted EBITDA of the Issuer
and its Restricted Subsidiaries for the immediately preceding fiscal year;
(iv) the payment of reasonable and customary fees to, and indemnity
provided on behalf of officers, directors, employees or consultants of the
Issuer or any Restricted Subsidiary of the Issuer or any Parent of the
Issuer;
(v) payments by the Issuer or any of its Restricted Subsidiaries to
the Sponsors made for any financial advisory, financing, underwriting or
placement services or in
-72-
respect of other investment banking activities, including, without
limitation, in connection with acquisitions or divestitures, which payments
are (x) approved by a majority of the Board of Directors of the Issuer in
good faith or (y) made pursuant to any agreement described under the
caption "Certain Relationships and Related Party Transactions" in the
Offering Memorandum;
(vi) transactions in which the Issuer or any of its Restricted
Subsidiaries, as the case may be, delivers to the Trustee a letter from an
Independent Financial Advisor stating that such transaction is fair to the
Issuer or such Restricted Subsidiary from a financial point of view or
meets the requirements of clause (i) of Section 4.07(a);
(vii) payments or loans (or cancellation of loans) to employees or
consultants that are approved by a majority of the Board of Directors of
the Issuer in good faith;
(viii) any agreement as in effect as of the Issue Date, date of
Release or Acquisition Date and any amendment thereto (so long as any such
agreement together with all amendments thereto, taken as a whole, is not
more disadvantageous to the Holders of the Notes in any material respect
than the original agreement as in effect on the Issue Date, date of Release
or Acquisition Date, as the case may be) or any transaction contemplated
thereby;
(ix) the existence of, or the performance by the Issuer or any of its
Restricted Subsidiaries of its obligations under the terms of, Acquisition
Documents and any amendment thereto or similar agreements which it may
enter into thereafter; PROVIDED, HOWEVER, that the existence of, or the
performance by the Issuer or any of its Restricted Subsidiaries of its
obligations under, any future amendment to any such existing agreement or
under any similar agreement entered into after the Issue Date shall only be
permitted by this clause (ix) to the extent that the terms of any such
existing agreement together with all amendments thereto, taken as a whole,
or new agreement are not otherwise more disadvantageous to the Holders of
the Notes in any material respect than the original agreement as in effect
on the Acquisition Date;
(x) transactions to effect the Transactions and the payment of all
fees and expenses related to the Transactions, as described in the Offering
Memorandum or contemplated by the Acquisition Documents;
(xi) (A) transactions with customers, clients, suppliers or purchasers
or sellers of goods or services, in each case in the ordinary course of
business and otherwise in compliance with the terms of this Indenture,
which are fair to the Issuer and its Restricted Subsidiaries, in the
reasonable judgment of the Issuer, or are on terms at least as favorable as
might reasonably have been obtained at such time from an unaffiliated party
and (B) transactions with Joint Ventures or Unrestricted Subsidiaries
entered into in the ordinary course of business;
(xii) any transaction effected as part of a Qualified Receivables
Financing;
-73-
(xiii) the issuance of Equity Interests (other than Disqualified
Stock) of the Issuer to any Permitted Holder or to any director, officer,
employee or consultant of the Issuer or any Parent of the Issuer;
(xiv) the issuances of securities or other payments, awards or grants
in cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock option and stock ownership plans or similar employee
benefit plans approved by the Board of Directors of the Issuer or any
Parent of the Issuer or of a Restricted Subsidiary of the Issuer, as
appropriate, in good faith;
(xv) the entering into of any tax sharing agreement or arrangement and
any payments permitted by clause (xii) of Section 4.04(b);
(xvi) any contribution to the capital of the Issuer;
(xvii) transactions permitted by, and complying with, the provisions
of Section 5.01;
(xviii) transactions between the Issuer or any of its Restricted
Subsidiaries and any Person, a director of which is also a director of the
Issuer or any Parent of the Issuer; PROVIDED, HOWEVER, that such director
abstains from voting as a director of the Issuer or such Parent, as the
case maybe, on any matter involving such other Person;
(xix) pledges of Equity Interests of Unrestricted Subsidiaries; and
(xx) any employment agreements entered into by the Issuer or any of
its Restricted Subsidiaries in the ordinary course of business.
SECTION 4.08. CHANGE OF CONTROL.
(a) Upon the occurrence of any of the following events (each, a
"CHANGE OF CONTROL"), each Holder shall have the right to require the Issuer to
repurchase all or any part of such Holder's Notes at a purchase price in cash
equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of repurchase (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date), except to the extent the Issuer has previously elected to redeem
Notes in accordance with Article 3 of this Indenture:
(i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all the assets of the Issuer and its
Subsidiaries, taken as a whole, to a Person other than any of the Permitted
Holders, and other than any transaction in compliance with Article 5 where
the Successor Company is a Wholly-Owned Subsidiary of a Parent of the
Issuer; or
(ii) the Issuer becomes aware (by way of a report or any other filing
pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice
or otherwise) of the acquisition by any Person or group (within the meaning
of Section 13(d)(3) or Section
-74-
14(d)(2) of the Exchange Act, or any successor provision), including any
group acting for the purpose of acquiring, holding or disposing of
securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act),
other than any of the Permitted Holders, in a single transaction or in a
related series of transactions, by way of merger, amalgamation,
consolidation or other business combination or purchase of beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any
successor provision), of more than 50% of the total voting power of the
Voting Stock of the Issuer or any Parent of the Issuer; or
(iii) individuals who on the Acquisition Date constituted the Board of
Directors of Holdings (together with any new directors whose election by
such Board of Directors of Holdings or whose nomination for election by the
shareholders of Holdings was approved by (a) a vote of a majority of the
directors of Holdings then still in office who were either directors on the
Acquisition Date or whose election or nomination for election was
previously so approved or (b) any of the Permitted Holders) cease for any
reason to constitute a majority of the Board of Directors of Holdings then
in office.
Notwithstanding the foregoing, neither (i) the Acquisition (and any
related change in the composition of the Board of Directors of Holdings in
connection therewith) nor (ii) any Specified Merger/Transfer Transaction, shall
constitute a Change of Control.
(b) Within 30 days following any Change of Control, except to the
extent that the Issuer has exercised its right to redeem the Notes in accordance
with Article 3 of this Indenture, the Issuer shall mail a notice (a "CHANGE OF
CONTROL OFFER") to each Holder with a copy to the Trustee stating:
(i) that a Change of Control has occurred and that such Holder has the
right to require the Issuer to purchase such Holder's Notes at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued
and unpaid interest and additional interest, if any, to the date of
purchase (subject to the right of Holders of record on a record date to
receive interest on the relevant interest payment date);
(ii) the circumstances and relevant facts and financial information
regarding such Change of Control;
(iii) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Issuer, consistent with this
Section, that a Holder must follow in order to have its Notes purchased.
A Change of Control Offer may be made in advance of a Change of
Control, and conditioned upon such Change of Control, if a definitive agreement
is in place for the Change of Control at the time of making the Change of
Control Offer.
(c) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Issuer at
the address specified in the
-75-
notice at least three Business Days prior to the purchase date. The Holders
shall be entitled to withdraw their election if the Trustee or the Issuer
receives not later than one Business Day prior to the purchase date a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note which was delivered for purchase by the Holder
and a statement that such Holder is withdrawing his election to have such Note
purchased. Holders whose Notes are purchased only in part shall be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered.
(d) On the purchase date, all Notes purchased by the Issuer under
this Section shall be delivered to the Trustee for cancellation, and the Issuer
shall pay the purchase price plus accrued and unpaid interest to the Holders
entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section, the
Issuer shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in Section
4.08(b) applicable to a Change of Control Offer made by the Issuer and purchases
all Notes validly tendered and not withdrawn under such Change of Control Offer.
(f) At the time the Issuer delivers Notes to the Trustee which are to
be accepted for purchase, the Issuer shall also deliver an Officers' Certificate
stating that such Notes are to be accepted by the Issuer pursuant to and in
accordance with the terms of this Section 4.08. A Note shall be deemed to have
been accepted for purchase at the time the Trustee, directly or through an
agent, mails or delivers payment therefor to the surrendering Holder.
(g) Prior to any Change of Control Offer, the Issuer shall deliver to
the Trustee an Officers' Certificate stating that all conditions precedent
contained herein to the right of the Issuer to make such offer have been
complied with.
(h) The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Issuer shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.09. COMPLIANCE CERTIFICATE. If a Default occurs and is
continuing and is known to the Trustee, the Trustee shall mail to each Holder of
the Notes a notice of Default within the earlier of 90 days after the Default
occurs or 30 days after the Default is known to a Trust Officer or written
notice of the Default is received by the Trustee. In addition, the Issuer shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Issuer an Officers' Certificate stating that in the course of the performance by
the signers of their duties as Officers of the Issuer they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Issuer is taking or proposes to take
with respect thereto. The Issuer also shall comply with Section 314(a)(4) of the
TIA.
-76-
SECTION 4.10. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Issuer shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11. FUTURE GUARANTORS. The Issuer shall not permit any of
its Restricted Subsidiaries (other than a Receivables Subsidiary formed in
connection with a Qualified Receivables Financing and other than any License
Subsidiary in connection with any guarantee of the Credit Agreement and the
Eurobond Notes) that is not a Subsidiary Guarantor to, directly or indirectly,
guarantee the payment of any Indebtedness of the Issuer or any other Restricted
Subsidiary of the Issuer other than:
(a) Indebtedness Incurred pursuant to the Non-Guarantor Exception and
(b) Permitted Debt of a Restricted Subsidiary of the Issuer,
unless such Subsidiary executes and delivers to the Trustee a Guarantee or a
supplemental indenture substantially in the form of EXHIBIT J (together with
such opinions or certificates reasonably requested in connection therewith)
pursuant to which such Subsidiary will guarantee payment of the Notes. Each
Guarantee shall be limited to an amount not to exceed the maximum amount that
can be guaranteed by that Restricted Subsidiary without rendering the Guarantee,
as it relates to such Restricted Subsidiary, voidable under applicable law
relating to fraudulent conveyance, financial assistance or fraudulent transfer
or similar laws affecting the rights of creditors generally.
SECTION 4.12. LIENS.
(a) If the Escrow Agreement is in effect, prior to the Release, the
Issuer shall not, and shall not permit any Restricted Subsidiary to, incur or
suffer to exist any Lien upon any of its property (including Capital Stock and
intercompany notes), whether owned on the Issue Date or thereafter acquired, or
any interest therein or any income or profits therefrom that secures any
obligation, except Liens in connection with the Transactions, the Lien of the
Escrow Agent on the Escrowed Property and any Lien contemplated under the Escrow
Agreement.
(b) From and after the Release, the Issuer shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
Incur or suffer to exist any Lien (other than Permitted Liens) that secures any
obligations under Indebtedness of the Issuer or any Subsidiary Guarantor against
or on any asset or property now owned or hereafter acquired by the Issuer or any
such Subsidiary Guarantor, or any income or profits therefrom, unless:
(1) in the case of Liens securing Indebtedness that is Subordinated
Indebtedness, the Notes or such Guarantee of such Subsidiary Guarantor is
secured by a Lien on such property or assets that is senior in priority to
such Liens; and
(2) in all other cases, the Notes or such Guarantee of such Subsidiary
Guarantor is equally and ratably secured;
-77-
PROVIDED that any Lien which is granted to secure the Notes or such Guarantee
under this covenant shall be automatically released and discharged at the same
time as the release of the Lien that gave rise to the obligation to secure the
Notes or such Guarantee under this covenant.
SECTION 4.13. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Issuer shall maintain an office or agency (which may be an
office of the Trustee or an affiliate of the Trustee or Registrar and which,
for so long as required by any national securities exchange (whether or not the
Issuer has any securities listed on such exchange), shall be in the Borough of
Manhattan, the City of New York, the State of New York) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the corporate trust
office of the Trustee as set forth in Section 11.02.
(b) The Issuer may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Issuer shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
(c) The Issuer hereby designates the corporate trust office of the
Trustee or its Agent, in the Borough of Manhattan, The City of New York, as such
office or agency of the Issuer in accordance with Section 2.04.
SECTION 4.14. MAINTENANCE OF INSURANCE. (a) The Issuer shall, and
shall cause each Restricted Subsidiary to, obtain, maintain and keep in full
force and effect at all times (i) with respect to each Satellite procured by
the Issuer or any Restricted Subsidiary for which the risk of loss passes to
the Issuer or such Restricted Subsidiary at or before launch, and for which
launch insurance or commitments with respect thereto are not in place as of the
Issue Date, launch insurance with respect to each such Satellite covering the
launch of such Satellite and a period of time thereafter, but only to the
extent, if at all, and on such terms (including coverage period, exclusions,
limitations oncoverage, co-insurance, deductibles and coverage amount) as is
determined by the Board of Directors of the Issuer, to be in the best interests
of the Issuer as evidenced by a resolution of the Board of Directors, (ii) with
respect to each Satellite it currently owns or for which it has risk of loss
(or, if the entire Satellite is not owned, the portion it owns or for which it
has risk of loss), other than any Excluded Satellite, In-Orbit Insurance and
(iii) at all times subsequent to the coverage period of the launch insurance
described in clause (i) above, if any, or if launch insurance is not procured,
at all times subsequent to the initial completion of in-orbit testing, in each
case with respect to each Satellite it then owns or for which it has risk of
loss (or portion, as applicable), other than any Excluded Satellite, In-Orbit
Insurance; PROVIDED, HOWEVER, that at any time with respect to a Satellite that
is not an Excluded Satellite, neither the
-78-
Issuer nor any Restricted Subsidiary shall be required to maintain In-Orbit
Insurance in excess of 33% of the aggregate net book value of all in-orbit
Satellites (and portions it owns or for which it has risk of loss) insured (it
being understood that any Satellite (or portion, as applicable) protected by
In-Orbit Contingency Protection shall be deemed to be insured for a percentage
of its net book value as set forth in the definition of "IN-ORBIT CONTINGENCY
PROTECTION").
(b) In the event that the expiration and non-renewal of In-Orbit
Insurance for such a Satellite (or portion, as applicable) resulting from a
claim of loss under such policy causes a failure to comply with the proviso to
Section 4.14(a), the Issuer and its Restricted Subsidiaries shall be deemed to
be in compliance with the proviso to Section 4.14(a) for the 120 days
immediately following such expiration or non-renewal, PROVIDED that the Issuer
or a Restricted Subsidiary, as the case may be, procures such In-Orbit
Insurance or provides such In-Orbit Contingency Protection as necessary to
comply with the preceding proviso within such 120-day period.
(c) Insurance policies obtained or renewed after the Issue Date
required by Section 4.14(a) shall:
(i) contain no exclusions other than:
(A) Acceptable Exclusions and such other exclusions or limitations of
coverage as may be applicable to a substantial portion of satellites of the
same model or relating to systemic failures or anomalies as are then
customary in the satellite insurance market and
(B) such specific exclusions applicable to the performance of the
Satellite (or portion, as applicable) being insured as are reasonably
acceptable to the Board of Directors of the Issuer in order to obtain
insurance for a price that is, and on other terms and conditions that are,
commercially reasonable and
(ii) provide coverage for all risks of loss of and damage to the
Satellite (or portion, as applicable).
(d) The insurance required by this Section 4.14 shall name the Issuer
or the applicable Restricted Subsidiary as the named insured.
(e) In the event of the unavailability of any In-Orbit Contingency
Protection for any reason, the Issuer or a Restricted Subsidiary, as the case
may be, shall, subject to the proviso to Section 4.14(a), within 120 days of
such unavailability, be required to have in effect In-Orbit Insurance complying
with Section 4.14(a)(ii) or (iii), as applicable, with respect to all Satellites
(or portions, as applicable), other than Excluded Satellites that the
unavailable In-Orbit Contingency Protection was intended to protect and for so
long as such In-Orbit Contingency Protection is unavailable, PROVIDED that the
Issuer and its Restricted Subsidiaries shall be considered in compliance with
this Section 4.14 for the 120 days immediately following such unavailability.
-79-
(f) In the event that the Issuer or any of its Restricted Subsidiaries
receives any Event of Loss Proceeds in respect of an Event of Loss, such Event
of Loss Proceeds shall be applied in the manner provided for in Section 4.06.
SECTION 4.15. MATTERS RELATING TO INTELSAT GENERAL CORPORATION. The
Issuer shall use its commercially reasonable efforts (as may be permitted under
that certain proxy agreement (the "PROXY AGREEMENT") among Intelsat General
Corporation ("INTELSAT GENERAL") and the other parties thereto), and shall use
its commercially reasonable efforts (as may be permitted under the Proxy
Agreement) to cause its Restricted Subsidiaries (other than Intelsat General),
not to allow or permit, directly or indirectly, Intelsat General to take, or
fail to take, any action that would violate the covenants and terms of this
Indenture.
SECTION 4.16. SUSPENSION OF COVENANTS.
(a) During any period of time that: (i) the Notes have Investment
Grade Ratings from two Rating Agencies and (ii) no Default or Event of Default
has occurred and is continuing (the occurrence of the events described in the
foregoing clauses (i) and (ii) being collectively referred to as a "COVENANT
SUSPENSION EVENT"), the Issuer and the Restricted Subsidiaries shall not be
subject to the provisions of Sections 4.03, 4.04, 4.05, 4.06, 4.07, 5.01(a)(iv),
4.11, and 4.14 (collectively, the "SUSPENDED COVENANTS").
(b) Upon the occurrence of a Covenant Suspension Event, the Guarantees
of the Subsidiary Guarantors will also be suspended as of such date (the
"SUSPENSION DATE").
(c) In the event that the Issuer and the Restricted Subsidiaries are
not subject to the Suspended Covenants for any period of time as a result of the
foregoing, and on any subsequent date (the "REVERSION DATE") one or both of the
Rating Agencies withdraws its Investment Grade Rating or downgrades the rating
assigned to the notes below an Investment Grade Rating, then the Issuer and the
Restricted Subsidiaries will thereafter again be subject to the Suspended
Covenants with respect to future events and the Guarantees of the Subsidiary
Guarantors will be reinstated if such guarantees are then required by the terms
of this Indenture. The period of time between the Suspension Date and the
Reversion Date is referred to in this Indenture as the "SUSPENSION PERIOD."
(d) Notwithstanding that the Suspended Covenants may be reinstated, no
Default or Event of Default will be deemed to have occurred as a result of a
failure to comply with the Suspended Covenants during the Suspension Period (or
upon termination of the Suspension Period or after that time based solely on
events that occurred during the Suspension Period).
(e) On the Reversion Date, all Indebtedness Incurred, or Disqualified
Stock or Preferred Stock issued, during the Suspension Period will be classified
as having been Incurred or issued pursuant to Section 4.03(a) or Section 4.03(b)
(to the extent such Indebtedness or Disqualified Stock or Preferred Stock would
be permitted to be Incurred or issued thereunder as of the Reversion Date and
after giving effect to Indebtedness Incurred or issued prior to the Suspension
Period and outstanding on the Reversion Date). To the extent such Indebtedness
or Disqualified Stock or Preferred Stock would not be so permitted to be
Incurred or issued pursuant to Sections 4.03(a) or (b), such Indebtedness or
Disqualified Stock or Preferred Stock will be
-80-
deemed to have been outstanding on the Acquisition Date, so that it is
classified as permitted under Section 4.03(b)(iii). Calculations made after the
Reversion Date of the amount available to be made as Restricted Payments under
Section 4.04 will be made as though under Section 4.04 had been in effect since
the Acquisition Date and throughout the Suspension Period. For the avoidance of
doubt, Restricted Payments made during the Suspension Period shall reduce the
amount available to be made as Restricted Payments under Section 4.04(a). No
Default or Event of Default shall be deemed to have occurred on the Reversion
Date as a result of any actions taken by the Issuer or its Restricted
Subsidiaries during the Suspension Period.
(f) The Issuer shall deliver promptly to the Trustee an Officer's
Certificate notifying the Trustee of any Covenant Suspension Event or Reversion
Date, as the case may be, pursuant to this Section 4.16.
SECTION 4.17. PAYMENT OF ADDITIONAL AMOUNTS.
(a) The Issuer (or a Guarantor) shall pay to any holder so entitled
all additional amounts that may be necessary so that every Net Payment of
interest, principal, premium or other amount on that note will not be less than
the amount provided for in that note. "NET PAYMENT" means the amount the Issuer
or its paying agent pays the Holder after deducting or withholding an amount
for or on account of any present or future tax, assessment or other
governmental charge imposed with respect to that payment by a taxing authority
(including any withholding or deduction attributable to additional amounts
payable pursuant to this Section).
(b) The Issuer (and Guarantors) shall also indemnify and reimburse
holders for
(i) taxes (including any interest, penalties and related expenses)
imposed on the Holders by a Relevant Tax Jurisdiction if and to the same
extent that a Holder would have been entitled to receive additional amounts
if the Issuer (or a Guarantor) had been required to deduct or withhold
those taxes from payments on the Notes; and
(ii) stamp, court, documentary or similar taxes or charges (including
any interest, penalties and related expenses) imposed by a Relevant Tax
Jurisdiction in connection with the execution, delivery, enforcement or
registration of the Notes or other related documents and obligations.
(c) Notwithstanding clauses (a) and (b) of this Section 4.17, the
Issuer (or a Guarantor) shall not pay additional amounts to any Holder for or on
account of:
(i) any tax, assessment or other governmental charge imposed solely
because at any time there is or was a connection between the Holder (or
between a fiduciary, settlor, beneficiary, member or shareholder of or
possessor of power over the relevant Holder if the Holder is an estate,
nominee, trust, partnership, limited liability company, or corporation) and
the jurisdiction imposing the tax (other than the mere receipt of a payment
or the acquisition, ownership, disposition or holding of, or enforcement of
rights under, a Note);
-81-
(ii) any estate, inheritance, gift or any similar tax, assessment or
other governmental charge;
(iii) any tax, assessment or other governmental charge imposed solely
because the Holder (or if the Holder is not the beneficial owner, the
beneficial owner) that is legally able to do so fails to comply with any
certification, identification or other reporting requirement concerning the
nationality, residence, identity or connection with the taxing jurisdiction
of the Holder or any beneficial owner of the Note, if compliance is
required by law or by an applicable income tax treaty to which the
jurisdiction imposing the tax is a party, as a precondition to exemption
from the tax, assessment or other governmental charge and the Issuer has
given the holders at least 60 days' notice that Holders will be required to
provide such information and identification;
(iv) any tax, assessment or other governmental charge with respect to
a Note presented for payment more than 30 days after the date on which
payment became due and payable or the date on which payment thereof is duly
provided for and notice thereof given to Holders, whichever occurs later,
except to the extent that the Holder of the Note would have been entitled
to additional amounts on presenting the Note for payment on any date during
the 30-day period; and
(v) any withholding or deduction imposed on a payment to an individual
that is required to be made pursuant to the European Union Directive on the
taxation of savings income, which was adopted by the ECOFIN Council on June
3, 2003, or any law implementing or complying with, or introduced in order
to conform to, such Directive.
SECTION 4.18. ESCROW OF PROCEEDS; RELEASE.
(a) In the event the Acquisition is not consummated concurrently with
the offering of the Original Notes, concurrently with the closing of the
offering of the Original Notes, the Issuer shall enter into an escrow agreement
(the "ESCROW AGREEMENT") with the Trustee and Xxxxx Fargo Bank, National
Association, as escrow agent (the "ESCROW AGENT"), pursuant to which the Issuer
will deposit with the Escrow Agent an amount equal to the gross proceeds of the
offering of the Original Notes (collectively, with any other property from time
to time held by the Escrow Agent, the "ESCROWED PROPERTY"). Prior to the Release
(as defined below), to the extent necessary to fund any Special Mandatory
Redemption, the Issuer will deposit an amount in excess of the gross proceeds
from the offering of the Original Notes, in cash, cash equivalents or treasury
securities, sufficient to redeem the Original Notes at a price equal to 100% of
the principal amount thereof, plus accrued and unpaid interest on the notes to
the date of the Release (the "SPECIAL MANDATORY REDEMPTION AMOUNT"). For
purposes of the Escrow Agreement, (A) "CASH EQUIVALENTS" shall mean any
investment in time deposits, certificates of deposit or money market deposits
maturing within 90 days from the date of acquisition thereof, entitled to U.S.
Federal deposit insurance for the full amount thereof or issued by a bank or
trust company that is organized under the laws of the United States of America
or any state thereof having capital in excess of $500.0 million and (B)
"TREASURY SECURITIES" shall mean (i) debt obligations issued or guaranteed by
the government of the United States of America or any agency thereof for which
the full faith and credit of the United States of America is pledged to secure
payment in full at maturity and which are not redeemable at the option of the
issuer prior to maturity, (ii) repur-
-82-
chase agreements with respect to debt obligations referred to in clause (B)(i)
above and (iii) money market accounts that invest solely in the debt obligations
referred to in clause (B)(i) above and/or repurchase agreements referred to in
clause (B)(ii) above.
(b) In order to cause the Escrow Agent to release the Escrowed
Property to the Issuer or such other Person as it shall designate (the
"RELEASE"), the Escrow Agent shall have received from the Issuer, at a time
that is on or before the Deadline, a certificate (the "RELEASE CERTIFICATE") to
the effect that, to the knowledge of the person delivering such certificate:
(i) the closing contemplated by the Acquisition Documents is expected
to be consummated within 24 hours of such time in accordance with the terms
and conditions of the Acquisition Documents as in effect on the date of
Release, together with such amendments, modifications and waivers that are
not, individually or in the aggregate, materially adverse to the holders of
the Notes (after giving effect to the consummation of the Acquisition),
taken as a whole;
(ii) on or before the Acquisition Date, (A) the Credit Agreement is
expected to be effective and available to be drawn upon and (B) no default
or event of default that has not been waived is expected to have occurred
and be continuing thereunder or be caused by the consummation of the
Acquisition;
(iii) on or before the Acquisition Date, all conditions to the
borrowing pursuant to the Credit Agreement (other than the Release of the
Escrowed Property and the consummation of the Acquisition) are expected to
have been satisfied or waived and the lenders under the Credit Agreement
are not expected to have taken any action to prevent the Release; and
(iv) as of the Acquisition Date, after giving effect to the
Transactions, no Default or Event of Default is expected to have occurred
and be continuing under this Indenture.
