MOBILE SATELLITE VENTURES LP and MSV FINANCE CO., as Issuers, the GUARANTORS named herein and THE BANK OF NEW YORK, as Trustee INDENTURE Dated as of January 7, 2008 16.5% Senior Notes due 2013
MOBILE
SATELLITE VENTURES LP
and
MSV
FINANCE CO.,
as
Issuers,
the
GUARANTORS named herein
and
THE
BANK
OF NEW YORK, as Trustee
_____________________
Dated
as
of January 7, 2008
_____________________
16.5%
Senior Notes due 2013
TABLE
OF
CONTENTS
Page
ARTICLE
1
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
Section
1.01.
|
Definitions.
|
1
|
|
Section
1.02.
|
Other
Definitions.
|
27
|
|
Section
1.03.
|
Incorporation
by Reference of Trust Indenture Act.
|
27
|
|
Section
1.04.
|
Rules
of Construction.
|
27
|
ARTICLE
2
THE
NOTES
|
Section
2.01.
|
Form
and Dating.
|
28
|
|
Section
2.02.
|
Execution
and Authentication.
|
29
|
|
Section
2.03.
|
Registrar
and Paying Agent.
|
30
|
|
Section
2.04.
|
Paying
Agent to Hold Money in Trust.
|
30
|
|
Section
2.05.
|
Holder
Lists.
|
31
|
|
Section
2.06.
|
Transfer
and Exchange.
|
31
|
|
Section
2.07.
|
Replacement
Notes.
|
41
|
|
Section
2.08.
|
Outstanding
Notes.
|
42
|
|
Section
2.09.
|
Temporary
Notes.
|
42
|
|
Section
2.10.
|
Cancellation.
|
42
|
|
Section
2.11.
|
Defaulted
Interest.
|
42
|
|
Section
2.12.
|
Deposit
of Moneys.
|
42
|
|
Section
2.13.
|
CUSIP
Number.
|
43
|
ARTICLE
3
REDEMPTION
|
Section
3.01.
|
Notices
to Trustee.
|
43
|
|
Section
3.02.
|
Selection
by Trustee of Notes to Be Redeemed.
|
43
|
|
Section
3.03.
|
Notice
of Redemption.
|
43
|
|
Section
3.04.
|
Effect
of Notice of Redemption.
|
44
|
|
Section
3.05.
|
Deposit
of Redemption Price.
|
44
|
|
Section
3.06.
|
Notes
Redeemed in Part.
|
45
|
ARTICLE
4
COVENANTS
|
Section
4.01.
|
Payment
of Notes.
|
45
|
|
Section
4.02.
|
SEC
Reports.
|
45
|
|
Section
4.03.
|
Waiver
of Stay, Extension or Usury Laws.
|
46
|
|
Section
4.04.
|
Compliance
Certificate.
|
47
|
-i-
| Page | ||
|
Section
4.05.
|
Taxes.
|
47
|
|
Section
4.06.
|
Limitation
on Indebtedness.
|
47
|
|
Section
4.07.
|
Limitation
on Issuance or Sale of Capital Stock of Restricted
Entities.
|
51
|
|
Section
4.08.
|
Limitation
on Restricted Payments.
|
51
|
|
Section
4.09.
|
Limitation
on Liens.
|
55
|
|
Section
4.10.
|
Limitation
on Sale of Assets and Subsidiary Stock.
|
56
|
|
Section
4.11.
|
Limitation
on Transactions with Affiliates.
|
59
|
|
Section
4.12.
|
Future
Guarantors.
|
60
|
|
Section
4.13.
|
Limitation
on Restrictions on Distributions from Restricted Subsidiaries and
Restricted Entities.
|
60
|
|
Section
4.14.
|
Payments
for Consent.
|
62
|
|
Section
4.15.
|
Corporate
Existence.
|
62
|
|
Section
4.16.
|
Change
of Control.
|
62
|
|
Section
4.17.
|
Maintenance
of Office or Agency.
|
63
|
|
Section
4.18.
|
Maintenance
of Insurance.
|
64
|
|
Section
4.19.
|
Limitation
on Business Activities of Finance Co.
|
64
|
|
Section
4.20.
|
Certain
Matters in Connection with Licenses.
|
65
|
|
Section
4.21.
|
Limitation
on Line of Business.
|
65
|
|
Section
4.22.
|
Calculation
of Original Issue Discount.
|
65
|
ARTICLE
5
SUCCESSOR
CORPORATION
|
Section
5.01.
|
Limitation
on Consolidation, Merger and Sale of Property.
|
65
|
|
Section
5.02.
|
Substitution
of Company.
|
67
|
ARTICLE
6
DEFAULTS
AND REMEDIES
|
Section
6.01.
|
Events
of Default.
|
68
|
|
Section
6.02.
|
Acceleration.
|
69
|
|
Section
6.03.
|
Other
Remedies.
|
70
|
|
Section
6.04.
|
Waiver
of Past Defaults and Events of Default.
|
70
|
|
Section
6.05.
|
Control
by Majority.
|
70
|
|
Section
6.06.
|
Limitation
on Suits.
|
70
|
|
Section
6.07.
|
Rights
of Holders to Receive Payment.
|
71
|
|
Section
6.08.
|
Collection
Suit by Trustee.
|
71
|
|
Section
6.09.
|
Trustee
May File Proofs of Claim.
|
71
|
|
Section
6.10.
|
Priorities.
|
72
|
|
Section
6.11.
|
Undertaking
for Costs.
|
72
|
ARTICLE
7
TRUSTEE
|
Section
7.01.
|
Duties
of Trustee.
|
72
|
|
Section
7.02.
|
Rights
of Trustee.
|
74
|
|
Section
7.03.
|
Individual
Rights of Trustee.
|
75
|
|
Section
7.04.
|
Trustee’s
Disclaimer.
|
75
|
-ii-
| Page | ||
|
Section
7.05.
|
Notice
of Defaults.
|
75
|
|
Section
7.06.
|
Reports
by Trustee to Holders.
|
75
|
|
Section
7.07.
|
Compensation
and Indemnity.
|
76
|
|
Section
7.08.
|
Replacement
of Trustee.
|
77
|
|
Section
7.09.
|
Successor
Trustee by Consolidation, Merger or Conversion.
|
78
|
|
Section
7.10.
|
Eligibility;
Disqualification.
|
78
|
|
Section
7.11.
|
Preferential
Collection of Claims Against Company.
|
78
|
|
Section
7.12.
|
Paying
Agents.
|
78
|
ARTICLE
8
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
|
Section
8.01.
|
Without
Consent of Holders.
|
79
|
|
Section
8.02.
|
With
Consent of Holders.
|
80
|
|
Section
8.03.
|
Revocation
and Effect of Consents.
|
81
|
|
Section
8.04.
|
Notation
on or Exchange of Notes.
|
81
|
|
Section
8.05.
|
Trustee
to Sign Amendments, etc.
|
81
|
ARTICLE
9
DISCHARGE
OF INDENTURE; DEFEASANCE
|
Section
9.01.
|
Discharge
of Indenture.
|
82
|
|
Section
9.02.
|
Legal
Defeasance.
|
83
|
|
Section
9.03.
|
Covenant
Defeasance.
|
83
|
|
Section
9.04.
|
Conditions
to Defeasance or Covenant Defeasance.
|
83
|
|
Section
9.05.
|
Deposited
Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.
|
84
|
|
Section
9.06.
|
Reinstatement.
|
85
|
|
Section
9.07.
|
Moneys
Held by Paying Agent.
|
85
|
|
Section
9.08.
|
Moneys
Held by Trustee.
|
85
|
ARTICLE
10
GUARANTEE
OF SECURITIES
|
Section
10.01.
|
Guarantee.
|
86
|
|
Section
10.02.
|
Execution
and Delivery of Guarantees.
|
87
|
|
Section
10.03.
|
Limitation
of Guarantee.
|
87
|
|
Section
10.04.
|
Additional
Guarantors.
|
87
|
|
Section
10.05.
|
Release
of Guarantor.
|
87
|
|
Section
10.06.
|
Waiver
of Subrogation.
|
88
|
|
Section
10.07.
|
Taxes.
|
88
|
ARTICLE
11
MISCELLANEOUS
|
Section
11.01.
|
Notices.
|
89
|
|
Section
11.02.
|
Communications
by Holders with Other Holders.
|
90
|
-iii-
| Page | ||
|
Section
11.03.
|
Certificate
and Opinion as to Conditions Precedent.
|
90
|
|
Section
11.04.
|
Statements
Required in Certificate and Opinion.
|
90
|
|
Section
11.05.
|
When
Treasury Notes Disregarded.
|
90
|
|
Section
11.06.
|
Rules
by Trustee and Agents.
|
91
|
|
Section
11.07.
|
Legal
Holidays.
|
91
|
|
Section
11.08.
|
Governing
Law.
|
91
|
|
Section
11.09.
|
No
Adverse Interpretation of Other Agreements.
|
91
|
|
Section
11.10.
|
No
Recourse Against Others.
|
91
|
|
Section
11.11.
|
Successors.
|
91
|
|
Section
11.12.
|
Multiple
Counterparts.
|
91
|
|
Section
11.13.
|
Table
of Contents, Headings, etc.
|
92
|
|
Section
11.14.
|
Separability.
|
92
|
|
Section
11.15.
|
Waiver
of Jury Trial.
|
92
|
|
Section
11.16.
|
Force
Majeure.
|
92
|
|
Section
11.17.
|
Currency
of Account; Conversion of Currency; Foreign Exchange
Restrictions.
|
92
|
|
Section
11.18.
|
Agent
for Service.
|
▇▇
|
|
▇▇▇▇▇▇▇
▇▇.▇▇.
|
▇▇▇▇▇▇▇▇
▇▇▇ (▇▇▇▇▇▇).
|
94
|
|
Section
11.20.
|
Joint
and Several Obligations.
|
94
|
|
Exhibits
|
||
|
Exhibit
A-1
|
Form
of Face of Certificated Notes
|
▇-▇
|
|
▇▇▇▇▇▇▇
▇-▇
|
Form
of Restricted Global Note
|
▇-▇
|
|
▇▇▇▇▇▇▇
▇-▇
|
Form
of Regulation S Global Note
|
▇-▇
|
|
▇▇▇▇▇▇▇
▇-▇
|
Form
of Reverse of Notes
|
A-4
|
|
Exhibit
B
|
Form
of Certificate of Transfer
|
B-1
|
|
Exhibit
C
|
Form
of Certificate of Exchange
|
C-1
|
|
Exhibit
D
|
Form
of Certificate of Acquiring Institutional
|
|
|
|
Accredited
Investors
|
D-1
|
-iv-
INDENTURE,
dated as of January 7 2008 (the “Indenture”),
among
MOBILE SATELLITE VENTURES LP, a Delaware limited partnership (the “Company”),
MSV
FINANCE CO., a Delaware corporation (“Finance
Co.”
and,
together with the Company, the “Issuers”),
the
GUARANTORS (as defined herein) parties hereto and THE BANK OF NEW YORK, a New
York banking corporation, 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 of the Issuers’ 16.5% Senior Notes due 2013
(collectively, the “Notes”):
ARTICLE
1
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
Section
1.01.
|
Definitions.
|
“144A
Global Note”
means
a
global note substantially in the form of Exhibit A hereto bearing the Global
Note Legend and the Restricted Notes Legend and deposited with or on behalf
of,
and registered in the name of, the Depository or its nominee that will be issued
in a denomination equal to the outstanding principal amount of the Notes resold
in reliance on Rule 144A.
“Additional
Assets”
means:
(1) any
property, plant, license, equipment or any other tangible asset or any
improvement thereto (including improvements to existing assets) used or useful
in a Related Business;
(2) all
or
substantially all of the assets of, or the Capital Stock of a Person that
becomes a Restricted Entity as a result of the acquisition of such Capital
Stock
by the Company or another Restricted Entity; or
(3) Capital
Stock constituting a minority interest in any Person that at such time is a
Restricted Entity;
provided,
however,
that
any such Restricted Entity described in clause (2) or (3) above is primarily
engaged in a Related Business.
“Affiliate”
of
any
specified Person means any other Person, directly or indirectly, controlling
or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with respect to
any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing. For purposes of Sections 4.08, 4.10
and
4.11 only, “Affiliate” shall also mean any beneficial owner of Capital Stock
representing 20% or more of the total voting power of the Voting Stock (on
a
fully diluted basis) of the General Partner or the Capital Stock of the Company
or of rights or warrants to purchase such Capital Stock (whether or not
currently exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence hereof.
“Agent”
means
any Registrar, Paying Agent, co-registrar or agent for service of notices and
demands.
“Applicable
Currency 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 time)
on the date not more than two Business Days prior to such
determination
“Applicable
Premium”
means,
with respect to any Note on any redemption date, the greater of:
(1) 1.0%
of
the then outstanding principal amount of the Note; and
(2) the
excess of:
(a) the
present value at such redemption date of the redemption price of the Note at
April 1, 2011, 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 the Note.
“Applicable
Procedures”
means,
with respect to any transfer or exchange of or for beneficial interests in
any
Global Note, the rules and procedures of the Depository that apply to such
transfer or exchange.
“Asset
Disposition”
means
any sale, lease (other than an operating lease entered into in the ordinary
course of business), transfer or other disposition (or series of related sales,
leases, transfers or dispositions) by the Company or any Restricted Entity,
including any disposition by means of a merger, consolidation or similar
transaction (each referred to for the purposes of this definition as a
“disposition”),
of:
(1) any
shares of Capital Stock of a Restricted Entity (other than directors’ qualifying
shares or shares required by applicable law to be held by a Person other than
the Company or a Restricted Entity);
(2) all
or
substantially all the assets of any division or line of business of the Company
or any Restricted Entity; or
(3) any
other
assets of the Company or any Restricted Entity outside of the ordinary course
of
business of the Company or such Restricted Entity;
other
than, in the case of clauses (1), (2) and (3) above,
(A) a
disposition by a Restricted Entity to the Company or by the Company or a
Restricted Entity to a Guarantor;
(B) for
purposes of Section 4.10 only, (i) a disposition that constitutes a Restricted
Payment (or would constitute a Restricted Payment but for the exclusions from
the definition thereof) or a Permitted Investment and that is not prohibited
by
Section 4.08, (ii) the making of an Asset Swap and (iii) a disposition of all
or
substantially all the assets of the Company in accordance with Article
5;
-2-
(C) a
disposition of assets in a transaction or series of related transactions with
a
fair market value of less than $10 million;
(D) a
disposition of cash, Temporary Cash Investments;
(E) the
creation of a Lien permitted by this Indenture (but not the sale or other
disposition of the property subject to such Lien);
(F) the
licensing or sublicensing of intellectual property or other general intangibles;
provided,
however,
such
licensing or sublicensing shall not interfere in any material respect with
the
Company’s continuing use of such intellectual property or other general
intangibles in its business;
(G) disposition
of damaged, obsolete or worn out property in the ordinary course of business;
or
(H) granting
a Permitted Lien.
“Asset
Swap”
means
the concurrent purchase and sale or exchange of Related Business Assets between
the Company or any of the Restricted Entities and another Person.
“Attributable
Debt”
in
respect of a Sale/Leaseback Transaction means, as at the time of determination,
the present value (discounted at the interest rate borne by the Notes,
compounded annually) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended);
provided,
however,
that if
such Sale/Leaseback Transaction results in a Capital Lease Obligation, the
amount of Indebtedness represented thereby will be determined in accordance
with
the definition of “Capital Lease Obligation”.
“Average
Life”
means,
as of the date of determination, with respect to any Indebtedness, the quotient
obtained by dividing:
(1) the
sum
of the products of the numbers of years from the date of determination to the
dates of each successive scheduled principal payment of or redemption or similar
payment with respect to such Indebtedness multiplied by the amount of such
payment by
(2) the
sum
of all such payments.
“BCE
Equity”
means
Capital Stock owned by BCE Inc. or any of its Affiliates in the Company after
a
Parent Rollup Transaction that does not exceed 22% of the outstanding Capital
Stock of the Company and that does not permit BCE Inc. or its Affiliates to
have
any voting rights with respect to the Company or the General Partner, does
not
entitle BCE Inc. or its Affiliates to any dividends or distributions on Capital
Stock of the Company or any payment upon liquidation of the Company or any
other
economic right with respect to the Company and which only entitles BCE Inc.
or
its Affiliates to receive an issuance of Capital Stock of the Parent in exchange
for all of such Capital Stock of the Company.
“Board
of Directors”
means
the Board of Directors (or similar body) of the Company (or if the Company
is a
limited partnership, the general partner thereof) or any committee thereof
duly
authorized to act on behalf of such Board.
-3-
“Board
Resolution”
means
a
resolution duly adopted by the Board of Directors, certified by the Secretary
or
an Assistant Secretary of the Company (or if the Company is a limited
partnership, the General Partner) to have been duly adopted and to be in full
force and effect on the date of such certification.
“Boeing
Agreement”
means
the agreement between the Company and Boeing Satellite Systems, Inc. for the
MSV
L-Band Space Based Network, dated January 9, 2006, as amended March 9, 2006,
September 11, 2006 and from time to time in a manner not materially more
burdensome, taken as a whole, to the holders of the Notes.
“Business
Day”
means
each day which is not a Legal Holiday.
“Canadian
Guarantors”
means
the Canadian Joint Ventures and the Existing Canadian Subsidiary.
“Canadian
Joint Ventures”
means
Mobile Satellite Ventures Holdings (Canada) Inc. and Mobile Satellite Ventures
(Canada) Inc. and their successors.
“Capital
Lease Obligation”
means
an obligation that is required to be classified and accounted for as a capital
lease for financial reporting purposes in accordance with GAAP, and the amount
of Indebtedness represented by such obligation shall be the capitalized amount
of such obligation determined in accordance with GAAP; and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty. For purposes of Section 4.09, a
Capital Lease Obligation will be deemed to be secured by a Lien on the property
being leased.
“Capital
Stock”
of
any
Person means any and all shares, interests (including partnership interests
and
membership interests in a limited liability company), rights to purchase,
warrants, options, participations or other equivalents of or interests in
(however designated) equity of such Person, including any Preferred Stock,
but
excluding any debt securities convertible into such equity.
“Change
of Control”
means
the occurrences of any of the following events:
(1) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), other than one or more Permitted Holders (individually or as
a
member of such group), is or becomes the “beneficial owner” (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause
(1) such person or group shall be deemed to have “beneficial ownership” of all
shares that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of (a) more than 50% of the total voting power of the Voting Stock
of the General Partner or (b) more than 50% of the total economic or voting
power of the Capital Stock of the Company (for the purposes of this clause
(1),
such other person or group shall be deemed to beneficially own any Voting Stock
or Capital Stock of a Person (the “specified
person”)
held
by any other Person (including one or more Permitted Holders) (the “parent
entity”),
if
such other person or group is the beneficial owner (as defined above in this
clause (1)), directly or indirectly, of more than 50% of the voting power of
the
Voting Stock or 50% of the economic or voting power of the Capital stock, as
applicable, of such parent entity);
(2) on
and
after the occurrence of any Public Offering, individuals who on the Issue Date
constituted the Board of Directors (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
shareholders of the Company or the General Partner was approved by a vote of
a
majority of the directors of the Company or the General Partner then still
in
office who were either directors on the Issue Date or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors then in office;
-4-
(3) the
adoption of a plan relating to the liquidation or dissolution of the Company;
or
(4) the
merger or consolidation of the Company or the General Partner with or into
another Person (other than one or more Permitted Holders) or the merger of
another Person (other than one or more Permitted Holders) with or into the
Company or the General Partner, or the sale of all or substantially all the
assets of the Company or the General Partner (determined on a consolidated
basis) to another Person (other than one or more Permitted Holders) other than
a
transaction following which in the case of a merger or consolidation
transaction, holders of securities that represented 100% of the Voting Stock
of
the General Partner and 100% of the Capital Stock of the Company immediately
prior to such transaction (or other securities into which such securities are
converted as part of such merger or consolidation transaction) own directly
or
indirectly at least a majority of the voting power of the Voting Stock of the
surviving Person of the General Partner and at least a majority of the economic
or voting power of the Capital Stock of the surviving Person of the Company
(whether or not the surviving Person is in the same corporate form) in such
merger or consolidation transaction immediately after such
transaction.
“Code”
means
the Internal Revenue Code of 1986, as amended.
“Company”
means
the party named as such in the first paragraph of this Indenture until a
successor replaces such party pursuant to Article 5 of this Indenture and
thereafter means the successor.
“Company
Request”
means
any written request signed in the name of the Company by the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer or the Secretary or any Assistant Secretary of the Company and
delivered to the Trustee.
“Consolidated
Income Tax Expense”
means,
with respect to the Company for any period, the provision for federal, state,
local and foreign taxes based on income or profits (including franchise taxes)
payable by the Company and the Restricted Entities for such period and any
Permitted Tax Distributions for such period as determined on a consolidated
basis in accordance with GAAP.
“Consolidated
Interest Expense”
means,
for any period, the total interest expense of the Company and the Restricted
Entities for such period, whether paid or accrued and whether or not capitalized
(including amortization of debt issuance costs and original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations and Attributable Debt, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers’ acceptance
financings), and net of the effect of all payments made or received pursuant
to
Hedging Obligations.
“Consolidated
Leverage Ratio”
as
of
any date of determination means the ratio of (x) the aggregate amount of
Indebtedness of the Company and the Restricted Entities as of such date of
determination to (y) Consolidated Operating Cash Flow for the most recent four
consecutive fiscal quarters ending prior to such date of determination for
which
financial information is available (the “Reference
Period”);
provided,
however,
that:
-5-
(1) if
the
transaction giving rise to the need to calculate the Consolidated Leverage
Ratio
is an Incurrence of Indebtedness, the amount of such Indebtedness shall be
calculated after giving effect on a pro forma basis to such
Indebtedness;
(2) if
the
Company or any Restricted Entity has repaid, repurchased, defeased or otherwise
discharged any Indebtedness that was outstanding as of the end of such fiscal
quarter or if any Indebtedness is to be repaid, repurchased, defeased or
otherwise discharged on the date of the transaction giving rise to the need
to
calculate the Consolidated Leverage Ratio (other than, in each case,
Indebtedness Incurred under any revolving credit agreement), the aggregate
amount of Indebtedness shall be calculated on a pro forma basis and Consolidated
Operating Cash Flow shall be calculated as if the Company or such Restricted
Entity had not earned the interest income, if any, actually earned during the
Reference Period in respect of cash or Temporary Cash Investments used to repay,
repurchase, defease or otherwise discharge such Indebtedness;
(3) if
since
the beginning of the Reference Period the Company or any Restricted Entity
shall
have made any Asset Disposition, the Consolidated Operating Cash Flow for the
Reference Period shall be reduced by an amount equal to the Consolidated
Operating Cash Flow (if positive) directly attributable to the assets which
are
the subject of such Asset Disposition for the Reference Period or increased
by
an amount equal to the Consolidated Operating Cash Flow (if negative) directly
attributable thereto for the Reference Period;
(4) if
since
the beginning of the Reference Period the Company or any Restricted Entity
(by
merger or otherwise) shall have made an Investment in any Restricted Entity
(or
any Person which becomes a Restricted Entity) or an acquisition of assets which
constitutes all or substantially all of an operating unit of a business,
Consolidated Operating Cash Flow for the Reference Period shall be calculated
after giving pro forma effect thereto (including the Incurrence of any
Indebtedness) as if such Investment or acquisition had occurred on the first
day
of the Reference Period; and
(5) if
since
the beginning of the Reference Period any Person (that subsequently became
a
Restricted Entity or was merged with or into the Company or any Restricted
Entity since the beginning of such Reference Period) shall have made any Asset
Disposition, any Investment or acquisition of assets that would have required
an
adjustment pursuant to clause (3) or (4) above if made by the Company or a
Restricted Entity during the Reference Period, Consolidated Operating Cash
Flow
for the Reference Period shall be calculated after giving pro forma effect
thereto as if such Asset Disposition, Investment or acquisition had occurred
on
the first day of the Reference Period.
For
purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto and
the
amount of Consolidated Interest Expense associated with any Indebtedness
Incurred in connection therewith, the pro forma calculations shall be determined
in accordance with GAAP in good faith by a responsible financial or accounting
Officer of the Company. If any Indebtedness bears a floating rate of interest
and is being given pro forma effect, the interest on such Indebtedness shall
be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Hedging
Obligation applicable to such Indebtedness if such Hedging Obligation has a
remaining term in excess of 12 months). If any Indebtedness is Incurred under
a
revolving credit facility and is being given pro forma effect, the interest
on
such Indebtedness shall be calculated based on the average daily balance of
such
Indebtedness for the four fiscal quarters subject to the pro forma calculation
to the extent such Indebtedness was Incurred solely for working capital
purposes.