(c) The Release shall occur promptly upon the delivery of the Release
Certificate. Upon the Release, the escrow account under the Escrow Agreement
shall be reduced to zero and the Escrowed Property and interest thereon paid out
in accordance with the Escrow Agreement.
(d) The "DEADLINE" is the earliest of (i) April 28, 2005, (ii) the
termination of the Transaction Agreement, or (iii) such earlier date in the
discretion of the Issuer.
(e) From the Issue Date until the Release, the Escrow Agent shall, for
the benefit of the Escrow Agent and the Holders of the Notes, be granted an
exclusive first-priority Lien on the Escrowed Property. Upon the Release, the
Lien of the Escrow Agent on the Escrowed Property shall be extinguished.
(f) To the extent the notes are issued on the Issue Date and the
Escrow Agreement is not entered into, references in this Indenture and in the
Notes to the "Release" shall be deemed to be the "Issue Date."
-83-
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. WHEN ISSUER MAY MERGE OR TRANSFER ASSETS.
(a) The Issuer shall not consolidate, amalgamate or merge with or into
or wind up into (whether or not the Issuer is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions (other than the Acquisition) to, any Person unless:
(i) the Issuer is a surviving Person or the Person formed by or
surviving any such consolidation, amalgamation or merger (if other than the
Issuer) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation, partnership or
limited liability company organized or existing under the laws of the
United States, any state thereof, the District of Columbia, or any
territory thereof, under the laws of the jurisdiction of organization of
the Issuer or under the laws of any country that is a member of the
European Union (the Issuer or such Person, as the case may be, being herein
called the "SUCCESSOR COMPANY");
(ii) the Successor Company (if other than the Issuer) expressly
assumes all the obligations of the Issuer under this Indenture and the
Notes pursuant to supplemental indentures or other documents or instruments
in form reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as
if such transaction had occurred at the beginning of the applicable
four-quarter period (and treating any Indebtedness which becomes an
obligation of the Successor Company or any of its Restricted Subsidiaries
as a result of such transaction as having been Incurred by the Successor
Company or such Restricted Subsidiary at the time of such transaction),
either
(a) the Successor Company would be permitted to Incur at least
$1.00 of additional Indebtedness pursuant to the Debt to Adjusted
EBITDA Ratio test set forth in Section 4.03(a); or
(b) the Debt to Adjusted EBITDA Ratio for the Successor Company
and its Restricted Subsidiaries would be equal to or less than such
ratio for the Issuer and its Restricted Subsidiaries immediately prior
to such transaction;
(v) each Guarantor, unless it is the other party to the transactions
described above, shall have by supplemental indenture confirmed that its
Guarantee shall apply to such Person's obligations under this Indenture and
the Notes; and
-84-
(vi) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, amalgamation, merger or transfer and such supplemental
indentures (if any) comply with this Indenture.
Notwithstanding the foregoing clauses (iii) and (iv) of this Section
5.01(a), (A) the Issuer or any Restricted Subsidiary may consolidate or
amalgamate with, merge into, sell, assign or transfer, lease, convey or
otherwise dispose of all or part of its properties and assets to the Issuer or
to another Restricted Subsidiary and (B) the Issuer may merge, amalgamate or
consolidate with an Affiliate incorporated solely for the purpose of
reincorporating the Issuer in a (or another) state of the United States, the
District of Columbia, any territory of the United States or any country that is
a member of the European Union so long as the amount of Indebtedness of the
Issuer and its Restricted Subsidiaries is not increased thereby (any transaction
described in this sentence a "SPECIFIED MERGER/TRANSFER TRANSACTION").
(b) Subject to the provisions of Section 10.02(b) (which, among other
things, govern the release of a Guarantee upon the sale or disposition of a
Restricted Subsidiary of the Issuer that is a Subsidiary Guarantor), each
Subsidiary Guarantor shall not, and the Issuer shall not permit any Subsidiary
Guarantor to, consolidate, amalgamate or merge with or into or wind up into
(whether or not such Subsidiary Guarantor is the surviving Person), or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions to, any Person
(other than any such sale, assignment, transfer, lease, conveyance or
disposition in connection with the Transactions described in the Offering
Memorandum) unless:
(i) such Subsidiary Guarantor is a surviving Person or the Person
formed by or surviving any such consolidation, amalgamation or merger (if
other than such Subsidiary Guarantor) or to which such sale, assignment,
transfer, lease, conveyance or other disposition is made is a corporation,
partnership or limited liability company organized or existing under the
laws of the United States, any state thereof, the District of Columbia, or
any territory thereof, under the laws of the jurisdiction of organization
of the Issuer or such Subsidiary Guarantor or under the laws of any country
that is a member of the European Union (such Subsidiary Guarantor or such
Person, as the case may be, being herein called the "SUCCESSOR GUARANTOR");
(ii) the Successor Guarantor (if other than such Subsidiary Guarantor)
expressly assumes all the obligations of such Subsidiary Guarantor under
this Indenture and such Subsidiary Guarantor's Guarantee pursuant to a
supplemental indenture or other documents or instruments in form reasonably
satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Guarantor or any of its Subsidiaries as a result of such transaction as
having been Incurred by the Successor Guarantor or such Subsidiary at the
time of such transaction) no Default or Event of Default shall have
occurred and be continuing; and
(iv) the Successor Guarantor (if other than such Subsidiary Guarantor)
shall have delivered or caused to be delivered to the Trustee an Officers'
Certificate and an
-85-
Opinion of Counsel, each stating that such consolidation, amalgamation,
merger or transfer and such supplemental indenture (if any) comply with
this Indenture.
Subject to the limitations described in this Indenture, the Successor
Guarantor shall succeed to, and be substituted for, such Subsidiary Guarantor
under this Indenture and such Subsidiary Guarantor's Guarantee, and such
Subsidiary Guarantor will automatically be released and discharged from its
obligations under this Indenture and such Subsidiary Guarantor's guarantee.
Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate
or consolidate with an Affiliate incorporated solely for the purpose of
reincorporating such Subsidiary Guarantor in a (or another) state of the United
States, the District of Columbia, any territory of the United States, any
country that is a member of the European Union or the jurisdiction of
organization of the Issuer, so long as the amount of Indebtedness of the
Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may
merge amalgamate or consolidate with another Subsidiary Guarantor or the Issuer.
SECTION 5.02. SUCCESSOR COMPANY SUBSTITUTED.
Upon any consolidation, merger or amalgamation, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Issuer in accordance or permitted by with Section 5.01 hereof, the Successor
Company (if other than the Issuer) shall succeed to and be substituted for, and
may exercise every right and power of, the Issuer under this Indenture with the
same effect as if such Successor Company had been named as the Issuer herein.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "EVENT OF DEFAULT" occurs if:
(a) the Issuer defaults in any payment of interest on any Note when
the same becomes due and payable, and such default continues for a period
of 30 days,
(b) the Issuer defaults in the payment of principal or premium, if
any, of any Note when due at its Stated Maturity, upon optional redemption,
upon required repurchase, upon declaration or otherwise,
(c) the Issuer or any of its Restricted Subsidiaries fails to comply
with any of its agreements in the Notes or this Indenture (other than those
referred to in (a) or (b) above) and such failure continues for 60 days
after the notice specified below; PROVIDED, HOWEVER, that to the extent
such failure relates solely to an action or inaction by Intelsat General,
and the Issuer and its Restricted Subsidiaries have otherwise complied with
Section 4.15, no Event of Default shall occur,
(d) Holdings, the Issuer or any Significant Subsidiary fails to pay
any Indebtedness (other than Indebtedness owing to a Parent of the Issuer
or a Restricted Subsidiary of the Issuer) within any applicable grace
period after final maturity or the acceleration of any such Indebtedness by
the holders thereof because of a default, in each case, if the to-
-86-
tal amount of such Indebtedness unpaid or accelerated exceeds $50.0 million
or its foreign currency equivalent,
(e) Holdings, the Issuer or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in
an involuntary case;
(iii) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors
or takes any comparable action under any foreign laws relating to
insolvency,
(f) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against Holdings, the Issuer or any Significant
Subsidiary of Holdings in an involuntary case;
(ii) appoints a Custodian of Holdings, the Issuer or any
Significant Subsidiary of Holdings or for any substantial part of its
property; or
(iii) orders the winding up or liquidation of Holdings, the
Issuer or any Significant Subsidiary of Holdings;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days,
(g) Holdings, the Issuer or any Significant Subsidiary fails to pay
final judgments aggregating in excess of $50.0 million or its foreign
currency equivalent (net of any amounts which are covered by enforceable
insurance policies issued by solvent carriers), which judgments are not
discharged, waived or stayed for a period of 60 days following the entry
thereof, or
(h) any Guarantee of a Significant Subsidiary ceases to be in full
force and effect (except as contemplated by the terms thereof) or any
Guarantor that qualifies as a Significant Subsidiary denies or disaffirms
its obligations under this Indenture or any Guarantee and such Default
continues for 10 days.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
-87-
The term "BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar U.S. Federal, state or any foreign law for the relief of debtors. The
term "CUSTODIAN" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (c) above shall not constitute an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the outstanding Notes notify the Issuer of the Default and the Issuer does not
cure such Default within the time specified in clause (c) above after receipt of
such notice. Such notice must specify the Default, demand that it be remedied
and state that such notice is a "Notice of Default". The Issuer shall deliver to
the Trustee, within thirty days after the occurrence thereof, written notice in
the form of an Officers' Certificate of any event which is, or with the giving
of notice or the lapse of time or both would become, an Event of Default, its
status and what action the Issuer is taking or proposes to take with respect
thereto.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in Section 6.01(e) or (f) with respect to the Issuer)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of outstanding Notes by notice to the Issuer, may declare the
principal of, premium, if any, and accrued but unpaid interest on all the Notes
to be due and payable. Upon such a declaration, such principal and interest
shall be due and payable immediately. If an Event of Default specified in
Section 6.01(e) or (f) with respect to the Issuer occurs, the principal of,
premium, if any, and interest on all the Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders. The Holders of a majority in principal amount of the
Notes by notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of acceleration. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
In the event of any Event of Default specified in Section 6.01(d),
such Event of Default and all consequences thereof (excluding, however, any
resulting payment default) shall be annulled, waived and rescinded,
automatically and without any action by the Trustee or the Holders of the Notes,
if within 20 days after such Event of Default arose the Issuer delivers an
Officers' Certificate to the Trustee stating that (x) the Indebtedness or
guarantee that is the basis for such Event of Default has been discharged or (y)
the holders thereof have rescinded or waived the acceleration, notice or action
(as the case may be) giving rise to such Event of Default or (z) the default
that is the basis for such Event of Default has been cured, it being understood
that in no event shall an acceleration of the principal amount of the Notes as
described above be annulled, waived or rescinded upon the happening of any such
events.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy at law or in equity to
collect the payment of principal of or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
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
-88-
any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. Provided the Notes are not
then due and payable by reason of a declaration of acceleration, the Holders of
a majority in principal amount of the Notes by notice to the Trustee may waive
an existing Default and its consequences except (a) a Default in the payment of
the principal of or interest on a Note, (b) a Default arising from the failure
to redeem or purchase any Note when required pursuant to the terms of this
Indenture or (c) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Holder affected. When a Default is
waived, it is deemed cured and the Issuer, the Trustee and the Holders will be
restored to their former positions and rights under this Indenture, but no such
waiver shall extend to any subsequent or other Default or impair any consequent
right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture
or, subject to Section 7.01, that the Trustee determines is unduly prejudicial
to the rights of any other Holder or that would involve the Trustee in personal
liability; PROVIDED, HOWEVER, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action under this Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.06. LIMITATION ON SUITS.
(a) Except to enforce the right to receive payment of principal,
premium (if any) or interest when due, no Holder may pursue any remedy with
respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer to the Trustee reasonable security
or indemnity satisfactory to it against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(v) the Holders of a majority in principal amount of the outstanding
Notes do not give the Trustee a direction inconsistent with the request
during such 60-day period.
-89-
(b) A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. RIGHTS OF THE HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Notes held by such
Holder, on or after the respective due dates expressed or provided for in the
Notes, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Issuer or any other obligor on the Notes for the whole amount then due and owing
(together with interest on overdue principal and (to the extent lawful) on any
unpaid interest at the rate provided for in the Notes) and the amounts provided
for in Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation, expenses, disbursements and advances of the Trustee
(including counsel, accountants, experts or such other professionals as the
Trustee deems necessary, advisable or appropriate)) and the Holders allowed in
any judicial proceedings relative to the Issuer or any Guarantor, their
creditors or their property, shall be entitled to participate as a member,
voting or otherwise, of any official committee of creditors appointed in such
matters and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07.
SECTION 6.10. PRIORITIES. If the Trustee collects any money or
property pursuant to this Article 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 Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Notes for principal and interest, respectively; and
THIRD: to the Issuer or, to the extent the Trustee collects any
amount from any Subsidiary Guarantor, to such Subsidiary Guarantor.
The Trustee may fix a record date and payment date for any payment to
the Holders pursuant to this Section. At least 15 days before such record date,
the Trustee shall mail to
-90-
each Holder and the Issuer a notice that states the record date, the payment
date and amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the outstanding Notes.
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS. Neither the Issuer
nor any Guarantor (to the extent it may lawfully do so) shall at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer and each Guarantor (to the extent that it may lawfully
do so) hereby expressly waive all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in the case of certificates or opinions required by any provision hereof to
be provided to it, the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture.
-91-
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuer.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on any document believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; PROVIDED, HOWEVER, that the Trustee's conduct does not constitute
willful misconduct or negligence.
-92-
(e) The Trustee may consult with counsel of its own selection and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other paper or document unless requested in writing to do so by the
Holders of not less than a majority in principal amount of the Notes at the time
outstanding, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Issuer, personally
or by agent or attorney, at the expense of the Issuer and shall incur no
liability of any kind by reason of such inquiry or investigation.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(h) The rights, privileges, protections, immunities and benefits given
to the Trustee, including its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder, and
each agent, custodian and other Person employed to act hereunder.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent or Registrar may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Guarantee or the Notes, it shall not be accountable for the
Issuer's use of the proceeds from the Notes, and it shall not be responsible for
any statement of the Issuer or any Guarantor in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Trustee's certificate of authentication. The Trustee shall not be
charged with knowledge of any Default or Event of Default under Section 6.01(c),
(d), (e), (f), (g) or (h) or of the identity of any Significant Subsidiary
unless either (a) a Trust Officer shall have actual knowledge thereof or (b) the
Trustee shall have received notice thereof in accordance with Section 11.02
hereof from the Issuer, any Guarantor or any Holder.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is actually known to the Trustee, the Trustee shall mail
to each Holder notice of the Default within the earlier of 90 days after it
occurs or 30 days after it is actually known to a Trust Officer
-93-
or written notice of it is received by the Trustee. Except in the case of a
Default in the payment of principal of, premium (if any) or interest on any
Note, the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO THE HOLDERS. As promptly as
practicable after the end of each fiscal year of the Issuer beginning with end
of the fiscal year following the date of this Indenture, and in any event
within 12 months of the last such report, the Trustee shall mail to each
Holder a brief report dated as of such fiscal year end that complies with
Section 313(a) of the TIA if and to the extent required thereby. The Trustee
shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to the Holders shall
be filed with the SEC and each stock exchange (if any) on which the Notes are
listed. The Issuer agrees to notify promptly the Trustee whenever the Notes
become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Issuer shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents, counsel, accountants and experts. The
Issuer and each Guarantor, jointly and severally shall indemnify the Trustee
against any and all loss, liability, claim, damage or expense (including
reasonable attorneys' fees and expenses) incurred by or in connection with the
acceptance or administration of this trust and the performance of its duties
hereunder, including the costs and expenses of enforcing this Indenture or
Guarantee against the Issuer or a Guarantor (including this Section 7.07) and
defending itself against or investigating any claim (whether asserted by the
Issuer, any Guarantor, any Holder or any other Person). The Trustee shall notify
the Issuer of any claim for which it may seek indemnity promptly upon obtaining
actual knowledge thereof; PROVIDED, HOWEVER, that any failure so to notify the
Issuer shall not relieve the Issuer or any Guarantor of its indemnity
obligations hereunder. The Issuer shall defend the claim and the indemnified
party shall provide reasonable cooperation at the Issuer's expense in the
defense. Such indemnified parties may have separate counsel and the Issuer and
the Guarantors, as applicable shall pay the fees and expenses of such counsel;
PROVIDED, HOWEVER, that the Issuer shall not be required to pay such fees and
expenses if it assumes such indemnified parties' defense and, in such
indemnified parties' reasonable judgment, there is no conflict of interest
between the Issuer and the Guarantors, as applicable, and such parties in
connection with such defense. The Issuer need not reimburse any expense or
indemnify against any loss, liability or expense incurred by an indemnified
party through such party's own willful misconduct, negligence or bad faith.
To secure the Issuer's and the Guarantors' payment obligations in
this Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the
-94-
Trustee other than money or property held in trust to pay principal of and
interest on particular Notes.
The Issuer's and the Guarantors' payment obligations pursuant to this
Section shall survive the satisfaction or discharge of this Indenture, any
rejection or termination of this Indenture under any bankruptcy law or the
resignation or removal of the Trustee. Without prejudice to any other rights
available to the Trustee under applicable law, when the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(e) or (f) with
respect to Holdings or the Issuer, the expenses are intended to constitute
expenses of administration under the Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
(a) The Trustee may resign at any time by so notifying the Issuer. The
Holders of a majority in principal amount of the Notes may remove the Trustee by
so notifying the Trustee and may appoint a successor Trustee. The Issuer may
remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Trustee
or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the TIA, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provide by, and subject to the provisions of,
the TIA and this Indenture. To the extent permitted by the TIA, the Trustee
shall not be deemed to have a conflicting interest by virtue of being a Trustee
under this Indenture with respect to Notes of more than one series.
(b) If the Trustee resigns, is removed by the Issuer or by the
Holders of a majority in principal amount of the Notes and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly appoint a successor
Trustee.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to the
Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the Lien provided for in Section
7.07.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee or the Holders
of 10% in principal amount of
-95-
the Notes may petition at the expense of the Issuer any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA,
any Holder who has been a bona fide holder of a Note for at least six months may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuer's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of Section 310(a) of the TIA. The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth in
its most recent published annual report of condition. The Trustee shall comply
with Section 310(b) of the TIA, subject to its right to apply for a stay of its
duty to resign under the penultimate paragraph of Section 310(b) of the TIA;
PROVIDED, HOWEVER, that there shall be excluded from the operation of Section
310(b)(1) of the TIA any series of securities issued under this Indenture and
any indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Issuer are outstanding if
the requirements for such exclusion set forth in Section 310(b)(1) of the TIA
are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The
Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned
or been removed shall be subject to Section 311(a) of the TIA to the extent
indicated.
-96-
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. DISCHARGE OF LIABILITY ON NOTES; DEFEASANCE. This
Indenture shall be discharged and shall cease to be of further effect (except
as to surviving rights of registration or transfer or exchange of Notes, as
expressly provided for in this Indenture) as to all outstanding Notes when:
(a) either (i) all the Notes theretofore authenticated and delivered
(other than Notes pursuant to Section 2.08 which have been replaced or paid
and Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust) have been delivered to the Trustee
for cancellation or (ii) all of the Notes (a) have become due and payable,
(b) will become due and payable at their Stated Maturity within one year or
(c) if redeemable at the option of the Issuer, are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Issuer, and the Issuer has irrevocably deposited or
caused to be deposited with the Trustee cash in U.S. Dollars, U.S.
Government Obligations or a combination thereof in an amount sufficient in
the written opinion of a firm of independent public accountants delivered
to the Trustee (which delivery shall only be required if U.S. Government
Obligations have been so deposited) to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the Notes
to the date of deposit together with irrevocable instructions from the
Issuer directing the Trustee to apply such funds to the payment thereof at
maturity or redemption, as the case may be;
(b) the Issuer and/or the Guarantors have paid all other sums payable
under this Indenture; and
(c) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent under this
Indenture relating to the satisfaction and discharge of this Indenture have
been complied with.
Subject to Sections 8.01(c) and 8.02, the Issuer at any time may
terminate (i) all of its obligations under the Notes and this Indenture (with
respect to such Notes) ("LEGAL DEFEASANCE OPTION") or (ii) its obligations under
Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12 and 4.14 and the
operation of Section 5.01 and Sections 6.01(d), 6.01(e) (with respect to
Significant Subsidiaries of the Issuer only), 6.01(f) (with respect to
Significant Subsidiaries of the Issuer only) and 6.01(g) ("COVENANT DEFEASANCE
OPTION"). The Issuer may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option. In the event that the
Issuer terminates all of its obligations under the Notes and this Indenture
(with respect to such Notes) by exercising its legal defeasance option or its
covenant defeasance option, the obligations of each Guarantor under its
Guarantee of such Notes shall be terminated simultaneously with the termination
of such obligations.
-97-
If the Issuer exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default with respect
thereto. If the Issuer exercises its covenant defeasance option, payment of the
Notes so defeased may not be accelerated because of an Event of Default
specified in Section 6.01(c), 6.01(d), 6.01(e) (with respect to Significant
Subsidiaries of the Issuer only), 6.01(f) (with respect to Significant
Subsidiaries of the Issuer only), 6.01(g) or 6.01(h) or because of the failure
of the Issuer to comply with Section 4.08 or Section 5.01.
Upon satisfaction of the conditions set forth herein and upon request
of the Issuer, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuer terminates.
Notwithstanding clauses (a) and (b) above, the Issuer's obligations
in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in this Article 8
shall survive until the Notes have been paid in full. Thereafter, the Issuer's
obligations in Sections 7.07, 8.05 and 8.06 shall survive such satisfaction and
discharge.
The Issuer may discharge its obligations or exercise its legal
defeasance option or its covenant defeasance option with respect to the 2013
Notes, 2015 Notes or the Floating Rate Notes without discharging its obligations
or exercising such option with respect to the other series of Notes.
SECTION 8.02. CONDITIONS TO DEFEASANCE.
(a) The Issuer may exercise its legal defeasance option or its
covenant defeasance option only if:
(i) the Issuer irrevocably deposits in trust with the Trustee cash in
U.S. Dollars or U.S. Government Obligations, the principal of and the
interest on which will be sufficient, or a combination thereof sufficient,
to pay the principal of, and premium (if any) and interest on the
applicable Notes when due at maturity or redemption, as the case may be,
including interest thereon to maturity or such redemption date;
(ii) the Issuer delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations, plus any
deposited money without investment, will provide cash at such times and in
such amounts as will be sufficient to pay principal, premium, if any, and
interest when due on all the Notes to maturity or redemption, as the case
may be;
(iii) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(e) or (f) with respect to the
Issuer occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other
agreement binding on the Issuer;
-98-
(v) the Issuer delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940, as amended;
(vi) in the case of the legal defeasance option, the Issuer shall have
delivered to the Trustee an Opinion of Counsel stating that (1) the Issuer
has received from, or there has been published by, the U.S. Internal
Revenue Service a ruling, or (2) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would have been the case if such deposit and defeasance
had not occurred; PROVIDED, HOWEVER, that such Opinion of Counsel need not
be delivered if all Notes not theretofore delivered to the Trustee for
cancellation (x) have become due and payable or (y) will become due and
payable at their Stated Maturity within one year under arrangements
satisfactory to the Trustee for the giving notice of redemption by the
Trustee in the name, and at the expense, of the Issuer;
(vii) in the case of the covenant defeasance option, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for U.S. Federal income tax
purposes as a result of such deposit and defeasance and will be subject to
U.S. Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such deposit and defeasance had
not occurred; and
(viii) the Issuer delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Notes to be so defeased and discharged as
contemplated by this Article 8 have been complied with.
(b) The Issuer shall not be deemed to have breached its obligations
under Section 4.03 to the extent the net proceeds from any Indebtedness,
Preferred Stock or Disqualified Stock incurred is used in accordance with
Section 8.02(a)(i) above for the Issuer to exercise its legal defeasance or
covenant defeasance option.
(c) Before or after a deposit, the Issuer may make arrangements
satisfactory to the Trustee for the redemption of such Notes at a future date in
accordance with Article 3.
SECTION 8.03. APPLICATION OF TRUST MONEY. The Trustee shall hold in
trust money or U.S. Government Obligations (including proceeds thereof)
deposited with it pursuant to this Article 8. It shall apply the deposited money
and the money from U.S. Government Obligations through each Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Notes so discharged or defeased.
SECTION 8.04. REPAYMENT TO ISSUER. Each of the Trustee and each Paying
Agent shall promptly turn over to the Issuer upon request any money or U.S.
Government Obligations held by it as provided in this Article which, in the
written opinion of a nationally recog-
-99-
nized firm of independent public accountants delivered to the Trustee (which
delivery shall only be required if U.S. Government Obligations have been so
deposited), are in excess of the amount thereof which would then be required to
be deposited to effect an equivalent discharge or defeasance in accordance with
this Article.
Subject to any applicable abandoned property law, the Trustee and
each Paying Agent shall pay to the Issuer upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to the money must look to the Issuer
for payment as general creditors, and the Trustee and each Paying Agent shall
have no further liability with respect to such monies.
SECTION 8.05. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Issuer
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06. REINSTATEMENT. If the Trustee or any Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 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 Issuer's obligations under this
Indenture and the Notes so discharged or defeased shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 8 until
such time as the Trustee or any Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article 8;
PROVIDED, HOWEVER, that, if the Issuer has made any payment of principal of or
interest on, any such Notes because of the reinstatement of its obligations, the
Issuer shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or any Paying Agent.
ARTICLE 9
AMENDMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF THE HOLDERS. The Issuer and the
Trustee may amend this Indenture or the Notes without notice to or consent of
any Holder (provided that the Issuer need not act to amend this Indenture to add
Subsidiary Guarantors on the Issue Date):
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article 5;
(iii) to provide for uncertificated Notes in addition to or in
place of certificated Notes; PROVIDED that the uncertificated Notes
are issued in registered form for purposes of Section 163(f) of the Code
or in a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code;
(iv) to add Guarantees with respect to the Notes or to secure the
Notes;
-100-
(v) to add to the covenants of the Issuer or any Parent of the Issuer
for the benefit of the Holders or to surrender any right or power herein
conferred upon the Issuer or any Parent of the Issuer;
(vi) to comply with any requirement of the SEC in connection with
qualifying this Indenture under the TIA;
(vii) to effect any provision of this Indenture (including to release
any Guarantees or Escrowed Property in accordance with the terms of this
Indenture and the Escrow Agreement);
(viii) to make any change that does not adversely affect the rights of
any Holder; or
(ix) to provide for the issuance of the Exchange Notes or Additional
Notes.
After an amendment under this Section 9.01 becomes effective, the
Issuer shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. WITH CONSENT OF THE HOLDERS.
(a) The Issuer and the Trustee may amend this Indenture or the Notes
with the written consent of the Holders of at least a majority in principal
amount of the Notes then outstanding voting as a single class (including
consents obtained in connection with a tender offer or exchange for the Notes).
However, without the consent of each Holder of an outstanding Note affected, an
amendment may not:
(i) reduce the amount of Notes whose Holders must consent to an
amendment,
(ii) reduce the rate of or extend the time for payment of interest on
any Note,
(iii) reduce the principal of or change the Stated Maturity of any
Note,
(iv) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with
Article 3,
(v) make any Note payable in money other than that stated in such
Note,
(vi) make any change in Section 6.04 or 6.07 or the second sentence of
this Section 9.02,
(vii) make any change to the provisions of this Indenture providing
for the Special Mandatory Redemption that would adversely affect the rights
of any of the Holders of the Notes to receive the Special Mandatory
Redemption Amount,
-101-
(viii) expressly subordinate the Notes or any Guarantee to any other
Indebtedness of the Issuer or any Guarantor, or
(ix) modify the Guarantees in any manner adverse to the Holders.
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.
(b) After an amendment under this Section 9.02 becomes effective, the
Issuer shall mail to the Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders entitled to receive such notice, or
any defect therein, shall not impair or affect the validity of an amendment
under this Section 9.02.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. From the date on
which this Indenture is qualified under the TIA, every amendment, waiver or
supplement to this Indenture or the Notes shall comply with the TIA as then in
effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.
(a) A consent to an amendment or a waiver by a Holder of a Note shall
bind the Holder and every subsequent Holder of that Note or portion of the Note
that evidences the same debt as the consenting Holder's Note, even if notation
of the consent or waiver is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Note or
portion of the Note if the Trustee receives the notice of revocation before the
date on which the Trustee receives an Officers' Certificate from the Issuer
certifying that the requisite principal amount of Notes have consented. After an
amendment or waiver becomes effective, it shall bind every Holder. An amendment
or waiver becomes effective upon the (i) receipt by the Issuer or the Trustee of
consents by the Holders of the requisite principal amount of securities, (ii)
satisfaction of conditions to effectiveness as set forth in this Indenture and
any indenture supplemental hereto containing such amendment or waiver and (iii)
execution of such amendment or waiver (or supplemental indenture) by the Issuer
and the Trustee.
(b) The Issuer may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES. If an amendment,
supplement or waiver changes the terms of a Note, the Issuer may require the
Holder of the Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it to
the Holder. Alternatively, if the Issuer or the Trustee so determines, the
Issuer in exchange for the Note shall issue and the Trustee shall authenticate
a new
-102-
Note that reflects the changed terms. Failure to make the appropriate notation
or to issue a new Note shall not affect the validity of such amendment,
supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS. The Trustee shall sign any
amendment, supplement or waiver authorized pursuant to this Article 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 shall be provided with, and (subject to
Section 7.01) shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that such amendment, supplement or waiver is
authorized or permitted by this Indenture and that such amendment, supplement or
waiver is the legal, valid and binding obligation of the Issuer and the
Guarantors, enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section
9.03).
SECTION 9.07. PAYMENT FOR CONSENT. Neither the Issuer nor any
Affiliate of the Issuer shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Notes unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement; PROVIDED, HOWEVER, that if any such payment relates to a
consent, amendment, waiver or other modification that will only affect the 2013
Notes, the 2015 Notes or the Floating Rate Notes, such payment need only be
offered to be paid to the Holders of the 2013 Notes, 2015 Notes or Floating Rate
Notes, as the case may be.
SECTION 9.08. ADDITIONAL VOTING TERMS. All Notes issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Notes may vote) as one class and no series of Notes will have the right to
vote or consent as a separate class on any matter; PROVIDED, HOWEVER, that if
any amendment, waiver or other modification will only affect the 2013 Notes, the
2015 Notes or the Floating Rate Notes, only the consent of the Holders of at
least a majority in principal amount of the then outstanding 2013 Notes, 2015
Notes or Floating Rate Notes (and not the consent of the Holders of at least a
majority of all Notes), as the case may be, shall be required.
ARTICLE 10
GUARANTEES
SECTION 10.01. GUARANTEES. If the Escrow Agreement is effective, prior
to the Acquisition Date the Issuer's obligations under this Indenture and the
Notes shall be guaranteed by Holdings, as provided in this Article 10.
Thereafter, on the Acquisition Date, each of the Issuer's direct and indirect
Restricted Subsidiaries that guarantees Indebtedness under the Credit Agreement
(other than any License Subsidiary) shall execute a supplemental indenture
substantially in the form of EXHIBIT J and shall guarantee the Issuer's
obligations under this Indenture and the Notes, as provided in this Article 10.
-103-
(a) Each Guarantor hereby jointly and severally, irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, to
each Holder and to the Trustee and its successors and assigns (i) the full and
punctual payment when due, whether at Stated Maturity, by acceleration, by
redemption or otherwise, of all obligations of the Issuer under this Indenture
(including obligations to the Trustee) and the Notes, whether for payment of
principal of, premium, if any, or interest or additional interest in respect of
the Notes and all other monetary obligations of the Issuer under this Indenture
and the Notes and (ii) the full and punctual performance within applicable grace
periods of all other obligations of the Issuer whether for fees, expenses,
indemnification or otherwise under this Indenture and the Notes (all the
foregoing being hereinafter collectively called the "GUARANTEED OBLIGATIONS").
Each Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from each such
Guarantor, and that each such Guarantor shall remain bound under this Article 10
notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and
protest to the Issuer of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default
under the Notes or the Guaranteed Obligations. The obligations of each Guarantor
hereunder shall not be affected by (i) the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any right or remedy against the
Issuer or any other Person under this Indenture, the Notes or any other
agreement or otherwise; (ii) any extension or renewal of this Indenture, the
Notes or any other agreement; (iii) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Notes or
any other agreement; (iv) the release of any security held by any Holder or the
Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure of any
Holder or Trustee to exercise any right or remedy against any other guarantor of
the Guaranteed Obligations; or (vi) any change in the ownership of such
Guarantor, except as provided in Section 10.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled
to have its obligations hereunder divided among the Guarantors, such that such
Guarantor's obligations would be less than the full amount claimed. Each
Guarantor hereby waives any right to which it may be entitled to have the assets
of the Issuer first be used and depleted as payment of the Issuer's or such
Guarantor's obligations hereunder prior to any amounts being claimed from or
paid by such Guarantor hereunder. Each Guarantor hereby waives any right to
which it may be entitled to require that the Issuer be sued prior to an action
being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01, 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 com-
-104-
promise, and shall not be subject to any defense of setoff, counterclaim,
recoupment or termination whatsoever or by reason of the invalidity, illegality
or unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Guarantor herein shall
not be discharged or impaired or otherwise affected by the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Notes or any other agreement, by any waiver or modification of
any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of any Guarantor or would otherwise operate as a discharge
of any Guarantor as a matter of law or equity.
(f) Except as expressly set forth in Sections 8.01 and 10.02, each
Guarantor agrees that its Guarantee shall remain in full force and effect until
payment in full of all the Guaranteed Obligations. Except as expressly set forth
in Sections 8.01 and 10.02, each Guarantor further agrees that its Guarantee
herein shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of principal of or interest on any
Guaranteed Obligation is rescinded or must otherwise be restored by any Holder
or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal
of or interest on any Guaranteed Obligation when and as the same shall become
due, whether at maturity, by acceleration, by redemption or otherwise, or to
perform or comply with any other Guaranteed Obligation, each Guarantor hereby
promises to and shall, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal
to the sum of (i) the unpaid principal amount of such Guaranteed Obligations,
(ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the
extent not prohibited by applicable law) and (iii) all other monetary
obligations of the Issuer to the Holders and the Trustee in respect of the
Guaranteed Obligations.
(h) Each Guarantor agrees that it shall not be entitled to any right
of subrogation in relation to the Holders in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations. Each Guarantor further agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (i) the maturity of the
Guaranteed Obligations guaranteed hereby may be accelerated as provided in
Article 6 for the purposes of any Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations guaranteed hereby, and (ii) in the event of any
declaration of acceleration of such Guaranteed Obligations as provided in
Article 6, such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purposes of this
Section 10.01.
(i) Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holder in enforcing any rights under this Section 10.01.
-105-
(j) Upon request of the Trustee, each Guarantor shall execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
SECTION 10.02. LIMITATION ON LIABILITY.
(a) Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Guaranteed Obligations
guaranteed hereunder by any Guarantor shall not exceed the maximum amount that
can be hereby guaranteed without rendering the Guarantee, as it relates to such
Guarantor, voidable under applicable law relating to fraudulent conveyance,
financial assistance or fraudulent transfer or similar laws affecting the rights
of creditors generally.
(b) A Guarantee as to any Subsidiary Guarantor shall terminate and be
of no further force or effect and such Subsidiary Guarantor shall be deemed to
be automatically released from all obligations under this Article 10 upon:
(i) (A) the sale, disposition or other transfer (including through
merger, amalgamation or consolidation) of the Capital Stock (including any
sale, disposition or other transfer following which the applicable
Subsidiary Guarantor is no longer a Restricted Subsidiary), or all or
substantially all the assets, of the applicable Subsidiary Guarantor if
such sale, disposition or other transfer is made in compliance with this
Indenture and (B) such Subsidiary Guarantor being released from its
guarantees, if any, of, and all pledges and security, if any, granted in
connection with, the Credit Agreement and any other Indebtedness of the
Issuer or any Restricted Subsidiary of the Issuer, or
(ii) the Issuer designating such Subsidiary Guarantor to be an
Unrestricted Subsidiary in accordance with the provisions set forth under
Section 4.04 and the definition of "Unrestricted Subsidiary," or
(iii) in the case of any Restricted Subsidiary which after the
Acquisition Date is required to guarantee the Notes pursuant to Section
4.11, the release or discharge of the guarantee by such Restricted
Subsidiary of Indebtedness of the Issuer or any Restricted Subsidiary of
the Issuer or such Restricted Subsidiary or the repayment of the
Indebtedness or Disqualified Stock, in each case, which resulted in the
obligation to guarantee the Notes, or
(iv) the Issuer's exercise of its legal defeasance option or covenant
defeasance option pursuant to Article 8, or if the Issuer's obligations
under this Indenture are discharged in accordance with the terms of this
Indenture.
A Guarantee also shall be automatically released upon the applicable
Subsidiary ceasing to be a Subsidiary as a result of any foreclosure of any
pledge or security interest securing Bank Indebtedness or other exercise of
remedies in respect thereof. In addition, the Guarantees of the Subsidiary
Guarantors shall be suspended during any Suspension Period, as provided in
Section 4.16 hereof.
-106-
SECTION 10.03. 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.
SECTION 10.04. NO WAIVER. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 10 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 10 at law,
in equity, by statute or otherwise.
SECTION 10.05. 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.
SECTION 10.06. Execution of Supplemental Indenture for Future
Guarantors. Each Subsidiary and other Person which is required to become a
Guarantor pursuant to Section 4.11 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of EXHIBIT J hereto pursuant to
which such Subsidiary or other Person shall become a Guarantor under this
Article 10 and shall guarantee the Guaranteed Obligations. Concurrently with
the execution and delivery of such supplemental indenture, the Issuer shall
deliver to the Trustee an Opinion of Counsel and an Officers' Certificate to
the effect that such supplemental indenture has been duly authorized, executed
and delivered by such Subsidiary or other Person and that, subject to customary
exception including the application of bankruptcy, insolvency, moratorium,
fraudulent conveyance or transfer and other similar laws relating to creditors'
rights generally and to the principles of equity, whether considered in a
proceeding at law or in equity, the Guarantee of such Guarantor is a legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms and/or to such other matters as the
Trustee may reasonably request.
SECTION 10.07. NON-IMPAIRMENT. The failure to endorse a Guarantee on
any Note shall not affect or impair the validity thereof.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with an-
-107-
other provision (an "INCORPORATED PROVISION") included in this Indenture by
operation of, Sections 310 to 318 of the TIA, inclusive, such imposed duties or
incorporated provision shall control.
SECTION 11.02. NOTICES.
(a) Any notice or communication required or permitted hereunder shall
be in writing and delivered in person, via facsimile or mailed by first-class
mail addressed as follows:
if to the Issuer or a Guarantor:
Zeus Merger Two Limited
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
with a copy to:
Intelsat Global Service Corporation
0000 Xxxxxxxxxxxxx Xxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: General Counsel
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, III.
if to the Trustee:
Xxxxx Fargo Bank, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention of: Corporate Trust Department
Facsimile: 000-000-0000
The Issuer or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
(b) Any notice or communication mailed to a Holder shall be mailed,
first class mail, to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
(c) Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it, except that notices to the
Trustee are effective only if received.
-108-
SECTION 11.03. COMMUNICATION BY THE HOLDERS WITH OTHER HOLDERS. The
Holders may communicate pursuant to Section 312(b) of the TIA with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuer, the Trustee, the Registrar and other Persons shall have the protection
of Section 312(c) of the TIA.
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuer to the Trustee to take or refrain
from taking any action under this Indenture, the Issuer shall furnish to the
Trustee at the request of the Trustee:
(a) an Officers' Certificate in form reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than pursuant to Section 4.09) shall
include:
(a) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 11.06. WHEN NOTES DISREGARDED. In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Issuer, any Guarantor or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any Guarantor shall be disregarded
and deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which the Trustee knows are so owned shall be so
disregarded. Subject to the foregoing, only Notes outstanding at the time shall
be considered in any such determination.
-109-
SECTION 11.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of the Holders. The
Registrar and a Paying Agent may make reasonable rules for their functions.
SECTION 11.08. LEGAL HOLIDAYS. If a payment date is not a Business
Day, payment shall be made on the next succeeding day that is a Business Day,
and no interest shall accrue on any amount that would have been otherwise
payable on such payment date if it were a Business Day for the intervening
period. If a regular record date is not a Business Day, the record date shall
not be affected.
SECTION 11.09. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 11.10. NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator or holder of any Equity Interests in the Issuer (other
than Holdings) or any Parent of the Issuer, as such, shall have any liability
for any obligations of the Issuer under the Notes or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such
liability.
SECTION 11.11. SUCCESSORS. All agreements of the Issuer and each
Guarantor in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 11.13. TABLE OF CONTENTS; HEADINGS. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 11.14. INDENTURE CONTROLS. If and to the extent that any
provision of the Notes limits, qualifies or conflicts with a provision of this
Indenture, such provision of this Indenture shall control.
SECTION 11.15. SEVERABILITY. In case any provision in this Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby and such provision shall be ineffective only to the extent of
such invalidity, illegality or unenforceability.
SECTION 11.16. JURISDICTION. The Issuer and each Guarantor agrees that
any suit, action or proceeding against the Issuer or any Guarantor arising out
of or based upon this Agreement or the transactions contemplated hereby may be
instituted in the Supreme Court of the State of New York sitting in New York
County and the United States District Court of the Southern District of New
York, and any appellate court from any thereof, and waives any objec-
-110-
tion which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusive jurisdiction of such
courts in any suit, action or proceeding. The Issuer and the Guarantors hereby
appoint CT Corporation System as their authorized agent (the "AUTHORIZED AGENT")
upon whom process may be served in any suit, action or proceeding arising out of
or based upon this Agreement or the transactions contemplated herein that may be
instituted in the Supreme Court of the State of New York sitting in New York
County and the United States District Court of the Southern District of New
York, and any appellate court from any thereof and expressly accept the
non-exclusive jurisdiction of any such court in respect of any such suit, action
or proceeding. The Issuer and the Guarantors hereby represent and warrant that
the Authorized Agent has accepted such appointment and has agreed to act as said
agent for service of process, and the Issuer and the Guarantors agree to take
any and all action, including the filing of any and all documents, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent shall be deemed, in every respect,
effective service of process upon the Issuer and the Guarantors.
SECTION 11.17. IMMUNITY. To the extent that the Issuer or any
Guarantor has or hereafter may acquire any immunity (sovereign or otherwise)
from any legal action, suit or proceeding, from jurisdiction of any court or
from set-off or any legal process (whether service or notice, attachment in aid
or otherwise) with respect to itself or any of its property, the Issuer or such
Guarantor hereby irrevocably waives and agrees not to plead or claim such
immunity in respect of its obligations under this Agreement.
SECTION 11.18. CURRENCY OF ACCOUNT; CONVERSION OF CURRENCY; FOREIGN
EXCHANGE RESTRICTIONS.
(a) U.S. Dollars are the sole currency of account and payment for all
sums payable by the Issuer and the Guarantors under the Notes, the Guarantees of
Notes or this Indenture, including damages related thereto. Any amount received
or recovered in a currency other than U.S. Dollars by a Holder of Notes (whether
as a result of, or of the enforcement of, a judgment or order of a court of any
jurisdiction, in the winding-up or dissolution of the Issuer or otherwise) in
respect of any sum expressed to be due to it from the Issuer shall only
constitute a discharge to the Issuer to the extent of the U.S. Dollar amount
which the recipient is able to purchase with the amount so received or recovered
in that other currency on the date of that receipt or recovery (or, if it is not
practicable to make that purchase on that date, on the first date on which it is
practicable to do so). If that U.S. Dollar amount is less than the U.S. Dollar
amount expressed to be due to the recipient under the applicable Notes, the
Issuer shall indemnify it against any loss sustained by it as a result as set
forth in Section 11.18(b). In any event, the Issuer and the Guarantors shall
indemnify the recipient against the cost of making any such purchase. For the
purposes of this Section 11.18, it will be sufficient for the Holder of a Note
to certify in a satisfactory manner (indicating sources of information used)
that it would have suffered a loss had an actual purchase of U.S. Dollars been
made with the amount so received in that other currency on the date of receipt
or recovery (or, if a purchase of U.S. Dollars on such date had not been
practicable, on the first date on which it would have been practicable, it being
required that the need for a change of date be certified in the manner mentioned
above). The indemnities set forth in this Section 11.18 constitute separate and
independent obligations from
-111-
other obligations of the Issuer and the Guarantors, shall give rise to a
separate and independent cause of action, shall apply irrespective of any
indulgence granted by any Holder of the Notes and shall continue in full force
and effect despite any other judgment, order, claim or proof for a liquidated
amount in respect of any sum due under the Notes.
(b) The Issuer and the Guarantors, jointly and severally, covenant and
agree that the following provisions shall apply to conversion of currency in the
case of the Notes, the Guarantees and this Indenture:
(1) (A) If for the purpose of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to convert into
a currency (the "JUDGMENT CURRENCY") an amount due in any other currency
(the "BASE CURRENCY"), then the conversion shall be made at the rate of
exchange prevailing on the Business Day before the day on which the
judgment is given or the order of enforcement is made, as the case may be
(unless a court shall otherwise determine); and (B) if there is a change in
the rate of exchange prevailing between the Business Day before the day on
which the judgment is given or an order of enforcement is made, as the case
may be (or such other date as a court shall determine), and the date of
receipt of the amount due, the Issuer and the Guarantors will pay such
additional (or, as the case may be, such lesser) amount, if any, as may be
necessary so that the amount paid in the Judgment Currency when converted
at the rate of exchange prevailing on the date of receipt will produce the
amount in the Base Currency originally due.
(2) In the event of the winding-up of the Issuer or any Guarantor at
any time while any amount or damages owing under the Notes, the Guarantees
and this Indenture, or any judgment or order rendered in respect thereof,
shall remain outstanding, the Issuer and the Guarantors shall indemnify and
hold the Holders and the Trustee harmless against any deficiency arising or
resulting from any variation in rates of exchange between (i) the date as
of which the U.S. Dollar Equivalent of the amount due or contingently due
under the Notes, the Guarantees and this Indenture (other than under this
subsection (b)(2)) is calculated for the purposes of such winding-up and
(ii) the final date for the filing of proofs of claim in such winding-up.
For the purpose of this subsection (b)(2), the final date for the filing of
proofs of claim in the winding-up of the Issuer or any Guarantor shall be
the date fixed by the liquidator or otherwise in accordance with the
relevant provisions of applicable law as being the latest practicable date
as at which liabilities of the Issuer or such Guarantor may be ascertained
for such winding-up prior to payment by the liquidator or otherwise in
respect thereto.
(c) The obligations contained in subsections (a), (b)(1)(B) and (b)(2)
of this Section 11.18 shall constitute separate and independent obligations from
the other obligations of the Issuer and the Guarantors under this Indenture,
shall give rise to separate and independent causes of action against the Issuer
and the Guarantors, shall apply irrespective of any waiver or extension granted
by any Holder or the Trustee or either of them from time to time and shall
continue in full force and effect notwithstanding any judgment or order or the
filing of any proof of claim in the winding-up of the Issuer or any Guarantor
for a liquidated sum in respect of amounts due hereunder (other than under
subsection (b)(2) above) or under any such judgment or order.
-112-
Any such deficiency as aforesaid shall be deemed to constitute a loss suffered
by the Holders or the Trustee, as the case may be, and no proof or evidence of
any actual loss shall be required by the Issuer or any Guarantor or the
liquidator or otherwise or any of them. In the case of subsection (b)(2) above,
the amount of such deficiency shall not be deemed to be reduced by any variation
in rates of exchange occurring between the said final date and the date of any
liquidating distribution.
(d) The term "RATE(S) OF EXCHANGE" shall mean the rate of exchange
quoted by Reuters at 10:00 a.m. (New York time) for spot purchases of the Base
Currency with the Judgment Currency other than the Base Currency referred to in
subsections (b)(1) and (b)(2) above and includes any premiums and costs of
exchange payable.
-113-
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
ZEUS MERGER TWO LIMITED
By:
------------------------------------
Name:
Title:
S-1
ZEUS MERGER ONE LIMITED
By:
----------------------------------
Name:
Title:
S-2
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Trustee
By:
----------------------------------
Name:
Title:
S-3
APPENDIX A
PROVISIONS RELATING TO INITIAL NOTES,
ADDITIONAL NOTES AND EXCHANGE NOTES
1. DEFINITIONS.
1.1 DEFINITIONS.
For the purposes of this APPENDIX A the following terms shall
have the meanings indicated below:
"ADDITIONAL INTEREST" has the meaning set forth in the
Registration Rights Agreement.
"CLEARSTREAM" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"DEFINITIVE NOTE" means a certificated Initial Note or Exchange
Note (bearing the Restricted Notes Legend if the transfer of such Note is
restricted by applicable law) that does not include the Global Notes Legend.
"DEPOSITORY" means The Depository Trust Company, its nominees and
their respective successors.
"EUROCLEAR" means the Euroclear Clearance System or any successor
securities clearing agency.
"GLOBAL NOTES LEGEND" means the legend set forth under that
caption in the applicable Exhibit to this Indenture.
"IAI" means an institutional "accredited investor" as described
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"INITIAL PURCHASERS" means Deutsche Bank Securities Inc., Credit
Suisse First Boston LLC, Xxxxxx Brothers Inc., Banc of America Securities
LLC, Bear, Xxxxxxx & Co. Inc., BNP Paribas Securities Corp., Xxxxxxx Xxxxx &
Co., CIBC World Markets Corp., RBC Capital Markets Corporation, Greenwich
Capital Markets, Inc. and SG Americas Securities, LLC and such other initial
purchasers party to the purchase agreement entered into in connection with
the offer and sale of the Notes.
"PURCHASE AGREEMENT" means (a) the Purchase Agreement dated
January 24, 2005, among the Issuer, the Parent Guarantor and the Initial
Purchasers and (b) any other similar Purchase Agreement relating to
Additional Notes.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
App. A-1
"REGISTERED EXCHANGE OFFER" means the offer by the Issuer,
pursuant to the Registration Rights Agreement, to certain Holders of Initial
Notes, to issue and deliver to such Holders, in exchange for their Initial
Notes, a like aggregate principal amount of Exchange Notes registered under
the Securities Act.
"REGISTRATION RIGHTS AGREEMENT" means (a) the Registration Rights
Agreement dated as of January 28, 2005 among the Issuer, the Parent Guarantor
and the Initial Purchasers relating to the Notes and (b) any other similar
Registration Rights Agreement relating to Additional Notes.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S NOTES" means all Initial Notes offered and sold
outside the United States in reliance on Regulation S.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the
Restricted Notes Legend.
"RESTRICTED PERIOD", with respect to any Notes, means the period
of 40 consecutive days beginning on and including the later of (a) the day on
which such Notes are first offered to persons other than distributors (as
defined in Regulation S under the Securities Act) in reliance on Regulation
S, notice of which day shall be promptly given by the Issuer to the Trustee,
and (b) the Issue Date, and with respect to any Additional Notes that are
Transfer Restricted Notes, it means the comparable period of 40 consecutive
days.
"RESTRICTED NOTES LEGEND" means the legend set forth in
Section 2.2(f)(i) herein.
"RULE 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"RULE 144A" means Rule 144A under the Securities Act.
"RULE 144A NOTES" means all Initial Notes offered and sold to
QIBs in reliance on Rule 144A.
"SECURITIES CUSTODIAN" means the custodian with respect to a
Global Note (as appointed by the Depository) or any successor person thereto,
who shall initially be the Trustee.
"SHELF REGISTRATION STATEMENT" means a registration statement
filed by the Issuer in connection with the offer and sale of Initial Notes
pursuant to the Registration Rights Agreement.
"TRANSFER RESTRICTED NOTES" means Definitive Notes and any other
Notes that bear or are required to bear or are subject to the Restricted
Notes Legend.
"UNRESTRICTED DEFINITIVE NOTES" means Definitive Notes and any
other Notes that are not required to bear, or are not subject to, the
Restricted Notes Legend.