-6-
“Consolidated
Net Income”
means,
for any period, the net income of the Company and its consolidated Restricted
Entities; provided,
however,
that
there shall not be included in such Consolidated Net Income:
(1) any
net
income of any Person (other than the Company) if such Person is not a Restricted
Entity, except that:
(A) subject
to the exclusion contained in clauses (3), (4) and (5) below, the Company’s
equity in the net income of any such Person for such period shall be included
in
such Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a Restricted
Entity as a dividend or other distribution (subject, in the case of a dividend
or other distribution paid to a Restricted Entity, to the limitations contained
in clause (2) below); and
(B) the
Company’s equity in a net loss of any such Person for such period shall be
included in determining such Consolidated Net Income to the extent such loss
has
been funded with cash from the Company or a Restricted Entity;
(2) any
net
income of any Restricted Entity if such Restricted Entity is subject to
restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Restricted Entity, directly or indirectly, to the
Company, except that:
(A) subject
to the exclusion contained in clauses (3), (4) and (5) below, the Company’s
equity in the net income of any such Restricted Entity for such period shall
be
included in such Consolidated Net Income up to the aggregate amount of cash
that
could have been distributed by such Restricted Entity during such period to
the
Company or another Restricted Entity as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid to another
Restricted Entity, to the limitation contained in this clause); and
(B) the
Company’s equity in a net loss of any such Restricted Entity for such period
shall be included in determining such Consolidated Net Income;
(3) any
gain
(or loss) realized upon the sale or other disposition of any assets of the
Company or its consolidated Restricted Entities (including pursuant to any
Sale/Leaseback Transaction) which is not sold or otherwise disposed of in the
ordinary course of business and any gain (or loss) realized upon the sale or
other disposition of any Capital Stock of any Person;
(4) extraordinary
gains or losses;
(5) the
cumulative effect of a change in accounting principles;
(6) all
deferred financing costs written off and premiums paid in connection with an
early extinguishment of Indebtedness;
(7) any
non-cash compensation charge arising from any grant of stock, stock option,
or
other equity based awards; and
(8) expenses
related to the offering of Notes,
-7-
in
each
case, for such period. Notwithstanding the foregoing, (x) for the purposes
of
Section 4.08 only, there shall be excluded from Consolidated Net Income any
repurchases, repayments or redemptions of Investments, proceeds realized on
the
sale of Investments or return of capital to the Company or a Restricted Entity
to the extent such repurchases, repayments, redemptions, proceeds or returns
increase the amount of Restricted Payments permitted under Section 4.08(a)(3)(D)
and (y) Consolidated Net Income shall be reduced by the amount of Permitted
Tax
Distributions.
“Consolidated
Operating Cash Flow”
means,
with respect to the Company and the Restricted Entities on a consolidated basis,
for any period, an amount equal to Consolidated Net Income for such period
increased (without duplication) by the sum of:
(a) Consolidated
Income Tax Expense accrued for such period to the extent deducted in determining
Consolidated Net Income for such period;
(b) Consolidated
Interest Expense for such period to the extent deducted in determining
Consolidated Net Income for such period;
(c) transition
costs for customers under contract in connection with migrating such customers’
end user equipment to end user equipment that functions on the Company’s planned
network not to exceed $10.0 million in any fiscal year; and
(d) depreciation,
amortization and any other noncash items for such period to the extent deducted
in determining Consolidated Net Income for such period (other than any noncash
item which requires the accrual of, or a reserve for, cash charges for any
future period) of the Company and the Restricted Entities (including
amortization of capitalized debt issuance costs for such period), all of the
foregoing determined on a consolidated basis in accordance with GAAP, and
decreased by noncash items to the extent they increase Consolidated Net Income
(including the partial or entire reversal of reserves taken in prior periods,
but excluding reversals of accruals or reserves for cash charges taken in prior
periods) for such period.
“Consolidated
Revenues”
means,
for any period, the consolidated net revenue of the Company and the Restricted
Entities for such period determined in accordance with GAAP.
“Consolidated
Total Assets”
means
the total assets of the Company and its consolidated Restricted Entities, as
shown on the most recent balance sheet of the Company, determined on a
consolidated basis in accordance with GAAP.
“Corporate
Trust Office”
means
the office of the Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the date of
execution of this Indenture is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Division — Corporate Finance Unit, or
such other address as the Trustee may designate from time to time by notice
to
the Noteholders and the Company, or the principal corporate trust office of
any
successor Trustee (or such other address as such successor Trustee may designate
from time to time by notice to the Noteholders and the Company).
“Default”
means
any event which is, or after notice or passage of time or both would be, an
Event of Default.
“Definitive
Note”
means
a
certificated Note registered in the name of the holder thereof and issued in
accordance with Section 2.06 hereof, substantially in the form of Exhibits
A-1
and A-4 hereto and such Note shall not bear the Global Note Legend and shall
not
have the “Schedule of Exchanges of Interests in the Global Note” attached
thereto.
-8-
“Depository”
means,
with respect to the Notes issued in the form of one or more Global Notes, The
Depository Trust Company or another Person designated as Depository by the
Company, which Person must be a clearing agency registered under the Exchange
Act.
“Designated
Equity Contributions”
means
Net Cash Proceeds received by the Company or, after the occurrence of a Parent
Rollup Transaction, the Parent (to the extent the net proceeds thereof are
contributed to the equity capital of the Company (other than in the form of
Disqualified Stock) or are used to purchase Capital Stock of the Company (other
than Disqualified Stock)) from the issuance or sale of its Capital Stock (other
than Disqualified Stock) subsequent to the Issue Date and designated in an
Officer’s Certificate as Designated Equity Contributions executed by the
principal financial officer of the Company.
“Designated
Equity Election”
means
the delivery to the Trustee of an Officer’s Certificate stating that the Company
elects to include Designated Equity Contributions under Section
4.08(a)(3)(B).
“Designated
Noncash Consideration”
means
the fair market value of noncash consideration received by the Company or a
Restricted Entity in connection with an Asset Disposition that is so designated
as Designated Noncash Consideration pursuant to an Officer’s Certificate,
setting forth the basis of such valuation, executed by the principal financial
officer of the Company, less the amount of cash or cash equivalents received
in
connection with a subsequent sale of such Designated Noncash
Consideration.
“Disqualified
Stock”
means,
with respect to any Person, any Capital Stock which by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable at the option of the holder) or upon the happening of any
event:
(1) matures
or is mandatorily redeemable (other than redeemable only for Capital Stock
of
such Person which is not itself Disqualified Stock) pursuant to a sinking fund
obligation or otherwise;
(2) is
convertible or exchangeable at the option of the holder for Indebtedness or
Disqualified Stock; or
(3) is
mandatorily redeemable or must be purchased upon the occurrence of certain
events or otherwise (including, without limitation, at the option of the holder
thereof), in whole or in part;
in
each
case on or prior to the date that is 91 days after the Stated Maturity of the
Notes; provided,
however,
that
any Capital Stock that would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person
to
purchase or redeem such Capital Stock upon the occurrence of an “asset sale” or
“change of control” shall not constitute Disqualified Stock if:
(A) the
“asset sale” or “change of control” provisions applicable to such Capital Stock
are not more favorable, taken as a whole, to the holders of such Capital Stock
than the terms applicable to the Notes and under Sections 4.10 and 4.16;
and
-9-
(B) any
such
requirement only becomes operative after compliance with such terms applicable
to the Notes, including the purchase of any Notes tendered pursuant
thereto.
The
amount of any Disqualified Stock that does not have a fixed redemption,
repayment or repurchase price will be calculated in accordance with the terms
of
such Disqualified Stock as if such Disqualified Stock were redeemed, repaid
or
repurchased on any date on which the amount of such Disqualified Stock is to
be
determined pursuant to this Indenture; provided,
however,
that if
such Disqualified Stock could not be required to be redeemed, repaid or
repurchased at the time of such determination, the redemption, repayment or
repurchase price will be the book value of such Disqualified Stock as reflected
in the most recent financial statements of such Person.
“Equity
Offering”
means
a
primary public or private offering of Capital Stock (other than Disqualified
Stock) of the Company (or after the consummation of a Parent Rollup Transaction,
the Parent (to the extent the net proceeds thereof are contributed to the equity
capital of the Company (other than in the form of Disqualified Stock) or are
used to purchase Capital Stock (other than Disqualified Stock) of the Company))
other than offerings with respect to the Company’s (or after the consummation of
a Parent Rollup Transaction, Parent’s) Capital Stock or options, warrants or
rights registered on Form S-4 or S-8.
“Exchange
Act”
means
the U.S. Securities Exchange Act of 1934, as amended.
“Existing
Canadian Subsidiary”
means
Mobile Satellite Ventures Corp., a Nova Scotia unlimited liability company,
and
its successors.
“FCC”
means
the Federal Communications Commission or any successor agency
thereto.
“FCC
License Subsidiary”
means
Mobile Satellite Ventures Subsidiary LLC, a wholly owned Subsidiary of the
Company that owns all of the Company’s FCC licenses in the United
States.
“FCC
Licenses”
means
broadcasting and other licenses, authorizations, waivers and permits which
are
issued from time to time by the FCC.
“Full
In-Orbit Insurance”
means
insurance coverage of satellites following the period of time that is
customarily covered by launch insurance and provides coverage against partial
losses, constructive total losses and complete losses.
“GAAP”
means
generally accepted accounting principles in the United States of America as
in
effect as of the Original Issue Date, including those set forth in:
(1) the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants;
(2) statements
and pronouncements of the Financial Accounting Standards Board;
(3) such
other statements by such other entity as approved by a significant segment
of
the accounting profession; and
(4) the
rules
and regulations of the SEC governing the inclusion of financial statements
(including pro forma financial statements) in periodic reports required to
be
filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements
from
the accounting staff of the SEC.
-10-
“General
Partner”
means
Mobile Satellite Ventures GP Inc. and its successors.
“Global
Note Legend”
means
the legend set forth in Section 2.06(g)(ii), which is required to be placed
on
all Global Notes issued under this Indenture.
“Global
Notes”
means,
individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes, substantially in the form of Exhibit A hereto, issued
in accordance with Section 2.01, 2.06(b)(vi) or 2.06(d)(iii)
hereof.
“Governmental
Authority”
means
any Federal, state, provincial, local, foreign or other governmental,
quasi-governmental or administrative (including self-regulatory) body,
instrumentality, department, agency, authority, board, bureau, commission,
office of any nature whatsoever or other subdivision thereof, or any court,
tribunal, administrative hearing body, arbitration panel or other similar
dispute-resolving body, whether now or hereafter in existence, or any officer
or
official thereof, having jurisdiction over either of the Issuers.
“Guarantee”
means
any obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Indebtedness of any Person and any obligation, direct or
indirect, contingent or otherwise, of such Person:
(1) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such
Indebtedness of such Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise); or
(2) entered
into for the purpose of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss
in
respect thereof (in whole or in part);
provided,
however,
that
the term “Guarantee” shall not include endorsements for collection or deposit in
the ordinary course of business. The term “Guarantee” used as a verb has a
corresponding meaning.
“Guarantor”
means
each Subsidiary of the Company and the Canadian Joint Ventures that guarantee
the Notes under Article 10.
“Hedging
Obligations”
of
any
Person means the obligations of such Person under:
(1) currency
exchange or interest rate swap agreements, currency exchange or interest rate
cap agreements or currency exchange or interest rate collar agreements;
or
(2) other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange or interest rate prices.
“holder”
or
“Noteholder”
means
the Person in whose name a Note is registered on the register kept by the
Registrar pursuant to Section 2.03 hereof.
“Immaterial
Subsidiary”
means
any Subsidiary of the Company that owns less than 1.0% of the Consolidated
Total
Assets and generates less than 1.0% of the Consolidated Revenues for the latest
four quarters then ended for which financial statements are available and which
does not guarantee and is not an obligor under any other Indebtedness of the
Company and the Restricted Entities.
-11-
“Incur”
means
issue, assume, Guarantee, incur or otherwise become liable for; provided,
however,
that
any Indebtedness of a Person existing at the time such Person becomes a
Restricted Entity (whether by merger, consolidation, acquisition or otherwise)
shall be deemed to be Incurred by such Person at the time it becomes a
Restricted Entity. The term “Incurrence” when used as a noun shall have a
correlative meaning. Solely for purposes of determining compliance with Section
4.06:
(1) except
in
respect of Indebtedness Incurred under Section 4.06(b)(1) (under which any
amortization of debt discount or accretion of principal will be deemed an
Incurrence), amortization of debt discount or the accretion of principal with
respect to a non-interest bearing or other discount security;
(2) the
payment of regularly scheduled interest in the form of additional Indebtedness
of the same instrument (such as PIK Interest) or the payment of regularly
scheduled dividends on Capital Stock in the form of additional Capital Stock
of
the same class and with the same terms; and
(3) the
obligation to pay a premium in respect of Indebtedness arising in connection
with the issuance of a notice of redemption or making of a mandatory offer
to
purchase such Indebtedness
will
not
be deemed to be the Incurrence of Indebtedness.
“Indebtedness”
means,
with respect to any Person on any date of determination (without
duplication):
(1) the
principal in respect of (A) indebtedness of such Person for money borrowed
and
(B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable, including, in each case,
any premium on such indebtedness to the extent such premium has become due
and
payable;
(2) all
Capital Lease Obligations of such Person and all Attributable Debt in respect
of
Sale/ Leaseback Transactions entered into by such Person;
(3) all
obligations of such Person issued or assumed as the deferred purchase price
of
property, all conditional sale obligations of such Person and all obligations
of
such Person under any title retention agreement (but excluding any accounts
payable or other liability to trade creditors arising in the ordinary course
of
business), in each case only if and to the extent due more than 12 months after
the delivery of property;
(4) the
principal component of all obligations of such Person for the reimbursement
of
any obligor on any letter of credit, bankers’ acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in clauses (1) through (3) above)
entered into in the ordinary course of business of such Person to the extent
such letters of credit are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the tenth Business Day following
payment on the letter of credit);
(5) the
principal component of the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified Stock
of
such Person or, with respect to any Preferred Stock of any Restricted Entity
of
such Person, the principal amount of such Preferred Stock to be determined
in
accordance with this Indenture (but excluding, in each case, any accrued
dividends);
-12-
(6) all
obligations of the type referred to in clauses (1) through (5) of other Persons
and all dividends of other Persons for the payment of which, in either case,
such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee;
(7) all
obligations of the type referred to in clauses (1) through (6) of other Persons
secured by any Lien on any property or asset of such Person (whether or not
such
obligation is assumed by such Person), the amount of such obligation being
deemed to be the lesser of the fair market value of such property or assets
and
the amount of the obligation so secured; and
(8) to
the
extent not otherwise included in this definition, Hedging Obligations of such
Person.
Notwithstanding
the foregoing, in connection with the purchase by the Company or any Restricted
Entity of any business, the term “Indebtedness” will exclude post-closing
payment adjustments to which the seller may become entitled to the extent such
payment is determined by a final closing balance sheet or such payment depends
on the performance of such business after the closing; provided,
however,
that,
at the time of closing, the amount of any such payment is not determinable
and,
to the extent such payment thereafter becomes fixed and determined, the amount
is paid within 30 days thereafter.
The
amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all obligations as described above; provided,
however,
that in
the case of Indebtedness sold at a discount, the amount of such Indebtedness
at
any time will be the accreted value thereof at such time.
“Indenture”
means
this Indenture, as defined in the first paragraph hereof, as may be amended
from
time to time in accordance with the terms hereof.
“Indirect
Participant”
means
a
Person who holds a beneficial interest in a Global Note through a
Participant.
“Industry
Canada”
means
the Canadian Federal Minister of Industry and his or her designees, including
the Department of Industry and its successors.”
“Industry
Canada Licenses”
means
all licenses, approvals in principle, permits or authorizations issued by
Industry Canada to the Canadian Joint Ventures or the Existing Canadian
Subsidiary for purposes of carrying on their respective businesses in Canada.
“Institutional
Accredited Investor”
means
an institution that is an “accredited investor” as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act and that is not also a
QIB.
“Interest
Payment Date”
means
the Stated Maturity of an installment of interest on the Notes.
“Investment”
by
any
Person in any other Person means any direct or indirect advance, loan (other
than advances to customers in the ordinary course of business that are recorded
as accounts receivable on the balance sheet of the lender) or other extensions
of credit (including by way of Guarantee or similar arrangement) or capital
contribution to (by means of any transfer of cash or other property to others
or
any payment for property or services for the account or use of others), or
any
purchase or acquisition of Capital Stock, Indebtedness or other similar
instruments issued by such Person. If the Company or any Restricted Entity
issues, sells or otherwise disposes of any Capital Stock of a Person that is
a
Restricted Entity such that, after giving effect thereto, such Person is no
longer a Restricted Entity, any Investment by the Company or any Restricted
Entity in such Person remaining after giving effect thereto will be deemed
to be
a new Investment at such time. Except as otherwise provided for herein, the
amount of an Investment shall be its fair market value at the time the
Investment is made and without giving effect to subsequent changes in value;
provided
that
none of the following will be deemed to be an Investment:
-13-
(1) Hedging
Obligations entered into in the ordinary course of business and in compliance
with this Indenture; and
(2) endorsements
of negotiable instruments and documents in the ordinary course of business;
and
(3) any
transaction to the extent that the consideration provided by the Company or
a
Restricted Entity consists of Capital Stock of the Company (or after a Parent
Rollup Transaction) any Parent (other than Disqualified Stock).
For
purposes of the definition of “Unrestricted Entity”, Section 4.08 and the
definition of “Restricted Payment”, “Investment” shall include:
(1) the
portion (proportionate to the Company’s equity interest in such Subsidiary) of
the fair market value of the net assets of any Subsidiary of the Company at
the
time that such Subsidiary is designated an Unrestricted Entity; provided,
however,
that
upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company
shall be deemed to continue to have a permanent “Investment” in an Unrestricted
Entity equal to an amount (if positive) equal to (A) the Company’s “Investment”
in such Subsidiary at the time of such redesignation less (B) the portion
(proportionate to the Company’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 Entity shall be valued at its
fair market value at the time of such transfer, in each case as determined
in
good faith by the Board of Directors.
“Issue
Date”
means
January 7, 2008.
“L-Band
Spectrum”
means
capacity or other right to use, for a satellite and/or ATC network, using the
frequency band residing at 1626.5-1660.5 MHz (Earth to space), 1668-1675 MHz
(Earth to space) and 1518-1559 MHz (space to Earth) as allocated for mobile
satellite services by the International Telecommunications Union.
“Legal
Holiday”
means
a
Saturday, a Sunday or a day on which banking institutions are not required
to be
open in the State of New York.
“Lien”
means
any mortgage, pledge, security interest, encumbrance, lien or charge of any
kind
(including any conditional sale or other title retention agreement or lease
in
the nature thereof).
“Maturity
Date”
means
May 1, 2013.
-14-
“Moody’s”
means
▇▇▇▇▇’▇ Investors Service, Inc. and any successor to its rating agency business.
“Net
Available Cash”
from
an
Asset Disposition means cash payments received by the Company or a Restricted
Entity therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received
as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to such properties or assets or
received in any other non-cash form), in each case net of:
(1) all
legal, title, accounting, broker and recording tax expenses, commissions and
other fees and expenses Incurred, and all Federal, state, provincial, foreign
and local taxes required to be accrued as a liability under GAAP, as a
consequence of such Asset Disposition;
(2) all
payments made on any Indebtedness which is secured by any assets subject to
such
Asset Disposition pursuant to a Lien that is permitted by this Indenture prior
to any Lien on such assets securing the Notes, in accordance with the terms
of
any Lien upon or other security agreement of any kind with respect to such
assets;
(3) all
distributions and other payments required to be made to minority interest
holders in Restricted Subsidiaries as a result of such Asset
Disposition;
(4) the
deduction of appropriate amounts provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the property
or
other assets disposed in such Asset Disposition and retained by the Company
or
any Restricted Entity after such Asset Disposition; and
(5) any
portion of the purchase price from an Asset Disposition placed in escrow,
whether as a reserve for adjustment of the purchase price, for satisfaction
of
indemnities in respect of such Asset Disposition or otherwise in connection
with
that Asset Disposition; provided,
however, that upon the termination of that escrow, Net Available Cash will
be
increased by any portion of funds in the escrow that are released to the Company
or any Restricted Entity.
“Net
Cash Proceeds”,
with
respect to any issuance or sale of Capital Stock or Indebtedness, means the
cash
proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees,
underwriters’ or placement agents’ fees, discounts or commissions and brokerage,
consultant and other fees actually incurred in connection with such issuance
or
sale and net of taxes paid or payable as a result thereof.
“Non-U.S.
Person”
means
a
Person who is not a U.S. Person as defined in Regulation S.
“Notes”
has
the
meaning given such term in the second introductory paragraph
hereto.
“Obligations”
means,
with respect to any Indebtedness, all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements and other amounts
payable pursuant to the documentation governing such Indebtedness.
“Officer”
means
the Chairman of the Board, the President, any Vice President, the Treasurer
or
the Secretary of the Company.
-15-
“Officer’s
Certificate”
means
a
certificate signed by any Officer and delivered to the Trustee.
“Old
Indenture”
means
the Indenture, dated as of March 30, 2006, by and among the Issuers, the
Guarantors and the Trustee, as the same may be modified, supplemented, amended,
refinanced, renewed or replaced.
“Old
Notes”
means
the 14% Senior Secured Discount Notes due 2013 issued by the Issuers and the
Guarantees thereof and any “Additional Notes” as defined in and issued pursuant
to Article 2 of the Old Indenture and in compliance with Sections 4.06 and
4.09
of the Old Indenture after the Original Issue Date.
“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 Company.
"Original
Issue Date"
means
March 30, 2006, the date of original issuance of the Old Notes.
“Parent”
means
the Permitted Holder that, pursuant to a Parent Rollup Transaction, acquires
Capital Stock of the Company in the amounts required by such definition;
provided,
however,
that
such Parent is a corporation organized under the laws of the United States
of
America, any State thereof or the District of Columbia.
“Parent
Rollup Transaction”
means
(i) any Qualified Parent Rollup Transaction or (ii) a transaction whereby (x)(a)
a Permitted Holder becomes the beneficial owner of at least 78% of the
outstanding partnership interests of the Company and at least 78% of the
outstanding common stock of the General Partner or (b) a Permitted Holder
becomes the beneficial owner of at least a majority of the outstanding
partnership interests of the Company and of the outstanding common stock of
the
General Partner and has the right or obligation to acquire (and will acquire)
beneficially additional partnership interests of the Company and common stock
of
the General Partner, in each case, from the then existing equity holders of
the
Company or of the General Partner in exchange for the issuance of Capital Stock
of such Permitted Holder, such that the Permitted Holder would own beneficially
not less than 78% of the outstanding partnership interests of the Company and
not less than 78% of the outstanding common stock of the General Partner, and
(y) following such transaction, BCE owns no greater than 22% of the outstanding
Capital Stock of the Company having substantially the same terms, taken as
a
whole, that exist as of the Original Issue Date; provided
that for
purposes of this definition, all calculations of equity percentages shall be
made on an undiluted basis.
“Pari
Passu Indebtedness”
means
the Old Notes and any other Indebtedness of the Company or a Guarantor that
is
pari passu
in right
of payment (and not expressly subordinated) to the Notes or, in the case of
a
Guarantor, that is pari passu
in right
of payment (and not expressly subordinated) to its Guarantee.
“Participant”
means,
with respect to the Depository, a Person who has an account with the
Depository.
“Payment-in-Kind
Notes”
means
additional Notes issued under this Indenture on the same terms and conditions
as
the Notes issued on the Issue Date in connection with PIK Interest. For purposes
of this Indenture, all references to “Notes” shall include any related
Payment-in-Kind Notes.
-16-
“Permitted
Holder Change of Control”
means,
with respect to a Permitted Holder, the occurrence of a Change of Control of
such Permitted Holder (with references in the definition of Change of Control
(and other defined terms referenced therein) to the General Partner or the
Company being deemed to be references to such Permitted Holder).
“Permitted
Holders”
means
each of (i) Apollo Advisors, L.P. and its Affiliates; (ii) Motient Corporation,
so long as a Permitted Holder Change of Control with respect to Motient
Corporation shall not have occurred; (iii) SkyTerra Communications, Inc., so
long as a Permitted Holder Change of Control with respect to SkyTerra
Communications, Inc. shall not have occurred; (iv) BCE Inc. and TMI and their
Affiliates; (v) Spectrum Equity and its Affiliates as of the Original Issue
Date; (vi) Columbia Capital and its Affiliates as of the Original Issue Date;
(vii) ▇▇▇▇▇▇▇ Management Corporation, Harbinger Capital Partners Master Fund
I,
Ltd., Harbinger Capital Partners Special Situation Fund, LP and their
Affiliates; and (viii) any “group” (as such terms is used in Section 13(d) and
14(d) of the Exchange Act) if the owner of a majority of the shares of Voting
Stock of the General Partner beneficially owned by such group consist of one
or
more persons identified in the foregoing clauses (i) through (vi).