App. A-2
"UNRESTRICTED GLOBAL NOTE" means a permanent Global Note
representing Notes that do not bear the Restricted Notes Legend.
1.2 OTHER DEFINITIONS.
TERM: DEFINED IN SECTION:
"Agent Members"........................................ 2.1(b)
"Global Notes"......................................... 2.1(b)
"Regulation S Global Notes"............................ 2.1(b)
"Rule 144A Global Notes"............................... 2.1(b)
2. THE NOTES.
2.1 FORM AND DATING; GLOBAL NOTES. (a) The Initial Notes
issued on the date hereof will be (i) offered and sold by the Issuer pursuant
to the Purchase Agreement and (ii) resold, initially only to (1) QIBs in
reliance on Rule 144A and (2) Persons other than U.S. Persons (as defined in
Regulation S) in reliance on Regulation S. Such Initial Notes may thereafter
be transferred to, among others, QIBs, purchasers in reliance on Regulation S
and, except as set forth below, IAIs in accordance with Rule 501. Additional
Notes offered after the date hereof may be offered and sold by the Issuer
from time to time in accordance with the Indenture and applicable law.
(b) GLOBAL NOTES. (i) Rule 144A Notes initially shall be
represented by one or more Notes in definitive, fully registered, global form
without interest coupons (collectively, the "RULE 144A GLOBAL NOTES").
Regulation S Notes initially shall be represented by one or more Notes in
definitive fully registered, global form without interest coupons
(collectively, the "REGULATION S GLOBAL NOTES"). The term "GLOBAL NOTES"
means, collectively, the Rule 144A Global Notes and the Regulation S Global
Notes. The Global Notes shall bear the Global Note Legend. The Global Notes
initially shall (1) be registered in the name of the Depository or the
nominee of such Depository, in each case for credit to an account of an Agent
Member, (2) be delivered to the Trustee as custodian for such Depository and
(3) bear the Restricted Notes Legend.
Members of, or direct or indirect participants in, the
Depository, Euroclear or Clearstream ("AGENT MEMBERS") shall have no rights
under this Indenture with respect to any Global Note held on their behalf by
the Depository, or the Trustee as its custodian, or under the Global Notes.
The Depository may be treated by the Issuer, the Trustee and any agent of the
Issuer or the Trustee as the absolute owner of the Global Notes for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository, Euroclear
or Clearstream, as the case may be, and their respective Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Note.
App. A-3
(ii) Transfers of Global Notes shall be limited to transfer in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be
transferred or exchanged for Definitive Notes only in accordance with the
applicable rules and procedures of the Depository, Euroclear or Clearstream,
as the case may be, and the provisions of Section 2.2. In addition, a Global
Note shall be exchangeable for Definitive Notes if (i) the Depository (x)
notifies the Issuer that it is unwilling or unable to continue as depository
for such Global Note and the Issuer thereupon fails to appoint a successor
depository within 90 days or (y) has ceased to be a clearing agency
registered under the Exchange Act, or (ii) in the case of any Global Note, if
requested by a Holder of a beneficial interest in such Global Notes. In all
cases, Definitive Notes delivered in exchange for any Global Note or
beneficial interests therein shall be registered in the names, and issued in
any approved denominations, requested by or on behalf of the Depository in
accordance with its customary procedures.
(iii) In connection with the transfer of a Global Note as an
entirety to beneficial owners pursuant to subsection (i) of this Section
2.1(b), such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery, to each beneficial owner
identified by the Depository in writing in exchange for its beneficial
interest in such Global Note, an equal aggregate principal amount of
Definitive Notes of authorized denominations.
(iv) Any Transfer Restricted Note delivered in exchange for an
interest in a Global Note pursuant to Section 2.2 shall, except as otherwise
provided in Section 2.2, bear the Restricted Notes Legend.
(v) Notwithstanding the foregoing, through the Restricted
Period, a beneficial interest in such Regulation S Global Note may be held
only through Euroclear or Clearstream unless delivery is made in accordance
with the applicable provisions of Section 2.2.
(vi) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
2.2 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may
not be transferred as a whole except as set forth in Section 2.1(b). Global
Notes will not be exchanged by the Issuer for Definitive Notes except under
the circumstances described in Section 2.1(b)(ii). Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.08 and
2.10 of this Indenture. Beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.2(b) or 2.2(g).
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL
NOTES. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depository, in accordance with the provisions
of this Indenture and the applicable rules and procedures of the Depository.
Beneficial interests in Restricted Global Notes shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act.
App. A-4
Beneficial interests in Global Notes shall be transferred or exchanged only for
beneficial interests in Global Notes. Transfers and exchanges of beneficial
interests in the Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL NOTE.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Restricted Notes Legend;
PROVIDED, HOWEVER, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in a Regulation S Global Note
may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). A beneficial interest
in an Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.2(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN GLOBAL NOTES. In connection with all transfers and exchanges of
beneficial interests in any Global Note that are not subject to Section
2.2(b)(i), the transferor of such beneficial interest must deliver to
the Registrar (1) a written order from an Agent Member given to the
Depository in accordance with the applicable rules and procedures of
the Depository directing the Depository to credit or cause to be
credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the applicable rules and
procedures of the Depository containing information regarding the Agent
Member account to be credited with such increase. Upon satisfaction of
all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note pursuant to Section
2.2(g).
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL NOTE. A beneficial interest in a Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.2(b)(ii) above and the
Registrar receives the following: if the transferee will take delivery
in the form of a beneficial interest in a Global Note, then the
transferor must deliver a certificate in the form attached to the
applicable Note.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN AN UNRESTRICTED
GLOBAL NOTE. A beneficial interest in a Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.2(b)(ii) above and the Registrar receives the following:
App. A-5
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form attached to the
applicable Note; or
(B) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form attached to the
applicable Note,
and, in each such case, if the Registrar so requests or if the
applicable rules and procedures of the Depository, Euroclear or
Clearstream, as applicable, so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange
or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Restricted Notes
Legend are no longer required in order to maintain compliance with the
Securities Act. If any such transfer or exchange is effected pursuant
to this subparagraph (iv) at a time when an Unrestricted Global Note
has not yet been issued, the Issuer shall issue and, upon receipt of an
written order of the Issuer in the form of an Officers' Certificate in
accordance with Section 2.01, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal
to the aggregate principal amount of beneficial interests transferred
or exchanged pursuant to this subparagraph (iv).
(v) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN AN
UNRESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN A RESTRICTED
GLOBAL NOTE. Beneficial interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global
Note.
(c) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL
NOTES FOR DEFINITIVE NOTES. A beneficial interest in a Global Note may not
be exchanged for a Definitive Note except under the circumstances described
in Section 2.1(b)(ii). A beneficial interest in a Global Note may not be
transferred to a Person who takes delivery thereof in the form of a
Definitive Note except under the circumstances described in Section
2.1(b)(ii).
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS IN GLOBAL NOTES. Definitive Notes shall be transferred or
exchanged only for beneficial interests in Global Notes. Transfers and
exchanges of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i), (ii) or (iii) below, as applicable:
(i) TRANSFER RESTRICTED NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES. If any Holder of a Transfer Restricted Note
proposes to exchange such Transfer Restricted Note for a beneficial
interest in a Restricted Global Note or to transfer such Transfer
Restricted Note to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by
the Registrar of the following documentation:
App. A-6
(A) if the Holder of such Transfer Restricted Note
proposes to exchange such Transfer Restricted Note for a
beneficial interest in a Restricted Global Note, a certificate
from such Holder in the form attached to the applicable Note;
(B) if such Transfer Restricted Note is being transferred
to a Qualified Institutional Buyer in accordance with Rule 144A
under the Securities Act, a certificate from such Holder in the
form attached to the applicable Note;
(C) if such Transfer Restricted Note is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a certificate
from such Holder in the form attached to the applicable Note;
(D) if such Transfer Restricted Note is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate from such Holder in the form
attached to the applicable Note;
(E) if such Transfer Restricted Note is being transferred
to an IAI in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate from such
Holder in the form attached to the applicable Note; or
(F) if such Transfer Restricted Note is being transferred
to the Issuer or a Subsidiary thereof, a certificate from such
Holder in the form attached to the applicable Note;
the Trustee shall cancel the Transfer Restricted Note, and increase or
cause to be increased the aggregate principal amount of the
appropriate Restricted Global Note.
(ii) TRANSFER RESTRICTED NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Transfer Restricted Note may
exchange such Transfer Restricted Definitive Note for a beneficial
interest in an Unrestricted Global Note or transfer such Transfer
Restricted Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note only if the
Registrar receives the following:
(A) if the Holder of such Transfer Restricted Note
proposes to exchange such Transfer Restricted Note for a
beneficial interest in an Unrestricted Global Note, a certificate
from such Holder in the form attached to the applicable Note; or
(B) if the Holder of such Transfer Restricted Notes
proposes to transfer such Transfer Restricted Note to a Person
who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a certificate from such
Holder in the form attached to the applicable Note,
App. A-7
and, in each such case, if the Registrar so requests or if the
applicable rules and procedures of the Depository, Euroclear or
Clearstream, as applicable, so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange
or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Restricted Notes
Legend are no longer required in order to maintain compliance with the
Securities Act. Upon satisfaction of the conditions of this
subparagraph (ii), the Trustee shall cancel the Transfer Restricted
Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note. If any such transfer or
exchange is effected pursuant to this subparagraph (ii) at a time when
an Unrestricted Global Note has not yet been issued, the Issuer shall
issue and, upon receipt of an written order of the Issuer in the form
of an Officers' Certificate, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of Transfer Restricted Notes transferred or
exchanged pursuant to this subparagraph (ii).
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note
may exchange such Unrestricted Definitive Note for a beneficial
interest in an Unrestricted Global Note or transfer such Unrestricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee
shall cancel the applicable Unrestricted Definitive Note and increase
or cause to be increased the aggregate principal amount of one of the
Unrestricted Global Notes. If any such transfer or exchange is
effected pursuant to this subparagraph (iii) at a time when an
Unrestricted Global Note has not yet been issued, the Issuer shall
issue and, upon receipt of an written order of the Issuer in the form
of an Officers' Certificate, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of Unrestricted Definitive Notes transferred
or exchanged pursuant to this subparagraph (iii).
(iv) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES. An Unrestricted Definitive Note cannot be
exchanged for, or transferred to a Person who takes delivery thereof in
the form of, a beneficial interest in a Restricted Global Note.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE
NOTES. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.2(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar
duly executed by such Holder or by its attorney, duly authorized in writing.
In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant
to the following provisions of this Section 2.2(e).
(i) TRANSFER RESTRICTED NOTES TO TRANSFER RESTRICTED NOTES. A
Transfer Restricted Note may be transferred to and registered in the
name of a Person who takes de-
App. A-8
livery thereof in the form of a Transfer Restricted Note if the Registrar
receives the following:
(A) if the transfer will be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form attached to the applicable Note;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904 under the Securities Act, then the transferor must
deliver a certificate in the form attached to the applicable Note;
(C) if the transfer will be made pursuant to an exemption
from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate
in the form attached to the applicable Note;
(D) if the transfer will be made to an IAI in reliance on
an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (A) through (C)
above, a certificate in the form attached to the applicable Note;
and
(E) if such transfer will be made to the Issuer or a
Subsidiary thereof, a certificate in the form attached to the
applicable Note.
(ii) TRANSFER RESTRICTED NOTES TO UNRESTRICTED DEFINITIVE
Notes. Any Transfer Restricted Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
who takes delivery thereof in the form of an Unrestricted Definitive
Note if the Registrar receives the following:
(1) if the Holder of such Transfer Restricted Note
proposes to exchange such Transfer Restricted Note for an
Unrestricted Definitive Note, a certificate from such Holder in
the form attached to the applicable Note; or
(2) if the Holder of such Transfer Restricted Note
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note,
a certificate from such Holder in the form attached to the
applicable Note,
and, in each such case, if the Registrar so requests, an Opinion of
Counsel in form reasonably acceptable to the Issuer to the effect that
such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the
Restricted Notes Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. A Holder of an Unrestricted Definitive Note may transfer such
Unrestricted Definitive Note to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Note at any
App. A-9
time. Upon receipt of a request to register such a transfer, the Registrar
shall register the Unrestricted Definitive Note pursuant to the
instructions from the Holder thereof.
(iv) UNRESTRICTED DEFINITIVE NOTES TO TRANSFER RESTRICTED
Notes. An Unrestricted Definitive Note cannot be exchanged for, or
transferred to a Person who takes delivery thereof in the form of, a
Transfer Restricted Note.
At such time as all beneficial interests in a particular Global
Note have been exchanged for Definitive Notes or a particular Global Note has
been redeemed, repurchased or canceled in whole and not in part, each such
Global Note shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11 of this Indenture. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note or for Definitive Notes, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depository at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depository at the direction of the Trustee to reflect
such increase.
(f) LEGEND.
(i) Except as permitted by the following paragraphs (ii), (iii)
or (iv), each Note certificate evidencing the Global Notes and the Definitive
Notes (and all Notes issued in exchange therefor or in substitution thereof)
shall bear a legend in substantially the following form (each defined term in
the legend being defined as such for purposes of the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN
ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR
(7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR"), (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE
THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS
App. A-10
BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), OR (G)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT."
Each Definitive Note shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Note
that is a Definitive Note, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Note for a Definitive Note that does not
bear the legends set forth above and rescind any restriction on the transfer
of such Transfer Restricted Note if the Holder certifies in writing to the
Registrar that its request for such exchange was made in reliance on Rule 144
(such certification to be in the form set forth on the reverse of the Initial
Note).
App. A-11
(iii) After a transfer of any Initial Notes during the period of
the effectiveness of a Shelf Registration Statement with respect to such
Initial Notes, all requirements pertaining to the Restricted Notes Legend on
such Initial Notes shall cease to apply and the requirements that any such
Initial Notes be issued in global form shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Notes pursuant to which Holders of such Initial Notes
are offered Exchange Notes in exchange for their Initial Notes, all
requirements pertaining to Initial Notes that Initial Notes be issued in
global form shall continue to apply, and Exchange Notes in global form
without the Restricted Notes Legend shall be available to Holders that
exchange such Initial Notes in such Registered Exchange Offer.
(v) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Note acquired pursuant to Regulation S, all
requirements that such Initial Note bear the Restricted Notes Legend shall
cease to apply and the requirements requiring any such Initial Note be issued
in global form shall continue to apply.
(vi) Any Additional Notes sold in a registered offering shall
not be required to bear the Restricted Notes Legend.
(g) CANCELLATION OR ADJUSTMENT OF GLOBAL NOTE. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Note shall be returned
to or retained and canceled by the Trustee in accordance with Section 2.11 of
this Indenture. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depository at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
(h) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
Notes.
(i) To permit registrations of transfers and exchanges, the
Issuer shall execute and the Trustee shall authenticate, Definitive Notes and
Global Notes at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient
to cover any transfer tax, assessments, or similar governmental charge
payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charge payable upon exchanges pursuant to
Sections 3.06, 3.10, 4.06, 4.08 and 9.05 of this Indenture).
App. A-12
(iii) Prior to the due presentation for registration of transfer
of any Note, the Issuer, the Trustee, a Paying Agent or the Registrar may
deem and treat the person in whose name a Note is registered as the absolute
owner of such Note for the purpose of receiving payment of principal of and
interest on such Note and for all other purposes whatsoever, whether or not
such Note is overdue, and none of the Issuer, the Trustee, a Paying Agent or
the Registrar shall be affected by notice to the contrary.
(iv) All Notes issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Notes surrendered
upon such transfer or exchange.
(i) NO OBLIGATION OF THE TRUSTEE.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Note, a member of, or a participant in the
Depository or any other Person with respect to the accuracy of the records of
the Depository or its nominee or of any participant or member thereof, with
respect to any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other Person (other
than the Depository) of any notice (including any notice of redemption or
repurchase) or the payment of any amount, under or with respect to such
Notes. All notices and communications to be given to the Holders and all
payments to be made to the Holders under the Notes shall be given or made
only to the registered Holders (which shall be the Depository or its nominee
in the case of a Global Note). The rights of beneficial owners in any Global
Note shall be exercised only through the Depository subject to the applicable
rules and procedures of the Depository. The Trustee may rely and shall be
fully protected in relying upon information furnished by the Depository with
respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among Depository participants, members or beneficial owners in any Global
Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
App. A-13
EXHIBIT A
[FORM OF FACE OF INITIAL 2013 NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Notes Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN ACCREDITED INVESTOR (AS
DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT (AN
"ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER
THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS SECURITY (THE FORM
A-1
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS),
OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
Each Definitive 2013 Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
A-2
[FORM OF INITIAL 2013 NOTE]
No. $__________
8-1/4% Senior Note due 2013
CUSIP No. [144A: 45820E AK 8]/[REG S: G4803J AE 2]
ISIN No. [144A: US45820EAK82 ]/[REG S: USG4803JAE22]
ZEUS MERGER TWO LIMITED, a company incorporated under the laws of
Bermuda, promises to pay to [ ], or registered assigns, the
principal sum [of Dollars] [listed on the Schedule of
Increases or Decreases in Global 2013 Note attached hereto] on January 15,
2013.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Additional provisions of this 2013 Note are set forth on the
other side of this Note.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed.
*/ If the 2013 Note is to be issued in global form, add the Global Notes
Legend and the attachment from EXHIBIT A captioned "TO BE ATTACHED TO
GLOBAL NOTES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL 2013 NOTE."
A-3
ZEUS MERGER TWO LIMITED
By:
-------------------------------------
Name:
Title:
Dated: [ ]
A-4
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, certifies that this is
one of the 2013 Notes
referred to in the Indenture.
By:
--------------------------------
Authorized Signatory
A-5
[FORM OF REVERSE SIDE OF INITIAL 2013 NOTE]
8-1/4% Senior Note due 2013
1. INTEREST
(a) ZEUS MERGER TWO LIMITED, a company incorporated under the
laws of Bermuda (such company, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "ISSUER"),
promises to pay interest on the principal amount of this 2013 Note at the
rate per annum shown above. The Issuer shall pay interest semiannually on
January 15 and July 15 of each year, commencing July 15, 2005.1 Interest on
the 2013 Notes shall accrue from the most recent date to which interest has
been paid or duly provided for or, if no interest has been paid or duly
provided for, from and including January 28, 20052 until the principal hereof
is due. Interest shall be computed on the basis of a 360-day year of twelve
30-day months. The Issuer shall pay interest on overdue principal at the
rate borne by the 2013 Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) REGISTRATION RIGHTS AGREEMENT. The Holder of this 2013
Note is entitled to the benefits of a Registration Rights Agreement, dated as
of January 28, 2005, among the Issuer, Zeus Merger One Limited and the
Initial Purchasers.
2. METHOD OF PAYMENT
The Issuer shall pay interest on the 2013 Notes to the Persons
who are registered Holders at the close of business on the January 1 and July
1 next preceding the interest payment date even if 2013 Notes are canceled
after the record date and on or before the interest payment date (whether or
not a Business Day). The Holders must surrender Securities to a Paying Agent
to collect principal payments. The Issuer shall pay principal, premium, if
any, and interest in money of the United States of America that at the time
of payment is legal tender for payment of public and private debts. Payments
in respect of the 2013 Notes represented by a Global 2013 Note (including
principal, premium, if any, and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company or any successor depositary. The Issuer will make all payments in
respect of a certificated 2013 Note (including principal, premium, if any,
and interest), at the office of each Paying Agent, except that, at the option
of the Issuer, payment of interest may be made by mailing a check to the
registered address of each Holder thereof; PROVIDED, HOWEVER, that payments
on the 2013 Notes may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of 2013 Notes, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the
--------------------
1 In the case of the Original Notes.
2 In the case of the Original Notes.
X-0
Xxxxxx Xxxxxx if such Holder elects payment by wire transfer by giving written
notice to the Trustee or a Paying Agent to such effect designating such account
no later than 10 days immediately preceding the relevant due date for payment
(or such other date as the Trustee may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, Xxxxx Fargo Bank, National Association, a national
banking association (the "TRUSTEE"), will act as Paying Agent and Registrar.
The Issuer may appoint and change any Paying Agent or Registrar without
notice. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
4. INDENTURE
The Issuer issued the 2013 Notes under an Indenture dated as of
January 28, 2005 (the "INDENTURE"), among the Issuer, the Guarantor named
therein and the Trustee. The terms of the 2013 Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "TIA"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The 2013 Notes
are subject to all terms and provisions of the Indenture, and the Holders (as
defined in the Indenture) are referred to the Indenture and the TIA for a
statement of such terms and provisions; in the event of any conflict between
this Note and the Indenture, the terms of the Indenture shall govern.
The 2013 Notes are senior unsecured obligations of the Issuer.
This 2013 Note is one of the Initial 2013 Notes referred to in the
Indenture. The 2013 Notes include the Initial 2013 Notes and any Exchange
2013 Notes issued in exchange for Initial 2013 Notes pursuant to the
Indenture. The Initial 2013 Notes and any Exchange 2013 Notes, together with
the Initial 2015 Notes, any Exchange 2015 Notes, the Initial Floating Rate
Notes and any Exchange Floating Rate Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on
the ability of the Issuer and its Restricted Subsidiaries to, among other
things, make certain Investments and other Restricted Payments, pay dividends
and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of capital stock of the Issuer
and such Restricted Subsidiaries, enter into or permit certain transactions
with Affiliates, create or incur Liens and make asset sales. The Indenture
also imposes limitations on the ability of the Issuer and each Guarantor to
consolidate or merge with or into any other Person or convey, transfer or
lease all or substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest, on the 2013 Notes and all other amounts payable by the Issuer under
the Indenture and the 2013 Notes when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the 2013 Notes and the Indenture, the Guarantors have, jointly and
severally, unconditionally guaranteed the Guaranteed Obligations on a senior
unsecured basis on the terms set forth in the Indenture.
A-7
5. OPTIONAL REDEMPTION
Except as set forth in the following two paragraphs and in
Sections 3.09 and 3.10 of the Indenture, the 2013 Notes shall not be
redeemable at the option of the Issuer prior to January 15, 2009.
Thereafter, the 2013 Notes shall be redeemable at the option of the Issuer,
in whole at any time or in part from time to time, upon on not less than 30
nor more than 60 days' prior notice, at the following redemption prices
(expressed as a percentage of principal amount), plus accrued and unpaid
interest, to the redemption date (subject to the right of the Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), if redeemed during the 12-month period commencing on
January 15 of the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2009 104.125%
2010 102.063%
2011 and thereafter 100.000%
In addition, from and after the Release, and prior to January 15,
2009, the Issuer may redeem the 2013 Notes, at its option, in whole at any
time or in part from time to time, upon not less than 30 nor more than 60
days' prior notice mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the principal amount of the
2013 Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest, to, the applicable redemption date (subject to the right of the
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
Notwithstanding the foregoing, from and after the Release and at
any time and from time to time on or prior to January 15, 2008, the Issuer
may redeem in the aggregate up to 35% of the original aggregate principal
amount of the 2013 Notes (calculated after giving effect to any issuance of
Additional 2013 Notes) with the net cash proceeds of one or more Equity
Offerings by the Issuer or by any Parent of the Issuer, in each case, to the
extent the net cash proceeds thereof are contributed to the common equity
capital of the Issuer or used to purchase Capital Stock (other than
Disqualified Stock) of the Issuer from it, or from the cash contribution of
equity capital to the Issuer, at a redemption price equal to 108.25% of the
principal amount thereof, plus accrued and unpaid interest and additional
interest, if any, to the redemption date (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); PROVIDED, HOWEVER, that at least 65% of the original
aggregate principal amount of the 2013 Notes (calculated after giving effect
to any issuance of Additional 2013 Notes) must remain outstanding after each
such redemption; and PROVIDED, FURTHER, that such redemption shall occur
within 90 days after the date on which any such Equity Offering or cash
contribution of equity capital to the Issuer is consummated upon not less
than 30 nor more than 60 days' notice mailed to each holder of Notes being
redeemed and otherwise in accordance with the procedures set forth in the
Indenture.
The 2013 Notes are subject to a Special Mandatory Redemption as
set forth in Article 3 of the Indenture.
A-8
Notice of any redemption (other than with respect to a Special
Mandatory Redemption) may be given prior to the completion thereof, and any
such redemption or notice may, at the Issuer's discretion, be subject to one
or more conditions precedent, including, but not limited to, in the case of
any Equity Offering, completion of the related Equity Offering.
6. SINKING FUND
The 2013 Notes are not subject to any mandatory sinking fund.
7. NOTICE OF REDEMPTION
Notice of redemption (other than with respect to a Special
Mandatory 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 2013 Notes
to be redeemed at his, her or its registered address. 2013 Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all 2013 Notes (or portions thereof) to be
redeemed on the redemption date is deposited with a Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date, interest ceases to accrue on such 2013 Notes (or such portions
thereof) called for redemption.
8. REPURCHASE OF 2013 NOTES AT THE OPTION OF HOLDERS
UPON CHANGE OF CONTROL AND ASSET SALES
Upon the occurrence of a Change of Control, each Holder shall
have the right, subject to certain conditions specified in the Indenture, to
cause the Issuer to repurchase all or any part of such Holder's 2013 Notes at
a purchase price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of repurchase (subject to
the right of the Holders of record on the relevant record date to receive
interest due on the relevant interest payment date), as provided in, and
subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer will
be required to offer to purchase 2013 Notes upon the occurrence of certain
events.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The 2013 Notes are in registered form, without coupons, in
denominations of $1,000 and whole multiples of $1,000. A Holder shall
register the transfer of or exchange of 2013 Notes in accordance with the
Indenture. Upon any registration of transfer or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the transfer of
or exchange any 2013 Notes selected for redemption (except, in the case of a
2013 Note to be redeemed in part, the portion of the 2013 Note not to be
redeemed) or to transfer or exchange any 2013 Notes for a period of 15 days
prior to a selection of 2013 Notes to be redeemed.