“Permitted
Investment”
means
an Investment by the Company or any Restricted Entity in:
(1) the
Company, a Guarantor or a Person that will, upon the making of such Investment,
become a Guarantor; provided,
however,
that
the primary business of such Guarantor is a Related Business;
(2) another
Person if, as a result of such Investment, such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all
its
assets to, the Company or a Guarantor; provided,
however,
that
such Person’s primary business is a Related Business;
(3) a
Restricted Entity that is not organized in the United States of America or
any
State thereof or the District of Columbia in an amount outstanding not to exceed
$15 million since the Issue Date;
(4) cash
and
Temporary Cash Investments;
(5) receivables
owing to the Company or any Restricted Entity if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided,
however,
that
such trade terms may include such concessionary trade terms as the Company
or
any such Restricted Entity deems reasonable under the
circumstances;
(6) payroll,
travel and similar advances to cover matters that are expected at the time
of
such advances ultimately to be treated as expenses for accounting purposes
and
that are made in the ordinary course of business;
(7) loans
or
advances to employees made in the ordinary course of business consistent with
past practices of the Company or such Restricted Entity not to exceed $2.5
million at any time outstanding;
(8) stock,
obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any Restricted Entity
or
in satisfaction of judgments or pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of a debtor or foreclosure
of a Lien;
-17-
(9) any
Person to the extent such Investment represents the non-cash portion of the
consideration received for (A) an Asset Disposition as permitted pursuant to
Section 4.10 or (B) a disposition of assets not constituting an Asset
Disposition;
(10) any
Person where such Investment was acquired by the Company or any of its
Restricted Subsidiaries (A) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Entity in connection
with
or as a result of a bankruptcy, workout, reorganization or recapitalization
of
the issuer of such other Investment or accounts receivable or (B) as a result
of
a foreclosure by the Company or any of its Restricted Subsidiaries with respect
to any secured Investment or other transfer of title with respect to any secured
Investment in default;
(11) any
Person to the extent such Investments consist of prepaid expenses, negotiable
instruments held for collection and lease, utility and workers’ compensation,
performance and other similar deposits made in the ordinary course of business
by the Company or any Restricted Entity;
(12) any
Person to the extent such Investments consist of Hedging Obligations otherwise
permitted under Section 4.06;
(13) any
Person to the extent such Investment exists on the Issue Date, and any
extension, modification or renewal of any such Investments existing on the
Issue
Date, but only to the extent not involving additional advances, contributions
or
other Investments of cash or other assets or other increases thereof (other
than
as a result of the accrual or accretion of interest or original issue discount
or the issuance of pay-in-kind securities, in each case, pursuant to the terms
of such Investment as in effect on the Issue Date);
(14) any
Person having an aggregate fair market value (measured on the date each such
Investment was made and without giving effect to subsequent changes in value),
when taken together with all other Investments made pursuant to this clause
(14)
that are still outstanding, do not exceed $10.0 million in any calendar year
and
$60.0 million in the aggregate since the Issue Date;
(15) Investments
in Persons for the purpose of using or selling satellite capacity in Mexico
or
Latin America that is not being used by the Company or its Restricted
Subsidiaries, which Investments are in the form of transfers to such Persons
of
such unutilized satellite capacity for fair market value not to exceed $25.0
million at any time outstanding under this clause; and
(16) Investments
consisting of nonexclusive licensing of intellectual property pursuant to joint
marketing arrangements with other Persons, for which license or contribution
the
Company and the Restricted Entities receives fair market value.
“Permitted
Liens”
means,
with respect to any Person:
(1) pledges
or deposits by such Person under worker’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 United States 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;
-18-
(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 and as to which the Company or any of its Restricted Subsidiaries
shall have set aside on its books such reserves as may be required pursuant
to
GAAP so long as any forfeiture (foreclosure) of collateral proceedings are
stayed, Liens arising solely by virtue of any statutory or common law provision
relating to banker’s Liens, rights of set-off or similar rights and remedies as
to deposit accounts or other funds maintained with a creditor depository
institution; provided,
however,
that
(A) such deposit account is not a dedicated cash collateral account and is
not
subject to restrictions against access by the Company in excess of those set
forth by regulations promulgated by the Federal Reserve Board and (B) such
deposit account is not intended by the Company or any Restricted Entity to
provide collateral to the depository institution;
(3) judgment
Liens not giving rise to an Event of Default so long as such Lien is adequately
bonded and any appropriate legal proceedings which may have been duly initiated
for the review of such judgment shall not have been previously terminated or
the
period within which such proceeding may be initiated shall not have
expired;
(4) Liens
for
taxes, assessments or other governmental charges not yet subject to penalties
for non-payment or which are being contested in good faith by appropriate
proceedings and as to which the Company or any of its Restricted Subsidiaries
shall have set aside on its books such reserves as may be required pursuant
to
GAAP so long as any forfeiture (foreclosure) of collateral proceedings are
stayed;
(5) Liens
in
favor of issuers of surety bonds or letters of credit issued pursuant to the
request of and for the account of such Person in the ordinary course of its
business; provided,
however,
that
such letters of credit do not constitute Indebtedness;
(6) 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 property 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 or marketability of said properties or materially
impair their use in the operation of the business of such Person at the real
property affected thereby;
(7) Liens
securing Indebtedness permitted by Section 4.06(b)(13) incurred to finance
the
construction, purchase or lease of, or repairs, improvements or additions to,
property, plant or equipment of such Person; provided,
however,
that
the Lien may not extend to any other property owned by such Person or any of
their Restricted Subsidiaries at the time the Lien is Incurred (other than
assets and property affixed or appurtenant thereto), and the Indebtedness (other
than any interest thereon) secured by the Lien may not be Incurred more than
180
days after the later of the acquisition, completion of construction, repair,
improvement, addition or commencement of full operation of the property subject
to the Lien;
(8) Liens
on
L-Band Spectrum in North America leased under Capital Lease Obligations or
purchased with Purchase Money Indebtedness permitted to be incurred under
Section 4.06(b)(12) and securing only such Indebtedness;
-19-
(9) Liens
existing on the Original Issue Date or incurred after the Original Issue Date
and prior to the Issue Date in compliance with the terms of the Old
Indenture;
(10) Liens
on
property or shares of Capital Stock of another Person at the time such other
Person becomes a Restricted Entity; provided,
however,
that
the Liens may not extend to any other property owned by such Person or any
of
its Restricted Subsidiaries (other than assets and property affixed or
appurtenant thereto);
(11) Liens
on
property at the time such Person or any of its Restricted Subsidiaries acquires
the property, including any acquisition by means of a merger or consolidation
with or into such Person or a Subsidiary of such Person; provided,
however,
that
the Liens may not extend to any other property owned by such Person or any
of
its Restricted Subsidiaries (other than assets and property affixed or
appurtenant thereto);
(12) Liens
securing Hedging Obligations so long as such Hedging Obligations are permitted
to be Incurred under this Indenture;
(13) leases,
licenses, subleases and sublicenses of assets (including, without limitation,
real property and intellectual property rights) which do not materially
interfere with the ordinary conduct of the business of the Company or any of
its
Restricted Subsidiaries;
(14) Liens
securing Indebtedness permitted to be Incurred under Section 4.06(b)(1),
including Guarantees thereof;
(15) Liens
securing obligations in respect of the Old Notes;
(16) Liens
arising from Uniform Commercial Code financing statement filing regarding
operating leases entered into by the Company and its Restricted Subsidiaries
in
the ordinary course of business;
(17) Liens
on
any ownership interest of the Company or any Restricted Entity in satellites
and
related assets that are being produced by Boeing to secure amounts owing to
Boeing (including under Section 4.06(b)(18)) under the Boeing Agreement and
that
do not restrict the granting of a Lien on such satellite and related assets
to
secure the Notes and the Guarantees; provided that upon the risk of loss with
respect to a satellite and related assets passing to the Company, if the Company
is current in its payment of all construction deferrals and other payments
payable with respect to the satellite being released at such time, the Lien
on
such satellite and related work shall be automatically released;
and
(18) Liens
to
secure any Refinancing (or successive Refinancings) as a whole, or in part,
of
any Indebtedness secured by any Lien referred to in the foregoing clause (7),
(9), (10), (11) or (15); provided,
however,
that:
(A) such
new
Lien shall be limited to all or part of the same property and assets that
secured or, under the written agreements pursuant to which the original Lien
arose, could secure the original Lien (plus improvements and accessions to,
such
property or proceeds or distributions thereof); and
(B) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (i) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clause (7), (9), (10),
(11)
or (15) at the time the original Lien became a Permitted Lien and (ii) an amount
necessary to pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement.
-20-
Notwithstanding
the foregoing, “Permitted Liens” will not include any Lien described in clause
(7), (10) or (11) above to the extent such Lien applies to any Additional Assets
acquired directly or indirectly with Net Available Cash pursuant to Section
4.10. For purposes of this definition, the term “Indebtedness” shall be deemed
to include interest on such Indebtedness.
Notwithstanding
the foregoing, with respect to any property subject to any mortgages, “Permitted
Liens” will not include the Liens described in clause (1) above.
“Permitted
Tax Distributions”
means
dividends or distributions permitted by Section 4.08(b)(11).
“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.
“PIK
Interest”
means
interest paid with respect to the Notes in the form of Payment-in-Kind
Notes.
“Preferred
Stock”,
as
applied to the Capital Stock of any Person, means Capital Stock of any class
or
classes (however designated) which is preferred as to the payment of dividends
or distributions, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over shares of Capital
Stock of any other class of such Person.
“Principal”
of
a
Note means the then outstanding principal amount of the Note plus the premium,
if any, payable on the Note which is due or overdue or is to become due at
the
relevant time.
“Public
Offering”
means
any Equity Offering pursuant to an effective registration statement filed with
the SEC.
“Purchase
Agreement”
means
the Securities Purchase Agreement, dated as of December 15, 2007, by and among
SkyTerra Communications, Inc., the Issuers, Harbinger Capital Partners Master
Fund I, Ltd. and Harbinger Capital Special Situations Fund, LP.
“Purchase
Money Indebtedness”
means
Indebtedness:
(1) consisting
of the deferred purchase price of an asset, conditional sale obligations,
obligations under any title retention agreement and other purchase money
obligations, in each case where the maturity of such Indebtedness does not
exceed the anticipated useful life of the asset being financed, and
(2) Incurred
to finance the acquisition, lease or construction by the Company or a Restricted
Entity of such asset, including additions and improvements;
provided,
however,
that
such Indebtedness is Incurred within 180 days after the acquisition by the
Company or such Restricted Entity of such asset.
“QIB”
means
a
“qualified institutional buyer” as defined in Rule 144A.
-21-
“Qualified
Parent Rollup Transaction”
means
a
transaction in which a Permitted Holder acquires Capital Stock such that it
owns
100% of the outstanding Capital Stock of the Company and the General Partner
(other than BCE Equity) from the then existing equity holders of the Company
and
the General Partner in exchange for the issuance of Capital Stock of such
Permitted Holder.
“Redemption
Date”
means
any date on which Notes are to be redeemed pursuant to paragraph 5 of the Notes
and the terms of this Indenture.
“Refinance”
means,
in respect of any Indebtedness, to refinance, extend, renew, refund, repay,
prepay, purchase, redeem, defease or retire, or to issue other Indebtedness
in
exchange or replacement for, such Indebtedness. “Refinanced” and “Refinancing”
shall have correlative meanings.
“Refinancing
Indebtedness”
means
Indebtedness that Refinances any Indebtedness of the Company or any Restricted
Entity existing on the Issue Date or Incurred in compliance with this Indenture,
including Indebtedness that Refinances Refinancing Indebtedness; provided,
however,
that:
(1) such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced or, if such Refinancing
Indebtedness is a Subordinated Obligation, no earlier than 91 days after the
Stated Maturity of the Notes;
(2) such
Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life
of
the Indebtedness being Refinanced or, if such Refinancing Indebtedness is a
Subordinated Obligation, equal to or greater than the then remaining Average
Life of the Notes;
(3) such
Refinancing Indebtedness has an aggregate principal amount (or if Incurred
with
original issue discount, an aggregate issue price) that is equal to or less
than
the aggregate principal amount (or if Incurred with original issue discount,
the
aggregate accreted value) then outstanding (plus fees and expenses, including
any premium and defeasance costs) under the Indebtedness being Refinanced;
and
(4) if
the
Indebtedness being Refinanced is subordinated in right of payment to the Notes,
such Refinancing Indebtedness (a) is subordinated in right of payment to the
Notes at least to the same extent as the Indebtedness being Refinanced, (b)
has
a Stated Maturity that is at least 91 days after the later of (x) the Stated
Maturity of the Notes and (y) the Stated Maturity of the Indebtedness being
Refinanced and (c) has an Average Life at the time such Refinancing Indebtedness
is Incurred that is greater than (x) the Average Life of the Notes and (y)
the
Average Life of the Indebtedness being Refinanced;
provided further,
however,
that
Refinancing Indebtedness shall not include (A) Indebtedness of a Subsidiary
that
Refinances Indebtedness of the Company or (B) Indebtedness of the Company or
a
Restricted Entity that Refinances Indebtedness of an Unrestricted
Entity.
“Regulation
S”
means
Regulation S promulgated under the Securities Act.
“Regulation
S Global Note”
means
the Global Note representing the Notes offered and sold outside the United
States in reliance on Regulation S.
“Related
Business”
means
any business in which the Issuers or any of the Restricted Subsidiaries was
engaged on the Issue Date and the Company’s next generation business as
described in the offering memorandum and any business related, ancillary or
complementary to such business or which is a reasonable extension thereof or
any
business the assets of which, in the good faith determination of the Board
of
Directors, are useful or may be used in any such business.
-22-
“Related
Business Assets”
means
assets used or useful in a Related Business (including acquisition of Capital
Stock of another entity that will become a Restricted Entity that only owns
assets that are used or useful in a Related Business).
“Responsible
Officer,”
when
used with respect to the Trustee, means any officer assigned to the Corporate
Trust Division — Corporate Finance Unit of the Trustee (or any successor unit or
department of the Trustee) located at the Corporate Trust Office of the Trustee
who has direct responsibility for the administration of this Indenture and,
for
the purposes of Section 7.01(c)(2) and the second sentence of Section 7.05,
shall also include any officer of the Trustee to whom any matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject.
“Restricted
Definitive Note”
means
a
Definitive Note bearing the Restricted Notes Legend.
“Restricted
Entity”
means
any Restricted Subsidiary and any of the Canadian Joint Ventures.
“Restricted
Global Note”
means
a
Global Note bearing the Restricted Notes Legend.
“Restricted
Notes Legend”
means
the legend set forth in Section 2.06(g)(i) to be placed on all Notes issued
under this Indenture except where otherwise permitted by the provisions of
this
Indenture.
“Restricted
Payment”
with
respect to any Person means:
(1) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving such Person) or similar payment to the direct
or indirect holders of its Capital Stock (other than (A) dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Stock), (B) dividends or distributions payable solely to the Issuers or a
Restricted Entity and (C) pro
rata
dividends or other distributions made by a Subsidiary or a Canadian Joint
Venture that is not a Wholly Owned Subsidiary to minority stockholders (or
owners of an equivalent interest in the case of a Subsidiary that is an entity
other than a corporation));
(2) the
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value of any Capital Stock of the Company held by any Person (other than
by
a Restricted Entity) or of any Capital Stock of a Restricted Entity held by
any
Affiliate of the Company (other than by a Restricted Entity), including in
connection with any merger or consolidation and including the exercise of any
option to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock);
(3) the
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment of any Subordinated Obligations (other than (A) from the Company
or
a Guarantor or (B) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement of Subordinated Obligations purchased 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 purchase,
repurchase, redemption, defeasance or other acquisition or retirement);
or
-23-
(4) the
making of any Investment (other than a Permitted Investment) in any
Person.
“Restricted
Period”
means
the 40 consecutive days beginning on and including the later of (i) the
commencement of the offering of the Notes to persons other than distributors
(as
defined in Regulation S) in reliance on Regulation S and (ii) the date of
the original issuance of the Notes.
“Restricted
Subsidiary”
means
any Subsidiary of the Company that is not an Unrestricted Entity.
“Rule
144”
means
Rule 144 promulgated under the Securities Act.
“Rule
144A”
means
Rule 144A promulgated under the Securities Act.
“Rule
501”
means
Rule 501(a)(1), (2), (3) or (7) promulgated under the Securities
Act.
“Rule
903”
means
Rule 903 promulgated under the Securities Act.
“Rule
904”
means
Rule 904 promulgated under the Securities Act.
“Sale/Leaseback
Transaction”
means
an arrangement relating to property owned by the Company or a Restricted Entity
on the Issue Date or thereafter acquired by the Company or a Restricted Entity
whereby the Company or a Restricted Entity transfers such property to a Person
and the Company or a Restricted Entity leases it from such Person.
“SEC”
means
the U.S. Securities and Exchange Commission.
“Securities
Act”
means
the U.S. Securities Act of 1933, as amended.
“Significant
Subsidiary”
means
any Restricted Subsidiary that would be a “Significant Subsidiary” of the
Issuers within the meaning of Rule 1-02 under Regulation S-X promulgated by
the
SEC.
“Standard
& Poor’s”
means
Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any
successor to its rating agency business.
“Stated
Maturity”
means,
with respect to any security or any installment of interest thereon, the date
specified in such security as the fixed date on which the final payment of
principal of such security, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred) or such installment of
interest is due and payable.
“Subordinated
Obligation”
means,
with respect to the Company or a Guarantor, any Indebtedness of such Person
(whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of payment to the Notes (or the Guarantee of
such
Guarantor, as applicable) pursuant to a written agreement to that
effect.
“Subsidiary”
means,
with respect to any Person, any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of shares
of
Voting Stock is at the time owned or controlled, directly or indirectly,
by:
(1) such
Person;
-24-
(2) such
Person and one or more Subsidiaries of such Person; or
(3) one
or
more Subsidiaries of such Person.
“Temporary
Cash Investments”
means
any of the following:
(1) any
investment in direct obligations of the United States of America or any agency
thereof or obligations guaranteed by the United States of America or any agency
thereof;
(2) investments
in demand and time deposit accounts, certificates of deposit and money market
deposits maturing within 365 days of the date of acquisition thereof issued
by a
bank or trust company which is organized under the laws of the United States
of
America, any State thereof or any foreign country recognized by the United
States of America, and which bank or trust company has capital, surplus and
undivided profits aggregating in excess of $50.0 million (or the foreign
currency equivalent thereof) and has outstanding debt which is rated “A” (or
such similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act) or any money-market fund sponsored by a registered broker dealer or mutual
fund distributor;
(3) repurchase
obligations with a term of not more than 30 days for underlying securities
of
the types described in clause (1) above entered into with a bank meeting the
qualifications described in clause (2) above;
(4) investments
in commercial paper, maturing not more than 365 days after the date of
acquisition, issued by a corporation (other than an Affiliate of the Issuers)
organized and in existence under the laws of the United States of America or
any
foreign country recognized by the United States of America with a rating at
the
time as of which any investment therein is made of “P-2” (or higher) according
to Moody’s or “A-2” (or higher) according to Standard & Poor’s;
(5) auction
rate preferred stock issued by a corporation and certificates issued by a
corporation or municipality or government entity (other than an Affiliate of
the
Issuers) organized and in existence under the laws of the United States of
America or any foreign country recognized by the United States with a rating
at
the time of which any Investment therein is made of “A” (or higher) according to
Moody’s or Standard & Poor’s;
(6) investments
in securities with maturities of twelve months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least “A” by Standard & Poor’s or “A” by
Moody’s; and
(7) investments
in money market funds that, in the aggregate, have at least $1,000 million
in
assets.
“TMI”
means
TMI Communications & Company, Limited Partnership, a limited partnership
organized under the laws of the province of Quebec.
“Treasury
Rate”
means,
as of any redemption date, the yield to maturity as of such redemption date
of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519)
that
has become publicly available at least two business days prior to the 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
the redemption date to April 1, 2011; provided,
however
that if
the period from the redemption date to April 1, 2011 is less than one year,
the
weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year will be used.
-25-
“Trust
Indenture Act”
or
“TIA”
means
the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on
the Issue Date.
“Trustee”
means
The Bank of New York, as trustee, until a successor replaces it and, thereafter,
means the successor.
“Unrestricted
Definitive Note”
means
one or more Definitive Notes that do not bear and are not required to bear
the
Restricted Notes Legend.
“Unrestricted
Entity”
means:
(1) any
Subsidiary of the Company (other than Finance Co.) that at the time of
determination shall be designated an Unrestricted Entity by the Board of
Directors in the manner provided below; and
(2) any
Subsidiary of an Unrestricted Entity.
The
Board
of Directors may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted Entity unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness
of,
or holds any Lien on any property of, the Company or any other Subsidiary of
the
Company that is not a Subsidiary of the Subsidiary to be so designated;
provided,
however,
that
either (A) the Subsidiary to be so designated has total assets of $1,000 or
less
or (B) if such Subsidiary has assets greater than $1,000, such designation
would
be permitted under Section 4.08; provided further
that
neither the FCC License Subsidiary nor the Canadian Joint Ventures nor any
other
Subsidiary that holds or owns a similar telecommunications license nor Finance
Co. may be designated an Unrestricted Entity.
The
Board
of Directors may designate any Unrestricted Entity to be a Restricted Entity;
provided,
however,
that
immediately after giving effect to such designation the Consolidated Leverage
Ratio is equal to or better than the Consolidated Leverage Ratio immediately
prior to such transaction. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors giving effect to such designation and
an
Officer’s Certificate certifying that such designation complied with the
foregoing provisions.
“Unrestricted
Global Note”
means
a
permanent global Note substantially in the form of Exhibit A attached hereto
that bears the Global Note Legend and that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, and that is deposited with or on
behalf of and registered in the name of the Depository, representing a series
of
Notes that do not bear the Restricted Notes Legend.
“U.S.
Government Obligations”
means
direct obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit
of
the United States of America is pledged and which are not callable at the
issuer’s option.
“Voting
Stock”
of
a
Person means all classes of Capital Stock of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to
vote
in the election of directors, managers or trustees thereof.
-26-
“Wholly
Owned Subsidiary”
means
a
Restricted Entity all the Capital Stock of which (other than directors’
qualifying shares) is owned by the Issuers or one or more other Wholly Owned
Subsidiaries.
|
Section
1.02.
|
Other
Definitions.
|
The
definitions of the following terms may be found in the sections indicated as
follows:
|
Term
|
Defined
in Section
|
|
“Affiliate
Transaction”
|
4.11
|
|
“Bankruptcy
Law”
|
6.01
|
|
“Change
of Control Offer”
|
4.17
|
|
“Covenant
Defeasance”
|
9.03
|
|
“Custodian”
|
6.01
|
|
“Event
of Default”
|
6.01
|
|
“IAI
Global Note”
|
2.01
|
|
“Legal
Defeasance”
|
9.02
|
|
“Offer”
|
4.10(c)
|
|
“Offer
Amount”
|
4.10(c)
|
|
“Offer
Period”
|
4.10(c)
|
|
“Paying
Agent”
|
2.03
|
|
“Purchase
Date”
|
4.10(c)
|
|
“Registrar”
|
2.03
|
|
Section
1.03.
|
Incorporation
by Reference of Trust Indenture Act.
|
Whenever
this Indenture refers to a provision of the TIA, the portion of such provision
referred to is incorporated by reference in and made a part of this Indenture
as
if and to the extent this Indenture were qualified under the TIA. The following
TIA terms used in this Indenture have the following meanings:
“indenture
securities”
means
the Notes.
“indenture
securityholder”
means
a
Noteholder.
“indenture
to be qualified”
means
this Indenture (it being understood that this Indenture shall not be qualified
under the TIA).
“indenture
trustee”
or
“institutional
trustee”
means
the Trustee.
“obligor
on the indenture securities”
means
the Company, the Guarantors or any other obligor on the Notes.
All
other
terms used in this Indenture that are defined by the TIA, defined in the TIA
by
reference to another statute or defined by SEC rule have the meanings therein
assigned to them.
|
Section
1.04.
|
Rules
of Construction.
|
Unless
the context otherwise requires:
-27-
(1) a
term
has the meaning assigned to it herein, whether defined expressly or by
reference;
(2) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3) “or”
is
not exclusive;
(4) words
in
the singular include the plural, and in the plural include the
singular;
(5) words
used herein implying any gender shall apply to every gender;
(6) the
term
“aggregate principal amount” or “principal amount” means in each case “aggregate
principal amount at maturity” or “principal amount at maturity”;
(7) the
words
“herein,” “hereof,” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(8) references
to sections herein are references to Sections of this Indenture, unless the
context otherwise requires.
ARTICLE
2
THE
NOTES
|
Section
2.01.
|
Form
and Dating.
|
(a) General.
The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibits A1-A4 hereto. The Notes will be offered and sold by the
Issuers pursuant to the Purchase Agreement. The Notes will initially be issued
as Restricted Definitive Notes. Upon request of any of the holders of the
outstanding Restricted Definitive Notes and in accordance with the provisions
set forth in Section 2.06(d), the Restricted Definitive Notes may be exchanged
in whole for one or more Global Notes, registered in the name of the Depository
or its nominee. Following the Issue Date, all such Notes may be transferred
to,
among others, QIBs, purchasers in reliance on Regulation S and, as set forth
below, Institutional Accredited Investors. The Notes may have notations, legends
or endorsements required by law, stock exchange rule or usage. Each Note shall
be dated the date of its authentication. The Notes shall be in denominations
of
$1,000 and integral multiples thereof, or, in the case of Payment-in-Kind Notes,
such other denominations as may be required.
The
terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Issuers and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision of
any
Note conflicts with the express provisions of this Indenture, the provisions
of
this Indenture shall govern and be controlling.
-28-
(b) Global
Notes.
Any
Notes subsequently issued in global form, without interest coupons, shall be
substantially in the form of Exhibits A2-A4 attached hereto (including the
Global Note Legend thereon and the “Schedule of Exchanges of Interests in the
Global Note” attached thereto).
(i) Following
the Issue Date and the exchange of the Restricted Definitive Notes for Global
Notes in the manner set forth herein, the Notes resold or otherwise transferred
to QIBs in reliance on Rule 144A shall be issued in the form of one or more
144A
Global Notes, which shall be deposited with, or on behalf of, the Depository
or
will remain in the custody of the Trustee, as custodian, pursuant to an
agreement between the Depository and the Trustee.
(ii) Following
the Issue Date and the exchange of the Restricted Definitive Notes for Global
Notes in the manner set forth herein, the Notes resold or otherwise transferred
in reliance on Regulation S shall be issued in the form of one or more
Regulation S Global Notes, which shall be deposited with, or on behalf of,
the
Trustee as custodian for the Depository.
(iii) Following
the Issue Date and the exchange of the Restricted Definitive Notes for Global
Notes in the manner set forth herein, Notes resold or otherwise transferred
to
Institutional Accredited Investors, may be exchanged for a separate note in
registered form, without interest coupons (the “IAI
Global Note”),
which
will be deposited with, or on behalf of, a custodian for the Depository, as
described in (i) and (ii) above.
(iv) Following
the Issue Date and the exchange of the Restricted Definitive Notes for Global
Notes in the manner set forth herein, Unrestricted Global Notes shall be issued
in accordance with Sections 2.06(b)(vi), 2.06(d)(ii) and 2.06(d)(iii) and shall
be deposited, duly executed by the Issuers and authenticated by the Trustee
as
hereinafter provided.
(v) Notes
issued in definitive form shall be substantially in the form of Exhibit A-1
and
A-4 attached hereto (without the Global Note Legend thereon and without the
“Schedule of Exchanges of Interests in the Global Note” attached
thereto).
Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges
and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the custodian, at the
direction of the Trustee, in accordance with instructions given by the holder
thereof as required by Section 2.06 hereof.
|
Section
2.02.
|
Execution
and Authentication.
|
The
Notes
shall be executed on behalf of the Issuers by two Officers of each Issuer or
an
Officer and an Assistant Secretary of each Issuer. Such signature may be either
manual or facsimile.
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 the Trustee manually signs the certificate of
authentication on the Note. Such signature shall be conclusive evidence that
the
Note has been authenticated under this Indenture.
-29-
The
Trustee shall authenticate (i) Notes for original issue on the Issue Date
in an amount not to exceed $150,000,000 aggregate principal amount upon a
Company Request, and (ii) any Payment-in-Kind Notes as a result of PIK Interest
for an aggregate principal amount specified in such Company Request for such
Payment-in-Kind Notes issued hereunder. Each such Company Request shall specify
the amount of Notes to be authenticated and the date on which the Notes are
to
be authenticated, whether the Notes are to be Payment-in-Kind Notes and whether
the Notes or Payment-in-Kind Notes, as applicable, are to be issued as
Definitive Notes or Global Notes or such other information as the Trustee may
reasonably request.
The
Trustee may appoint an authenticating agent to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same right as
an
Agent to deal with the Issuers or an Affiliate.
The
Trustee shall have the right to decline to authenticate and deliver any Notes
under this Section if the Trustee, being advised by counsel, reasonably
determines that such action may not lawfully be taken, if its own rights, duties
or immunities under the Notes and this Indenture are affected in a manner that
is not reasonably acceptable to the Trustee or if the Trustee in good faith
shall determine that such action would expose the Trustee to personal liability
to existing Noteholders.
|
Section
2.03.
|
Registrar
and Paying Agent.
|
The
Issuers shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”),
an
office or agency located in the Borough of Manhattan, The City of New York,
State of New York where Notes may be presented for payment (“Paying
Agent”)
and an
office or agency where notices and demands to or upon the Issuers in respect
of
the Notes and this Indenture may be served. The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Issuers may have one or
more co-registrars and one or more additional paying agents. Neither the Company
nor any Affiliate of the Company may act as Paying Agent. The Issuers may change
any Paying Agent, Registrar or co-registrar without notice to any Noteholder.
The
Issuers shall enter into an appropriate agency agreement with any Registrar
or
Paying Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Issuers shall notify
the Trustee of the name and address of any such Agent. If the Issuers fail
to
maintain a Registrar or Paying Agent, or agent for service of notices and
demands, or fail to give the foregoing notice, the Trustee shall act as such.
The Issuers initially appoint the Trustee as Registrar, Paying Agent, and agent
for service of notices and demands in connection with the Notes.
|
Section
2.04.
|
Paying
Agent to Hold Money in Trust.
|
On
or
before each due date of the principal of and interest on any Notes, the Issuers
shall deposit with the Paying Agent a sum sufficient to pay such principal
and
interest so becoming due. The Issuers at any time may require a Paying Agent
to
pay all money held by it to the Trustee and the Trustee may at any time during
the continuance of any Payment Default, upon written request to a Paying Agent,
require such Paying Agent to forthwith pay to the Trustee all sums so held
in
trust by such Paying Agent together with a complete accounting of such sums.
Upon doing so, the Paying Agent shall have no further liability for the
money.
-30-
|
Section
2.05.
|
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 all Noteholders
and shall otherwise comply with TIA § 312(a). If the Trustee is not the
Registrar, the Issuers shall furnish to the Trustee at least seven Business
Days
before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee
may
reasonably require of the names and addresses of the holders of Notes and the
Issuers shall otherwise comply with TIA § 312(a).
|
Section
2.06.
|
Transfer
and Exchange.
|
(a) Transfer
and Exchange of Global Notes.
A
Global Note may not be transferred as a whole except by the Depository to a
nominee of the Depository, by a nominee of the Depository to the Depository
or
to another nominee of the Depository, or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository. Global
Notes will be exchanged by the Issuers for Definitive Notes if, and only if,
(i) the Company delivers to the Trustee notice from the Depository that it
is unwilling or unable to continue to act as Depository or that it ceases to
be
a clearing agency registered under the Exchange Act and, in either case, a
successor Depository is not appointed by the Company, (ii) the Company, at
its
option, notifies the Trustee in writing that it elects to cause the issuance
of
the Definitive Notes or (iii) an Event of Default has occurred or is
continuing and the Registrar has received a request from the Depository to
issue
Definitive Notes. Upon the occurrence of any of the preceding events in clauses
(i), (ii) or (iii) above, Definitive Notes shall be issued in such names as
the
Depository shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.09 hereof.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07
or
2.09 hereof, shall be authenticated and delivered in the form of, and shall
be,
a Global Note. A Global Note may not be exchanged for another Note other than
as
provided in this Section 2.06(a); however, beneficial interests in a Global
Note
may be transferred and exchanged as provided in Section 2.06(b)
hereof.
(b) Transfer
and Exchange of Beneficial Interests in the Global Notes.
The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depository, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
subparagraphs (i) through (v) 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. Beneficial interests in any Unrestricted Global
Note may be transferred to Persons who take delivery thereof in the form of
a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.06(b)(i).
-31-
(ii) All
Other Transfers and Exchanges of Beneficial Interests in Global
Notes.
In
connection with all transfers and exchanges of beneficial interests that are
not
subject to Section 2.06(b)(i) above, the transferor of such beneficial interest
must deliver to the Registrar either (A)(1) a written order from a
Participant given to the Depository in accordance with the Applicable Procedures
directing the Depository to credit or cause to be credited a beneficial interest
in 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 Procedures containing information regarding the Participant account
to be credited with such increase or (B)(1) a written order from a
Participant or an Indirect Participant given to the Depository in accordance
with the Applicable Procedures directing the Depository to cause to be issued
a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depository to the Registrar
containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (1) above.
Upon satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the Notes
or otherwise applicable under the Securities Act, the Trustee shall adjust
the
principal amount of the relevant Global Note(s) pursuant to Section 2.06(h)
hereof. Transfers by an owner of a beneficial interest in the Rule 144A Global
or the IAI Global Note to a transferee who takes delivery of such interest
through the Regulation S Global Note, shall be made only upon receipt by the
Trustee of a certification from the transferor to the effect that such transfer
is being made in accordance with Regulation S or (if available) Rule 144 under
the Securities Act. In the case of a transfer of a beneficial interest in either
the Regulation S Global Note or the Rule 144A Global Note for an interest in
the
IAI Global Note, the transferee must furnish to the Trustee a signed letter
substantially in the form of Exhibit D.
(iii) Restrictions
on Transfer of Regulation S Global Note.
(A) Prior
to
the expiration of the Restricted Period, transfers by an owner of a beneficial
interest in the Regulation S Global Note to a transferee who takes delivery
of
such interest through the Rule 144A Global Note or the IAI Global Note shall
be
made only in accordance with Applicable Procedures and upon receipt by the
Trustee of a written certification from the transferor of the beneficial
interest in the form provided by Exhibit B or as otherwise provided by the
Issuers in accordance with applicable law to the effect that such transfer
is
being made to (i) a person whom the transferor reasonably believes is a QIB
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A or (ii) an IAI purchasing for its own account, or for the account
of such an IAI. Such written certification shall not be required after the
expiration of the Restricted Period. In the case of a transfer of a beneficial
interest in the Regulation S Global Note for an interest in the IAI Global
Note,
the transferee must furnish to the Trustee a signed letter substantially in
the
form of Exhibit D.
(B) Upon
the
expiration of the Restricted Period, beneficial ownership interests in the
Regulation S Global Note shall be transferable in accordance with applicable
law
and the other terms of this Indenture.
(iv) Other
Transfer of Beneficial Interests to Another Restricted Global
Note.
A
beneficial interest in any Restricted Global Note may be transferred to a Person
who takes delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements of Section
2.06(b)(ii) above and the transferor delivers a certificate in the form of
Exhibit B hereto.
(v) Transfer
and Exchange of Beneficial Interests in Global Notes to Definitive
Notes.
In the
event that a Global Note is exchanged for Restricted Definitive Notes in
accordance with the terms of this Indenture, such Notes may be exchanged only
in
accordance with such procedures as are substantially consistent with the
provisions of Sections 2.06(c), (d) and (e) (including the certification
requirements set forth therein intended to ensure that such transfers comply
with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such other
procedures as may from time to time be adopted by the Issuers reasonably
necessary to comply with applicable law.
-32-
(vi) Transfer
and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note.
A
beneficial interest in any Restricted Global Note may be exchanged by any holder
thereof for a beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial interest
in
an Unrestricted Global Note if the exchange or transfer complies with the
requirements of Section 2.06(b)(ii) above and the Registrar receives the
following:
(1) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(2) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in
the form of a beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and
if
the Company or the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the Company
and
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 is effected at a time when an Unrestricted Global Note has not
yet
been issued, the Issuers shall issue and, upon receipt of a Company Request
in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests so transferred.
Beneficial
interests in an Unrestricted Global Note cannot be exchanged for, or transferred
to Persons who take delivery thereof in the form of, a beneficial interest
in a
Restricted Global Note.
(c) Transfer
or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial
Interests in Restricted Global Notes to Restricted Definitive
Notes.
If any
holder of a beneficial interest in a Restricted Global Note proposes to exchange
such beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, if such exchange complies with Section
2.06(a), and upon receipt by the Registrar of the following
documentation:
(A) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if
such
beneficial interest is being transferred to a QIB in accordance with Rule 144A
under the Securities Act, a certificate to the effect set forth in Exhibit
B
hereto, including the certifications in item (1) thereof;
-33-
(C) if
such
beneficial interest is being transferred to a Non-U.S. Person in an offshore
transaction and in accordance with Rule 903 or Rule 904 under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if
such
beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit
B
hereto, including the certifications in item (3)(a) thereof;
(E) if
such
beneficial interest is being transferred to an Institutional Accredited Investor
in reliance on an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)(d)
thereof, if applicable;
(F) if
such
beneficial interest is being transferred to the Issuers or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if
such
beneficial interest is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the
Trustee shall cause the aggregate principal amount of the applicable Global
Note
to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuers
shall execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial interest in
a
Restricted Global Note pursuant to this Section 2.06(c) shall be registered
in
such name or names and in such authorized denomination or denominations as
the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depository and the Participant or Indirect Participant.
The Trustee shall deliver such Definitive Notes to the Persons in whose names
such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall bear the Restricted Notes Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive
Notes.
A
holder of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note if such transfer and exchange complies with Section
2.06(a) and if the Registrar receives the following:
(1) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive Note that does not bear
the
Restricted Notes Legend, a certificate from such holder in the form of Exhibit
C
hereto, including the certifications in item (1)(b) thereof; or
(2) 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 Definitive Note that does not bear the Restricted Notes Legend,
a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
-34-
and
if
the Company or the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the Company
and
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.
(iii) Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes.
If any
holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, if such transfer and exchange complies with Section
2.06(a) and, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount
of
the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Issuers shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall be registered
in
such name or names and in such authorized denomination or denominations as
the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depository and the Participant or Indirect Participant.
The Trustee shall deliver such Definitive Notes to the Persons in whose names
such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall not bear the
Restricted Notes Legend.
(d) Transfer
and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted
Definitive Notes to Beneficial Interests in Restricted Global
Notes.
If any
holder of a Restricted Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note or to transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if
the
holder of such Restricted Definitive Note proposes to exchange such Note for
a
beneficial interest in a Restricted Global Note, a certificate from such holder
in the form of Exhibit C hereto, including the certifications in item (2)(b)
thereof;
(B) if
such
Restricted Definitive Note is being transferred to a QIB in accordance with
Rule
144A under the Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;
(C) if
such
Restricted Definitive Note is being transferred to a Non-U.S. Person in an
offshore transaction and in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if
such
Restricted Definitive Note is being transferred pursuant to an exemption from
the registration requirements of the Securities Act in accordance with Rule
144
under the Securities Act, a certificate to the effect set forth in Exhibit
B
hereto, including the certifications in item (3)(a) thereof;
(E) if
such
Restricted Definitive Note is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of
the
Securities Act other than those listed in subparagraphs (B) through (D) above,
a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)(d)
thereof, if applicable;
-35-
(F) if
such
Restricted Definitive Note is being transferred to the Issuers or any of their
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if
such
Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the
Trustee shall cancel the Restricted Definitive Note and increase or cause to
be
increased the aggregate principal amount of the Restricted Global Note;
provided,
however,
if any
such exchange or transfer from a Definitive Note to a beneficial interest in
a
Restricted Global Note is effected at a time when a Restricted Global Note
has
not yet been issued, the Issuers shall issue and, upon receipt of a Company
Request in accordance with Section 2.02 hereof, the Trustee shall authenticate
one or more Restricted Global Notes in an aggregate principal amount equal
to
the principal amount of Definitive Notes so transferred; provided,
further,
that
the Trustee shall have no duty to take any action to secure eligibility of
the
Restricted Global Note for deposit with the Depository.
(ii) Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global
Notes.
If and
to the extent permitted by, and upon compliance with, the Applicable Procedures,
a holder of a Restricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Restricted Definitive
Note to a Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note only if the Registrar receives the
following:
(1) if
the
holder of such Definitive Notes proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate from such holder in
the
form of Exhibit C hereto, including the certifications in item (1)(c) thereof;
or
(2) if
the
holder of such Definitive Notes proposes to transfer such Notes to a Person
who
shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and
if
the Issuers or the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the Registrar
to
the effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the Restricted
Notes Legend are no longer required in order to maintain compliance with the
Securities Act.
Upon
satisfaction of the conditions of this Section 2.06(d)(ii), the Trustee shall
cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(iii) Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global
Notes.
If and
to the extent permitted by, and upon compliance with, the Applicable Procedures,
a holder of an Unrestricted Definitive Note may exchange such Note for a
beneficial interest in an Unrestricted Global Note or transfer such Definitive
Notes to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of a request
for such an exchange or transfer, the Trustee 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.
-36-
If
any
such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraph (ii) or (iii) above at a time when an
Unrestricted Global Note has not yet been issued, the Issuers shall issue and,
upon receipt of a Company Request in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred;
provided,
however,
that
the Trustee shall have no duty to take any action to secure eligibility of
the
Unrestricted Global Note for deposit with the Depository.
(e) Transfer
and Exchange of Definitive Notes for Definitive Notes.
Upon
request by a holder of Definitive Notes and such holder’s compliance with the
provisions of this Section 2.06(e), the Registrar 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
2.06(e):
(i) Restricted
Definitive Notes to Restricted Definitive Notes.
Any
Restricted Definitive Note may be transferred to and registered in the name
of
Persons who take delivery thereof in the form of a Restricted Definitive Note
if
the Registrar receives the following:
(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 of Exhibit B hereto, including
the certifications in item (1) thereof;
(B) if
the
transfer will be made pursuant to Rule 903 or Rule 904, then the transferor
must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if
the
transfer will be made pursuant to any other exemption, including any such
transfer to an Institutional Accredited Investor, from the registration
requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) Restricted
Definitive Notes to Unrestricted Definitive Notes.
Any
Restricted Definitive Note may be exchanged by the holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if the Registrar
receives the following:
(1) if
the
holder of such Restricted Definitive Notes proposes to exchange such Notes
for
an Unrestricted Definitive Note, a certificate from such holder in the form
of
Exhibit C hereto, including the certifications in item (1)(d) thereof;
or
(2) if
the
holder of such Restricted Definitive Notes proposes to transfer such Notes
to a
Person who shall take delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
-37-
and
if
the Issuers or the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Issuers 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 Unrestricted Definitive Notes may transfer such Notes to a Person
who
takes delivery thereof in the form of an Unrestricted Definitive Note. Upon
receipt of a request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from the holder
thereof.
(f) [intentionally
omitted]
(g) Legends.
The
following legends shall appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture.
(i) Restricted
Notes Legend.
(A) Except
as
permitted by subparagraph (B) below, each Global Note and each Definitive Note
(and all Notes issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:
“THE
NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE ‘‘SECURITIES ACT’’). BY ITS ACQUISITION HEREOF, THE
HOLDER REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3), OR (7) OF REGULATION D
UNDER
THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S
UNDER THE SECURITIES ACT. THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE
144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) TO AN INSTITUTIONAL ACCREDITED
INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND
NOT
FOR DISTRIBUTION, AND A CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY
OR
THE TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND TRUSTEE AND,
IF
REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY,
(4)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED
INVESTOR ACQUIRING THIS SECURITY AGREES THAT IT WILL FURNISH TO THE COMPANY
AND
THE TRUSTEE SUCH CERTIFICATES, LEGAL OPINIONS AND OTHER INFORMATION AS THEY
MAY
REASONABLY REQUIRE TO CONFIRM THAT TRANSFER TO IT OF THIS SECURITY COMPLIES
WITH
THE FOREGOING RESTRICTIONS AND APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF,
BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
OR (2)(a) PURCHASING FROM A PERSON NOT PARTICIPATING IN THE INITIAL DISTRIBUTION
OF THIS SECURITY (OR ANY PREDECESSOR SECURITY), (b) AN INSTITUTION THAT IS
AN
‘‘ACCREDITED INVESTOR’’ AS DEFINED UNDER THE SECURITIES ACT AND (c) HOLDING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S.
PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING
THE REQUIREMENTS OF PARAGRAPH (k)(2)(i) OF RULE 902 UNDER) REGULATION S UNDER
THE SECURITIES ACT.”
-38-
(B) Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(vi), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii) or (e)(iii)
of this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) shall not bear the Restricted Notes Legend.
(ii) Global
Note Legend.
Each
Global Note shall bear a legend in substantially the following
form:
THIS
GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.01(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
(h) Cancellation
and/or Adjustment of Global Notes.
At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Note shall be returned
to
or retained and canceled by the Trustee in accordance with Section 2.10 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note 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.
-39-
(i) General
Provisions Relating to Transfers and Exchanges.
(i) To
permit
registrations of transfers and exchanges to the extent permitted hereunder,
the
Issuers shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company’s order or at the Registrar’s
request.
(ii) No
service charge shall be made to a holder of a beneficial interest in a Global
Note or to a holder of a Definitive Note for any registration of transfer or
exchange, but the Issuers may require payment of a sum sufficient to cover
any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable
upon
exchange or transfer pursuant to Sections 2.09, 4.10, 4.16, 4.18 and 8.04
hereof).
(iii) The
Registrar shall not be required to register the transfer of or exchange any
Note
selected for redemption in whole or in part, except the unredeemed portion
of
any Note being redeemed in part.
(iv) All
Global Notes and Definitive Notes issued upon any registration of transfer
or
exchange of Global Notes or Definitive Notes shall be the valid obligations
of
the Issuers, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) The
Issuers shall not be required (A) to issue, to register the transfer of or
to exchange any Notes during a period beginning at the opening of business
15
days before the day of any selection of Notes for redemption under Section
3.02
hereof and ending at the close of business on the day of selection or (B) to
register the transfer of or to exchange a Note between a record date and the
next succeeding Interest Payment Date.
(vi) Prior
to
due presentment for the registration of a transfer of any Note, the Trustee,
any
Agent and the Issuers may deem and treat the Person in whose name any Note
is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Issuers shall be affected by notice
to
the contrary.
(vii) The
Trustee shall authenticate Global Notes and Definitive Notes in accordance
with
the provisions of Section 2.02 hereof.
(viii) All
certifications, certificates and Opinions of Counsel required to be submitted
to
the Registrar pursuant to this Section 2.06 to effect a registration of transfer
or exchange may be submitted by facsimile.
(ix) 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 Participants or beneficial owners
of
interests 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.
-40-
(x) None
of
the Trustee or any Agent shall have any responsibility or obligation to any
beneficial owner in a Global Note, a member of, or a Participant in the
Depository or 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 the payment
of
any amount, under or with respect to such Notes. All notices and communications
to be given to the Noteholders and all payments to be made to Noteholders under
the Notes and this Indenture shall be given or made only to or upon the order
of
the registered holders (which shall be the Depository or its nominee in the
case
of the Global Note). The rights of beneficial owners in the Global Note shall
be
exercised only through the Depository subject to the Applicable Procedures.
The
Trustee and each Agent shall be entitled to rely and shall be fully protected
in
relying upon information furnished by the Depository with respect to its
members, Participants and any beneficial owners. The Trustee and each Agent
shall be entitled to deal with any depositary (including the Depository), and
any nominee thereof, that is the registered holder of any Global Note for all
purposes of this Indenture relating to such Global Note (including the payment
of principal, premium, if any, and interest and additional amounts, if any,
and
the giving of instructions or directions by or to the owner or holder of a
beneficial ownership interest in such Global Note) as the sole holder of such
Global Note and shall have no obligations to the beneficial owners thereof.
None
of the Trustee or any Agent shall have any responsibility or liability for
any
acts or omissions of any such depositary with respect to such Global Note,
for
the records of any such depositary, including records in respect of beneficial
ownership interests in respect of any such Global Note, for any transactions
between such depositary and any Participant in such depositary or between or
among any such depositary, any such Participant and/or any holder or owner
of a
beneficial interest in such Global Note, or for any transfers of beneficial
interests in any such Global Security.
Notwithstanding
the foregoing, with respect to any Global Note, nothing herein shall prevent
the
Company, the Trustee, or any agent of the Company or the Trustee (including
any
Agent), from giving effect to any written certification, proxy or other
authorization furnished by any depositary (including the Depository), as a
Noteholder, with respect to such Global Note or impair, as between such
depositary and owners of beneficial interests in such Global Note, the operation
of customary practices governing the exercise of the rights of such depositary
(or its nominee) as Holder of such Global Note.
|
Section
2.07.
|
Replacement
Notes.
|
If
a
mutilated Note is surrendered to the Trustee or if the holder of a Note presents
evidence to the satisfaction of the Issuers and the Trustee that the Note has
been lost, destroyed or wrongfully taken, the Issuers shall issue and the
Trustee shall authenticate a replacement Note if the requirements of Section
8-405 of the New York Uniform Commercial Code as in effect on the date of this
Indenture are met. An indemnity bond or other security shall be required that
is
sufficient in the judgment of the Issuers and the Trustee to protect the
Issuers, the Trustee or any Agent from any loss which any of them may suffer
if
a Note is replaced. In every case of destruction, loss or theft, the applicant
shall also furnish to the Issuers and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Note and the ownership
thereof. The Issuers and the Trustee may charge for its expenses in replacing
a
Note. Every replacement Note is an additional obligation of the
Issuers.
-41-
|
Section
2.08.
|
Outstanding
Notes.
|
Notes
outstanding at any time are all Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, and those
described in this Section 2.08 as not outstanding.