A-9
10. PERSONS DEEMED OWNERS
The registered Holder of this 2013 Note shall be treated as the
owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and a Paying Agent shall pay the money
back to the Issuer at its written request, subject to any abandoned property
law. After any such payment, the Holders entitled to the money must look to
the Issuer for payment as general creditors and the Trustee and a Paying
Agent shall have no further liability with respect to such monies.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Issuer at any time may
terminate some of or all its obligations under the 2013 Notes and the
Indenture if the Issuer deposits with the Trustee money or U.S. Government
Obligations for the payment of principal of, and interest on the 2013 Notes
to redemption, or maturity, as the case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders
of at least a majority in aggregate principal amount of the outstanding Notes
(voting as a single class) and (ii) any past default or compliance with any
provisions may be waived with the written consent of the Holders of at least
a majority in principal amount of the outstanding Notes; PROVIDED, HOWEVER,
that if any amendment, waiver or other modification will only affect the 2013
Notes, the 2015 Notes or the Floating Rate Notes, only the consent of the
Holders of at least a majority in principal amount of the then outstanding
2013 Notes, 2015 Notes or Floating Rate Notes (and not the consent of the
Holders of at least a majority of all Notes), as the case may be, shall be
required. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Issuer and the Trustee may amend this
Indenture or the Notes (provided that the Issuer need not act to amend this
Indenture to add Subsidiary Guarantors on the Issue Date): (i) to cure any
ambiguity, omission, defect or inconsistency, (ii) to comply with Article 5
of the Indenture, (iii) to provide for uncertificated Notes in addition to or
in place of certificated Notes; PROVIDED that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code, (iv) to add Guarantees with respect to the
Notes or to secure the Notes, (v) to add to the covenants of the Issuer or
any Parent of the Issuer for the benefit of the Holders or to surrender any
right or power herein conferred upon the Issuer or any Parent of the Issuer,
(vi) to comply with any requirement of the SEC in connection with qualifying
this Indenture under the TIA, (vii) to effect any provision of this Indenture
(including to release any Guarantees or Escrowed Property in accordance with
the terms of this Indenture and the Escrow Agreement), (viii) to make any
change that does not adversely affect the rights of any Holder, or (ix) to
provide for the issuance of the Exchange Notes or Additional Notes.
A-10
14. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer) occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the outstanding Notes, in each case, by notice to the
Issuer, may declare the principal of, premium, if any, and accrued but unpaid
interest on all the Notes to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer occurs, the principal of, premium, if any, and interest on all the
Notes shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes
and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under
the Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee reasonable indemnity or security against
any loss, liability or expense and certain other conditions are complied
with. Except to enforce the right to receive payment of principal, premium
(if any) or interest when due, no Holder may pursue any remedy with respect
to the Indenture or the Notes unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) the Holders of at
least 25% in principal amount of the outstanding Notes have requested the
Trustee in writing to pursue the remedy, (iii) such Holders have offered the
Trustee reasonable security or indemnity against any loss, liability or
expense, (iv) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity and
(v) the Holders of a majority in principal amount of the outstanding Notes
have not given the Trustee a direction inconsistent with such request within
such 60-day period. Subject to certain restrictions, the Holders of a
majority in principal amount of the outstanding Notes are given the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that
conflicts with law or the Indenture or, subject to Section 7.01 of the
Indenture, that the Trustee determines is unduly prejudicial to the rights of
any other Holder or that would involve the Trustee in personal liability.
Prior to taking any action under the Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all
losses and expenses caused by taking or not taking such action.
15. TRUSTEE DEALINGS WITH THE ISSUER
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect obligations
owed to it by the Issuer or its Affiliates and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not
Trustee.
A-11
16. NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or holder of any
equity interests in the Issuer (other than Holdings) or of any Guarantor or
any direct or indirect parent corporation, as such, shall have any liability
for any obligations of the Issuer or the Guarantors under the Notes, the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability.
17. AUTHENTICATION
This 2013 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 2013 Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
20. CUSIP NUMBERS, ISINS AND COMMON CODES
The Issuer has caused CUSIP numbers and ISINs to be printed on
the Notes and has directed the Trustee to use CUSIP numbers and ISINs in
notices of redemption as a convenience to the Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE ISSUER WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN
IT THE TEXT OF THIS NOTE.
A-12
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Issuer. The agent may substitute another to act for him.
-------------------------------------------------------------------------------
Date: Your Signature:
----------------- ------------------------
-------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
Date:
--------------------------- --------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
A-13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED 2013 NOTES
This certificate relates to $_________ principal amount of 2013 Notes held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
/ / has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global 2013 Note held by the Depository
a 2013 Note in definitive, registered form of authorized denominations
and an aggregate principal amount equal to its beneficial interest in
such Global 2013 Note (or the portion thereof indicated above);
/ / has requested the Trustee by written order to exchange or register the
transfer of a 2013 Note.
In connection with any transfer of any of the 2013 Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act, the undersigned confirms that such 2013
Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer; or
(2) [ ] to the Registrar for registration in the name of the
Holder, without transfer; or
(3) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(5) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933
and such Security shall be held immediately after the
transfer through Euroclear or Clearstream until the
expiration of the Restricted Period (as defined in the
Indenture); or
(6) [ ] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements; or
A-14
(7) [ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Notes evidenced by this certificate in the name of any Person other
than the registered Holder thereof; PROVIDED, HOWEVER, that if box (5), (6)
or (7) is checked, the Trustee may require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other
information as the Issuer has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.
Date:
--------------------------- -----------------------------------------
Your Signature
Signature Guarantee:
Date:
--------------------------- ------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
------------------------------------------------------------------------------
A-15
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this 2013 Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Issuer as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:
---------------------- ---------------------------------------
NOTICE: To be executed by an executive
officer
A-16
[TO BE ATTACHED TO GLOBAL 2013 NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL 2013 NOTE
The initial principal amount of this Global 2013 Note is
$[ ]. The following increases or decreases in this Global 2013
Note have been made:
Amount of Amount of Principal amount Signature of
decrease in increase in of this Global authorized
Principal Principal 2013 Note signatory of
Amount of this Amount of following such Trustee or
Date of Global 2013 this Global decrease or Securities
Exchange Note 2013 Note increase Custodian
-------- -------------- ----------- --------------- ------------
A-17
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS 2013 NOTE PURCHASED BY THE
ISSUER PURSUANT TO SECTION 4.06 (ASSET SALES) OR 4.08 (CHANGE OF CONTROL) OF
THE INDENTURE, CHECK THE BOX:
ASSET SALE [ ] CHANGE OF CONTROL [ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS 2013 NOTE
PURCHASED BY THE ISSUER PURSUANT TO SECTION 4.06 (ASSET SALE) OR 4.08 (CHANGE
OF CONTROL) OF THE INDENTURE, STATE THE AMOUNT ($1,000 OR AN INTEGRAL
MULTIPLE THEREOF):
$-----------------
DATE: YOUR SIGNATURE:
------------ ------------------------------
(SIGN EXACTLY AS YOUR NAME
APPEARS ON THE OTHER SIDE
OF THIS NOTE)
SIGNATURE GUARANTEE:
---------------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED
SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR
PROGRAM REASONABLY ACCEPTABLE TO THE TRUSTEE
A-18
EXHIBIT B
[FORM OF FACE OF INITIAL 2015 NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Notes Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN ACCREDITED INVESTOR (AS
DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT (AN
"ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER
THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS SECURITY (THE FORM
B-1
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS),
OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
Each Definitive 2015 Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
B-2
[FORM OF INITIAL 2015 NOTE]
No. $__________
8-5/8% Senior Note due 2015
CUSIP No. [144A: 45820E AL 6]/[REG S: G4803J AF 9]
ISIN No. [144A: US45820EAL65]/[REG S: USG4803JAF96]
ZEUS MERGER TWO LIMITED, a company incorporated under the laws of
Bermuda, promises to pay to [ ], or registered assigns, the
principal sum [of Dollars] [listed on the Schedule of
Increases or Decreases in Global 2015 Note attached hereto] on January 15,
2015.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Additional provisions of this 2015 Note are set forth on the
other side of this Note.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed.
*/ If the 2015 Note is to be issued in global form, add the Global Notes
Legend and the attachment from EXHIBIT B captioned "TO BE ATTACHED TO
GLOBAL NOTES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL 2015 NOTE."
B-3
ZEUS MERGER TWO LIMITED
By:
-------------------------------------
Name:
Title:
Dated:
B-4
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, certifies that this is
one of the 2015 Notes
referred to in the Indenture.
By:
--------------------------------
Authorized Signatory
B-5
[FORM OF REVERSE SIDE OF INITIAL 2015 NOTE]
8-5/8% Senior Note due 2015
1. INTEREST
(a) ZEUS MERGER TWO LIMITED, a company incorporated under the
laws of Bermuda (such company, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "ISSUER"),
promises to pay interest on the principal amount of this 2015 Note at the
rate per annum shown above. The Issuer shall pay interest semiannually on
January 15 and July 15 of each year, commencing July 15, 2005.1 Interest on
the 2015 Notes shall accrue from the most recent date to which interest has
been paid or duly provided for or, if no interest has been paid or duly
provided for, from and including January 28, 20052 until the principal hereof
is due. Interest shall be computed on the basis of a 360-day year of twelve
30-day months. The Issuer shall pay interest on overdue principal at the
rate borne by the 2015 Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) REGISTRATION RIGHTS AGREEMENT. The Holder of this 2015
Note is entitled to the benefits of a Registration Rights Agreement, dated as
of January 28, 2005, among the Issuer, Zeus Merger One Limited and the
Initial Purchasers.
2. METHOD OF PAYMENT
The Issuer shall pay interest on the 2015 Notes to the Persons
who are registered Holders at the close of business on the January 1 and July
1 next preceding the interest payment date even if 2015 Notes are canceled
after the record date and on or before the interest payment date (whether or
not a Business Day). The Holders must surrender Notes to a Paying Agent to
collect principal payments. The Issuer shall pay principal, premium, if any,
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. Payments in
respect of the 2015 Notes represented by a Global 2015 Note (including
principal, premium, if any, and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company or any successor depositary. The Issuer will make all payments in
respect of a certificated 2015 Note (including principal, premium, if any,
and interest), at the office of each Paying Agent, except that, at the option
of the Issuer, payment of interest may be made by mailing a check to the
registered address of each Holder thereof; PROVIDED, HOWEVER, that payments
on the 2015 Notes may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of 2015 Notes, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the
----------------------------
1 In the case of the Original Notes.
2 In the case of the Original Notes.
B-6
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or a Paying Agent to such effect designating such account
no later than 10 days immediately preceding the relevant due date for payment
(or such other date as the Trustee may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, Xxxxx Fargo Bank, National Association, a national
banking association (the "TRUSTEE"), will act as Paying Agent and Registrar.
The Issuer may appoint and change any Paying Agent or Registrar without
notice. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
4. INDENTURE
The Issuer issued the 2015 Notes under an Indenture dated as of
January 28, 2005 (the "INDENTURE"), among the Issuer, the Guarantors and the
Trustee. The terms of the 2015 Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act
of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of the
Indenture (the "TIA"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The 2015 Notes are
subject to all terms and provisions of the Indenture, and the Holders (as
defined in the Indenture) are referred to the Indenture and the TIA for a
statement of such terms and provisions; in the event of any conflict between
this Note and the Indenture, the terms of the Indenture shall govern.
The 2015 Notes are senior unsecured obligations of the Issuer.
This 2015 Note is one of the Initial 2015 Notes referred to in the
Indenture. The 2015 Notes include the Initial 2015 Notes and any Exchange
2015 Notes issued in exchange for Initial 2015 Notes pursuant to the
Indenture. The Initial 2015 Notes and any Exchange 2015 Notes, together with
the Initial 2013 Notes, any Exchange 2013 Notes, the Initial Floating Rate
Notes and any Exchange Floating Rate Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on
the ability of the Issuer and its Restricted Subsidiaries to, among other
things, make certain Investments and other Restricted Payments, pay dividends
and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of capital stock of the Issuer
and such Restricted Subsidiaries, enter into or permit certain transactions
with Affiliates, create or incur Liens and make asset sales. The Indenture
also imposes limitations on the ability of the Issuer and each Guarantor to
consolidate or merge with or into any other Person or convey, transfer or
lease all or substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest, on the 2015 Notes and all other amounts payable by the Issuer under
the Indenture and the 2015 Notes when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the 2015 Notes and the Indenture, the Guarantors have, jointly and
severally, unconditionally guaranteed the Guaranteed Obligations on a senior
unsecured basis on the terms set forth in the Indenture.
B-7
5. OPTIONAL REDEMPTION
Except as set forth in the following two paragraphs and in
Sections 3.09 and 3.10 of the Indenture, the 2015 Notes shall not be
redeemable at the option of the Issuer prior to January 15, 2010.
Thereafter, the 2015 Notes shall be redeemable at the option of the Issuer,
in whole at any time or in part from time to time, upon on not less than 30
nor more than 60 days' prior notice, at the following redemption prices
(expressed as a percentage of principal amount), plus accrued and unpaid
interest, to the redemption date (subject to the right of the Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), if redeemed during the 12-month period commencing on
January 15of the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2010 104.313%
2011 102.875%
2012 101.438%
2013 and thereafter 100.000%
In addition, from and after the Release, and prior to January 15,
2010, the Issuer may redeem the 2015 Notes at its option, in whole at any
time or in part from time to time, upon not less than 30 nor more than 60
days' prior notice mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the principal amount of the
2015 Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest, to, the applicable redemption date (subject to the right of the
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
Notwithstanding the foregoing, from and after the Release and at
any time and from time to time on or prior to January 15, 2008, the Issuer
may redeem in the aggregate up to 35% of the original aggregate principal
amount of the 2015 Notes (calculated after giving effect to any issuance of
Additional 2015 Notes) with the net cash proceeds of one or more Equity
Offerings by the Issuer or by any Parent of the Issuer, in each case, to the
extent the net cash proceeds thereof are contributed to the common equity
capital of the Issuer or used to purchase Capital Stock (other than
Disqualified Stock) of the Issuer from it, or from the cash contribution of
equity capital to the Issuer, at a redemption price equal to 108.625% of the
principal amount thereof, plus accrued and unpaid interest and additional
interest, if any, to the redemption date (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); PROVIDED, HOWEVER, that at least 65% of the original
aggregate principal amount of the 2015 Notes (calculated after giving effect
to any issuance of Additional 2015 Notes) must remain outstanding after each
such redemption; and PROVIDED, FURTHER, that such redemption shall occur
within 90 days after the date on which any such Equity Offering or cash
contribution of equity capital to the Issuer is consummated upon not less
than 30 nor more than 60 days' notice mailed to each holder of Notes being
redeemed and otherwise in accordance with the procedures set forth in the
Indenture.
The 2015 Notes are subject to a Special Mandatory Redemption as
set forth in Article 3 of the Indenture.
B-8
Notice of any redemption (other than with respect to a Special
Mandatory Redemption) may be given prior to the completion thereof, and any
such redemption or notice may, at the Issuer's discretion, be subject to one
or more conditions precedent, including, but not limited to, in the case of
any Equity Offering, completion of the related Equity Offering.
6. SINKING FUND
The 2015 Notes are not subject to any mandatory sinking fund.
7. NOTICE OF REDEMPTION
Notice of redemption (other than with respect to a Special
Mandatory 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 2015 Notes
to be redeemed at his, her or its registered address. 2015 Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all 2015 Notes (or portions thereof) to be
redeemed on the redemption date is deposited with a Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date, interest ceases to accrue on such 2015 Notes (or such portions
thereof) called for redemption.
8. REPURCHASE OF 2015 NOTES AT THE OPTION OF HOLDERS
UPON CHANGE OF CONTROL AND ASSET SALES
Upon the occurrence of a Change of Control, each Holder shall
have the right, subject to certain conditions specified in the Indenture, to
cause the Issuer to repurchase all or any part of such Holder's 2015 Notes at
a purchase price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of repurchase (subject to
the right of the Holders of record on the relevant record date to receive
interest due on the relevant interest payment date), as provided in, and
subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer will
be required to offer to purchase 2015 Notes upon the occurrence of certain
events.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The 2015 Notes are in registered form, without coupons, in
denominations of $1,000 and whole multiples of $1,000. A Holder shall
register the transfer of or exchange of 2015 Notes in accordance with the
Indenture. Upon any registration of transfer or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the transfer of
or exchange any 2015 Notes selected for redemption (except, in the case of a
2015 Note to be redeemed in part, the portion of the 2015 Note not to be
redeemed) or to transfer or exchange any 2015 Notes for a period of 15 days
prior to a selection of 2015 Notes to be redeemed.
B-9
10. PERSONS DEEMED OWNERS
The registered Holder of this 2015 Note shall be treated as the
owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and a Paying Agent shall pay the money
back to the Issuer at its written request, subject to any abandoned property
law. After any such payment, the Holders entitled to the money must look to
the Issuer for payment as general creditors and the Trustee and a Paying
Agent shall have no further liability with respect to such monies.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Issuer at any time may
terminate some of or all its obligations under the 2015 Notes and the
Indenture if the Issuer deposits with the Trustee money or U.S. Government
Obligations for the payment of principal of, and interest on the 2015 Notes
to redemption, or maturity, as the case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders
of at least a majority in aggregate principal amount of the outstanding Notes
(voting as a single class) and (ii) any past default or compliance with any
provisions may be waived with the written consent of the Holders of at least
a majority in principal amount of the outstanding Notes; PROVIDED, HOWEVER,
that if any amendment, waiver or other modification will only affect the 2013
Notes, the 2015 Notes or the Floating Rate Notes, only the consent of the
Holders of at least a majority in principal amount of the then outstanding
2013 Notes, 2015 Notes or Floating Rate Notes (and not the consent of the
Holders of at least a majority of all Notes), as the case may be, shall be
required. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Issuer and the Trustee may amend this
Indenture or the Notes (provided that the Issuer need not act to amend this
Indenture to add Subsidiary Guarantors on the Issue Date): (i) to cure any
ambiguity, omission, defect or inconsistency, (ii) to comply with Article 5
of the Indenture, (iii) to provide for uncertificated Notes in addition to or
in place of certificated Notes; PROVIDED that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code, (iv) to add Guarantees with respect to the
Notes or to secure the Notes, (v) to add to the covenants of the Issuer or
any Parent of the Issuer for the benefit of the Holders or to surrender any
right or power herein conferred upon the Issuer or any Parent of the Issuer,
(vi) to comply with any requirement of the SEC in connection with qualifying
this Indenture under the TIA, (vii) to effect any provision of this Indenture
(including to release any Guarantees or Escrowed Property in accordance with
the terms of this Indenture and the Escrow Agreement), (viii) to make any
change that does not adversely affect the rights of any Holder, or (ix) to
provide for the issuance of the Exchange Notes or Additional Notes.
B-10
14. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer) occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the outstanding Notes, in each case, by notice to the
Issuer, may declare the principal of, premium, if any, and accrued but unpaid
interest on all the Notes to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer occurs, the principal of, premium, if any, and interest on all the
Notes shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes
and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under
the Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee reasonable indemnity or security against
any loss, liability or expense and certain other conditions are complied
with. Except to enforce the right to receive payment of principal, premium
(if any) or interest when due, no Holder may pursue any remedy with respect
to the Indenture or the Notes unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) the Holders of at
least 25% in principal amount of the outstanding Notes have requested the
Trustee in writing to pursue the remedy, (iii) such Holders have offered the
Trustee reasonable security or indemnity against any loss, liability or
expense, (iv) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity and
(v) the Holders of a majority in principal amount of the outstanding Notes
have not given the Trustee a direction inconsistent with such request within
such 60-day period. Subject to certain restrictions, the Holders of a
majority in principal amount of the outstanding Notes are given the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that
conflicts with law or the Indenture or, subject to Section 7.01 of the
Indenture, that the Trustee determines is unduly prejudicial to the rights of
any other Holder or that would involve the Trustee in personal liability.
Prior to taking any action under the Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all
losses and expenses caused by taking or not taking such action.
15. TRUSTEE DEALINGS WITH THE ISSUER
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect obligations
owed to it by the Issuer or its Affiliates and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not
Trustee.
16. NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or holder of any
equity interests in the Issuer (other than Holdings) or of any Guarantor or
any direct or indirect parent corporation,
B-11
as such, shall have any liability for any obligations of the Issuer or the
Guarantors under the Notes, the Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability.
17. AUTHENTICATION
This 2015 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 2015 Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
20. CUSIP NUMBERS, ISINS AND COMMON CODES
The Issuer has caused CUSIP numbers and ISINs to be printed on
the Notes and has directed the Trustee to use CUSIP numbers and ISINs in
notices of redemption as a convenience to the Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE ISSUER WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN
IT THE TEXT OF THIS NOTE.
B-12
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Issuer. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
----------------- ---------------------------
(Sign exactly as your name
appears on the other side of
this Note.)
Signature Guarantee:
Date:
--------------------------- ---------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
B-13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED 2015 NOTES
This certificate relates to $_________ principal amount of 2015 Notes held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
/ / has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global 2015 Note held by the Depository
a 2015 Note in definitive, registered form of authorized denominations
and an aggregate principal amount equal to its beneficial interest in
such Global 2015 Note (or the portion thereof indicated above);
/ / has requested the Trustee by written order to exchange or register the
transfer of a 2015 Note.
In connection with any transfer of any of the 2015 Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act, the undersigned confirms that such 2015
Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) / / to the Issuer; or
(2) / / to the Registrar for registration in the name of the
Holder, without transfer; or
(3) / / pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) / / inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(5) / / outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933
and such Security shall be held immediately after the
transfer through Euroclear or Clearstream until the
expiration of the Restricted Period (as defined in the
Indenture); or
(6) / / to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements; or
B-14
(7) / / pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Notes evidenced by this certificate in the name of any Person other
than the registered Holder thereof; PROVIDED, HOWEVER, that if box (5), (6)
or (7) is checked, the Trustee may require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other
information as the Issuer has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.
Date:
--------------------------- -----------------------------------------
Your Signature
Signature Guarantee:
Date:
--------------------------- ------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
------------------------------------------------------------------------------
B-15
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this 2015 Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Issuer as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:
---------------------- ---------------------------------------
NOTICE: To be executed by an executive
officer
B-16
[TO BE ATTACHED TO GLOBAL 2015 NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL 2015 NOTE
The initial principal amount of this Global 2015 Note is
$[ ]. The following increases or decreases in this Global 2015
Note have been made:
Amount of Amount of Principal amount Signature of
decrease in increase in of this Global authorized
Principal Principal 2015 Note signatory of
Amount of this Amount of following such Trustee or
Date of Global 2015 this Global decrease or Securities
Exchange Note 2015 Note increase Custodian
--------- --------------- ----------- -------------- ------------
B-17
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS 2015 NOTE PURCHASED BY THE
ISSUER PURSUANT TO SECTION 4.06 (ASSET SALES) OR 4.08 (CHANGE OF CONTROL) OF
THE INDENTURE, CHECK THE BOX:
ASSET SALE [ ] CHANGE OF CONTROL [ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS 2015 NOTE
PURCHASED BY THE ISSUER PURSUANT TO SECTION 4.06 (ASSET SALES) OR
4.08 (CHANGE OF CONTROL) OF THE INDENTURE, STATE THE AMOUNT ($1,000 OR AN
INTEGRAL MULTIPLE THEREOF):
$-----------------
DATE: YOUR SIGNATURE:
------------------ ---------------------------
(SIGN EXACTLY AS YOUR NAME
APPEARS ON THE OTHER SIDE
OF THIS NOTE)
SIGNATURE GUARANTEE:
--------------------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED
SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR
PROGRAM REASONABLY ACCEPTABLE TO THE TRUSTEE
B-18
EXHIBIT C
[FORM OF FACE OF INITIAL FLOATING RATE NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Notes Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN ACCREDITED INVESTOR (AS
DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT (AN
"ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER
THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS SECURITY (THE FORM
C-1
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS),
OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
Each Definitive Floating Rate Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
C-2
[FORM OF INITIAL FLOATING RATE NOTE]
No. $__________
Floating Rate Senior Note due 2012
CUSIP No. [144A: 45820E AJ 1]/[REG S: G4803J AD 4]
ISIN No. [144A: US45820EAJ10]/[REG S: USG4803JAD49]
ZEUS MERGER TWO LIMITED, a company incorporated under the laws of
Bermuda, promises to pay to [ ], or registered assigns, the
principal sum [of Dollars] [listed on the Schedule of
Increases or Decreases in Global Floating Rate Note attached hereto] on
January 15, 2012.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Additional provisions of this Floating Rate Note are set forth on
the other side of this Note.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed.
*/ If the Floating Rate Note is to be issued in global form, add the Global
Notes Legend and the attachment from EXHIBIT C captioned "TO BE ATTACHED
TO GLOBAL NOTES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL FLOATING
RATE NOTE."
C-3
ZEUS MERGER TWO LIMITED
By:
-------------------------------------
Name:
Title:
Dated:
C-4
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, certifies that this is
one of the Floating Rate Notes
referred to in the Indenture.
By:
--------------------------------
Authorized Signatory
C-5
[FORM OF REVERSE SIDE OF INITIAL FLOATING RATE NOTE]
Floating Rate Senior Note due 2012
1. INTEREST
(a) ZEUS MERGER TWO LIMITED, a company incorporated under the
laws of Bermuda (such company, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "ISSUER"),
promises to pay interest on the principal amount of this Floating Rate Note
at a rate per annum, reset semi-annually, equal to LIBOR plus 4-7/8%, as
determined by an agent appointed by the Issuer (the "CALCULATION AGENT"),
which shall initially be the Trustee. The Issuer shall pay interest
semiannually on January 15 and July 15 of each year, commencing July 15,
2005.1 Interest on the Floating Rate Notes shall accrue from the most recent
date to which interest has been paid or duly provided for or, if no interest
has been paid or duly provided for, from and including January 28, 20052
until the principal hereof is due. Interest shall be computed on the basis
of a 360-day year for the actual number of days elapsed. The Issuer shall
pay interest on overdue principal at the rate borne by the Floating Rate
Notes, and it shall pay interest on overdue installments of interest at the
same rate to the extent lawful.
For purposes of this Section 1, the following terms shall have
the meanings indicated below:
"DETERMINATION DATE" means, with respect to an Interest Period,
the second London Banking Day preceding the first day of the Interest Period.