If
a Note
is replaced pursuant to Section 2.07, it ceases to be outstanding until the
Issuers and the Trustee receive proof satisfactory to each of them that the
replaced Note is held by a bona fide purchaser.
If
a
Paying Agent holds on a Redemption Date or Maturity Date money sufficient to
pay
the principal of, premium, if any, and accrued interest on Notes payable on
that
date, then on and after that date such Notes cease to be outstanding and
interest on them ceases to accrue.
Subject
to Section 12.05, a Note does not cease to be outstanding solely because the
Issuers or an Affiliate holds the Note.
|
Section
2.09.
|
Temporary
Notes.
|
Until
certificates representing Notes are ready for delivery, the Issuers may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form, and shall carry all rights, of Definitive Notes
but
may have variations that the Issuers consider appropriate for temporary Notes.
Without unreasonable delay, the Issuers shall prepare and the Trustee shall
authenticate Definitive Notes in exchange for temporary Notes presented to
it.
|
Section
2.10.
|
Cancellation.
|
The
Issuers at any time may deliver Notes to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for transfer, exchange or payment. The Trustee shall cancel
and retain in accordance with its normal practice or, upon written request
of
the Issuers, may return to the Issuers, all Notes surrendered for transfer,
exchange, payment or cancellation. Subject to Section 2.07 hereof, the Issuers
may not issue new Notes to replace Notes in respect of which it has previously
paid all principal, premium and interest accrued thereon, or delivered to the
Trustee for cancellation.
|
Section
2.11.
|
Defaulted
Interest.
|
If
the
Issuers default in a payment of interest on the Notes, they shall pay the
defaulted amounts, plus any interest payable on defaulted amounts pursuant
to
Section 4.01 hereof, to the persons who are holders on a subsequent special
record date. The Issuers shall fix the special record date and payment date
in a
manner satisfactory to the Trustee and provide the Trustee at least 20 days
notice of the proposed amount of default interest to be paid and the special
payment date. At least 15 days before the special record date, the Issuers
shall
mail or cause to be mailed to each holder a notice that states the special
record date, the payment date (which shall be not less than five nor more than
ten days after the special record date), and the amount to be paid. In lieu
of
the foregoing procedures, the Issuers may pay defaulted interest in any other
lawful manner satisfactory to the Trustee.
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Section
2.12.
|
Deposit
of Moneys.
|
Prior
to
10:00 a.m., New York City time, on each Interest Payment Date (other than
an Interest Payment Date for which PIK Interest shall be paid) and the Maturity
Date, the Issuers shall have deposited with the Paying Agent in immediately
available funds money sufficient to make cash payments, if any, due on such
Interest Payment Date or Maturity Date, as the case may be, in a timely manner
which permits the Trustee to remit payment to the holders on such Interest
Payment Date or Maturity Date, as the case may be.
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Section
2.13.
|
CUSIP
Number.
|
The
Issuers in issuing the Notes may use a “CUSIP,” “ISIN” or other similar
number(s), and if so, the Trustee shall use the CUSIP, ISIN or other similar
number(s) in notices of redemption or exchange as a convenience to holders,
provided that any such notice may state that no representation is made as to
the
correctness or accuracy of the CUSIP, ISIN or other similar number(s) printed
in
the notice or on the Notes, and that reliance may be placed only on the other
identification numbers printed on the Notes. The Issuers shall promptly inform
the Trustee of any change in the CUSIP, ISIN or other similar
number(s).
ARTICLE
3
REDEMPTION
|
Section
3.01.
|
Notices
to Trustee.
|
If
the
Company elects to redeem Notes pursuant to paragraph 5 of the Notes, (i) at
least 45 days prior to the Redemption Date in the case of a partial redemption,
(ii) at least 45 days prior to the Redemption Date in the case of a total
redemption or (iii) during such other period as the Trustee may agree to,
the Company shall notify the Trustee in writing of the Redemption Date, the
principal amount of Notes to be redeemed and the redemption price, and deliver
to the Trustee an Officer’s Certificate stating that such redemption will comply
with the conditions contained in paragraph 5 of the Notes.
|
Section
3.02.
|
Selection
by Trustee of Notes to Be Redeemed.
|
In
the
event that fewer than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed on either a pro rata basis or by lot, or such
other method as it shall deem fair and equitable. The Trustee shall promptly
notify the Company of the Notes selected for redemption and, in the case of
any
Notes selected for partial redemption, the principal amount thereof to be
redeemed. The Trustee may select for redemption portions of the principal of
Notes that have denominations larger than $1,000. Notes and portions thereof
the
Trustee selects shall be redeemed in amounts of $1,000 or whole multiples of
$1,000 and, if Payment-in-Kind Notes are issued, a minimum of $1.00 and an
integral multiple of $1.00 (in aggregate principal amount). For all purposes
of
this Indenture unless the context otherwise requires, provisions of this
Indenture that apply to Notes called for redemption also apply to portions
of
Notes called for redemption.
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Section
3.03.
|
Notice
of Redemption.
|
At
least
30 but not more than 60 days before a Redemption Date, the Company shall mail,
or cause to be mailed, a notice of redemption by first-class mail to the Trustee
and to each holder of Notes to be redeemed at its address as the same appears
on
the registry books maintained by the Registrar pursuant to Section 2.03
hereof.
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The
notice shall identify the Notes to be redeemed (including the CUSIP number(s)
thereof) and shall state:
(1) the
Redemption Date;
(2) the
redemption price;
(3) if
any
Note is being redeemed in part, the portion of the principal amount of such
Note
to be redeemed and that, after the Redemption Date and upon surrender of such
Note, a new Note or Notes in principal amount equal to the unredeemed portion
will be issued;
(4) the
name
and address of the Paying Agent;
(5) that
Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(6) that
unless the Issuers default in making the redemption payment, interest on Notes
called for redemption ceases to accrue on and after the Redemption
Date;
(7) the
subparagraph of the Notes pursuant to which the Notes are being redeemed;
and
(8) the
aggregate principal amount of Notes that are being redeemed.
At
the
Company’s request (and upon at least five (5) days prior written notice), the
Trustee shall give the notice of redemption in the Issuers’ names and at the
Company’s sole expense.
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Section
3.04.
|
Effect
of Notice of Redemption.
|
Once
the
notice of redemption described in Section 3.03 is mailed, Notes called for
redemption become due and payable on the Redemption Date and at the redemption
price, including any premium, plus interest accrued to the Redemption Date,
if
any. Upon surrender to the Paying Agent, such Notes shall be paid at the
redemption price, including any premium, plus interest accrued to the Redemption
Date, if any; provided
that if
the Redemption Date is after a regular interest payment 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, and
provided,
further,
that if
a Redemption Date is a Legal Holiday, payment shall be made on the next
succeeding Business Day and no interest shall accrue for the period from such
Redemption Date to such succeeding Business Day.
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Section
3.05.
|
Deposit
of Redemption Price.
|
On
or
prior to 10:00 A.M., New York City time, on each Redemption Date, the
Issuers shall deposit with the Paying Agent in immediately available funds
money
sufficient to pay the redemption price of and accrued interest on all Notes
to
be redeemed on that date other than Notes or portions thereof called for
redemption on that date which have been delivered by the Issuers to the Trustee
for cancellation.
On
and
after any Redemption Date, if money sufficient to pay the redemption price
of
and accrued interest on Notes called for redemption shall have been made
available in accordance with the preceding paragraph, the Notes called for
redemption will cease to accrue or accrete interest and the only right of the
holders of such Notes will be to receive payment of the redemption price of
and,
subject to the first proviso in Section 3.04, accrued and unpaid interest on
such Notes to the Redemption Date. If any Note called for redemption shall
not
be so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Note and any interest
not paid on such unpaid principal, in each case, at the rate and in the manner
provided in the Notes.
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Section
3.06.
|
Notes
Redeemed in Part.
|
Upon
surrender of a Note that is redeemed in part, the Trustee shall authenticate
for
a holder a new Note equal in principal amount to the unredeemed portion of
the
Note surrendered.
ARTICLE
4
COVENANTS
|
Section
4.01.
|
Payment
of Notes.
|
The
Issuers shall pay the principal of and interest on the Notes on the dates and
in
the manner provided in the Notes and this Indenture. An installment of principal
of or interest on the Notes shall be considered paid on the date it is due
if
the Trustee or any Paying Agent holds on that date money designated for and
sufficient to pay the installment. PIK Interest shall be considered paid on
the
date due, unless interest is otherwise paid in cash, if the Trustee is directed
on or prior to such date to issue Payment-in-Kind Notes in an amount equal
to
the amount of the applicable PIK Interest. Interest will be computed on the
basis set forth in the Notes.
The
Issuers shall pay interest on overdue principal (including post-petition
interest in a proceeding under any Bankruptcy Law), and overdue interest, to
the
extent lawful, at the rate specified in the Notes.
No
provision of this Section 4.01 shall be deemed to impose any duty or obligation
on the Trustee to calculate the installment of principal of or interest on
the
Notes on any Interest Payment Date or to monitor the calculation thereof by
the
Issuers.
|
Section
4.02.
|
SEC
Reports.
|
(a) If
and
for so long as the Company is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act and any Notes are outstanding, the Company
shall
file with the SEC and provide the Trustee and holders of Notes with such annual
reports and such information, documents and other reports as are specified
in
Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. person
subject to such Sections, such information, documents and reports to be so
filed
and provided at the times specified for the filing of such information,
documents and reports under such Sections; provided,
however, that
(i)
the Company shall not be so obligated to file such information, documents and
reports with the SEC if the SEC does not permit such filings and (ii) the
Company shall not be required to include the separate financial statements
of
any Guarantor in any such filing.
(b) At
any
time when the Company is not subject to the reporting requirements of Section
13
or 15(d) of the Exchange Act and any Notes are outstanding, the Company will
provide to the Trustees and the holders of Notes:
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(1) within
90
days after the end of the Company’s fiscal year, financial statements and a
Management’s Discussion and Analysis of Financial Condition and Results of
Operations substantially equivalent to that which would be required to be
included in an Annual Report on Form 10-K of the Company were the Company
subject to an obligation to file such a report under the Exchange
Act;
(2) within
45
days after the end of each of the first three fiscal quarters in each fiscal
year of the Company, financial statements and a Management’s Discussion and
Analysis of Financial Condition and Results of Operations substantially
equivalent to that which would be required to be included in a Quarterly Report
on Form 10-Q of the Company were the Company subject to an obligation to file
such a report under the Exchange Act; and
(3) within
the time periods required by the SEC for issuers subject to the reporting
requirements of Section 13(d) or 15(d) of the Exchange Act, the information
that
would be required to be filed with the SEC in Current Reports on Form 8-K (other
than in respect of Items 1.01, 2.02, 3.01, 3.02, 3.03, 5.02 (in the case of
entry into material definitive agreements, management compensation and similar
agreements only), 5.03, 5.04, 5.05, 7.01, 8.01 and 9.01 (or any successor items)
under Form 8-K) if the Company were subject to such reporting
requirements;
provided,
however, that
the
reports set forth in clauses (1), (2) and (3) above shall not be required to:
(a) contain any certification required by any such form or the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, (b) include the separate financial statements of
any
Guarantor in any such filing or (c) include any exhibit. Additionally,
substantially concurrently with the delivery to the Trustee and the holders
of
the Notes of the reports specified in (1), (2) and (3) above, the Company shall
(i) post copies of such reports on its website and (ii) in the case of
clauses (1) and (2) above, commencing with the report covering the fiscal
quarter ending March 31, 2008, hold a conference call with holders of Notes
covering such matters as are reasonably customary for companies with publicly
traded debt or equity securities.
(c) The
Company shall cause information, documents and reports required to be provided
to the Trustee and to the holders to be mailed at the Company’s expense to the
Trustee at its address set forth in this Indenture and to the holders at their
addresses appearing in the register of Notes maintained by the
Registrar.
Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer’s Certificates).
(d) For
so
long as any Notes remain outstanding, the Company shall make available upon
request, to any holder, any holder of a beneficial interest in a Note and,
upon
request of any holder or any such holder, any prospective purchaser of a Note
or
a beneficial interest therein, the information required pursuant to Rule
144A(d)(4) under the Securities Act during any period in which the Company
is
not subject to Section 13 or 15(d) of the Exchange Act.
|
Section
4.03.
|
Waiver
of Stay, Extension or Usury Laws.
|
The
Issuers and the Guarantors covenant (to the extent that they may lawfully do
so)
that they will not at any time insist upon, or plead (as a defense or otherwise)
or in any manner whatsoever claim or take the benefit or advantage of, any
stay
or extension law or any usury law or other law which would prohibit or forgive
the Issuers or the Guarantors from paying all or any portion of the principal
of, premium, if any, and/or interest on the Notes, as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the
covenants or the performance of this Indenture; and (to the extent that they
may
lawfully do so) the Issuers and the Guarantors hereby expressly waive all
benefit or advantage of any such law, and covenant that they will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such
law
had been enacted.
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|
Section
4.04.
|
Compliance
Certificate.
|
(a) The
Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year, an Officer’s Certificate stating that a review of the activities of
the Company and its Subsidiaries during such fiscal year has been made under
the
supervision of the signing officers with a view to determining whether each
has
kept, observed, performed and fulfilled its obligations under this Indenture,
and further stating, as to each such Officer signing such certificate, that
to
the best of his or her knowledge each has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof and thereof (or, if a Default or Event of Default shall have
occurred, describing all of such Defaults or Events of Default of which he
or
she may have knowledge and what action each is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of
the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action each is taking or
proposes to take with respect thereto.
(b) So
long
as not contrary to the then current recommendations of the American Institute
of
Certified Public Accountants, the year-end financial statements delivered
pursuant to Section 4.02 above shall be accompanied by a written statement
of
the Company’s independent certified public accountants that in making the
examination necessary for certification of such financial statements nothing
has
come to their attention which would lead them to believe that the Company has
violated any provisions of this Article 4 or Article 5 of this Indenture or,
if
any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly for any failure to obtain knowledge of any such
violation.
(c) The
Company will, so long as any of the Notes are outstanding, deliver to the
Trustee, forthwith within 30 days after any event which would constitute a
Default or Event of Default, an Officer’s Certificate specifying such Default or
Event of Default, its status and what action the Company is taking or proposes
to take with respect thereto.
|
Section
4.05.
|
Taxes.
|
The
Company shall, and shall cause each of the Restricted Subsidiaries to, and
the
Restricted Entities shall, pay prior to delinquency all material taxes,
assessments, and governmental levies except as contested in good faith and
by
appropriate proceedings.
|
Section
4.06.
|
Limitation
on Indebtedness.
|
(a) The
Company shall not, and shall not permit any Restricted Subsidiary to, and each
Restricted Entity shall not, Incur, directly or indirectly, any Indebtedness;
provided,
however,
that
the Issuers and the Guarantors shall be entitled to Incur Indebtedness if,
on
the date of such Incurrence and after giving effect thereto on a pro forma
basis, the Consolidated Leverage Ratio would be less than 6.00 to
1.
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(b) Notwithstanding
the foregoing paragraph (a), the Company and the Restricted Entities shall
be
entitled to Incur any or all of the following Indebtedness:
(1) Indebtedness
Incurred by the Issuers or any Guarantor under this clause (1) that, after
giving effect to any such Incurrence and assuming all amortization of debt
discount, accretion of principal and payment of interest in kind over the life
of such Indebtedness has occurred at the time of initial Incurrence, does not
exceed $250.0 million in principal amount at any one time outstanding;
provided
that,
prior to any Incurrence of Indebtedness under this clause (1), the Company
shall
have received at least $1.0 billion of Net Cash Proceeds after the Original
Issue Date from the issue or sale of Capital Stock of the Company or cash
contributed to the capital of the Company (in each case other than proceeds
of
Disqualified Stock or sales of Capital Stock to the Company or any of its
Subsidiaries); provided,
further,
however,
that
any Net Cash Proceeds received by the Company or cash contributions to the
Company’s capital and used to Incur Indebtedness pursuant to this clause (1)
shall be excluded from the calculation of amounts under Section
4.08(a)(3)(B);
(2) Indebtedness
Incurred by the Issuers or any Guarantor in an aggregate principal amount which,
when taken together with all other Indebtedness Incurred pursuant to this clause
(2) and then outstanding, does not exceed the greater of (a) $500 million and
(b) an amount equal to 125% of the Net Cash Proceeds received by the Company
since the Original Issue Date from the issue or sale of Capital Stock of the
Company or cash contributed to the capital of the Company (in each case other
than proceeds of Disqualified Stock or sales of Capital Stock to the Company
or
any of its Subsidiaries); provided,
however,
that,
any Indebtedness Incurred under this clause (2) shall have a weighted Average
Life that is greater than the then remaining weighted Average Life of the Old
Notes; provided further,
however,
that
any Net Cash Proceeds received by the Company or cash contributions to the
Company’s capital and used to Incur Indebtedness pursuant to this clause (2)
shall be excluded from the calculation of amounts under Section
4.08(a)(3)(B);
(3) Indebtedness
owed to and held by the Company or a Restricted Entity (including intercompany
indebtedness); provided,
however,
that
(A) any subsequent issuance or transfer of any Capital Stock which results
in
any such Restricted Entity ceasing to be a Restricted Entity or any subsequent
transfer of such Indebtedness (other than to the Company or a Restricted Entity)
shall be deemed, in each case, to constitute the Incurrence of such Indebtedness
by the obligor thereon and (B) if the Company or Finance Co. is the obligor
on
such Indebtedness, such Indebtedness is expressly subordinated to the prior
payment in full in cash of all obligations with respect to the Notes and if
a
Guarantor is an obligor under such Indebtedness or such Indebtedness is owed
to
a Restricted Entity that is not a Guarantor, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all obligations with
respect to the Guarantee of such Guarantor;
(4) the
Old
Notes and Guarantees thereof;
(5) Indebtedness
outstanding on the Original Issue Date;
(6) Indebtedness
of a Restricted Entity Incurred and outstanding on or prior to the date on
which
such Restricted Entity was acquired by the Company or a Restricted Entity (other
than Indebtedness Incurred in connection with, or to provide all or any portion
of the funds or credit support utilized to consummate, the transaction or series
of related transactions pursuant to which such Subsidiary became a Subsidiary
or
was acquired by the Company); provided,
however,
that on
the date of such acquisition and after giving pro forma effect thereto, the
Company would have been entitled to Incur at least $1.00 of additional
Indebtedness pursuant to paragraph (a) of this Section 4.06;
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(7) Refinancing
Indebtedness in respect of Indebtedness Incurred pursuant to paragraph (a)
or
pursuant to clause (4), (5) or (6) or this clause (7); provided,
however,
that
such Refinancing Indebtedness shall not include Refinancing Indebtedness of
the
Issuers or a Guarantor that refinances Indebtedness of a Subsidiary that is
not
a Guarantor or co-issuer of the Notes;
(8) Hedging
Obligations entered into in the ordinary course of business and not for
speculative purposes;
(9) obligations
with respect to letters of credit and bank guarantees, including without
limitation, letters of credit in respect of workers’ compensation claims,
health, disability or other benefits to former employees or their families
or
property, casualty or liability or self-insurance obligations, performance,
bid
and surety bonds and completion guarantees provided by the Company or any
Restricted Entity in the ordinary course of business;
(10) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business; provided,
however,
that
such Indebtedness is extinguished within five Business Days of its
Incurrence;
(11) Subordinated
Obligations Incurred by the Issuers or any of the Guarantors to finance the
purchase, lease or improvement of property (real or personal) or equipment
that
is used or useful in a Related Business (whether through the direct purchase
of
assets or the Capital Stock of any Person owning such assets) within 180 days
of
such purchase, lease or improvement, and any Refinancing Indebtedness Incurred
to Refinance such Indebtedness, which, when added together with the amount
of
all other Subordinated Obligations Incurred pursuant to this clause (11) and
then outstanding, does not exceed $250 million; provided,
however,
that
any Indebtedness Incurred under this clause (11) shall have a weighted Average
Life that is greater than the then remaining weighted Average Life of the Notes
and a final maturity date that is later than the date that is 91 days after
the
Stated Maturity of the Notes;
(12) Capital
Lease Obligations or Purchase Money Indebtedness of the Company or any Guarantor
Incurred to finance the lease or purchase of L-Band Spectrum in North America;
provided
that in
the case of Capital Lease Obligations, the rights of the lessor under such
Capital Lease Obligations shall be limited to the L-Band Spectrum leased and,
in
the case of Purchase Money Indebtedness, the lenders of such Purchase Money
Indebtedness shall only have recourse to the L-Band Spectrum purchased and
shall
have no other claim against the Company and the Restricted Entities;
provided,
further,
that
the Company shall have received at least $500.0 million of Designated Equity
Contributions prior to any Incurrence under this clause (12) and shall not
have
made a Designated Equity Election;
(13) Purchase
Money Indebtedness and Capital Lease Obligations of the Company or any Guarantor
in an aggregate principal amount not in excess of $50 million outstanding at
any
time;
(14) Indebtedness
arising from agreements of the Company or any of the Restricted Entities
providing for indemnification, adjustment of purchase price or similar
obligations, in each case, Incurred or assumed in connection with the
disposition of any business, assets or Capital Stock of a Restricted Entity,
provided,
however,
the
maximum aggregate liability in respect of all such Indebtedness shall at no
time
exceed the gross proceeds actually received by the Company and the Restricted
Entities in connection with such disposition;
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(15) Indebtedness
of the Company or of any of the Restricted Entities in an aggregate principal
amount which, when taken together with all other Indebtedness of the Company
and
the Restricted Entities Incurred pursuant to this clause (15) and then
outstanding does not exceed $50 million;
(16) Guarantees
by the Issuers or any Guarantor of Indebtedness of the Issuers or the Guarantors
so long as such Indebtedness is otherwise permitted to be incurred
hereunder;
(17) Indebtedness
representing the financing of installments of insurance premiums;
and
(18) Indebtedness
of the Company and the Guarantors to Boeing Satellite Systems, Inc.
(“Boeing”)
and
its Affiliates incurred to finance the purchase of one or more satellites from
Boeing or such Affiliate in an aggregate principal amount not to exceed at
any
one time $110.0 million.
(c) Notwithstanding
the foregoing, neither the Issuers nor any Guarantor shall be entitled to Incur
any Indebtedness pursuant to the foregoing paragraph (b) if the proceeds thereof
are used, directly or indirectly, to Refinance any Subordinated Obligations
unless such Indebtedness shall be subordinated to the Notes or the Guarantee
of
such Guarantor, as applicable, to at least the same extent as such Subordinated
Obligations.
(d) For
purposes of determining compliance with this Section 4.06:
(1) in
the
event that an item of Indebtedness (or any portion thereof) meets the criteria
of more than one of the types of Indebtedness described above, the Company,
in
its sole discretion, will classify such item of Indebtedness (or any portion
thereof) at the time of Incurrence and will only be required to include the
amount and type of such Indebtedness in one of the above clauses;
(2) the
Company will be entitled to divide and classify (and later reclassify) an item
of Indebtedness in more than one of the types of Indebtedness described above,
including under paragraph (a) above;
(3) 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;
(4) the
principal amount of any Disqualified Stock of the Company or Preferred Stock
of
a Restricted Entity, will be equal to the greater of the maximum mandatory
redemption or repurchase price (not including, in either case, any redemption
or
repurchase premium) or the liquidation preference thereof; and
(5) 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 covenant.
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For
purposes of this Section 4.06, all outstanding Indebtedness under the Notes
and
the Guarantees thereof immediately following the Issue Date will be deemed
to
have been Incurred pursuant to clause (2) of paragraph (b) of this Section
4.06.
|
Section
4.07.
|
Limitation
on Issuance or Sale of Capital Stock of Restricted
Entities.
|
The
Company:
(a) shall
not, and shall not permit any Restricted Subsidiary to, and each Restricted
Entity shall not, sell, lease, transfer or otherwise dispose of any Capital
Stock of any Restricted Entity to any Person (other than the Company or a Wholly
Owned Subsidiary; provided
that
Capital Stock owned by the Company or a Guarantor may only be issued or
transferred to the Company or another Guarantor), and
(b) shall
not
permit any Restricted Subsidiary to, and each Restricted Entity shall not,
issue
any of its Capital Stock (other than, if necessary, shares of its Capital Stock
constituting directors’ or other legally required qualifying shares) to any
Person (other than to the Company or a Wholly Owned Subsidiary; provided
that
Capital Stock owned by the Company or a Guarantor may only be issued or
transferred to the Company or another Guarantor),
unless:
(1) immediately
after giving effect to such issuance, sale or other disposition, neither the
Company nor any of their Subsidiaries own any Capital Stock of such Restricted
Entity; or
(2) such
issuance, sale or other disposition is treated as an Asset Disposition and
immediately after giving effect to such issuance, sale or other disposition,
such Restricted Entity would continue to be a Restricted Entity; or
(3) immediately
after giving effect to such issuance, sale or other disposition, such Restricted
Entity would no longer constitute a Restricted Entity and any Investment in
such
Person remaining after giving effect thereto is treated as a new Investment
by
the Company and such Investment would be permitted to be made under Section
4.08
if made on the date of such issuance, sale or other disposition.
For
purposes of this Section 4.07, the creation of a Lien on any Capital Stock
of a
Restricted Entity to secure Indebtedness of the Company or any of its Restricted
Subsidiaries shall not be deemed to be a violation of this Section 4.07;
provided,
however,
that
any sale or other disposition by the secured party of such Capital Stock
following foreclosure of its Lien shall be subject to this Section
4.07.
|
Section
4.08.
|
Limitation
on Restricted Payments.
|
(a) The
Company shall not, and shall not permit any Restricted Subsidiary to, and each
Restricted Entity shall not, directly or indirectly, make a Restricted Payment
if at the time the Company or such Restricted Entity makes such Restricted
Payment:
(1) a
Default
shall have occurred and be continuing (or would result therefrom);
(2) the
Company is not entitled to Incur an additional $1.00 of Indebtedness pursuant
to
Section 4.06(a) after giving effect, on a pro forma basis, to such Restricted
Payment; or
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(3) the
aggregate amount of such Restricted Payment and all other Restricted Payments
since the Original Issue Date would exceed the sum of (without
duplication):
(A) 100%
of
Consolidated Operating Cash Flow accrued during the period (treated as one
accounting period) from the beginning of the first fiscal quarter during which
the Company generates positive Consolidated Operating Cash Flow following the
Original Issue Date to the end of the most recent fiscal quarter for which
internal financial statements are available less 1.4 times the Consolidated
Interest Expense for the same period (if such amount in this clause (A) is
a
negative amount, minus the amount by which such amount is less than zero);
plus
(B) 100%
of
the aggregate Net Cash Proceeds received by the Company from the issuance or
sale of its Capital Stock (other than Disqualified Stock) subsequent to the
Original Issue Date (other than an issuance or sale to a Subsidiary of the
Company or to the Canadian Joint Ventures and other than an issuance or sale
to
an employee stock ownership plan) and 100% of any cash capital contribution
received by the Company subsequent to the Original Issue Date; provided,
however,
that
there shall be excluded from the calculation of Net Cash Proceeds and cash
capital contributions under this clause (B) any Net Cash Proceeds received
by
the Company from the issue or sale of its Capital Stock or cash capital
contributions received by the Company and which is deemed to be used to Incur
Indebtedness pursuant to Section 4.06(b)(1) or (b)(2) until and to the extent
any such Indebtedness Incurred pursuant to Section 4.06(b)(1) or (b)(2) in
respect of such Net Cash Proceeds or cash capital contributions has been
redesignated to another subclause of Section 4.06(b) or Section 4.06(a);
provided,
further,
however,
that
Designated Equity Contributions shall not be permitted to be included in this
clause (3)(B) unless the Company has made a Designated Equity Election, in
which
case the amount by which such Designated Equity Contributions exceeds the net
present value of all payments to be made under Capital Lease Obligations and
Purchase Money Indebtedness Incurred pursuant to Section 4.06(b)(12) shall
be
permitted to be included in this clause (3)(B); plus
(C) the
amount by which Indebtedness of the Company or any Restricted Entity is reduced
on the Company’s balance sheet upon the conversion or exchange subsequent to the
Original Issue Date of any Indebtedness convertible or exchangeable for Capital
Stock (other than Disqualified Stock) of the Company (less the amount of any
cash, or the fair value of any other property, distributed by the Company upon
such conversion or exchange); plus
(D) an
amount
equal to the sum of (i) the net reduction in the Investments (other than
Permitted Investments) made by the Company or any Restricted Entity in any
Person resulting from repurchases, repayments or redemptions of such Investments
by such Person, proceeds realized on the sale of such Investment and proceeds
representing the return of capital (excluding dividends and distributions to
the
extent included in Consolidated Operating Cash Flow), in each case received
by
the Company or any Restricted Entity, and (ii) to the extent such Person is
an
Unrestricted Entity, the portion (proportionate to the Company’s equity interest
in such Subsidiary) of the fair market value of the net assets of such
Unrestricted Entity at the time such Unrestricted Entity is designated a
Restricted Entity; provided,
however,
that
the foregoing sum shall not exceed, in the case of any such Person or
Unrestricted Entity, the amount of Investments (excluding Permitted Investments)
previously made (and treated as a Restricted Payment) by the Company or any
Restricted Entity in such Person or Unrestricted Entity.
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(b) The
preceding provisions shall not prohibit:
(1) any
Restricted Payment in an amount equal to the Net Cash Proceeds of the
substantially concurrent sale of, or made by exchange for, Capital Stock of
the
Company (other than Disqualified Stock and other than Capital Stock issued
or
sold to a Subsidiary of the Company or a Canadian Joint Venture or an employee
stock ownership plan) or a substantially concurrent cash capital contribution
received by the Company; provided,
however,
that
(A) such Restricted Payment shall be excluded from subsequent calculations
of
the amount of Restricted Payments and (B) the Net Cash Proceeds from such sale
or such cash capital contribution (to the extent so used for such Restricted
Payment) shall be excluded from the calculation of amounts under clause (3)(B)
of paragraph (a) above and shall be excluded from the calculation of amounts
under Section 4.06(b)(2);
(2) any
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value of Subordinated Obligations made by exchange for, or out of the
proceeds of the substantially concurrent Incurrence of, Subordinated Obligations
that are permitted to be Incurred pursuant to Section 4.06 that have, at the
time of Incurrence, a weighted Average Life that is greater than the then
remaining weighted Average Life of the Notes and a Stated Maturity that is
later
than the date that is 91 days after the Stated Maturity of the Notes;
provided,
however,
that
such purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value shall be excluded from subsequent calculations of the
amount of Restricted Payments;
(3) dividends
paid within 60 days after the date of declaration thereof if at such date of
declaration such dividend would have complied with this covenant; provided,
however,
that
such dividend shall be included in subsequent calculations of the amount of
Restricted Payments;
(4) so
long
as no Default has occurred and is continuing, the purchase, redemption or other
acquisition of shares of Capital Stock of the Company or any of its Subsidiaries
from employees, former employees, consultants, directors or former directors
of
the Company or any of its Subsidiaries (or permitted transferees of such
employees, former employees, former consultants, directors or former directors),
pursuant to the terms of the agreements (including employment agreements) or
plans (or amendments thereto) under which such individuals purchase or sell
or
are granted the option to purchase or sell, shares of such Capital Stock;
provided,
however,
that
the aggregate amount of such Restricted Payments (excluding amounts representing
cancellation of Indebtedness) shall not exceed $2.5 million in the aggregate
since the Original Issue Date; provided further,
however,
that
such repurchases and other acquisitions shall be excluded from subsequent
calculations of the amount of Restricted Payments;
(5) the
declaration or payment of dividends on Disqualified Stock issued in compliance
with Section 4.06; provided,
however,
that at
the time of declaration of such dividend, no Default shall have occurred and
be
continuing (or result therefrom); provided further,
however,
that
such dividends shall be excluded from subsequent calculations of the amount
of
Restricted Payments;
(6) repurchases
of Capital Stock deemed to occur upon exercise of options to purchase limited
partnership interests, stock options, warrants or other convertible securities
if such Capital Stock represents a portion of the exercise price thereof;
provided,
however,
that
such Restricted Payments shall be excluded from subsequent calculations of
the
amount of Restricted Payments;
-53-
(7) cash
payments not to exceed $2.5 million since the Original Issue Date in lieu of
the
issuance of fractional shares in connection with a reverse stock split of the
Capital Stock of the Company or the exercise of warrants, options, or other
securities convertible into or exchangeable for Capital Stock of the Company;
provided,
however,
that
any such cash payment shall not be for the purpose of evading the limitation
of
the covenant described under this subheading; provided further,
however,
that
such payments shall be excluded in subsequent calculations of the amount of
Restricted Payments;
(8) in
the
event of a Change of Control or to the extent permitted by Section 4.10, and
if
no Default shall have occurred and be continuing, the payment, purchase,
redemption, defeasance or other acquisition or retirement of Subordinated
Obligations, in each case, at a purchase price not greater than 101% of the
principal amount of such Subordinated Obligations, plus any accrued and unpaid
interest thereon; provided,
however,
that
prior to such payment, purchase, redemption, defeasance or other acquisition
or
retirement, the Issuers (or a third party to the extent permitted by this
Indenture) have made a Change of Control Offer, or sale of assets offer, with
respect to the Notes and has repurchased all Notes validly tendered and not
withdrawn in connection with such Change of Control Offer, or sale of assets
offer; provided further,
however,
that
such payments, purchases, redemptions, defeasances or other acquisitions or
retirements shall be excluded from subsequent calculations of the amount of
Restricted Payments;
(9) payments
of intercompany subordinated Indebtedness, the Incurrence of which was permitted
under Section 4.06(b)(3); provided,
however,
that
such payments shall be excluded from subsequent calculations of the amount
of
Restricted Payments;
(10) other
Restricted Payments in an amount not to exceed $5.0 million in the aggregate
since the Original Issue Date; provided,
however,
that no
Default has occurred and is continuing or would otherwise result therefrom;
provided further,
however,
that
such payments shall be excluded from subsequent calculations of the amount
of
Restricted Payments;
(11) the
payment of dividends, or distributions or amounts by the Company to its direct
parents or to the limited partners or the General Partner in amounts required
to
pay the tax obligations of any such direct parent, limited partners or the
General Partner that are solely attributable to the income of the Company and
its Subsidiaries by virtue of the Company being a pass-through entity for
Federal, state or foreign income tax purposes; provided,
however,
that
(a) the amount of dividends or distributions paid pursuant to this clause (11)
to enable any of the Company’s direct parents, limited partners or the General
Partner to pay Federal, state or foreign income taxes at any time will not
exceed the amount of such Federal, state or foreign income taxes actually owing
by any such direct parent or the General Partner or the Company’s Limited
Partners at such time for the respective period (excluding any tax liability
or
tax benefit of any such direct parent or the General Partner or the Company’s
Limited Partners not attributable to the Company or its Subsidiaries)
(provided
that the
Company may make periodic payments based on an estimate of such tax liability
with an annual reconciliation at the end of each tax year) and (b) any
refunds received by or on behalf of, or any overpayment based on the annual
reconciliation to, any of the Company’s direct parents, limited partners or the
General Partner attributable to the Company and its Subsidiaries shall promptly
be returned by any such direct parent or the General Partner or the Company’s
Limited Partners to the Company; and provided further,
however,
that
such payments shall be excluded from subsequent calculations of the amount
of
Restricted Payments;
-54-
(12) the
dividend or distribution of all of the shares of MSV International, LLC to
the
equity holders of the Company or the designation of MSV International, LLC
as an
Unrestricted Entity; provided
that all
Investments in MSV International, LLC made since the Original Issue Date and
all
payments made under the Boeing Agreement on behalf of any satellite to be
transferred or assigned to MSV International, LLC shall have either been
reimbursed in cash in full to the Company or be deemed to be a permanent
Investment by the Company in MSV International, LLC (provided
that
such Investment is otherwise permitted by this Indenture); provided,
however,
that no
Default has occurred and is continuing or would otherwise result therefrom;
and
provided further,
however,
that
such dividend or distribution shall be excluded from subsequent calculations
of
the amount of Restricted Payments;
(13) after
the
occurrence of a Parent Rollup Transaction, the payment of dividends or
distributions by the Company to Parent or the making of loans by the Company
to
Parent for Parent to pay fees and expenses related to (a) Parent’s corporate
existence and expenses of Parent as a public company, and (b) general corporate
overhead expense of Parent and customary compensation payable to officers,
employees and directors of Parent in the case of (b) to the extent such fees
and
expenses relate to the ownership of the Company; provided,
however,
that
amounts paid under this clause (13) shall not exceed $2.5 million during any
calendar year, provided,
further,
however,
that no
Default has occurred and is continuing or would otherwise result therefrom;
provided further,
however,
that
such payments shall be excluded from subsequent calculations of the amount
of
Restricted Payments;
(14) the
payment of costs and expenses incurred by the General Partner on behalf of
the
Company or the Restricted Entities in the ordinary course of business and
administrative and corporate fees and expenses of the General Partner in the
ordinary course of business not to exceed in the aggregate under this clause
(14) $1.0 million per year; provided further,
however,
that
such payments shall be excluded from subsequent calculations of the amount
of
Restricted Payments; and
(15) the
distribution, as a dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to, the Company or a Restricted Entity by, an Unrestricted
Entity.
The
amount of all Restricted Payments (other than cash) shall be the fair market
value on the date of such Restricted Payment of the asset(s) or securities
proposed to be paid, transferred or issued by the Company or such Restricted
Entity, as the case may be, pursuant to such Restricted Payment. The fair market
value of any cash Restricted Payment shall be its face amount and any non-cash
Restricted Payment shall be determined conclusively by the Board of Directors
of
the Company acting in good faith.
|
Section
4.09.
|
Limitation
on Liens.
|
The
Company shall not, and shall not permit any Restricted Subsidiary to, and each
Restricted Entity shall not, directly or indirectly, Incur or permit to exist
any Lien of any nature whatsoever on any of its properties (including Capital
Stock of a Subsidiary), whether owned at the Issue Date or thereafter acquired,
securing any Indebtedness, other than Permitted Liens, unless:
(1) in
the
case of Liens securing Subordinated Obligations of the Company or a Guarantor,
the Notes are or such Guarantor’s Guarantee is, as the case may be, secured by a
Lien on such property that is senior in priority to such Liens; and
(2) in
all
other cases, the Notes are or such Guarantor’s Guarantee is, as the case may be,
equally and ratably secured by a Lien on such property.
-55-
|
Section
4.10.
|
Limitation
on Sale of Assets and Subsidiary Stock.
|
(a) The
Company shall not, and shall not permit any Restricted Subsidiary to, and each
Restricted Entity shall not, directly or indirectly, consummate any Asset
Disposition unless:
(1) the
Company or such Restricted Entity receives consideration at the time of such
Asset Disposition at least equal to the fair market value (including as to
the
value of all non-cash consideration), as determined in good faith by the Board
of Directors, of the shares and assets subject to such Asset
Disposition;
(2) at
least
75% of the consideration thereof received by the Company or such Restricted
Entity is in the form of cash, Temporary Cash Investments or Designated Noncash
Consideration; provided,
however,
that
the amount of any Designated Noncash Consideration received by the Company
or
any Restricted Entity in such Asset Disposition having an aggregate fair market
value, taken together with all other Designated Noncash Consideration received
pursuant to this clause (2) at the time of determination, shall not exceed
an
amount equal to the greater of (x) $25 million and (y) 2.5% of Consolidated
Total Assets at the time of the receipt of such Designated Noncash
Consideration, with the fair market value of each item of Designated Noncash
Consideration being measured at the time received and without giving effect
to
subsequent changes in value; provided further
that the
amount of:
(a) any
liabilities of the Company or any Restricted Entity of the Issuer (other than
Subordinated Obligations) that are assumed by the transferee of any such
assets,
(b) any
notes
or other obligations or other securities or assets received by the Company
or
such Restricted Entity of the Company from such transferee that are converted
by
the Company or such Restricted Entity of the Company into cash within 180 days
of the receipt thereof (to the extent of the cash received), and
(c) any
Indebtedness of a Restricted Entity (other than Subordinated Obligations) that
is no longer a Restricted Entity as a result of the Asset
Disposition
shall
be
deemed to be cash for the purposes of this provision;
(3) an
amount
equal to 100% of the Net Available Cash from such Asset Disposition is applied
by the Company or such Restricted Entity, as the case may be:
(A) first,
to the
extent the Company or such Restricted Entity elects, to acquire Additional
Assets or improve Additional Assets within one year from the later of the date
of such Asset Disposition or the receipt of such Net Available Cash;
provided,
however,
that
the Company shall have an additional six months to apply such Net Available
Cash
pursuant to this clause (A) if it shall have entered into a binding acquisition
or purchase contract in respect of Additional Assets prior to the expiration
of
such one-year period; provided further
that if
the Net Available Cash from any Asset Disposition of an FCC License, Industry
Canada License or any similar telecommunications license or any Capital Stock
of
the FCC License Subsidiary, MSV Canada Inc. or any other entity holding a
telecommunications license is in excess of $10.0 million, the Net Available
Cash
from such Asset Disposition may not be applied as provided in this clause (A)
and shall be immediately applied as required in clause (b) below;
and
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(B) second,
to the
extent of the balance of such Net Available Cash after application in accordance
with clause (A) above:
(1) to
the
extent required by the terms of the Old Notes or any other secured Indebtedness
of either Issuer or any Restricted Entity, make an offer to the holders of
the
Old Notes and the holders of such other secured Indebtedness that requires
such
an offer to purchase, prepay or repay the Old Notes and such other secured
Indebtedness pursuant to the terms thereof; and
(2) to
the
extent that such Net Available Cash is remaining after application in accordance
with Section 4.10(a)(3)(B)(1) above, to make an offer to holders of the Notes
(and to holders of other Pari Passu Indebtedness that requires such an offer)
to
purchase Notes (and such other Pari Passu Indebtedness that require such an
offer) pursuant to and subject to the conditions contained in this Indenture;
provided,
that
such offer to holders of Notes is for no less than the Noteholders pro rata
amount
of such Net Available Cash (based on the then outstanding principal amount
of
the Notes outstanding and the principal amount (or accreted value if issued
with
discount) of such other Pari Passu Indebtedness);
provided,
however,
that in
connection with any prepayment, repayment or purchase of Indebtedness pursuant
to clause (3)(B) above, the Issuers or such Restricted Entity shall permanently
retire such Indebtedness and shall cause the related loan commitment (if any)
to
be permanently reduced in an amount equal to the principal amount so prepaid,
repaid or purchased; provided,
however,
that
the prior proviso shall not affect the ability of the Company of the Restricted
Entities to incur Indebtedness under Section 4.06(b).
Pending
application of Net Available Cash pursuant to this covenant, such Net Available
Cash shall be invested in Temporary Cash Investments or applied to temporarily
reduce revolving credit indebtedness, unless required to do otherwise pursuant
to the terms of the Old Notes or any other outstanding secured Indebtedness
of
either Issuer or Restricted Entity.
(b) In
the
event of an Asset Disposition that requires the Issuers to make an Offer to
purchase the Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B)(2)
the Issuers shall purchase Notes tendered pursuant to an Offer by the Issuers
for the Notes (and such other Indebtedness) (the “Offer”)
at a
purchase price of 100% of their then outstanding principal amount (such other
Indebtedness at a purchase price of 100% of its principal amount or, in the
event such other Indebtedness was issued with significant original issue
discount, 100% of the accreted value thereof) without premium, plus accrued
but
unpaid interest (or, in respect of such other Indebtedness, such lesser price,
if any, as may be provided for by the terms of such Indebtedness) in accordance
with the procedures set forth in Section 4.10(c). If the aggregate purchase
price of the Notes (and such other Indebtedness) tendered exceeds the Net
Available Cash allotted to their purchase, the Trustee will select the Notes
and
such other Indebtedness to be purchased on a pro rata basis but in round
denominations, which in the case of the Notes will be denominations of $1,000
principal amount or multiples thereof. The Company shall not be required to
make
such an Offer to purchase Notes (and other Indebtedness) pursuant to Section
4.10(a)(3)(B)(2) if the Net Available Cash available therefrom is less than
$15.0 million (which lesser amount shall be carried forward for purposes of
determining whether such an Offer is required with respect to the Net Available
Cash from any subsequent Asset Disposition). To the extent that the aggregate
amount of Notes and other Indebtedness tendered is less than the Net Available
Cash required to be used to make an Offer to the holders of Notes and such
Indebtedness, the Company may use such excess Net Available Cash for any other
purpose not prohibited by this Indenture.
-57-
(c) Promptly,
and in any event within 10 days after the Company becomes obligated to make
an Offer pursuant to Section 4.10(a)(3)(B)(2), the Company shall deliver to
the
Trustee and send, by first-class mail to each holder, a written notice stating
that the holder may elect to have its Notes purchased by the Issuers either
in
whole or in part (subject to prorating as described in Section 4.10(b) in the
event the Offer is oversubscribed) in integral multiples of $1,000 principal
amount, at the applicable purchase price set forth in Section 4.10(b). The
notice shall specify a purchase date not less than 30 days nor more than 60
days
after the date of such notice (the “Purchase
Date”)
and
shall contain such information concerning the business of the Issuers which
the
Issuers in good faith believe will enable such holders to make an informed
decision and all instructions and materials necessary to tender Notes pursuant
to the Offer, together with the information contained in clause
(3).
(1) Not
later
than the date upon which written notice of an Offer is delivered to the Trustee
as provided below, the Company shall deliver to the Trustee an Officer’s
Certificate as to (A) the amount of the Offer (the “Offer
Amount”),
including information as to any Pari Passu Indebtedness included in the Offer,
(B) the allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (C) the compliance of such
allocation with the provisions of Section 4.10(a) and (b). On such date,
the Company shall irrevocably deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust) in Temporary Cash Investments, maturing on the last day prior to the
Purchase Date or on the Purchase Date if funds are immediately available by
open
of business, an amount equal to the Offer Amount to be held for payment in
accordance with the provisions of this Section. If the Offer includes other
Pari
Passu Indebtedness, the portion of the deposit described in the preceding
sentence that is applicable to such other Pari Passu Indebtedness may be made
with any other paying agent pursuant to arrangements satisfactory to the
Trustee. Upon the expiration of the period for which the Offer remains open
(the
“Offer
Period”),
the
Company shall deliver to the Trustee for cancellation the Notes or portions
thereof which have been properly tendered to and are to be accepted by the
Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or
cause the delivery of payment) to each tendering holder in the amount of the
purchase price. In the event that the aggregate purchase price of the Notes
delivered by the Company to the Trustee is less than the Offer Amount applicable
to the Notes, the Trustee shall deliver the excess to the Company immediately
after the expiration of the Offer Period for application in accordance with
this
Section 4.10.
(2) Holders
electing to have Notes purchased shall be required to surrender the Notes,
with
an appropriate form duly completed, to the Company at the address specified
in
the notice at least three Business Days prior to the Purchase Date. Holders
shall be entitled to withdraw their election if the Trustee or the Company
receives not later than one Business Day prior to the Purchase Date, a facsimile
transmission or letter setting forth the name of the holder, the principal
amount of the Notes which were delivered for purchase by the holder and a
statement that such holder is withdrawing his election to have such Notes
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.
(3) At
the
time the Company delivers Notes to the Trustee which are to be accepted for
purchase, the Company shall also deliver an Officer’s Certificate stating that
such Notes are to be accepted by the Company pursuant to and in accordance
with
the terms of this Section. Notes 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.
(d) The
Company will not, and will not permit any Restricted Subsidiary to, and each
Restricted Entity will not, engage in any Asset Swaps, unless:
-58-
(1) at
the
time of entering into such Asset Swap and immediately after giving effect to
such Asset Swap, no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(2) the
Related Business Assets that are the subject of such Asset Swap have a
substantially comparable fair market value;
(3) in
the
event such Asset Swap involves the transfer by the Company or any Restricted
Entity of assets having an aggregate fair market value, as determined by the
Board of Directors of the General Partner in good faith, in excess of $10
million, the terms of such Asset Swap have been approved by a majority of the
members of the Board of Directors of the Company; and
(4) any
cash
received shall be applied in accordance with Section 4.10(a)(3).
(e) To
the
extent that the provisions of any securities laws or regulations conflict with
provisions of this Section 4.10, the Issuers will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations hereunder and this Section 4.10 by virtue of its compliance with
such securities laws or regulations.
|
Section
4.11.
|
Limitation
on Transactions with Affiliates.
|
(a) The
Company shall not, and shall not permit any Restricted Subsidiary to, and each
Restricted Entity shall not, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property, employee
compensation arrangements or the rendering of any service) with, or for the
benefit of, any Affiliate of the Company (an “Affiliate
Transaction”)
involving (together with any related Affiliate Transactions) aggregate
consideration in excess of $10 million, unless:
(1) the
terms
of the Affiliate Transaction are not materially less favorable taken as a whole
to the Company or such Restricted Entity than those that could be obtained
at
the time of the Affiliate Transaction in arm’s-length dealings with a Person who
is not an Affiliate; and
(2) if
such
Affiliate Transaction (together with any related Affiliate Transactions)
involves an amount in excess of $15.0 million, the terms of the Affiliate
Transaction are set forth in writing and a majority of the non-employee
directors of the General Partner disinterested with respect to such Affiliate
Transaction have determined in good faith that the criteria set forth in clause
(1) are satisfied and have approved the relevant Affiliate
Transaction.