"INTEREST PERIOD" means the period commencing on and including an
interest payment date and ending on and including the day immediately
preceding the next succeeding interest payment date, with the exception that
the first Interest Period shall commence on and include the Issue Date and
end on and include July 14, 2005.
"LIBOR" means, with respect to an Interest Period, the rate
(expressed as a percentage per annum) for deposits in United States dollars
for a six-month period beginning on the second London Banking Day after the
Determination Date that appears on Telerate Page 3750 as of 11:00 a.m.,
London time, on the Determination Date. If Telerate Page 3750 does not
include such a rate or is unavailable on a Determination Date, the
Calculation Agent will request the principal London office of each of four
major banks in the London interbank market, as selected by the Calculation
Agent, to provide such bank's offered quotation (expressed as a percentage
per annum), as of approximately 11:00 a.m., London time, on such
Determination Date, to prime banks in the London interbank market for
deposits in a Representative Amount in United States
----------------------------------------
1 In the case of the Original Notes.
2 In the case of the Original Notes.
C-6
dollars for a six-month period beginning on the second London Banking Day after
the Determination Date. If at least two such offered quotations are so provided,
LIBOR for the Interest Period will be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, the Calculation Agent will
request each of three major banks in New York City, as selected by the
Calculation Agent, to provide such bank's rate (expressed as a percentage per
annum), as of approximately 11:00 a.m., New York City time, on such
Determination Date, for loans in a Representative Amount in United States
dollars to leading European banks for a six-month period beginning on the second
London Banking Day after the Determination Date. If at least two such rates are
so provided, LIBOR for the Interest Period will be the arithmetic mean of such
rates. If fewer than two such rates are so provided, then LIBOR for the Interest
Period will be LIBOR in effect with respect to the immediately preceding
Interest Period.
"LONDON BANKING DAY" means any day in which dealings in United
States dollars are transacted or, with respect to any future date, are
expected to be transacted in the London interbank market.
"REPRESENTATIVE AMOUNT" means a principal amount of not less than
U.S.$1,000,000 for a single transaction in the relevant market at the relevant
time.
"TELERATE PAGE 3750" means the display designated as "Page 3750"
on the Moneyline Telerate service (or such other page as may replace Page
3750 on that service).
The amount of interest for each day that the Floating Rate Notes
are outstanding (the "DAILY INTEREST AMOUNT") will be calculated by dividing
the interest rate in effect for such day by 360 and multiplying the result by
the principal amount of the Floating Rate Notes. The amount of interest to
be paid on the Floating Rate Notes for each Interest Period will be
calculated by adding the Daily Interest Amounts for each day in the Interest
Period.
All percentages resulting from any of the above calculations will
be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point being
rounded upwards (E.G., 9.876545% (or .09876545) being rounded to 9.87655% (or
..0987655)) and all dollar amounts used in or resulting from such calculations
will be rounded to the nearest cent (with one-half cent being rounded
upwards).
The interest rate on the Floating Rate Notes will in no event be
higher than the maximum rate permitted by New York law as the same may be
modified by United States law of general application.
(b) REGISTRATION RIGHTS AGREEMENT. The Holder of this Floating
Rate Note is entitled to the benefits of a Registration Rights Agreement,
dated as of January 28, 2005, among the Issuer, Zeus Merger One Limited and
the Initial Purchasers.
2. METHOD OF PAYMENT
The Issuer shall pay interest on the Floating Rate Notes to the
Persons who are registered Holders at the close of business on the January 1
and July 1 next preceding the interest payment date even if Floating Rate
Notes are canceled after the record date and on or before the
C-7
interest payment date (whether or not a Business Day). The Holders must
surrender Notes to a Paying Agent to collect principal payments. The Issuer
shall pay principal, premium, if any, and interest in money of the United States
of America that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Floating Rate Notes represented by a
Global Floating Rate Note (including principal, premium, if any, and interest)
shall be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company or any successor depositary. The
Issuer will make all payments in respect of a certificated Floating Rate Note
(including principal, premium, if any, and interest), at the office of each
Paying Agent, except that, at the option of the Issuer, payment of interest may
be made by mailing a check to the registered address of each Holder thereof;
PROVIDED, HOWEVER, that payments on the Floating Rate Notes may also be made, in
the case of a Holder of at least $1,000,000 aggregate principal amount of
Floating Rate Notes, by wire transfer to a U.S. dollar account maintained by the
payee with a bank in the United States if such Holder elects payment by wire
transfer by giving written notice to the Trustee or a Paying Agent to such
effect designating such account no later than 10 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, Xxxxx Fargo Bank, National Association, a national
banking association (the "TRUSTEE"), will act as Paying Agent and Registrar.
The Issuer may appoint and change any Paying Agent or Registrar without
notice. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
4. INDENTURE
The Issuer issued the Floating Rate Notes under an Indenture
dated as of January 28, 2005 (the "INDENTURE"), among the Issuer, the
Guarantor named therein and the Trustee. The terms of the Floating Rate
Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Floating Rates Notes are subject to
all terms and provisions of the Indenture, and the Holders (as defined in the
Indenture) are referred to the Indenture and the TIA for a statement of such
terms and provisions; in the event of any conflict between this Note and the
Indenture, the terms of the Indenture shall govern.
The Floating Rate Notes are senior unsecured obligations of the
Issuer. This Floating Rate Note is one of the Initial Floating Rate Notes
referred to in the Indenture. The Floating Rate Notes include the Initial
Floating Rate Notes and any Exchange Floating Rate Notes issued in exchange
for Initial Floating Rate Notes pursuant to the Indenture. The Initial
Floating Rate Notes and any Exchange Floating Rate Notes, together with the
Initial 2013 Notes, any Exchange 2013 Notes, the Initial 2015 Notes and any
Exchange 2015 Notes are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the ability of the
Issuer and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon
the payment of certain dividends and distributions by such Restricted
Subsidiaries, issue or sell shares of capital stock of the Issuer and such
Restricted
C-8
Subsidiaries, enter into or permit certain transactions with Affiliates, create
or incur Liens and make asset sales. The Indenture also imposes limitations on
the ability of the Issuer and each Guarantor to consolidate or merge with or
into any other Person or convey, transfer or lease all or substantially all of
its property.
To guarantee the due and punctual payment of the principal and
interest, on the Floating Rate Notes and all other amounts payable by the
Issuer under the Indenture and the Floating Rate Notes when and as the same
shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Floating Rate Notes and the Indenture, the
Guarantors have, jointly and severally, unconditionally guaranteed the
Guaranteed Obligations on a senior unsecured basis on the terms set forth in
the Indenture.
5. OPTIONAL REDEMPTION
Except as set forth in the following two paragraphs and in
Sections 3.09 and 3.10 of the Indenture, the Floating Rate Notes shall not be
redeemable at the option of the Issuer prior to July 15, 2005. Thereafter,
the Floating Rate Notes shall be redeemable at the option of the Issuer, in
whole at any time or in part from time to time, upon on not less than 30 nor
more than 60 days' prior notice, at the following redemption prices
(expressed as a percentage of principal amount), plus accrued and unpaid
interest, to the redemption date (subject to the right of the Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), if redeemed during the periods set forth below:
YEAR REDEMPTION PRICE
On or after July 15, 2005 and before July 15, 2006 102.000%
On or after July 15, 2006 and before July 15, 2007 101.000%
July 15, 2007 and thereafter 100.000%
In addition, from and after the Release, and prior to July 15,
2005, the Issuer may redeem the Floating Rate Notes at its option, in whole
at any time or in part from time to time, upon not less than 30 nor more than
60 days' prior notice mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the principal amount of the
Floating Rate Notes redeemed plus the Applicable Premium as of, and accrued
and unpaid interest, to, the applicable redemption date (subject to the right
of the Holders of record on the relevant record date to receive interest due
on the relevant interest payment date).
Notwithstanding the foregoing, from and after the Release and at
any time and from time to time on or prior to July 15, 2005, the Issuer may
redeem up to 100% of the aggregate principal amount of the Floating Rate
Notes then outstanding, with the net cash proceeds of one or more Equity
Offerings by the Issuer or by any Parent of the Issuer, in each case, to the
extent the net cash proceeds thereof are contributed to the common equity
capital of the Issuer or used to purchase Capital Stock (other than
Disqualified Stock) of the Issuer from it, or from the cash contribution of
equity capital to the Issuer, at a redemption price equal to 104% of the
principal amount thereof, plus accrued and unpaid interest and additional
interest, if any, to the redemption date (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); PROVIDED, HOWEVER, that such redemption shall
C-9
occur within 90 days after the date on which any such Equity Offering or cash
contribution of equity capital to the Issuer is consummated upon not less than
30 nor more than 60 days' notice mailed to each holder of Notes being redeemed
and otherwise in accordance with the procedures set forth in the Indenture.
The Floating Rate Notes are subject to a Special Mandatory
Redemption as set forth in Article 3 of the Indenture.
Notice of any redemption (other than with respect to a Special
Mandatory Redemption) may be given prior to the completion thereof, and any
such redemption or notice may, at the Issuer's discretion, be subject to one
or more conditions precedent, including, but not limited to, in the case of
any Equity Offering, completion of the related Equity Offering.
6. SINKING FUND
The Floating Rate Notes are not subject to any mandatory sinking
fund.
7. NOTICE OF REDEMPTION
Notice of redemption (other than with respect to a Special
Mandatory 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 Floating
Rate Notes to be redeemed at his, her or its registered address. Floating
Rate Notes in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000. If money sufficient to pay the redemption
price of and accrued and unpaid interest on all Floating Rate Notes (or
portions thereof) to be redeemed on the redemption date is deposited with a
Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date, interest ceases to accrue on such
Floating Rate Notes (or such portions thereof) called for redemption.
8. REPURCHASE OF FLOATING RATE NOTES AT THE OPTION
OF HOLDERS UPON CHANGE OF CONTROL AND ASSET SALES
Upon the occurrence of a Change of Control, each Holder shall
have the right, subject to certain conditions specified in the Indenture, to
cause the Issuer to repurchase all or any part of such Holder's Floating Rate
Notes at a purchase price in cash equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the date of repurchase
(subject to the right of the Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), as provided in,
and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer will
be required to offer to purchase Floating Rate Notes upon the occurrence of
certain events.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Floating Rate Notes are in registered form, without coupons,
in denominations of $1,000 and whole multiples of $1,000. A Holder shall
register the transfer of or exchange of Floating Rate Notes in accordance
with the Indenture. Upon any registration of trans-
C-10
fer or exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Floating Rate Notes selected for
redemption (except, in the case of a Floating Rate Note to be redeemed in part,
the portion of the Floating Rate Note not to be redeemed) or to transfer or
exchange any Floating Rate Notes for a period of 15 days prior to a selection of
Floating Rate Notes to be redeemed.
10. PERSONS DEEMED OWNERS
The registered Holder of this Floating Rate Note shall be treated
as the owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and a Paying Agent shall pay the money
back to the Issuer at its written request, subject to any abandoned property
law. After any such payment, the Holders entitled to the money must look to
the Issuer for payment as general creditors and the Trustee and a Paying
Agent shall have no further liability with respect to such monies.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Issuer at any time may
terminate some of or all its obligations under the Floating Rate Notes and
the Indenture if the Issuer deposits with the Trustee money or U.S.
Government Obligations for the payment of principal of, and interest on the
Floating Rate Notes to redemption, or maturity, as the case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders
of at least a majority in aggregate principal amount of the outstanding Notes
(voting as a single class) and (ii) any past default or compliance with any
provisions may be waived with the written consent of the Holders of at least
a majority in principal amount of the outstanding Notes; PROVIDED, HOWEVER,
that if any amendment, waiver or other modification will only affect the 2013
Notes, the 2015 Notes or the Floating Rate Notes, only the consent of the
Holders of at least a majority in principal amount of the then outstanding
2013 Notes, 2015 Notes or Floating Rate Notes (and not the consent of the
Holders of at least a majority of all Notes), as the case may be, shall be
required. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Issuer and the Trustee may amend this
Indenture or the Notes (provided that the Issuer need not act to amend this
Indenture to add Subsidiary Guarantors on the Issue Date): (i) to cure any
ambiguity, omission, defect or inconsistency, (ii) to comply with Article 5
of the Indenture, (iii) to provide for uncertificated Notes in addition to or
in place of certificated Notes; PROVIDED that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code, (iv) to add Guarantees with respect to the
Notes or to secure the Notes, (v) to add to the covenants of
C-11
the Issuer or any Parent of the Issuer for the benefit of the Holders or to
surrender any right or power herein conferred upon the Issuer or any Parent of
the Issuer, (vi) to comply with any requirement of the SEC in connection with
qualifying this Indenture under the TIA, (vii) to effect any provision of this
Indenture (including to release any Guarantees or Escrowed Property in
accordance with the terms of this Indenture and the Escrow Agreement), (viii) to
make any change that does not adversely affect the rights of any Holder, or (ix)
to provide for the issuance of the Exchange Notes or Additional Notes.
14. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer) occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the outstanding Notes, in each case, by notice to the
Issuer, may declare the principal of, premium, if any, and accrued but unpaid
interest on all the Notes to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer occurs, the principal of, premium, if any, and interest on all the
Notes shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes
and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under
the Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee reasonable indemnity or security against
any loss, liability or expense and certain other conditions are complied
with. Except to enforce the right to receive payment of principal, premium
(if any) or interest when due, no Holder may pursue any remedy with respect
to the Indenture or the Notes unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) the Holders of at
least 25% in principal amount of the outstanding Notes have requested the
Trustee in writing to pursue the remedy, (iii) such Holders have offered the
Trustee reasonable security or indemnity against any loss, liability or
expense, (iv) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity and
(v) the Holders of a majority in principal amount of the outstanding Notes
have not given the Trustee a direction inconsistent with such request within
such 60-day period. Subject to certain restrictions, the Holders of a
majority in principal amount of the outstanding Notes are given the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that
conflicts with law or the Indenture or, subject to Section 7.01 of the
Indenture, that the Trustee determines is unduly prejudicial to the rights of
any other Holder or that would involve the Trustee in personal liability.
Prior to taking any action under the Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all
losses and expenses caused by taking or not taking such action.
15. TRUSTEE DEALINGS WITH THE ISSUER
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may
C-12
otherwise deal with and collect obligations owed to it by the Issuer or its
Affiliates and may otherwise deal with the Issuer or its Affiliates with the
same rights it would have if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or holder of any
equity interests in the Issuer (other than Holdings) or of any Guarantor or
any direct or indirect parent corporation, as such, shall have any liability
for any obligations of the Issuer or the Guarantors under the Notes, the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability.
17. AUTHENTICATION
This Floating Rate 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 Floating Rate Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
20. CUSIP NUMBERS, ISINS AND COMMON CODES
The Issuer has caused CUSIP numbers and ISINs to be printed on
the Notes and has directed the Trustee to use CUSIP numbers and ISINs in
notices of redemption as a convenience to the Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE ISSUER WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN
IT THE TEXT OF THIS NOTE.
C-13
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Issuer. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
----------------- ---------------------------
(Sign exactly as your name
appears on the other side of
this Note.)
Signature Guarantee:
Date:
--------------------------- ---------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
C-14
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED FLOATING RATE NOTES
This certificate relates to $_________ principal amount of Floating Rate
Notes held in (check applicable space) ____ book-entry or _____ definitive
form by the undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Floating Rate Note held by the
Depository a Floating Rate Note in definitive, registered form of
authorized denominations and an aggregate principal amount equal to its
beneficial interest in such Global Floating Rate Note (or the portion
thereof indicated above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Floating Rate Note.
In connection with any transfer of any of the Floating Rate Notes evidenced
by this certificate occurring prior to the expiration of the period referred
to in Rule 144(k) under the Securities Act, the undersigned confirms that
such Floating Rate Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer; or
(2) [ ] to the Registrar for registration in the name of the
Holder, without transfer; or
(3) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(5) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933
and such Security shall be held immediately after the
transfer through Euroclear or Clearstream until the
expiration of the Restricted Period (as defined in the
Indenture); or
C-15
(6) [ ] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements; or
(7) [ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Notes evidenced by this certificate in the name of any Person other
than the registered Holder thereof; PROVIDED, HOWEVER, that if box (5), (6)
or (7) is checked, the Trustee may require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other
information as the Issuer has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.
Date:
--------------------------- -----------------------------------------
Your Signature
Signature Guarantee:
Date:
--------------------------- ------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
-----------------------------------------------------------------------------
C-16
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Floating Rate Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuer as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated:
---------------------- ---------------------------------------
NOTICE: To be executed by an executive
officer
C-17
[TO BE ATTACHED TO GLOBAL FLOATING RATE NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL FLOATING RATE NOTE
The initial principal amount of this Global Floating Rate Note is
$[ ]. The following increases or decreases in this Global
Floating Rate Note have been made:
Amount of Amount of
decrease in increase in Principal amount Signature of
Principal Principal of this Global authorized
Amount of this Amount of Floating Rate signatory of
Global this Global Note following Trustee or
Date of Floating Rate Floating Rate such decrease or Securities
Exchange Note Note increase Custodian
--------- ------------- ------------- ---------------- ------------
C-18
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS FLOATING RATE NOTE PURCHASED BY
THE ISSUER PURSUANT TO SECTION 4.06 (ASSET SALES) OR 4.08 (CHANGE OF CONTROL)
OF THE INDENTURE, CHECK THE BOX:
ASSET SALE [ ] CHANGE OF CONTROL [ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS FLOATING RATE NOTE
PURCHASED BY THE ISSUER PURSUANT TO SECTION 4.06 (ASSET SALE) OR
4.08 (CHANGE OF CONTROL) OF THE INDENTURE, STATE THE AMOUNT ($1,000 OR AN
INTEGRAL MULTIPLE THEREOF):
$-----------------
DATE: YOUR SIGNATURE:
-------------------- ----------------------------
(SIGN EXACTLY AS YOUR NAME
APPEARS ON THE OTHER SIDE
OF THIS NOTE)
SIGNATURE GUARANTEE:
--------------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED
SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR
PROGRAM REASONABLY ACCEPTABLE TO THE TRUSTEE
C-19
EXHIBIT D
[FORM OF FACE OF EXCHANGE 2013 NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Definitive 2013 Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
D-1
[FORM OF EXCHANGE 2013 NOTE]
No. $__________
8-1/4% Senior Note due 2013
CUSIP No. [ ]/[ ]
ISIN No. [144A ]/[REG S: ]
ZEUS MERGER TWO LIMITED, a company incorporated under the laws of
Bermuda, promises to pay to [ ], or registered assigns, the
principal sum [of Dollars] [listed on the Schedule of
Increases or Decreases in Global 2013 Note attached hereto] on January 15,
2013.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Additional provisions of this 2013 Note are set forth on the
other side of this Note.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed.
*/ If the 2013 Note is to be issued in global form, add the Global Notes
Legend and the attachment from EXHIBIT D captioned "TO BE ATTACHED TO
GLOBAL NOTES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL 2013 NOTE."
D-2
ZEUS MERGER TWO LIMITED
By:
-------------------------------------
Name:
Title:
Dated: [ ]
D-3
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, certifies that this is
one of the 2013 Notes
referred to in the Indenture.
By:
--------------------------------
Authorized Signatory
D-4
[FORM OF REVERSE SIDE OF EXCHANGE 2013 NOTE]
8-1/4% Senior Note due 2013
1. INTEREST
(a) ZEUS MERGER TWO LIMITED, a company incorporated under the
laws of Bermuda (such company, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "ISSUER"),
promises to pay interest on the principal amount of this 2013 Note at the
rate per annum shown above. The Issuer shall pay interest semiannually on
January 15 and July 15 of each year, commencing July 15, 2005.1 Interest on
the 2013 Notes shall accrue from the most recent date to which interest has
been paid or duly provided for or, if no interest has been paid or duly
provided for, from and including January 28, 20052 until the principal hereof
is due. Interest shall be computed on the basis of a 360-day year of twelve
30-day months. The Issuer shall pay interest on overdue principal at the
rate borne by the 2013 Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) REGISTRATION RIGHTS AGREEMENT. The Holder of this 2013
Note is entitled to the benefits of a Registration Rights Agreement, dated as
of January 28, 2005, among the Issuer, Zeus Merger One Limited and the
Initial Purchasers.
2. METHOD OF PAYMENT
The Issuer shall pay interest on the 2013 Notes to the Persons
who are registered Holders at the close of business on the January 1 and July
1 next preceding the interest payment date even if 2013 Notes are canceled
after the record date and on or before the interest payment date (whether or
not a Business Day). The Holders must surrender Notes to a Paying Agent to
collect principal payments. The Issuer shall pay principal, premium, if any,
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. Payments in
respect of the 2013 Notes represented by a Global 2013 Note (including
principal, premium, if any, and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company or any successor depositary. The Issuer will make all payments in
respect of a certificated 2013 Note (including principal, premium, if any,
and interest), at the office of each Paying Agent, except that, at the option
of the Issuer, payment of interest may be made by mailing a check to the
registered address of each Holder thereof; PROVIDED, HOWEVER, that payments
on the 2013 Notes may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of 2013 Notes, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the
----------------------------
1 In the case of the Original Notes.
2 In the case of the Original Notes.
X-0
Xxxxxx Xxxxxx if such Holder elects payment by wire transfer by giving written
notice to the Trustee or a Paying Agent to such effect designating such account
no later than 10 days immediately preceding the relevant due date for payment
(or such other date as the Trustee may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, Xxxxx Fargo Bank, National Association, a national
banking association (the "TRUSTEE"), will act as Paying Agent and Registrar.
The Issuer may appoint and change any Paying Agent or Registrar without
notice. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
4. INDENTURE
The Issuer issued the 2015 Notes under an Indenture dated as of
January 28, 2005 (the "INDENTURE"), among the Issuer, the Guarantor named
therein and the Trustee. The terms of the 2013 Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "TIA"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The 2013 Notes
are subject to all terms and provisions of the Indenture, and the Holders (as
defined in the Indenture) are referred to the Indenture and the TIA for a
statement of such terms and provisions; in the event of any conflict between
this Note and the Indenture, the terms of the Indenture shall govern.
The 2013 Notes are senior unsecured obligations of the Issuer.
This 2013 Note is one of the Exchange 2013 Notes referred to in the
Indenture. The 2013 Notes include the Initial 2013 Notes and any Exchange
2013 Notes issued in exchange for Initial 2013 Notes pursuant to the
Indenture. The Initial 2013 Notes and any Exchange 2013 Notes, together with
the Initial 2015 Notes, any Exchange 2015 Notes, the Initial Floating Rate
Notes and any Exchange Floating Rate Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on
the ability of the Issuer and its Restricted Subsidiaries to, among other
things, make certain Investments and other Restricted Payments, pay dividends
and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of capital stock of the Issuer
and such Restricted Subsidiaries, enter into or permit certain transactions
with Affiliates, create or incur Liens and make asset sales. The Indenture
also imposes limitations on the ability of the Issuer and each Guarantor to
consolidate or merge with or into any other Person or convey, transfer or
lease all or substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest, on the 2013 Notes and all other amounts payable by the Issuer under
the Indenture and the 2013 Notes when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the 2013 Notes and the Indenture, the Guarantors have, jointly and
severally, unconditionally guaranteed the Guaranteed Obligations on a senior
unsecured basis on the terms set forth in the Indenture.
D-6
5. OPTIONAL REDEMPTION
Except as set forth in the following two paragraphs and in
Sections 3.09 and 3.10 of the Indenture, the 2013 Notes shall not be
redeemable at the option of the Issuer prior to January 15, 2009.
Thereafter, the 2013 Notes shall be redeemable at the option of the Issuer,
in whole at any time or in part from time to time, upon on not less than 30
nor more than 60 days' prior notice, at the following redemption prices
(expressed as a percentage of principal amount), plus accrued and unpaid
interest, to the redemption date (subject to the right of the Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), if redeemed during the 12-month period commencing on
January 15 of the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2009 104.125%
2010 102.063%
2011 and thereafter 100.000%
In addition, from and after the Release, and prior to January 15,
2009, the Issuer may redeem the 2013 Notes, at its option, in whole at any
time or in part from time to time, upon not less than 30 nor more than 60
days' prior notice mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the principal amount of the
2013 Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest, to, the applicable redemption date (subject to the right of the
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
Notwithstanding the foregoing, from and after the Release and at
any time and from time to time on or prior to January 15, 2008, the Issuer
may redeem in the aggregate up to 35% of the original aggregate principal
amount of the 2013 Notes (calculated after giving effect to any issuance of
Additional 2013 Notes) with the net cash proceeds of one or more Equity
Offerings by the Issuer or by any Parent of the Issuer, in each case, to the
extent the net cash proceeds thereof are contributed to the common equity
capital of the Issuer or used to purchase Capital Stock (other than
Disqualified Stock) of the Issuer from it, or from the cash contribution of
equity capital to the Issuer, at a redemption price equal to 108.25% of the
principal amount thereof, plus accrued and unpaid interest and additional
interest, if any, to the redemption date (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); PROVIDED, HOWEVER, that at least 65% of the original
aggregate principal amount of the 2013 Notes (calculated after giving effect
to any issuance of Additional 2013 Notes) must remain outstanding after each
such redemption; and PROVIDED, FURTHER, that such redemption shall occur
within 90 days after the date on which any such Equity Offering or cash
contribution of equity capital to the Issuer is consummated upon not less
than 30 nor more than 60 days' notice mailed to each holder of Notes being
redeemed and otherwise in accordance with the procedures set forth in the
Indenture.
The 2013 Notes are subject to a Special Mandatory Redemption as
set forth in Article 3 of the Indenture.
D-7
Notice of any redemption (other than with respect to a Special
Mandatory Redemption) may be given prior to the completion thereof, and any
such redemption or notice may, at the Issuer's discretion, be subject to one
or more conditions precedent, including, but not limited to, in the case of
any Equity Offering, completion of the related Equity Offering.
6. SINKING FUND
The 2013 Notes are not subject to any mandatory sinking fund.
7. NOTICE OF REDEMPTION
Notice of redemption (other than with respect to a Special
Mandatory 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 2013 Notes
to be redeemed at his, her or its registered address. 2013 Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all 2013 Notes (or portions thereof) to be
redeemed on the redemption date is deposited with a Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date, interest ceases to accrue on such 2013 Notes (or such portions
thereof) called for redemption.