(b) The
provisions of the preceding paragraph (a) shall not prohibit:
(1) Restricted
Payments, in each case permitted to be made pursuant to Section 4.08, and
Permitted Investments;
(2) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors of the
Company;
(3) loans
or
advances to employees in the ordinary course of business in accordance with
the
past practices of the Company or the Restricted Entities, but in any event
not
to exceed $2.5 million in the aggregate outstanding at any one
time;
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(4) the
payment of reasonable and customary fees to, and indemnity provided on behalf
of, officers, directors, employees or consultants of the Company or the
Restricted Entities;
(5) transactions
between or among the Company and the Restricted Entities;
(6) the
issuance or sale of any Capital Stock (other than Disqualified Stock) of the
Company and the granting and the performance of registration
rights;
(7) any
agreement as in effect on the Issue Date, as these agreements may be amended,
modified, supplemented, extended or renewed from time to time (so long as any
amendment, modification, supplement, extension or renewal is not materially
less
favorable, taken as a whole, to the Company and the Restricted Entities) and
the
transactions evidenced or contemplated thereby or as these agreements may be
extended or renewed in accordance with this clause (7);
(8) transactions
with customers, clients, suppliers, or purchasers or sellers of goods or
services, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Indenture which are fair to the Company and
the Restricted Entities, in the reasonable determination of the Board of
Directors of the General Partner or the senior management of the Company, or
are
on terms at least as favorable as might reasonably have been obtained at such
time from an unaffiliated party;
(9) the
entering into agreements with equity holders of the Company or the General
Partner in connection with a Parent Roll-up Transaction relating to such equity,
including, without limitation, the entering into and performance of shareholder
agreements and registration rights agreements and amendments to existing similar
agreements; and
(10) Affiliate
Transactions with a person solely in its capacity as a holder of debt or equity
securities where such Person is treated no more favorably in such transaction
than any other security holders who are not Affiliates.
|
Section
4.12.
|
Future
Guarantors.
|
If
the
Company or any of the Restricted Entities acquires or creates another domestic
Subsidiary after the date of this Indenture, then that newly acquired or created
domestic Subsidiary shall become a Guarantor and execute a supplemental
indenture within 10 Business Days of the date on which it was acquired or
created; provided
that all
Subsidiaries that are Immaterial Subsidiaries or that have properly been
designated as Unrestricted Entities under this Indenture shall not become
Guarantors for so long as they continue to constitute Immaterial Subsidiaries
or
Unrestricted Entities, as the case may be. Additionally, the Company shall
deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each
stating that such supplemental Indenture complies with the applicable provisions
of this Indenture, that all conditions precedent in this Indenture relating
to
such transaction have been satisfied and that such supplemental Indenture is
enforceable, subject to customary qualifications.
|
Section
4.13.
|
Limitation
on Restrictions on Distributions from Restricted Subsidiaries and
Restricted
Entities.
|
The
Company shall not, and shall not permit any Restricted Subsidiary to, and each
Restricted Entity shall not, create or otherwise cause or permit to exist or
become effective any consensual encumbrance or consensual restriction on the
ability of any Restricted Entity to (a) pay dividends or make any other
distributions on its Capital Stock to the Company or a Restricted Entity or
pay
any Indebtedness owed to the Company or any Restricted Entity, (b) make any
loans or advances to the Company or any Restricted Entity or (c) transfer any
of
its property or assets to the Company or any Restricted Entity,
except:
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(1) with
respect to clauses (a), (b) and (c),
(A) any
encumbrance or restriction pursuant to an agreement in effect at or entered
into
on the Issue Date;
(B) any
encumbrance or restriction with respect to a Restricted Entity pursuant to
an
agreement relating to any Capital Stock or Indebtedness Incurred by such
Restricted Entity on or prior to the date on which such Restricted Entity was
acquired by the Company (other than Indebtedness Incurred as consideration
in,
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 Entity became a Restricted Entity or was acquired by the
Company) and outstanding on such date;
(C) any
encumbrance or restriction pursuant to an agreement effecting a Refinancing
of
Indebtedness Incurred pursuant to an agreement referred to in clause (A) or
(B)
of clause (1) of this Section 4.13 or this clause (C) or contained in any
amendment supplement, restatement, renewal or modification to an agreement
referred to in clause (A) or (B) of clause (1) of this Section 4.13 or this
clause (C); provided,
however,
that
the encumbrances and restrictions with respect to such Restricted Entity
contained in any such refinancing agreement or amendment are not materially
more
restrictive, taken as a whole, to the Company and the Restricted Entities than
encumbrances and restrictions with respect to such Restricted Entity contained
in such predecessor agreements on the Issue Date or the date such Restricted
Entity became a Restricted Entity, whichever is applicable;
(D) any
encumbrance or restriction with respect to a Restricted Entity (or any of its
property or assets) imposed pursuant to an agreement entered into for the sale
or disposition of all or substantially all the Capital Stock or assets of such
Restricted Entity (or the property or assets that are subject to such
restriction) pending the closing of such sale or disposition;
(E) any
encumbrance or restriction consisting of net worth provisions in leases and
other agreements entered into by the Company or any Restricted Entity in the
ordinary course of business;
(F) any
encumbrance or restriction consisting of customary provisions in joint venture
agreements relating to joint ventures that are not Restricted Entities and
other
similar agreements entered into in the ordinary course of business;
(G) customary
non-assignment provisions in contracts, licenses and leases entered into in
the
ordinary course of business; and
(H) restrictions
contained in any agreement related to property acquired after the Issue Date
and
which is not applicable to any other property and which were not put in place
in
contemplation of the acquisition of such property;
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(2) with
respect to clause (c) only,
(A) any
encumbrance or restriction consisting of customary nonassignment provisions
in
leases governing leasehold interests to the extent such provisions restrict
the
assignment or transfer of the lease or the property leased thereunder;
and
(B) Liens
securing Indebtedness that are permitted hereunder that limit the right of
the
debtor to dispose of the assets subject to such Lien.
|
Section
4.14.
|
Payments
for Consent.
|
The
Company shall not, and shall not permit any Restricted Subsidiary to, and each
Restricted Entity shall not, directly or indirectly, pay or cause to be paid
any
consideration, whether by way of interest, fee or otherwise, to any holder
of
any Notes for or as an inducement to any consent, waiver or amendment of any
of
the terms or provisions of this Indenture or the Notes unless such consideration
is offered to be paid or agreed to be paid to all holders of the Notes which
so
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
|
Section
4.15.
|
Corporate
Existence.
|
Subject
to Article 5 hereof, the Company and each Restricted Entity shall do or cause
to
be done all things necessary to preserve and keep in full force and effect
(i) its existence in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company and
each
Restricted Entity and the rights (charter and statutory), licenses and
franchises of the Company and its Restricted Entities; provided,
however,
that,
except as otherwise required by this Indenture, the Company and each Restricted
Entity shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Restricted
Entities, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and
its Restricted Entities, taken as a whole. Notwithstanding anything to the
contrary contained in this Section 4.15 the Company or any Restricted Entity
may
change its partnership, corporate or other existence to another form of
existence; provided,
that
for so long as the Company or any successor or obligor under the Notes is a
limited liability company, partnership or trust there shall be a co-issuer
of
the Notes that is a Wholly Owned Subsidiary of the Company and that is a
corporation organized and existing under the laws of the United States or any
state thereof or the District of Columbia.
|
Section
4.16.
|
Change
of Control.
|
(a) Upon
the
occurrence of a Change of Control, each holder shall have the right to require
that the Issuers repurchase such holder’s Notes at a purchase price in cash
equal to 101% of the then outstanding principal amount thereof on the date
of
purchase plus accrued and unpaid interest, if any, to (but excluding) the date
of purchase (subject to the right of holders of record on the relevant record
date to receive interest due on the relevant interest payment date), in
accordance with the terms contemplated in this Section 4.16.
(b) Within
30
days following any Change of Control, the Company shall mail a notice to each
holder with a copy to the Trustee (the “Change
of Control Offer”)
stating:
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(1) that
a
Change of Control has occurred and that such holder has the right to require
us
to purchase such holder’s Notes at a purchase price in cash equal to 101% of the
then outstanding principal amount thereof on the date of purchase, plus accrued
and unpaid interest, if any, to (but excluding) the date of purchase (subject
to
the right of holders of record on the relevant record date to receive interest
on the relevant interest payment date);
(2) the
circumstances and relevant facts regarding such Change of Control;
(3) the
purchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and
(4) the
instructions, as determined by the Company, consistent with this Section 4.16
that a holder must follow in order to have its Notes purchased.
(c) Holders
electing to have Notes purchased will be required to surrender the Notes, with
an appropriate form duly completed, to the Company at the address specified
in
the notice at least three Business Days prior to the purchase date. Holders
will
be entitled to withdraw their election if the Trustee or the Company receives
not later than one Business Day prior to the purchase date, a telegram,
facsimile transmission or letter setting forth the name of the holder, the
principal amount of the Notes which was delivered for purchase by the holder
and
a statement that such holder is withdrawing his election to have such Notes
purchased.
(d) On
the
purchase date, all Notes purchased by the Issuers under this Section shall
be
delivered by the Company to the Trustee for cancellation, and the Issuers shall
pay the purchase price specified in paragraph (a) plus accrued and unpaid
interest, if any, to the holders entitled thereto.
(e) Notwithstanding
the foregoing, the Issuers shall not be required to make a Change of Control
Offer following a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.16 applicable to a Change of Control
Offer made by us and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer. In addition, the Issuers shall not be
required to make a Change of Control Offer following a Change of Control if
the
Issuers have exercised their right to redeem all, but not less than all, of
the
Notes.
(f) The
Issuers will comply, to the extent applicable, with the requirements of Section
14(e) of the Exchange Act and any other securities laws or regulations in
connection with the repurchase of Notes pursuant to a Change of Control Offer.
To the extent that the provisions of any securities laws or regulations conflict
with the provisions of this Section 4.16, the Issuers will comply with the
applicable securities laws and regulations and will be deemed not to have
breached its obligations under this Section 4.16 by virtue of such
compliance.
|
Section
4.17.
|
Maintenance
of Office or Agency.
|
The
Issuers shall maintain an office or agency where Notes may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Issuers 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 Issuers shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the
address of the Trustee as set forth in Section 11.01.
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The
Issuers may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations. The Issuers shall
give prompt written notice to the Trustee of such designation or rescission
and
of any change in the location of any such other office or agency.
The
Issuers hereby initially designate the Corporate Trust Office of the Trustee
set
forth in Section 11.01 as such office of the Company.
|
Section
4.18.
|
Maintenance
of Insurance.
|
(a) The
Company shall obtain, and shall cause the Restricted Subsidiaries to obtain,
and
the Restricted Entities shall obtain, prior to the launch of each satellite
and
shall maintain launch insurance with respect to each satellite launch covering
the period from the launch to 180 days following the launch of each satellite
on
such terms (including coverage period, exclusions, limitations on coverage,
co-insurance, deductibles and coverage amount) as is customary in the industry
for similar persons at the time of such launch. In the event that the Company
constructs a spare satellite (“ground
spare”),
the
amount of coverage may be reduced if it is in the best interest of the Company,
but in no event to an amount less than the cost to launch and insure the launch
for the ground spare.
(b) The
Company shall, and shall cause the Restricted Subsidiaries to, and the
Restricted Entities shall, procure and maintain Full In-orbit Insurance, with
respect to each satellite they own (other than satellites that are in orbit
as
of the Original Issue Date) unless at the time of securing such Full In-Orbit
Insurance there has occurred and is continuing a material adverse change in
market conditions for the obtaining of Full In-orbit Insurance since March
31,
2004 such that it would be commercially unreasonable for the Company and the
Restricted Entities to maintain such Full In-orbit Insurance. Such Full In-Orbit
Insurance shall be on such terms (including exclusions, limitations on coverage,
coinsurance, deductibles and coverage amount) as is customary in the industry
for similar persons at the time of procurement; provided,
however,
that
with the exception of the initial procurement of Full In-Orbit Insurance for
a
satellite that experienced a loss that either occurred during the launch
insurance coverage period or was otherwise covered by launch insurance, in
no
event shall the coverage amount be less than the net book value of the
satellite, assuming straight-line depreciation over the life of the satellite,
as adjusted for impairment. In the event that the expiration and non-renewal
of
Full In-Orbit Insurance for such a satellite resulting from a claim of loss
under such policy causes a failure to comply with the proviso to the immediately
preceding sentence the Company shall be deemed to be in compliance with the
proviso to the immediately preceding sentence for the 120 days immediately
following such expiration or non-renewal, provided
that the
Company procures such Full In-Orbit Insurance as necessary to comply with the
preceding proviso within 120 day period.
Insurance
policies obtained or renewed after the Issue Date required by the foregoing
paragraphs (a) and (b) shall:
(1) contain
no exclusions other than exclusions as may be customary for policies of such
type 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
(2) provide
coverage for all risks of loss and damage to the satellite.
|
Section
4.19.
|
Limitation
on Business Activities of Finance Co.
|
Finance
Co. shall not hold any material assets, become liable for any material
obligations, engage in any trade or business, or conduct any business activity,
other than the issuance of its Capital Stock to the Company or any Wholly Owned
Subsidiary, the Incurrence of Indebtedness as a co-obligor or guarantor of
Indebtedness Incurred by the Company, including the Notes and the Old Notes,
that is permitted to be Incurred by the Company under Section 4.06 and
activities incidental thereto. For so long as the Company or any successor
or
obligor under the Notes is a limited liability company, partnership or trust
there shall be a co-issuer of the Notes that is a Wholly Owned Subsidiary of
the
Company and that is a corporation organized and existing under the laws of
the
United States or any state thereof or the District of Columbia.
-64-
|
Section
4.20.
|
Certain
Matters in Connection with Licenses.
|
The
Company shall maintain direct ownership of all of the Capital Stock of the
FCC
License Subsidiary. All FCC Licenses in existence on the Issue Date or acquired
after the Issue Date shall be held by the FCC License Subsidiary except as
required by law or administrative action; provided
that MSV
International LLC is permitted to own the FCC License with respect to the
operation of a satellite in Latin America that it owns as of the Original Issue
Date. The Company shall not transfer or dispose of any Capital Stock it directly
or indirectly owns in Mobile Satellite Ventures (Canada) Inc. All Industry
Canada Licenses in existence on the Issue Date or acquired after the Issue
Date
shall be held by Mobile Satellite Ventures Corp. or Mobile Satellite Ventures
(Canada) Inc., as the case may be, except as required by law or administrative
action.
|
Section
4.21.
|
Limitation
on Line of Business.
|
The
Company shall not, and shall not permit any Restricted Subsidiary to, and each
Restricted Entity shall not, engage in any business other than a Related
Business.
|
Section
4.22.
|
Calculation
of Original Issue Discount.
|
The
Company shall file with the Trustee promptly at the end of each calendar year
(i) a written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on outstanding Notes as of
the end of such year and (ii) such other specific information relating to such
original issue discount as may be required to be provided to the Trustee or
to
the holders of the Notes pursuant to the Internal Revenue Code of 1986, as
amended, and the regulations issued thereunder.
ARTICLE
5
SUCCESSOR
CORPORATION
|
Section
5.01.
|
Limitation
on Consolidation, Merger and Sale of Property.
|
(a) The
Company shall not consolidate with or merge with or into, or convey, transfer
or
lease, in one transaction or a series of transactions, directly or indirectly,
all or substantially all of its assets to, any Person, unless:
(1) the
resulting, surviving or transferee Person (the “Successor
Company”)
shall
be a Person organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and the Successor Company
(if not the Company) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably satisfactory
to the Trustee, all the obligations of the Company under the Notes and this
Indenture;
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(2) immediately
after giving pro forma effect to such transaction (and treating any Indebtedness
which becomes an obligation of the Successor Company or any Subsidiary as a
result of such transaction as having been Incurred by such Successor Company
or
such Subsidiary at the time of such transaction), no Default shall have occurred
and be continuing;
(3) immediately
after giving pro forma effect to such transaction, the Successor Company would
have a Consolidated Leverage Ratio equal to or better than immediately prior
to
the transaction; and
(4) the
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
and
such supplemental indenture (if any) comply with this Indenture;
provided,
however,
that
clause (3) will not be applicable to (A) a Restricted Entity consolidating
with,
merging into or transferring all or part of its properties and assets to the
Company (so long as no Capital Stock of the Company is distributed to any
Person) or (B) the Company merging with an Affiliate of the Company solely
for
the purpose and with the sole effect of reincorporating the Company in another
jurisdiction.
For
purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer
or other disposition of all or substantially all of the properties and assets
of
one or more Subsidiaries of the Company or Canadian Joint Ventures, which
properties and assets, if held by the Company instead of such Subsidiaries
or
Canadian Joint Ventures, would constitute all or substantially all of the
properties and assets of the Company on a consolidated basis, shall be deemed
to
be the transfer of all or substantially all of the properties and assets of
the
Company.
The
Successor Company will be the successor to the Company and shall succeed to,
and
be substituted for, and may exercise every right and power of, the Company
under
this Indenture, and the predecessor Company, except in the case of a lease,
shall be released from the obligation to pay the principal of and interest
on
the Notes.
(b) No
Guarantor shall consolidate with or merge with or into, or convey, transfer
or
lease, in one transaction or a series of transactions, directly or indirectly,
all or substantially all its assets to, any Person, unless:
(1) the
Person formed by, resulting from or surviving any such consolidation or merger
(if other than such Guarantor):
(a) expressly
assumes, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all the obligations
of
such Guarantor under its Guarantee and this Indenture; and
(b) delivers
to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and such supplemental indenture
(if
any) comply with this Indenture; and
(2) immediately
after giving pro forma effect to such transaction (and treating any Indebtedness
which becomes an obligation of such Person as a result of such transaction
as
having been Incurred by such Person at the time of such transaction), no Default
shall have occurred and be continuing. The provisions of this Section 5.01(b)
shall not apply to the merger of any Guarantors with or into each other or
with
or into the Company, provided,
however,
that
such transaction shall otherwise comply with this Indenture.
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Upon
any
consolidation or merger, or any transfer of all or substantially all of the
assets of any Guarantor in accordance with Section 5.01(b), the successor Person
formed by such consolidation or into which the such Guarantor is merged or
to
which such transfer (other than by way of lease) is made shall succeed to,
and
be substituted for, and may exercise every right of, such Guarantor under this
Indenture with the same effect as if such successor Person had been named as
such Guarantor herein, and thereafter the predecessor Person shall be relieved
of all obligations and covenants under this Indenture and the
Notes.
|
Section
5.02.
|
Substitution
of Company.
|
After
the
occurrence of a Qualified Parent Rollup Transaction, the Company may substitute
the Parent in respect of all of the Company’s obligations under the Notes and
this Indenture on an unsecured and unsubordinated basis if:
(1) the
Parent shall expressly assume, by an indenture supplemental hereto, executed
and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Notes and this Indenture;
(2) immediately
after giving pro forma effect to such substitution (and assuming the covenants
of this Indenture would apply to the Parent on the same basis that they apply
to
the Company immediately prior to such substitution and treating all Indebtedness
of the Parent and its Subsidiaries as Incurred at the time of substitution),
no
Default shall have occurred and be continuing;
(3) immediately
after giving pro forma effect to such substitution, the Parent would have a
Consolidated Leverage Ratio equal to or better than that of the Company
immediately prior to such substitution;
(4) the
Parent shall comply with Section 4.12; and
(5) the
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such substitution and such supplemental
indenture comply with this Indenture and stating that this Indenture and the
Notes are the legal valid and binding obligation of the Parent and enforceable
against the Parent in accordance with their terms.
In
the
event the Parent is substituted for the Company pursuant to the terms hereof,
the Parent will be the successor to the Company and shall succeed to, and be
substituted for, and may exercise every right and power of, and will be subject
to all of the obligations and covenants of, the Company and the General Partner
under this Indenture, all obligations of the Guarantors under this Indenture
and
the Guarantees shall remain unchanged and the Company shall be deemed a
Restricted Subsidiary of the Parent and shall immediately become a Guarantor
hereunder.
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ARTICLE
6
DEFAULTS
AND REMEDIES
|
Section
6.01.
|
Events
of Default.
|
Each
of
the following is an Event of Default (each, an “Event
of Default”):
(1) a
default
in the payment of any interest on any Note when the same becomes due and the
default continues for a period of 30 days;
(2) a
default
in the payment of any principal of, or premium, if any, on the Notes when the
same becomes due at its Stated Maturity, upon any optional redemption, upon
required repurchase, upon declaration of acceleration or otherwise;
(3) the
Issuers or any Guarantor defaults in the observation or performance of its
obligations under the provisions of Article 5 above;
(4) the
Issuers or any Guarantor defaults in the observance or performance of any other
covenant or agreement in the Notes or this Indenture (other than a default
that
is the subject of the foregoing clauses (1), (2) or (3)) for 60 days after
the
Company receives written notice thereof specifying the default from the Trustee,
or the Company and the Trustee receive written notice thereof specifying the
default from the holders of not less than 25% of the aggregate principal amount
of the Notes then outstanding;
(5) Indebtedness
of the Issuers or any Restricted Entity is not paid within any applicable grace
period after final maturity or is accelerated by the holders thereof because
of
a default and the total amount of such Indebtedness unpaid or accelerated
exceeds $10 million;
(6) any
final, nonappealable judgment or decree for the payment of money which, when
taken together with all other final, nonappealable judgments or decrees for
the
payment of money, causes the aggregate amount of such judgments or decrees
entered against the Issuers or any Restricted Entity to exceed $10 million
(net
of any amounts with respect to which a reputable and creditworthy insurance
company has acknowledged liability), remains outstanding for a period of 60
consecutive days following such judgment and is not discharged, waived or
stayed;
(7) either
Issuer or any Significant Subsidiary or any Canadian Joint Venture that would
constitute a Significant Subsidiary if such entity was a Subsidiary of the
Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences
a voluntary case,
(B) consents
to the entry of an order for relief against it in an involuntary
case,
(C) consents
to the appointment of a Custodian of it or for all or substantially all of
its
property,
(D) makes
a
general assignment for the benefit of its creditors, or
-68-
(E) generally
is not paying its debts as they become due;
(8) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(A) is
for
relief against either Issuer or any Significant Subsidiary or any Canadian
Joint
Venture that would constitute a Significant Subsidiary if such entity was a
Subsidiary of the Company in an involuntary case or comparable involuntary
bankruptcy proceeding,
(B) appoints
a Custodian of either Issuer or any Significant Subsidiary or any Canadian
Joint
Venture that would constitute a Significant Subsidiary if such entity was a
Subsidiary of the Company or for all or substantially all of the property of
either Issuer or any Significant Subsidiary or any Canadian Joint Venture that
would constitute a Significant Subsidiary if such entity was a Subsidiary of
the
Company, or
(C) orders
the liquidation of either Issuer or any Significant Subsidiary or any Canadian
Joint Venture that would constitute a Significant Subsidiary if such entity
was
a Subsidiary of the Company,
and
the
order or decree remains unstayed and in effect for 60 days; or
(9) any
Guarantee of a Guarantor that is a Significant Subsidiary or Canadian Joint
Venture that would constitute a Significant Subsidiary if such entity was a
Subsidiary of the Company ceases to be in full force and effect or becomes
unenforceable or invalid or is declared null and void (other than in accordance
with the terms of such Guarantee) or any Guarantor denies or disaffirms its
obligations under its Guarantee.
The
term
“Bankruptcy
Law”
means
Title 11, U.S. Code, the Bankruptcy and Insolvency Act (Canada), Companies
Creditors’ Arrangements Act (Canada) and the Winding-Up and Restructuring Act
(Canada) or any similar Federal, state or non-U.S. law or statute for the
supervision, administration or relief of debtors, including, without limitation,
bankruptcy or insolvency laws. The term “Custodian”
means
any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
|
Section
6.02.
|
Acceleration.
|
If
an
Event of Default occurs and is continuing, the Trustee, by notice to the
Issuers, or the holders of not less than 25% in aggregate principal amount
of
the Notes, by written notice to the Issuers and the Trustee, may declare to
be
immediately due and payable the outstanding principal amount of all the Notes
then outstanding, plus premium, if any, and accrued but unpaid interest to
the
date of acceleration, in which event such amounts shall become immediately
due
and payable. In case an Event of Default specified in Section 6.01(7) or (8)
with respect to either Issuer occurs, such then outstanding principal amount,
premium, if any, and interest with respect to all of the Notes shall be due
and
payable immediately without any declaration or other act on the part of the
Trustee or the holders of the Notes. After any such acceleration but before
a
judgment or decree based on acceleration is obtained by the Trustee, the holders
of a majority in aggregate principal amount of outstanding Notes by notice
to
the Trustee may rescind and cancel such acceleration and its consequences if
(i) all existing Events of Default, other than the nonpayment of
accelerated then outstanding principal amount, premium, if any, or interest
that
has become due solely because of the acceleration, have been cured or waived,
(ii) to the extent the payment of such interest is lawful, interest (at the
same rate specified in the Notes) on overdue installments of interest and
overdue then outstanding principal amount, premium, if any, or interest, which
has become due otherwise than by such declaration of acceleration, has been
paid, (iii) the Company has paid the Trustee its reasonable compensation
and reimbursed the Trustee its expenses, disbursements and advances,
(iv) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction and (v) in the event of the cure or waiver
of a Default or Event of Default described in Section 6.01(7) or (8), the
Trustee has received an Officer’s Certificate and an Opinion of Counsel that
such Default or Event of Default has been cured or waived. No such rescission
shall affect any subsequent Default or impair any right consequent
thereto.