8. REPURCHASE OF 2013 NOTES AT THE OPTION OF
HOLDERS UPON CHANGE OF CONTROL AND ASSET SALES
Upon the occurrence of a Change of Control, each Holder shall
have the right, subject to certain conditions specified in the Indenture, to
cause the Issuer to repurchase all or any part of such Holder's 2013 Notes at
a purchase price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of repurchase (subject to
the right of the Holders of record on the relevant record date to receive
interest due on the relevant interest payment date), as provided in, and
subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer will
be required to offer to purchase 2013 Notes upon the occurrence of certain
events.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The 2013 Notes are in registered form, without coupons, in
denominations of $1,000 and whole multiples of $1,000. A Holder shall
register the transfer of or exchange of 2013 Notes in accordance with the
Indenture. Upon any registration of transfer or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the transfer of
or exchange any 2013 Notes selected for redemption (except, in the case of a
2013 Note to be redeemed in part, the portion of the 2013 Note not to be
redeemed) or to transfer or exchange any 2013 Notes for a period of 15 days
prior to a selection of 2013 Notes to be redeemed.
D-8
10. PERSONS DEEMED OWNERS
The registered Holder of this 2013 Note shall be treated as the
owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and a Paying Agent shall pay the money
back to the Issuer at its written request, subject to any abandoned property
law. After any such payment, the Holders entitled to the money must look to
the Issuer for payment as general creditors and the Trustee and a Paying
Agent shall have no further liability with respect to such monies.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Issuer at any time may
terminate some of or all its obligations under the 2013 Notes and the
Indenture if the Issuer deposits with the Trustee money or U.S. Government
Obligations for the payment of principal of, and interest on the 2013 Notes
to redemption, or maturity, as the case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders
of at least a majority in aggregate principal amount of the outstanding Notes
(voting as a single class) and (ii) any past default or compliance with any
provisions may be waived with the written consent of the Holders of at least
a majority in principal amount of the outstanding Notes; PROVIDED, HOWEVER,
that if any amendment, waiver or other modification will only affect the 2013
Notes, the 2015 Notes or the Floating Rate Notes, only the consent of the
Holders of at least a majority in principal amount of the then outstanding
2013 Notes, 2015 Notes or Floating Rate Notes (and not the consent of the
Holders of at least a majority of all Notes), as the case may be, shall be
required. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Issuer and the Trustee may amend this
Indenture or the Notes (provided that the Issuer need not act to amend this
Indenture to add Subsidiary Guarantors on the Issue Date): (i) to cure any
ambiguity, omission, defect or inconsistency, (ii) to comply with Article 5
of the Indenture, (iii) to provide for uncertificated Notes in addition to or
in place of certificated Notes; PROVIDED that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code, (iv) to add Guarantees with respect to the
Notes or to secure the Notes, (v) to add to the covenants of the Issuer or
any Parent of the Issuer for the benefit of the Holders or to surrender any
right or power herein conferred upon the Issuer or any Parent of the Issuer,
(vi) to comply with any requirement of the SEC in connection with qualifying
this Indenture under the TIA, (vii) to effect any provision of this Indenture
(including to release any Guarantees or Escrowed Property in accordance with
the terms of this Indenture and the Escrow Agreement), (viii) to make any
change that does not adversely affect the rights of any Holder, or (ix) to
provide for the issuance of the Exchange Notes or Additional Notes.
D-9
14. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer) occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the outstanding Notes, in each case, by notice to the
Issuer, may declare the principal of, premium, if any, and accrued but unpaid
interest on all the Notes to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer occurs, the principal of, premium, if any, and interest on all the
Notes shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes
and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under
the Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee reasonable indemnity or security against
any loss, liability or expense and certain other conditions are complied
with. Except to enforce the right to receive payment of principal, premium
(if any) or interest when due, no Holder may pursue any remedy with respect
to the Indenture or the Notes unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) the Holders of at
least 25% in principal amount of the outstanding Notes have requested the
Trustee in writing to pursue the remedy, (iii) such Holders have offered the
Trustee reasonable security or indemnity against any loss, liability or
expense, (iv) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity and
(v) the Holders of a majority in principal amount of the outstanding Notes
have not given the Trustee a direction inconsistent with such request within
such 60-day period. Subject to certain restrictions, the Holders of a
majority in principal amount of the outstanding Notes are given the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that
conflicts with law or the Indenture or, subject to Section 7.01 of the
Indenture, that the Trustee determines is unduly prejudicial to the rights of
any other Holder or that would involve the Trustee in personal liability.
Prior to taking any action under the Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all
losses and expenses caused by taking or not taking such action.
15. TRUSTEE DEALINGS WITH THE ISSUER
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect obligations
owed to it by the Issuer or its Affiliates and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not
Trustee.
16. NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or holder of any
equity interests in the Issuer (other than Holdings) or of any Guarantor or
any direct or indirect parent corporation,
D-10
as such, shall have any liability for any obligations of the Issuer or the
Guarantors under the Notes, the Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability.
17. AUTHENTICATION
This 2013 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 2013 Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
20. CUSIP NUMBERS, ISINS AND COMMON CODES
The Issuer has caused CUSIP numbers and ISINs to be printed on
the Notes and has directed the Trustee to use CUSIP numbers and ISINs in
notices of redemption as a convenience to the Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE ISSUER WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN
IT THE TEXT OF THIS NOTE.
D-11
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Issuer. The agent may substitute another to act for him.
Date: Your Signature:
----------------- ---------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
Date:
--------------------------- ---------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
D-12
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED 2013 NOTES
This certificate relates to $_________ principal amount of 2013 Notes held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global 2013 Note held by the Depository
a 2013 Note in definitive, registered form of authorized denominations
and an aggregate principal amount equal to its beneficial interest in
such Global 2013 Note (or the portion thereof indicated above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a 2013 Note.
In connection with any transfer of any of the 2013 Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act, the undersigned confirms that such 2013
Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer; or
(2) [ ] to the Registrar for registration in the name of the
Holder, without transfer; or
(3) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(5) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933
and such Security shall be held immediately after the
transfer through Euroclear or Clearstream until the
expiration of the Restricted Period (as defined in the
Indenture); or
(6) [ ] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements; or
D-13
(7) [ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Notes evidenced by this certificate in the name of any Person other
than the registered Holder thereof; PROVIDED, HOWEVER, that if box (5), (6)
or (7) is checked, the Trustee may require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other
information as the Issuer has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.
Date:
--------------------------- -----------------------------------------
Your Signature
Signature Guarantee:
Date:
--------------------------- ----------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
-----------------------------------------------------------------------------
D-14
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this 2013 Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Issuer as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:
---------------------- ---------------------------------------
NOTICE: To be executed by an executive
officer
D-15
[TO BE ATTACHED TO GLOBAL 2013 NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL 2013 NOTE
The initial principal amount of this Global 2013 Note is
$[ ]. The following increases or decreases in this Global 2013
Note have been made:
Amount of Amount of Principal amount Signature of
decrease in increase in of this Global authorized
Principal Principal 2013 Note signatory of
Amount of this Amount of following such Trustee or
Date of Global 2013 this Global decrease or Securities
Exchange Note 2013 Note increase Custodian
--------- -------------- ----------- --------------- -----------
D-16
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS 2013 NOTE PURCHASED BY THE
ISSUER PURSUANT TO SECTION 4.06 (ASSET SALES) OR 4.08 (CHANGE OF CONTROL) OF
THE INDENTURE, CHECK THE BOX:
ASSET SALE [ ] CHANGE OF CONTROL [ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS 2013 NOTE
PURCHASED BY THE ISSUER PURSUANT TO SECTION 4.06 (ASSET SALE) OR 4.08 (CHANGE
OF CONTROL) OF THE INDENTURE, STATE THE AMOUNT ($1,000 OR AN INTEGRAL
MULTIPLE THEREOF):
$-----------------
DATE: YOUR SIGNATURE:
----------------- --------------------------
(SIGN EXACTLY AS YOUR NAME
APPEARS ON THE OTHER SIDE
OF THIS NOTE)
SIGNATURE GUARANTEE:
----------------------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED
SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR
PROGRAM REASONABLY ACCEPTABLE TO THE TRUSTEE
D-17
EXHIBIT E
[FORM OF FACE OF EXCHANGE 2015 NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Definitive 2015 Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
E-1
[FORM OF EXCHANGE 2015 NOTE]
No. $__________
8-5/8% Senior Note due 2015
CUSIP No. [ ]/[ ]
ISIN No. [144A ]/[REG S: ]
ZEUS MERGER TWO LIMITED, a company incorporated under the laws of
Bermuda, promises to pay to [ ], or registered assigns, the
principal sum [of Dollars] [listed on the Schedule of
Increases or Decreases in Global 2015 Note attached hereto] on January 15,
2015.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Additional provisions of this 2015 Note are set forth on the
other side of this Note.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed.
*/ If the 2015 Note is to be issued in global form, add the Global Notes
Legend and the attachment from EXHIBIT E captioned "TO BE ATTACHED TO
GLOBAL NOTES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL 2015 NOTE."
E-2
ZEUS MERGER TWO LIMITED
By:
-------------------------------------
Name:
Title:
Dated: [ ]
E-3
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, certifies that this is
one of the 2015 Notes
referred to in the Indenture.
By:
--------------------------------
Authorized Signatory
E-4
[FORM OF REVERSE SIDE OF EXCHANGE 2015 NOTE]
8-5/8% Senior Note due 2015
1. INTEREST
(a) ZEUS MERGER TWO LIMITED, a company incorporated under the
laws of Bermuda (such company, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "ISSUER"),
promises to pay interest on the principal amount of this 2015 Note at the
rate per annum shown above. The Issuer shall pay interest semiannually on
January 15 and July 15 of each year, commencing July 15, 2005.1 Interest on
the 2015 Notes shall accrue from the most recent date to which interest has
been paid or duly provided for or, if no interest has been paid or duly
provided for, from and including January 28, 20052 until the principal
hereof is due. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months. The Issuer shall pay interest on overdue principal at
the rate borne by the 2015 Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) REGISTRATION RIGHTS AGREEMENT. The Holder of this 2015
Note is entitled to the benefits of a Registration Rights Agreement, dated as
of January 28, 2005, among the Issuer, Zeus Merger One Limited and the
Initial Purchasers.
2. METHOD OF PAYMENT
The Issuer shall pay interest on the 2015 Notes to the Persons
who are registered Holders at the close of business on the January 1 and July
1 next preceding the interest payment date even if 2015 Notes are canceled
after the record date and on or before the interest payment date (whether or
not a Business Day). The Holders must surrender Notes to a Paying Agent to
collect principal payments. The Issuer shall pay principal, premium, if any,
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. Payments in
respect of the 2015 Notes represented by a Global 2015 Note (including
principal, premium, if any, and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company or any successor depositary. The Issuer will make all payments in
respect of a certificated 2015 Note (including principal, premium, if any,
and interest), at the office of each Paying Agent, except that, at the option
of the Issuer, payment of interest may be made by mailing a check to the
registered address of each Holder thereof; PROVIDED, HOWEVER, that payments
on the 2015 Notes may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of 2015 Notes, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the
----------------------------------------
1 In the case of the Original Notes.
2 In the case of the Original Notes.
E-5
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or a Paying Agent to such effect designating such account
no later than 10 days immediately preceding the relevant due date for payment
(or such other date as the Trustee may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, Xxxxx Fargo Bank, National Association, a national
banking association (the "TRUSTEE"), will act as Paying Agent and Registrar.
The Issuer may appoint and change any Paying Agent or Registrar without
notice. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
4. INDENTURE
The Issuer issued the 2015 Notes under an Indenture dated as of
January 28, 2005 (the "INDENTURE"), among the Issuer, the Guarantor named
therein and the Trustee. The terms of the 2015 Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "TIA"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The 2015 Notes
are subject to all terms and provisions of the Indenture, and the Holders (as
defined in the Indenture) are referred to the Indenture and the TIA for a
statement of such terms and provisions; in the event of any conflict between
this Note and the Indenture, the terms of the Indenture shall govern.
The 2015 Notes are senior unsecured obligations of the Issuer.
This 2015 Note is one of the Exchange 2015 Notes referred to in the
Indenture. The 2015 Notes include the Initial 2015 Notes and any Exchange
2015 Notes issued in exchange for Initial 2015 Notes pursuant to the
Indenture. The Initial 2015 Notes and any Exchange 2015 Notes, together with
the Initial 2013 Notes, any Exchange 2013 Notes, the Initial Floating Rate
Notes and any Exchange Floating Rate Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on
the ability of the Issuer and its Restricted Subsidiaries to, among other
things, make certain Investments and other Restricted Payments, pay dividends
and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of capital stock of the Issuer
and such Restricted Subsidiaries, enter into or permit certain transactions
with Affiliates, create or incur Liens and make asset sales. The Indenture
also imposes limitations on the ability of the Issuer and each Guarantor to
consolidate or merge with or into any other Person or convey, transfer or
lease all or substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest, on the 2015 Notes and all other amounts payable by the Issuer under
the Indenture and the 2015 Notes when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the 2015 Notes and the Indenture, the Guarantors have, jointly and
severally, unconditionally guaranteed the Guaranteed Obligations on a senior
unsecured basis on the terms set forth in the Indenture.
E-6
5. OPTIONAL REDEMPTION
Except as set forth in the following two paragraphs and in
Sections 3.09 and 3.10 of the Indenture, the 2015 Notes shall not be
redeemable at the option of the Issuer prior to January 15, 2010.
Thereafter, the 2015 Notes shall be redeemable at the option of the Issuer,
in whole at any time or in part from time to time, upon on not less than 30
nor more than 60 days' prior notice, at the following redemption prices
(expressed as a percentage of principal amount), plus accrued and unpaid
interest, to the redemption date (subject to the right of the Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), if redeemed during the 12-month period commencing on
January 15 of the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2010 104.313%
2011 102.875%
2012 101.438%
2013 and thereafter 100.000%
In addition, from and after the Release, and prior to January 15,
2010, the Issuer may redeem the 2015 Notes at its option, in whole at any
time or in part from time to time, upon not less than 30 nor more than 60
days' prior notice mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the principal amount of the
2015 Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest, to, the applicable redemption date (subject to the right of the
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
Notwithstanding the foregoing, from and after the Release and at
any time and from time to time on or prior to January 15, 2008, the Issuer
may redeem in the aggregate up to 35% of the original aggregate principal
amount of the 2015 Notes (calculated after giving effect to any issuance of
Additional 2015 Notes) with the net cash proceeds of one or more Equity
Offerings by the Issuer or by any Parent of the Issuer, in each case, to the
extent the net cash proceeds thereof are contributed to the common equity
capital of the Issuer or used to purchase Capital Stock (other than
Disqualified Stock) of the Issuer from it, or from the cash contribution of
equity capital to the Issuer, at a redemption price equal to 108.625% of the
principal amount thereof, plus accrued and unpaid interest and additional
interest, if any, to the redemption date (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); PROVIDED, HOWEVER, that at least 65% of the original
aggregate principal amount of the 2015 Notes (calculated after giving effect
to any issuance of Additional 2015 Notes) must remain outstanding after each
such redemption; and PROVIDED, FURTHER, that such redemption shall occur
within 90 days after the date on which any such Equity Offering or cash
contribution of equity capital to the Issuer is consummated upon not less
than 30 nor more than 60 days' notice mailed to each holder of Notes being
redeemed and otherwise in accordance with the procedures set forth in the
Indenture.
The 2015 Notes are subject to a Special Mandatory Redemption as
set forth in Article 3 of the Indenture.
E-7
Notice of any redemption (other than with respect to a Special
Mandatory Redemption) may be given prior to the completion thereof, and any
such redemption or notice may, at the Issuer's discretion, be subject to one
or more conditions precedent, including, but not limited to, in the case of
any Equity Offering, completion of the related Equity Offering.
6. SINKING FUND
The 2015 Notes are not subject to any mandatory sinking fund.
7. NOTICE OF REDEMPTION
Notice of redemption (other than with respect to a Special
Mandatory 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 2015
Notes to be redeemed at his, her or its registered address. 2015 Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all 2015 Notes (or portions thereof) to be
redeemed on the redemption date is deposited with a Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date, interest ceases to accrue on such 2015 Notes (or such portions
thereof) called for redemption.
8. REPURCHASE OF 2015 NOTES AT THE OPTION OF
HOLDERS UPON CHANGE OF CONTROL AND ASSET SALES
Upon the occurrence of a Change of Control, each Holder shall
have the right, subject to certain conditions specified in the Indenture, to
cause the Issuer to repurchase all or any part of such Holder's 2015 Notes at
a purchase price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of repurchase (subject to
the right of the Holders of record on the relevant record date to receive
interest due on the relevant interest payment date), as provided in, and
subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer will
be required to offer to purchase 2015 Notes upon the occurrence of certain
events.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The 2015 Notes are in registered form, without coupons, in
denominations of $1,000 and whole multiples of $1,000. A Holder shall
register the transfer of or exchange of 2015 Notes in accordance with the
Indenture. Upon any registration of transfer or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the transfer of
or exchange any 2015 Notes selected for redemption (except, in the case of a
2015 Note to be redeemed in part, the portion of the 2015 Note not to be
redeemed) or to transfer or exchange any 2015 Notes for a period of 15 days
prior to a selection of 2015 Notes to be redeemed.
E-8
10. PERSONS DEEMED OWNERS
The registered Holder of this 2015 Note shall be treated as the
owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and a Paying Agent shall pay the money
back to the Issuer at its written request, subject to any abandoned property
law. After any such payment, the Holders entitled to the money must look to
the Issuer for payment as general creditors and the Trustee and a Paying
Agent shall have no further liability with respect to such monies.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Issuer at any time may
terminate some of or all its obligations under the 2015 Notes and the
Indenture if the Issuer deposits with the Trustee money or U.S. Government
Obligations for the payment of principal of, and interest on the 2015 Notes
to redemption, or maturity, as the case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders
of at least a majority in aggregate principal amount of the outstanding Notes
(voting as a single class) and (ii) any past default or compliance with any
provisions may be waived with the written consent of the Holders of at least
a majority in principal amount of the outstanding Notes; PROVIDED, HOWEVER,
that if any amendment, waiver or other modification will only affect the 2013
Notes, the 2015 Notes or the Floating Rate Notes, only the consent of the
Holders of at least a majority in principal amount of the then outstanding
2013 Notes, 2015 Notes or Floating Rate Notes (and not the consent of the
Holders of at least a majority of all Notes), as the case may be, shall be
required. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Issuer and the Trustee may amend this
Indenture or the Notes (provided that the Issuer need not act to amend this
Indenture to add Subsidiary Guarantors on the Issue Date): (i) to cure any
ambiguity, omission, defect or inconsistency, (ii) to comply with Article 5
of the Indenture, (iii) to provide for uncertificated Notes in addition to or
in place of certificated Notes; PROVIDED that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code, (iv) to add Guarantees with respect to the
Notes or to secure the Notes, (v) to add to the covenants of the Issuer or
any Parent of the Issuer for the benefit of the Holders or to surrender any
right or power herein conferred upon the Issuer or any Parent of the Issuer,
(vi) to comply with any requirement of the SEC in connection with qualifying
this Indenture under the TIA, (vii) to effect any provision of this Indenture
(including to release any Guarantees or Escrowed Property in accordance with
the terms of this Indenture and the Escrow Agreement), (viii) to make any
change that does not adversely affect the rights of any Holder, or (ix) to
provide for the issuance of the Exchange Notes or Additional Notes.
X-0
00. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer) occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the outstanding Notes, in each case, by notice to the
Issuer, may declare the principal of, premium, if any, and accrued but unpaid
interest on all the Notes to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer occurs, the principal of, premium, if any, and interest on all the
Notes shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes
and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under
the Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee reasonable indemnity or security against
any loss, liability or expense and certain other conditions are complied
with. Except to enforce the right to receive payment of principal, premium
(if any) or interest when due, no Holder may pursue any remedy with respect
to the Indenture or the Notes unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) the Holders of at
least 25% in principal amount of the outstanding Notes have requested the
Trustee in writing to pursue the remedy, (iii) such Holders have offered the
Trustee reasonable security or indemnity against any loss, liability or
expense, (iv) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity and
(v) the Holders of a majority in principal amount of the outstanding Notes
have not given the Trustee a direction inconsistent with such request within
such 60-day period. Subject to certain restrictions, the Holders of a
majority in principal amount of the outstanding Notes are given the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that
conflicts with law or the Indenture or, subject to Section 7.01 of the
Indenture, that the Trustee determines is unduly prejudicial to the rights of
any other Holder or that would involve the Trustee in personal liability.
Prior to taking any action under the Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all
losses and expenses caused by taking or not taking such action.
15. TRUSTEE DEALINGS WITH THE ISSUER
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect obligations
owed to it by the Issuer or its Affiliates and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not
Trustee.
16. NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or holder of any
equity interests in the Issuer (other than Holdings) or of any Guarantor or
any direct or indirect parent corporation,
E-10
as such, shall have any liability for any obligations of the Issuer or the
Guarantors under the Notes, the Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability.
17. AUTHENTICATION
This 2015 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 2015 Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
20. CUSIP NUMBERS, ISINS AND COMMON CODES
The Issuer has caused CUSIP numbers and ISINs to be printed on
the Notes and has directed the Trustee to use CUSIP numbers and ISINs in
notices of redemption as a convenience to the Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE ISSUER WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN
IT THE TEXT OF THIS NOTE.
E-11
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Issuer. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
----------------- ---------------------------
(Sign exactly as your name
appears on the other side of
this Note.)
Signature Guarantee:
Date:
--------------------------- ---------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
E-12
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED 2015 NOTES
This certificate relates to $_________ principal amount of 2015 Notes held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global 2015 Note held by the Depository
a 2015 Note in definitive, registered form of authorized denominations
and an aggregate principal amount equal to its beneficial interest in
such Global 2015 Note (or the portion thereof indicated above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a 2015 Note.
In connection with any transfer of any of the 2015 Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act, the undersigned confirms that such 2015
Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer; or
(2) [ ] to the Registrar for registration in the name of the
Holder, without transfer; or
(3) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(5) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933
and such Security shall be held immediately after the
transfer through Euroclear or Clearstream until the
expiration of the Restricted Period (as defined in the
Indenture); or
(6) [ ] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements; or
E-13
(7) [ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Notes evidenced by this certificate in the name of any Person other
than the registered Holder thereof; PROVIDED, HOWEVER, that if box (5), (6)
or (7) is checked, the Trustee may require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other
information as the Issuer has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.
Date:
--------------------------- -----------------------------------------
Your Signature
Signature Guarantee:
Date:
--------------------------- -------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
-----------------------------------------------------------------------------
E-14
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this 2015 Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Issuer as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:
---------------------- --------------------------------------
NOTICE: To be executed by an executive
officer
E-15
[TO BE ATTACHED TO GLOBAL 2015 NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL 2015 NOTE
The initial principal amount of this Global 2015 Note is
$[ ]. The following increases or decreases in this Global 2015
Note have been made:
Amount of Amount of Principal amount Signature of
decrease in increase in of this Global authorized
Principal Principal 2015 Note signatory of
Amount of this Amount of following such Trustee or
Date of Global 2015 this Global decrease or Securities
Exchange Note 2015 Note increase Custodian
--------- --------------- ----------- ---------------- ------------
E-16
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS 2015 NOTE PURCHASED BY THE
ISSUER PURSUANT TO SECTION 4.06 (ASSET SALES) OR 4.08 (CHANGE OF CONTROL) OF
THE INDENTURE, CHECK THE BOX:
ASSET SALE [ ] CHANGE OF CONTROL [ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS 2015 NOTE
PURCHASED BY THE ISSUER PURSUANT TO SECTION 4.06 (ASSET SALES) OR
4.08 (CHANGE OF CONTROL) OF THE INDENTURE, STATE THE AMOUNT ($1,000 OR AN
INTEGRAL MULTIPLE THEREOF):
$-----------------
DATE: YOUR SIGNATURE:
------------------------- --------------------------
(SIGN EXACTLY AS YOUR NAME
APPEARS ON THE OTHER SIDE
OF THIS NOTE)
SIGNATURE GUARANTEE:
-----------------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED
SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR
PROGRAM REASONABLY ACCEPTABLE TO THE TRUSTEE
E-17
EXHIBIT F
[FORM OF FACE OF EXCHANGE FLOATING RATE NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Definitive Floating Rate Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
F-1
[FORM OF EXCHANGE FLOATING RATE NOTE]
No. $__________
Floating Rate Senior Note due 2012
CUSIP No. [ ]/[ ]
ISIN No. [144A ]/[REG S: ]
ZEUS MERGER TWO LIMITED, a company incorporated under the laws of
Bermuda, promises to pay to [ ], or registered assigns, the
principal sum [of Dollars] [listed on the Schedule of
Increases or Decreases in Global Floating Rate Note attached hereto] on
January 15, 2012.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Additional provisions of this Floating Rate Note are set forth on
the other side of this Note.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed.
*/ If the Floating Rate Note is to be issued in global form, add the Global
Notes Legend and the attachment from EXHIBIT F captioned "TO BE ATTACHED
TO GLOBAL NOTES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL FLOATING
RATE NOTE."
F-2
ZEUS MERGER TWO LIMITED
By:
-------------------------------------
Name:
Title:
Dated: [ ]
F-3
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, certifies that this is
one of the Floating Rate Notes
referred to in the Indenture.
By:
--------------------------------
Authorized Signatory
F-4
[FORM OF REVERSE SIDE OF EXCHANGE FLOATING RATE NOTE]
Floating Rate Senior Note due 2012
1. INTEREST
(a) ZEUS MERGER TWO LIMITED, a company incorporated under the
laws of Bermuda (such company, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "ISSUER"),
promises to pay interest on the principal amount of this Floating Rate Note
at a rate per annum, reset semi-annually, equal to LIBOR plus 4-7/8%, as
determined by an agent appointed by the Issuer (the "CALCULATION AGENT"),
which shall initially be the Trustee. The Issuer shall pay interest
semiannually on January 15 and July 15of each year, commencing July 15,
2005.1 Interest on the Floating Rate Notes shall accrue from the most
recent date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from and including January 28,
20052 until the principal hereof is due. Interest shall be computed on the
basis of a 360-day year for the actual number of days elapsed. The Issuer
shall pay interest on overdue principal at the rate borne by the Floating
Rate Notes, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
For purposes of this Section 1, the following terms shall have
the meanings indicated below:
"DETERMINATION DATE" means, with respect to an Interest Period,
the second London Banking Day preceding the first day of the Interest Period.
"INTEREST PERIOD" means the period commencing on and including an
interest payment date and ending on and including the day immediately
preceding the next succeeding interest payment date, with the exception that
the first Interest Period shall commence on and include the Issue Date and
end on and include July 14, 2005.
"LIBOR" means, with respect to an Interest Period, the rate
(expressed as a percentage per annum) for deposits in United States dollars
for a six-month period beginning on the second London Banking Day after the
Determination Date that appears on Telerate Page 3750 as of 11:00 a.m.,
London time, on the Determination Date. If Telerate Page 3750 does not
include such a rate or is unavailable on a Determination Date, the
Calculation Agent will request the principal London office of each of four
major banks in the London interbank market, as selected by the Calculation
Agent, to provide such bank's offered quotation (expressed as a percentage
per annum), as of approximately 11:00 a.m., London time, on such
Determination Date, to prime banks in the London interbank market for
deposits in a Representative Amount in United States
1 In the case of the Original Notes.
2 In the case of the Original Notes.
F-5
dollars for a six-month period beginning on the second London Banking Day after
the Determination Date. If at least two such offered quotations are so provided,
LIBOR for the Interest Period will be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, the Calculation Agent will
request each of three major banks in New York City, as selected by the
Calculation Agent, to provide such bank's rate (expressed as a percentage per
annum), as of approximately 11:00 a.m., New York City time, on such
Determination Date, for loans in a Representative Amount in United States
dollars to leading European banks for a six-month period beginning on the second
London Banking Day after the Determination Date. If at least two such rates are
so provided, LIBOR for the Interest Period will be the arithmetic mean of such
rates. If fewer than two such rates are so provided, then LIBOR for the Interest
Period will be LIBOR in effect with respect to the immediately preceding
Interest Period.
"LONDON BANKING DAY" means any day in which dealings in United
States dollars are transacted or, with respect to any future date, are
expected to be transacted in the London interbank market.
"REPRESENTATIVE AMOUNT" means a principal amount of not less than
U.S.$1,000,000 for a single transaction in the relevant market at the relevant
time.
"TELERATE PAGE 3750" means the display designated as "Page 3750"
on the Moneyline Telerate service (or such other page as may replace Page
3750 on that service).
The amount of interest for each day that the Floating Rate Notes
are outstanding (the "DAILY INTEREST AMOUNT") will be calculated by dividing
the interest rate in effect for such day by 360 and multiplying the result by
the principal amount of the Floating Rate Notes. The amount of interest to
be paid on the Floating Rate Notes for each Interest Period will be
calculated by adding the Daily Interest Amounts for each day in the Interest
Period.
All percentages resulting from any of the above calculations will
be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point being
rounded upwards (E.G., 9.876545% (or .09876545) being rounded to 9.87655% (or
..0987655)) and all dollar amounts used in or resulting from such calculations
will be rounded to the nearest cent (with one-half cent being rounded
upwards).
The interest rate on the Floating Rate Notes will in no event be
higher than the maximum rate permitted by New York law as the same may be
modified by United States law of general application.
(b) REGISTRATION RIGHTS AGREEMENT. The Holder of this Floating
Rate Note is entitled to the benefits of a Registration Rights Agreement,
dated as of January 28, 2005, among the Issuer, Zeus Merger One Limited and
the Initial Purchasers.
2. METHOD OF PAYMENT
The Issuer shall pay interest on the Floating Rate Notes to the
Persons who are registered Holders at the close of business on the January 1
and July 1 next preceding the interest payment date even if Floating Rate
Notes are canceled after the record date and on or before the
F-6
interest payment date (whether or not a Business Day). The Holders must
surrender Notes to a Paying Agent to collect principal payments. The Issuer
shall pay principal, premium, if any, and interest in money of the United States
of America that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Floating Rate Notes represented by a
Global Floating Rate Note (including principal, premium, if any, and interest)
shall be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company or any successor depositary. The
Issuer will make all payments in respect of a certificated Floating Rate Note
(including principal, premium, if any, and interest), at the office of each
Paying Agent, except that, at the option of the Issuer, payment of interest may
be made by mailing a check to the registered address of each Holder thereof;
PROVIDED, HOWEVER, that payments on the Floating Rate Notes may also be made, in
the case of a Holder of at least $1,000,000 aggregate principal amount of
Floating Rate Notes, by wire transfer to a U.S. dollar account maintained by the
payee with a bank in the United States if such Holder elects payment by wire
transfer by giving written notice to the Trustee or a Paying Agent to such
effect designating such account no later than 10 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, Xxxxx Fargo Bank, National Association, a national
banking association (the "TRUSTEE"), will act as Paying Agent, Registrar and
Calculation Agent. The Issuer may appoint and change any Paying Agent or
Registrar without notice. The Issuer or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar or Calculation
Agent.
4. INDENTURE
The Issuer issued the Floating Rate Notes under an Indenture
dated as of January 28, 2005 (the "INDENTURE"), among the Issuer, the
Guarantor named therein and the Trustee. The terms of the Floating Rate
Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Floating Rates Notes are subject to
all terms and provisions of the Indenture, and the Holders (as defined in the
Indenture) are referred to the Indenture and the TIA for a statement of such
terms and provisions; in the event of any conflict between this Note and the
Indenture, the terms of the Indenture shall govern.
The Floating Rate Notes are senior unsecured obligations of the
Issuer. This Floating Rate Note is one of the Exchange Floating Rate Notes
referred to in the Indenture. The Floating Rate Notes include the Initial
Floating Rate Notes and any Exchange Floating Rate Notes issued in exchange
for Initial Floating Rate Notes pursuant to the Indenture. The Initial
Floating Rate Notes and any Exchange Floating Rate Notes, together with the
Initial 2013 Notes, any Exchange 2013 Notes, the Initial 2015 Notes and any
Exchange 2015 Notes are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the ability of the
Issuer and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon
the payment of certain dividends and distributions by
F-7
such Restricted Subsidiaries, issue or sell shares of capital stock of the
Issuer and such Restricted Subsidiaries, enter into or permit certain
transactions with Affiliates, create or incur Liens and make asset sales. The
Indenture also imposes limitations on the ability of the Issuer and each
Guarantor to consolidate or merge with or into any other Person or convey,
transfer or lease all or substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest, on the Floating Rate Notes and all other amounts payable by the
Issuer under the Indenture and the Floating Rate Notes when and as the same
shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Floating Rate Notes and the Indenture, the
Guarantors have, jointly and severally, unconditionally guaranteed the
Guaranteed Obligations on a senior unsecured basis on the terms set forth in
the Indenture.
5. OPTIONAL REDEMPTION
Except as set forth in the following two paragraphs and in
Sections 3.09 and 3.10 of the Indenture, the Floating Rate Notes shall not be
redeemable at the option of the Issuer prior to July 15, 2005. Thereafter,
the Floating Rate Notes shall be redeemable at the option of the Issuer, in
whole at any time or in part from time to time, upon on not less than 30 nor
more than 60 days' prior notice, at the following redemption prices
(expressed as a percentage of principal amount), plus accrued and unpaid
interest, to the redemption date (subject to the right of the Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), if redeemed during the periods set forth below:
YEAR REDEMPTION PRICE
On or after July 15, 2005 and before July 15, 2006 102.000%
On or after July 15, 2006 and before July 15, 2007 101.000%
July 15, 2007 and thereafter 100.000%
In addition, from and after the Release, and prior to July 15,
2005, the Issuer may redeem the Floating Rate Notes at its option, in whole
at any time or in part from time to time, upon not less than 30 nor more than
60 days' prior notice mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the principal amount of the
Floating Rate Notes redeemed plus the Applicable Premium as of, and accrued
and unpaid interest, to, the applicable redemption date (subject to the right
of the Holders of record on the relevant record date to receive interest due
on the relevant interest payment date).
Notwithstanding the foregoing, from and after the Release and at
any time and from time to time on or prior to July 15, 2005, the Issuer may
redeem up to 100% of the aggregate principal amount of the Floating Rate
Notes then outstanding, with the net cash proceeds of one or more Equity
Offerings by the Issuer or by any Parent of the Issuer, in each case, to the
extent the net cash proceeds thereof are contributed to the common equity
capital of the Issuer or used to purchase Capital Stock (other than
Disqualified Stock) of the Issuer from it, or from the cash contribution of
equity capital to the Issuer, at a redemption price equal to 104% of the
principal amount thereof, plus accrued and unpaid interest and additional
interest, if any, to the redemption date (subject to the right of holders of
record on the relevant record date to receive in-
F-8
terest due on the relevant interest payment date); PROVIDED, HOWEVER, that such
redemption shall occur within 90 days after the date on which any such Equity
Offering or cash contribution of equity capital to the Issuer is consummated
upon not less than 30 nor more than 60 days' notice mailed to each holder of
Notes being redeemed and otherwise in accordance with the procedures set forth
in the Indenture.
The Floating Rate Notes are subject to a Special Mandatory
Redemption as set forth in Article 3 of the Indenture.
Notice of any redemption (other than with respect to a Special
Mandatory Redemption) may be given prior to the completion thereof, and any
such redemption or notice may, at the Issuer's discretion, be subject to one
or more conditions precedent, including, but not limited to, in the case of
any Equity Offering, completion of the related Equity Offering.
6. SINKING FUND
The Floating Rate Notes are not subject to any mandatory sinking
fund.
7. NOTICE OF REDEMPTION
Notice of redemption (other than with respect to a Special
Mandatory 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 Floating
Rate Notes to be redeemed at his, her or its registered address. Floating
Rate Notes in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000. If money sufficient to pay the redemption
price of and accrued and unpaid interest on all Floating Rate Notes (or
portions thereof) to be redeemed on the redemption date is deposited with a
Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date, interest ceases to accrue on such
Floating Rate Notes (or such portions thereof) called for redemption.
8. REPURCHASE OF FLOATING RATE NOTES AT THE OPTION
OF HOLDERS UPON CHANGE OF CONTROL AND ASSET SALES
Upon the occurrence of a Change of Control, each Holder shall
have the right, subject to certain conditions specified in the Indenture, to
cause the Issuer to repurchase all or any part of such Holder's Floating Rate
Notes at a purchase price in cash equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the date of repurchase
(subject to the right of the Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), as provided in,
and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer will
be required to offer to purchase Floating Rate Notes upon the occurrence of
certain events.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Floating Rate Notes are in registered form, without coupons,
in denominations of $1,000 and whole multiples of $1,000. A Holder shall
register the transfer of or ex-
F-9
change of Floating Rate Notes in accordance with the Indenture. Upon any
registration of transfer or exchange, the Registrar and the Trustee may require
a Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes required by law or permitted by the Indenture.
The Registrar need not register the transfer of or exchange any Floating Rate
Notes selected for redemption (except, in the case of a Floating Rate Note to be
redeemed in part, the portion of the Floating Rate Note not to be redeemed) or
to transfer or exchange any Floating Rate Notes for a period of 15 days prior to
a selection of Floating Rate Notes to be redeemed.
10. PERSONS DEEMED OWNERS
The registered Holder of this Floating Rate Note shall be treated
as the owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and a Paying Agent shall pay the money
back to the Issuer at its written request, subject to any abandoned property
law. After any such payment, the Holders entitled to the money must look to
the Issuer for payment as general creditors and the Trustee and a Paying
Agent shall have no further liability with respect to such monies.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Issuer at any time may
terminate some of or all its obligations under the Floating Rate Notes and
the Indenture if the Issuer deposits with the Trustee money or U.S.
Government Obligations for the payment of principal of, and interest on the
Floating Rate Notes to redemption, or maturity, as the case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders
of at least a majority in aggregate principal amount of the outstanding Notes
(voting as a single class) and (ii) any past default or compliance with any
provisions may be waived with the written consent of the Holders of at least
a majority in principal amount of the outstanding Notes; PROVIDED, HOWEVER,
that if any amendment, waiver or other modification will only affect the 2013
Notes, the 2015 Notes or the Floating Rate Notes, only the consent of the
Holders of at least a majority in principal amount of the then outstanding
2013 Notes, 2015 Notes or Floating Rate Notes (and not the consent of the
Holders of at least a majority of all Notes), as the case may be, shall be
required. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Issuer and the Trustee may amend this
Indenture or the Notes (provided that the Issuer need not act to amend this
Indenture to add Subsidiary Guarantors on the Issue Date): (i) to cure any
ambiguity, omission, defect or inconsistency, (ii) to comply with Article 5
of the Indenture, (iii) to provide for uncertificated Notes in addition to or
in place of certificated Notes; PROVIDED that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code, (iv) to
F-10
add Guarantees with respect to the Notes or to secure the Notes, (v) to add to
the covenants of the Issuer or any Parent of the Issuer for the benefit of the
Holders or to surrender any right or power herein conferred upon the Issuer or
any Parent of the Issuer, (vi) to comply with any requirement of the SEC in
connection with qualifying this Indenture under the TIA, (vii) to effect any
provision of this Indenture (including to release any Guarantees or Escrowed
Property in accordance with the terms of this Indenture and the Escrow
Agreement), (viii) to make any change that does not adversely affect the rights
of any Holder, or (ix) to provide for the issuance of the Exchange Notes or
Additional Notes.
14. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer) occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the outstanding Notes, in each case, by notice to the
Issuer, may declare the principal of, premium, if any, and accrued but unpaid
interest on all the Notes to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuer occurs, the principal of, premium, if any, and interest on all the
Notes shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes
and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under
the Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee reasonable indemnity or security against
any loss, liability or expense and certain other conditions are complied
with. Except to enforce the right to receive payment of principal, premium
(if any) or interest when due, no Holder may pursue any remedy with respect
to the Indenture or the Notes unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) the Holders of at
least 25% in principal amount of the outstanding Notes have requested the
Trustee in writing to pursue the remedy, (iii) such Holders have offered the
Trustee reasonable security or indemnity against any loss, liability or
expense, (iv) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity and
(v) the Holders of a majority in principal amount of the outstanding Notes
have not given the Trustee a direction inconsistent with such request within
such 60-day period. Subject to certain restrictions, the Holders of a
majority in principal amount of the outstanding Notes are given the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that
conflicts with law or the Indenture or, subject to Section 7.01 of the
Indenture, that the Trustee determines is unduly prejudicial to the rights of
any other Holder or that would involve the Trustee in personal liability.
Prior to taking any action under the Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all
losses and expenses caused by taking or not taking such action.
F-11
15. TRUSTEE DEALINGS WITH THE ISSUER
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect obligations
owed to it by the Issuer or its Affiliates and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not
Trustee.
16. NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or holder of any
equity interests in the Issuer (other than Holdings) or of any Guarantor or
any direct or indirect parent corporation, as such, shall have any liability
for any obligations of the Issuer or the Guarantors under the Notes, the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability.
17. AUTHENTICATION
This Floating Rate 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 Floating Rate Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
20. CUSIP NUMBERS, ISINS AND COMMON CODES
The Issuer has caused CUSIP numbers and ISINs to be printed on
the Notes and has directed the Trustee to use CUSIP numbers and ISINs in
notices of redemption as a convenience to the Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE ISSUER WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN
IT THE TEXT OF THIS NOTE.
F-12
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Issuer. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
----------------- ---------------------------
(Sign exactly as your name
appears on the other side of
this Note.)
Signature Guarantee:
Date:
--------------------------- ---------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
F-13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED FLOATING RATE NOTES
This certificate relates to $_________ principal amount of Floating Rate
Notes held in (check applicable space) ____ book-entry or _____ definitive
form by the undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Floating Rate Note held by the
Depository a Floating Rate Note in definitive, registered form of
authorized denominations and an aggregate principal amount equal to its
beneficial interest in such Global Floating Rate Note (or the portion
thereof indicated above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Floating Rate Note.
In connection with any transfer of any of the Floating Rate Notes evidenced
by this certificate occurring prior to the expiration of the period referred
to in Rule 144(k) under the Securities Act, the undersigned confirms that
such Floating Rate Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer; or
(2) [ ] to the Registrar for registration in the name of the
Holder, without transfer; or
(3) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(5) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933
and such Security shall be held immediately after the
transfer through Euroclear or Clearstream until the
expiration of the Restricted Period (as defined in the
Indenture); or
F-14
(6) [ ] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements; or
(7) [ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Notes evidenced by this certificate in the name of any Person other
than the registered Holder thereof; PROVIDED, HOWEVER, that if box (5), (6)
or (7) is checked, the Trustee may require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other
information as the Issuer has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.
Date:
--------------------------- -----------------------------------------
Your Signature
Signature Guarantee:
Date:
--------------------------- ------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
-----------------------------------------------------------------------------
F-15
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Floating Rate Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuer as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated:
---------------------- ---------------------------------------
NOTICE: To be executed by an executive
officer
F-16
[TO BE ATTACHED TO GLOBAL FLOATING RATE NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL FLOATING RATE NOTE
The initial principal amount of this Global Floating Rate Note is
$[ ]. The following increases or decreases in this Global
Floating Rate Note have been made:
Amount of Amount of
decrease in increase in Principal amount Signature of
Principal Principal of this Global authorized
Amount of this Amount of Floating Rate signatory of
Global this Global Note following Trustee or
Date of Floating Rate Floating Rate such decrease or Securities
Exchange Note Note increase Custodian
--------- -------------- ------------- ---------------- -------------
F-17
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS FLOATING RATE NOTE PURCHASED BY
THE ISSUER PURSUANT TO SECTION 4.06 (ASSET SALES) OR 4.08 (CHANGE OF CONTROL)
OF THE INDENTURE, CHECK THE BOX:
ASSET SALE [ ] CHANGE OF CONTROL [ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS FLOATING RATE NOTE
PURCHASED BY THE ISSUER PURSUANT TO SECTION 4.06 (ASSET SALE) OR
4.08 (CHANGE OF CONTROL) OF THE INDENTURE, STATE THE AMOUNT ($1,000 OR AN
INTEGRAL MULTIPLE THEREOF):
$-----------------
DATE: YOUR SIGNATURE:
------------------ -------------------------
(SIGN EXACTLY AS YOUR NAME
APPEARS ON THE OTHER SIDE
OF THIS NOTE)
SIGNATURE GUARANTEE:
-----------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED
SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR
PROGRAM REASONABLY ACCEPTABLE TO THE TRUSTEE
F-18
EXHIBIT G
Form of
Transferee Letter of Representation - 2013 Notes
INTELSAT (BERMUDA), LTD.
c/o Wells Fargo Bank, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ]
principal amount of the 8-1/4% Senior Notes due 2013 (the "NOTES") of ZEUS
MERGER TWO LIMITED (the "ISSUER").
Upon transfer, the Notes would be registered in the name of the
new beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "SECURITIES ACT")), purchasing for our own account or for the
account of such an institutional "accredited investor" at least
$[ ] principal amount of the Notes, and we are acquiring the Notes
not with a view to, or for offer or sale in connection with, any distribution
in violation of the Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we invest in or purchase Notes
similar to the Notes in the normal course of our business. We, and any
accounts for which we are acting, are each able to bear the economic risk of
our or its investment.
2. We understand that the Notes have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on
behalf of any investor account for which we are purchasing Notes to offer,
sell or otherwise transfer such Notes prior to the date that is two years
after the later of the date of original issue and the last date on which the
Issuer or any affiliate of the Issuer was the owner of such Notes (or any
predecessor thereto) (the "RESALE RESTRICTION TERMINATION DATE") only (a) to
the Issuer, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act ("RULE 144A"), to a person
we reasonably believe is a qualified
G-1
institutional buyer under Rule 144A (a "QIB") that is purchasing for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state Notes laws. The
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Issuer and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act and that it is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Issuer and the Trustee reserve the right prior
to the offer, sale or other transfer prior to the Resale Restriction Termination
Date of the Notes pursuant to clause (d), (e) or (f) above to require the
delivery of an opinion of counsel, certifications or other information
satisfactory to the Issuer and the Trustee.
Dated: TRANSFEREE:
-------------------------- --------------------,
by
------------------------------
G-2
EXHIBIT H
Form of
Transferee Letter of Representation - 2015 Notes
INTELSAT (BERMUDA), LTD.
c/o Wells Fargo Bank, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ]
principal amount of the 8-5/8% Senior Notes due 2015 (the "NOTES") of ZEUS
MERGER TWO LIMITED (the "ISSUER").
Upon transfer, the Notes would be registered in the name of the
new beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "SECURITIES ACT")), purchasing for our own account or for the
account of such an institutional "accredited investor" at least
$[ ] principal amount of the Notes, and we are acquiring the Notes
not with a view to, or for offer or sale in connection with, any distribution
in violation of the Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we invest in or purchase Notes
similar to the Notes in the normal course of our business. We, and any
accounts for which we are acting, are each able to bear the economic risk of
our or its investment.
2. We understand that the Notes have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on
behalf of any investor account for which we are purchasing Notes to offer,
sell or otherwise transfer such Notes prior to the date that is two years
after the later of the date of original issue and the last date on which the
Issuer or any affiliate of the Issuer was the owner of such Notes (or any
predecessor thereto) (the "RESALE RESTRICTION TERMINATION DATE") only (a) to
the Issuer, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act ("RULE 144A"), to a person
we reasonably believe is a qualified
H-1
institutional buyer under Rule 144A (a "QIB") that is purchasing for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state Notes laws. The
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Issuer and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act and that it is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Issuer and the Trustee reserve the right prior
to the offer, sale or other transfer prior to the Resale Restriction Termination
Date of the Notes pursuant to clause (d), (e) or (f) above to require the
delivery of an opinion of counsel, certifications or other information
satisfactory to the Issuer and the Trustee.
Dated: TRANSFEREE: ,
-------------------------- --------------------
by
------------------------------
EXHIBIT I
Form of
Transferee Letter of Representation - Floating Rate Notes
INTELSAT (BERMUDA), LTD.
c/o Wells Fargo Bank, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ]
principal amount of the Floating Rate Senior Notes due 2012 (the "NOTES") of
INTELSAT (BERMUDA), LTD. (the "ISSUER").
Upon transfer, the Notes would be registered in the name of the
new beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "SECURITIES ACT")), purchasing for our own account or for the
account of such an institutional "accredited investor" at least
$[ ] principal amount of the Notes, and we are acquiring the Notes
not with a view to, or for offer or sale in connection with, any distribution
in violation of the Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we invest in or purchase Notes
similar to the Notes in the normal course of our business. We, and any
accounts for which we are acting, are each able to bear the economic risk of
our or its investment.
2. We understand that the Notes have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on
behalf of any investor account for which we are purchasing Notes to offer,
sell or otherwise transfer such Notes prior to the date that is two years
after the later of the date of original issue and the last date on which the
Issuer or any affiliate of the Issuer was the owner of such Notes (or any
predecessor thereto) (the "RESALE RESTRICTION TERMINATION DATE") only (a) to
the Issuer, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act ("RULE 144A"), to a person
we reasonably believe is a qualified
I-1
institutional buyer under Rule 144A (a "QIB") that is purchasing for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state Notes laws. The
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Issuer and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act and that it is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Issuer and the Trustee reserve the right prior
to the offer, sale or other transfer prior to the Resale Restriction Termination
Date of the Notes pursuant to clause (d), (e) or (f) above to require the
delivery of an opinion of counsel, certifications or other information
satisfactory to the Issuer and the Trustee.
Dated: TRANSFEREE: ,
-------------------------- --------------------
by
-------------------------------
J-2
EXHIBIT J
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE") dated as
of [ ], among [GUARANTOR] (the "NEW GUARANTOR"), a subsidiary of
INTELSAT (BERMUDA), LTD. (or its successor), a Delaware corporation (the
"ISSUER"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association, as trustee under the indenture referred to below (the "TRUSTEE").
W I T N E S S E T H :
WHEREAS the Issuer and the existing Guarantor(s) have heretofore
executed and delivered to the Trustee an Indenture (as amended, supplemented
or otherwise modified, the "INDENTURE") dated as of January 28, 2005,
providing for the issuance of the Issuer's 8-1/4% Senior Notes due 2013 (the
"2013 NOTES"), 8-5/8% Senior Notes due 2015 (the "2015 NOTES") and Senior
Floating Rate Notes due 2012 (the "FLOATING RATE NOTES" and, together with
the 2013 Notes and the 2015 Notes, the "NOTES"), initially in the aggregate
principal amount of $875,000,000, $675,000,000 and $1,000,000,000,
respectively;
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Issuer is required to cause the New Guarantor to execute
and deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Issuer's obligations under
the Notes pursuant to a Guarantee on the terms and conditions set forth
herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee
and the Issuer are authorized to execute and deliver this Supplemental
Indenture;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Guarantor, the Issuer, and the Trustee mutually covenant and agree
for the equal and ratable benefit of the holders of the Notes as follows:
1. DEFINED TERMS. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "HOLDERS" in this
Supplemental Indenture shall refer to the term "HOLDERS" as defined in the
Indenture and the Trustee acting on behalf of and for the benefit of such
Holders. The words "herein," "hereof" and hereby and other words of similar
import used in this Supplemental Indenture refer to this Supplemental
Indenture as a whole and not to any particular section hereof.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees,
jointly and severally with all existing Guarantors (if any), to
unconditionally guarantee the Issuer's obligations under the Notes on the
terms and subject to the conditions set forth in Article 10 of the Indenture
and to be bound by all other applicable provisions of the Indenture and the
Notes apply-
J-1
ing to a Guarantor and to perform all of the obligations and agreements of a
Guarantor under the Indenture.
3. NOTICES. All notices or other communications to the New
Guarantor shall be given as provided in Section 11.02 of the Indenture.
4. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF
INDENTURE. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every holder of
Notes heretofore or hereafter authenticated and delivered shall be bound
hereby.
5. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
6. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental
Indenture.
7. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
8. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not effect the construction thereof.
J-2
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR]
By:
-------------------------------------
Name:
Title:
J-3
INTELSAT (BERMUDA), LTD.
By:
-------------------------------------
Name:
Title:
J-4
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------
Name:
Title:
J-5