-69-
|
Section
6.03.
|
Other
Remedies.
|
If
an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of then
outstanding principal amount or premium, if any, and interest on the Notes
or to
enforce the performance of any provision of the Notes or this Indenture and
may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a
party.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any holder of Notes 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 and Events of Default.
|
Subject
to Sections 6.02, 6.07 and 8.02 hereof, the holders of a majority in aggregate
principal amount of the Notes then outstanding have the right to waive any
existing Default or Event of Default or compliance with any provision of this
Indenture or the Notes. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
|
Section
6.05.
|
Control
by Majority.
|
The
holders of a majority in aggregate principal amount of the Notes then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee by this Indenture. The Trustee may refuse to follow
any
direction that conflicts with law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of another holder not taking
part in such direction, and the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, determines
that the action so directed may not lawfully be taken or if the Trustee in
good
faith shall, by a Responsible Officer, determine that the proceedings so
directed may involve it in personal liability; provided that the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
|
Section
6.06.
|
Limitation
on Suits.
|
Subject
to Section 6.07 below, a holder may not institute any proceeding with respect
to
this Indenture, or for the appointment of a receiver or trustee, or pursue
any
remedy with respect to this Indenture or the Notes unless:
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(1) such
holder has previously given to the Trustee written notice of a continuing Event
of Default;
(2) the
registered holders of at least 25% in aggregate principal amount of the Notes
then outstanding, have made written request and offered indemnity to the Trustee
reasonably satisfactory to the Trustee to institute such proceeding as trustee;
and
(3) the
Trustee shall not have received from the registered holders of a majority in
aggregate principal amount of the Notes then outstanding a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days.
A
holder
may not use this Indenture to prejudice the rights of another holder or to
obtain a preference or priority over another holder.
|
Section
6.07.
|
Rights
of Holders to Receive Payment.
|
Notwithstanding
any other provision of this Indenture, the right of any holder of a Note to
receive payment of principal of or premium, if any, and interest on the Note
on
or after the respective due dates expressed in the Note, or to bring suit for
the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the holder.
|
Section
6.08.
|
Collection
Suit by Trustee.
|
If
an
Event of Default in payment of principal, premium or interest specified in
Section 6.01(l) or (2) hereof occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the
Issuers or the Guarantors (or any other obligor on the Notes) for the whole
amount of unpaid principal, premium and accrued interest remaining unpaid,
together with interest on overdue principal, premium and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate then borne by the Notes, and such further
amounts as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances
of
the Trustee and its agents and counsel.
|
Section
6.09.
|
Trustee
May File Proofs of Claim.
|
The
Trustee may file such proofs of claim and other papers or documents as may
be
necessary or advisable in order to have the claims of the Trustee (including
any
claim for the reasonable compensation, expenses, disbursements and advances
of
the Trustee, its agents and counsel) and the holders allowed in any judicial
proceedings relative to the Issuers or the Guarantors (or any other obligor
upon
the Notes), its creditors or its property and the Trustee shall be entitled
and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after deduction of
its
charges and expenses to the extent that any such charges and expenses are not
paid out of the estate in any such proceedings and each custodian in any such
judicial proceeding is hereby authorized by each holder to make such payments
to
the Trustee, and in the event that the Trustee shall consent to the making
of
such payments directly to the holders, to pay to the Trustee any amount due
to
it for the reasonable compensation, expenses, disbursements and advances of
the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes
or
the rights of any holder thereof, or to authorize the Trustee to vote in respect
of the claim of any holder in any such proceeding.
-71-
|
Section
6.10.
|
Priorities.
|
Any
money
collected by the Trustee pursuant to this Article 6, or, after an Event of
Default, any money or other property distributable in respect of the Issuers’ or
Guarantors’ obligations under this Indenture, shall be paid in the following
order:
(1) FIRST:
to
the Trustee for all amounts due under Section 7.07 hereof;
(2) SECOND:
to Noteholders for due and unpaid amounts of principal, premium, if any, and
interest on the Notes, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes held by each
holder;
(3) THIRD:
to
the Company or as a court of competent jurisdiction may direct.
The
Trustee may fix a record date and payment date for any payment to holders
pursuant to this Section 6.10.
|
Section
6.11.
|
Undertaking
for Costs.
|
In
any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as Trustee,
a
court in its discretion may require the filing by any party litigant in the
suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and
good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a holder pursuant to Section
6.07 hereof or a suit by holders of more than 10% in aggregate principal amount
of the Notes then outstanding.
ARTICLE
7
TRUSTEE
|
Section
7.01.
|
Duties
of Trustee.
|
(a) If
an
Event of Default has occurred and is continuing, the Trustee shall exercise
such
of the rights and powers vested in it by this Indenture and use the same degree
of care and skill in their exercise as a prudent person would exercise under
the
same circumstances in the conduct of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(1) The
Trustee need perform those duties and only those duties that are specifically
set forth in this Indenture and no others shall be inferred or implied, nor
shall any implied covenants or obligations be read into this Indenture against
the Trustee.
(2) In
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to it and conforming to the applicable
requirements of this Indenture but, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture
(but
need not confirm or investigate the accuracy of mathematical calculations or
other facts, or the statements or opinions stated therein).
-72-
(c) The
Trustee may not be relieved from liability for its own negligent action, its
own
negligent failure to act, or its own willful misconduct, except
that:
(1) This
paragraph does not limit the effect of paragraphs (b) and (d) of this Section
7.01.
(2) The
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer, unless it is proved that such Person was negligent in
ascertaining the pertinent facts.
(3) The
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it pursuant to
Section 6.02 or 6.05 hereof.
(d) Notwithstanding
anything to the contrary contained herein, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for
believing that repayment of such funds or adequate indemnity satisfactory to
it
against such risk or liability is not reasonably assured to it.
(e) The
Trustee may refuse to perform any duty or exercise any right or power unless
it
receives indemnity reasonably satisfactory to it against any loss, liability,
expense or fee.
(f) The
Trustee shall not be liable for interest on, or for the investment of, any
money
or other property received by it except as the Trustee may agree in writing
with
the Company, Finance Co. or any Guarantor. Money held in trust by the Trustee
need not be segregated from other funds except to the extent required by
law.
(g) No
provision of this Indenture shall be deemed to impose any duty or obligation
on
the Trustee to perform any act or acts, receive or obtain any interest in
property or exercise any interest in property, or exercise any right, power,
duty or obligation conferred or imposed on it in any jurisdiction in which
it
shall be illegal, or in which the Trustee shall be unqualified or incompetent
in
accordance with applicable law, to perform any such act or acts, to receive
or
obtain any such interest in property or to exercise any such right, power,
duty
or obligation; and no permissive or discretionary power or authority available
to the Trustee shall be construed to be a duty.
(h) Whether
or not therein expressly so provided, 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.
-73-
|
Section
7.02.
|
Rights
of Trustee.
|
Subject
to Section 7.01 hereof:
(1) The
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note or any other document reasonably believed by it to be genuine and to have
been signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document.
(2) Any
request or direction of the Issuers mentioned herein shall be sufficiently
evidenced by a Company Request or an Officer’s Certificate and any resolution of
the Board of Directors of the applicable Issuer or any committee thereof (or
committee of officers or other representatives of the Issuers, to the extent
any
such committee or committees have been so authorized by the Board of Directors)
may be sufficiently evidenced by a certified copy thereof.
(3) Before
the Trustee acts or refrains from acting, it may require an Officer’s
Certificate or an Opinion of Counsel, or both, which shall conform to the
provisions of Section 11.04 hereof. The Trustee shall be protected and shall
not
be liable for any action it takes or omits to take in good faith in reliance
on
such certificate or opinion.
(4) The
Trustee may act through agents and counsel and shall not be responsible for
the
misconduct or negligence of any agent or counsel appointed by it with due
care.
(5) The
Trustee shall not be liable for any action it takes, suffers or omits to take
in
good faith which it reasonably believes to be authorized or within its
discretion, rights or powers.
(6) The
Trustee may consult with counsel of its selection, and the advice or opinion
of
such counsel as to matters of law shall be full and complete authorization
and
protection from liability in respect of any action taken, omitted or suffered
by
the Trustee hereunder in good faith and in reliance thereon.
(7) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in the Trustee by this Indenture at the request or direction of any
of
the holders of Notes 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 the Trustee
in
compliance with such request or direction.
(8) 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, appraisal, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, 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 investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole cost
of
the Company, and shall incur no liability or additional liability of any kind
by
reason of such inquiry or investigation.
(9) The
Trustee shall not be deemed to have notice or be charged with knowledge of
any
Default or Event of Default unless a Responsible Officer of the Trustee has
received at the Corporate Trust Office of the Trustee from an Issuer, any
Guarantor or any Noteholder written notice of such Default or Event of Default,
and such notice references the Notes and this Indenture.
-74-
(10) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, the Trustee’s right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in such capacity
hereunder, and each agent (including each Agent), custodian and other Person
employed to act hereunder.
(11) The
Trustee may request that the Company deliver an Officer’s Certificate setting
forth the names of individuals and titles of officers authorized at such time
to
take specified actions pursuant to this Indenture, which Officer’s Certificate
may be signed by any person authorized to sign an Officer’s Certificate,
including any person specified as so authorized in any such certificate
previously delivered and not superseded.
(12) In
no
event shall the Trustee be responsible or liable for special, indirect, punitive
or consequential loss or damage of any kind whatsoever (including, but not
limited to, loss of profit) irrespective of whether the Trustee has been advised
of the likelihood of such loss or damage and regardless of the form of
action.
|
Section
7.03.
|
Individual
Rights of Trustee.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may make loans to, accept deposits from, perform services for
or
otherwise deal with any Issuer or any Guarantor, or any Affiliates thereof,
with
the same rights it would have if it were not Trustee. Any Agent may do the
same
with like rights. The Trustee, however, shall be subject to Sections 7.10 and
7.11 hereof.
|
Section
7.04.
|
Trustee’s
Disclaimer.
|
The
Trustee does not make any representation as to the validity or adequacy of
this
Indenture or the Notes, and the Trustee shall not be accountable for the
Issuers’ use of the proceeds from the sale of Notes or any money paid to the
Issuers pursuant to the terms of this Indenture or be responsible for any
statement in the Notes other than its certificate of
authentication.
|
Section
7.05.
|
Notice
of Defaults.
|
If
a
Default occurs and is continuing and if it is known to a Responsible Officer
of
the Trustee, the Trustee shall mail to each holder notice of the Default within
60 days after the Trustee first has knowledge of such Default. Except in the
case of a Default in payment of principal of, or premium, if any, or interest
on
any Note, the Trustee may withhold the notice if and so long as the executive
committee or any trust committee of the board of directors of the Trustee and/or
its Responsible Officers in good faith determine(s) that withholding the notice
is in the interests of the holders.
|
Section
7.06.
|
Reports
by Trustee to Holders.
|
If
required by TIA § 313(a), within 60 days after May 15 of any year,
commencing the May 15 following the date of this Indenture, the Trustee
shall mail to each holder a brief report dated as of such May 15 that
complies with TIA § 313(a). The Trustee also shall comply with TIA
§ 313(b)(2). The Trustee shall also transmit by mail all reports as
required by TIA § 313 (c) and TIA § 313(d).
-75-
Reports
pursuant to this Section 7.06 shall be transmitted by mail:
(a) to
all
registered holders of Notes, as the names and addresses of such holders appear
on the Registrar’s books; and
(b) to
such
holder of Notes as have, within the two years preceding such transmission,
filed
their names and addresses with the Trustee for that purpose.
A
copy of
each report at the time of its mailing to holders shall be filed with the SEC
to
the extent the SEC will accept such filing.
|
Section
7.07.
|
Compensation
and Indemnity.
|
The
Company and the Guarantors shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for its services hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company and the Guarantors shall also reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or
made
by the Trustee in connection with its duties under this Indenture, including
the
reasonable compensation, disbursements and expenses of the Trustee’s agents and
counsel.
The
Company and the Guarantors, jointly and severally, shall indemnify the Trustee
and any predecessor Trustee and their respective officers, employees, directors
and agents (each an “Indemnified
Party”)
for,
and hold them harmless against, any and all loss, damage, claim, liability
or
reasonable expense, including taxes (other than taxes based on the income of
the
Trustee) incurred, arising out of or in connection with this Indenture,
including in connection with the acceptance or administration of the trusts
and
the performance of their duties under this Indenture, including the reasonable
costs and expenses of defending themselves against any claim or liability in
connection with enforcement of this provision or the exercise or performance
of
any of their powers or duties hereunder or thereunder (including, without
limitation, settlement costs). The Trustee shall notify the Company and the
Guarantors in writing promptly of any claim asserted against the Trustee of
which a Responsible Officer has received a written notice for which it may
seek
indemnity. However, the failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations hereunder except to the extent the
Company is prejudiced thereby.
Notwithstanding
the foregoing, the Company and the Guarantors need not reimburse the Trustee
for
any expense or indemnify it against any loss or liability incurred by the
Trustee through its own negligence or willful misconduct.
As
security for the performance of the obligations of the Company and the
Guarantors under this Section 7.07, the Trustee shall have a lien prior to
the
Notes upon all property and funds held or collected by the Trustee as such,
except funds paid by the Issuer or any Guarantor and held in trust to pay
principal of and interest on particular Notes for the benefit of the holders
of
particular Notes under this Indenture. The Trustee shall be entitled to file
a
proof of claim in any bankruptcy proceeding as a secured creditor for any
indemnification costs and for its reasonable compensation, fees and expenses
under this Section 7.07.
In
addition and without prejudice to the rights provided to the Trustee under
any
of the provisions of this Indenture, when the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 6.01(7)
or
Section 6.01(8), the expenses (including the reasonable charges and expenses
of
its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Bankruptcy Law or comparable
expenses in the case of an Event of Default specified in Section
6.01(8).
-76-
The
Company’s obligations under this Section 7.07 and the lien referred to in this
Section 7.07 shall survive the resignation or removal of the Trustee, the
satisfaction and discharge of this Indenture and/or the termination of this
Indenture for any reason.
“Trustee”
for purposes of this Section 7.07 shall include any co-trustee, separate
trustee, and any predecessor Trustee and the Trustee in each of its capacities
hereunder and to each agent, custodian and other Person employed to act
hereunder; provided,
however,
that
the negligence, bad faith or willful misconduct of any Trustee, co-trustee,
separate trustee, or any such agent, custodian or other Person hereunder shall
not affect the rights of any other Trustee or any such other agent, custodian
or
other Person hereunder.
|
Section
7.08.
|
Replacement
of Trustee.
|
The
Trustee may resign by so notifying the Company and the Guarantors in writing.
The holders of a majority in principal amount of the outstanding Notes may
remove the Trustee by notifying the removed Trustee in writing and may appoint
a
successor Trustee with the Company’s written consent, which consent shall not be
unreasonably withheld. The Company may remove the Trustee at its election
if:
(1) the
Trustee fails to comply with Section 7.10 hereof;
(2) the
Trustee is adjudged bankrupt or insolvent;
(3) a
receiver or other public officer takes charge of the Trustee or its
property;
(4) the
Trustee otherwise becomes incapable of acting; or
(5) a
successor corporation becomes successor Trustee pursuant to Section 7.09
below.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall promptly appoint a successor
Trustee.
If
a
successor Trustee does not take office within 30 days after such retiring
Trustee resigns or is removed, the retiring Trustee (at the expense of the
Company), the Company or the holders of a majority in principal amount of the
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If
the
Trustee fails to comply with Section 7.10 hereof, any holder may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Company. Immediately following such delivery, the
retiring Trustee shall, subject to its rights, including its lien, under Section
7.07 hereof and payment of its charges hereunder, transfer all property held
by
it as Trustee to its successor, 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. A successor
Trustee shall mail notice of its succession to each holder. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the lien and the
Company’s obligations under Section 7.07 hereof shall continue for the benefit
of the retiring Trustee.
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|
Section
7.09.
|
Successor
Trustee by Consolidation, Merger or Conversion.
|
If
the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust assets to, another Person, subject
to
Section 7.10 hereof, the successor corporation without any further act shall
be
the successor Trustee.
|
Section
7.10.
|
Eligibility;
Disqualification.
|
This
Indenture shall always have a Trustee that satisfies the requirements of TIA
§ 310(a)(1) and (2) in every respect. The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA
§ 310(b), including the provision in § 310(b)(1).
If
the
Trustee has or shall acquire a conflicting interest within the meaning of
Section 310(b) of the Trust Indenture Act, the Trustee shall eliminate such
interest within 90 days, apply to the SEC for permission to continue as trustee
or resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture or under any other
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Issuers or any Guarantor
are outstanding. Nothing herein shall prevent the Trustee from filing with
the
SEC the application referred to in the second to last paragraph of Section
310(b) of the Trust Indenture Act.
|
Section
7.11.
|
Preferential
Collection of Claims Against Company.
|
The
Trustee shall comply with TIA § 311(a), excluding any creditor relationship
listed in TIA § 311 (b). A Trustee who has resigned or been removed shall
be subject to TIA § 311(a) to the extent indicated therein.
|
Section
7.12.
|
Paying
Agents.
|
The
Company shall cause each Paying Agent other than the Trustee to execute and
deliver to it and the Trustee an instrument in which such agent shall agree
with
the Trustee, subject to the provisions of this Section 7.12:
(A) that
it
will hold all sums held by it as agent for the payment of principal of, premium,
if any, or interest on, the Notes (whether such sums have been paid to it by
the
Company or by any obligor on the Notes) in trust for the benefit of holders
of
the Notes or the Trustee;
(B) that
it
will at any time during the continuance of any Event of Default, upon written
request from the Trustee, deliver to the Trustee all sums so held in trust
by it
together with a full accounting thereof; and
(C) that
it
will give the Trustee written notice within three (3) Business Days of any
failure of the Company (or by any obligor on the Notes) in the payment of any
installment of the principal of, premium, if any, or interest on, the Notes
when
the same shall be due and payable.
-78-
ARTICLE
8
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
|
Section
8.01.
|
Without
Consent of Holders.
|
The
Company, Finance Co. and the Guarantors, when authorized by a Board Resolution
of each of them and delivered to the Trustee, and the Trustee may amend or
supplement this Indenture or the Notes or take any of the actions below without
notice to or consent of any holder:
(1) to
cure
any ambiguity, manifest error, omission, defect, mistake or inconsistency or,
in
the case of any provision or covenant herein (or any portion thereof) that
is
identical to the Old Indenture, to conform this Indenture to the “Description of
Notes” section in the Offering Memorandum, dated March 26, 2006, of the Issuers
relating to the offering of the Old Notes;
(2) to
provide for the assumption by a successor corporation of the obligations of
the
Issuers or any Guarantor under this Indenture;
(3) 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);
(4) to
add
Guarantees with respect to the Notes, including any subsidiary
guarantees;
(5) to
add to
the covenants of the Company or any of the Restricted Entities for the benefit
of the holders of the Notes or to surrender any right or power conferred upon
the Company or any of the Restricted Entities;
(6) to
make
any change that does not materially adversely affect the rights, taken as a
whole, of any holder of the Notes;
(7) to
comply
with any requirement of the SEC in connection with the qualification of this
Indenture under the Trust Indenture Act and to provide for a successor
Trustee;
(8) to
make
any amendment to the provisions of this Indenture relating to the transfer,
exchange and legending of Notes; provided,
however,
that
(a) compliance with this Indenture as so amended would not result in Notes
being
transferred in violation of the Securities Act or any other applicable
securities law and (b) such amendment does not materially and adversely affect
the rights of holders to transfer Notes;
(9) to
confirm and evidence the release, termination or discharge of any Guarantee
or
Lien with respect to or securing the Notes when such release, termination or
discharge is provided for under this Indenture and to release a Guarantor from
its obligations under its Guarantee or this Indenture in accordance with the
applicable provisions of this Indenture; or
(10) to
make
any amendments to the provisions of this Indenture relating to the issuance
of
the Notes in the form of Definitive Notes and/or in the form of Global Notes
or
such other amendments as may be necessary to register the Notes in the name
of
the Depository or its successor or nominee.
-79-
The
consent of the holders of the Notes is not necessary under this Indenture to
approve the particular form of any proposed amendment. It is sufficient if
such
consent approves the substance of the proposed amendment.
The
Trustee is hereby authorized to join with the Issuers and the Guarantors in
the
execution of any supplemental indenture authorized or permitted by the terms
of
this Indenture and to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to enter
into any such supplemental indenture which adversely affects its own rights,
duties or immunities under this Indenture.
|
Section
8.02.
|
With
Consent of Holders.
|
Subject
to Section 6.04, the Company, Finance Co., the Trustee and the Guarantors,
with the consent of the registered holders of a majority in aggregate principal
amount of the Notes then outstanding (including consents obtained in connection
with a tender offer or exchange offer for the Notes), may amend this Indenture
and may waive any past default or compliance with any provisions. Without the
consent of each holder, however, an amendment, supplement or waiver, including
a
waiver pursuant to Section 6.04 may not:
(1) reduce
the amount of Notes whose holders must consent to an amendment;
(2) reduce
the rate of or extend the time for payment of interest on any Note;
(3) reduce
the principal of or change the Stated Maturity of any Note;
(4) reduce
the amount payable upon the redemption of any Note or make earlier the time
at
which any Note may be redeemed under Article 3 hereto or paragraph 5 of the
Notes;
(5) make
any
Note payable in money other than that stated in the Note;
(6) impair
the right of any holder of the Notes to receive payment of principal of and
interest on such holder’s Notes on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with respect to such
holder’s Notes;
(7) make
any
change in the amendment provisions which require each holder’s consent or in the
waiver provisions;
(8) make
any
change in the ranking or priority of any Note that would adversely affect the
Noteholders; or
(9) release
any Guarantor from its Guarantee that is not otherwise permitted by this
Indenture.
After
an
amendment, supplement or waiver under this Section 8.02 or Section 8.01 becomes
effective, the Company shall mail to the holders notice briefly describing
the
amendment, supplement or waiver; provided,
however,
the
failure to give such notice to all holders of the Notes, or any defect therein,
will not impair or affect the validity of the amendment, supplement or
waiver.
Upon
the
request of the Company, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the receipt by the
Trustee of evidence reasonably satisfactory to the Trustee of the consent of
the
holders as aforesaid and upon receipt by the Trustee of the documents described
above or in Section 8.05 hereof, the Trustee shall join with the Issuers and
the
Guarantors in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture, in which case the Trustee may in its discretion, but
shall
not be obligated to, enter into such supplemental indenture.
-80-
The
Company may, but shall not be obligated to, fix a record date for the purpose
of
determining the Persons entitled to consent to any indenture supplemental
hereto. If a record date is fixed, the holders on such record date, or their
duly designated proxies, and only such Persons shall be entitled to consent
to
such supplemental indenture, whether or not such holders remain holders after
such record date; provided, that unless such consent shall have become effective
by virtue of the requisite percentage having been obtained prior to the date
which is 90 days after such record date, any such consent previously given
shall
automatically and without further action by any holder be canceled and of no
further effect.
It
shall
not be necessary for the consent of the holders under this Section 8.02 to
approve the particular form of any proposed amendment, supplement or waiver,
but
it shall be sufficient if such consent approves the substance
thereof.
|
Section
8.03.
|
Revocation
and Effect of Consents.
|
Until
an
amendment, supplement, waiver or other action becomes effective, a consent
to it
by a holder of a Note is a continuing consent conclusive and binding upon such
holder and every subsequent holder of the same Note or portion thereof, and
of
any Note issued upon the transfer thereof or in exchange therefor or in place
thereof, even if notation of the consent is not made on any such Note. Any
such
holder or subsequent holder, however, may revoke the consent as to its Note
or
portion of a Note, if the Trustee receives the notice of revocation, before
the
date the amendment, supplement, waiver or other action becomes
effective.
Subject
to the approval requirements of Section 8.02, after an amendment, supplement,
waiver or other action becomes effective, it shall bind every holder. In the
case of any amendment, supplement or waiver specified in clauses (1) through
(9)
of the first paragraph of Section 8.02, the amendment, supplement, waiver or
other action shall bind each holder of a Note who has consented to it and every
subsequent holder of a Note or portion of a Note that evidences the same debt
as
the consenting holder’s Note.
|
Section
8.04.
|
Notation
on or Exchange of Notes.
|
If
an
amendment, supplement, or waiver changes the terms of a Note, the Trustee may
request the holder of the Note to deliver it to the Trustee. In such case,
the
Trustee shall place an appropriate notation on the Note about the changed terms
and return it to the holder. Alternatively, if the Company or the Trustee so
determines, the Issuers in exchange for the Note shall issue and the Trustee
shall authenticate a new security that reflects the changed terms. Failure
to
make the appropriate notation or issue a new Note shall not affect the validity
and effect of such amendment, supplement or waiver.
|
Section
8.05.
|
Trustee
to Sign Amendments, etc.
|
The
Trustee shall sign any amendment, supplement or waiver authorized pursuant
to
this Article 8 if the amendment, supplement or waiver does not affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment, supplement or waiver the Trustee shall be provided with and, subject
to Section 7.01 hereof, shall be fully protected in relying upon an Officer’s
Certificate and an Opinion of Counsel stating that such amendment, supplement
or
waiver is authorized or permitted by this Indenture. Neither Issuer nor any
Guarantor may sign an amendment or supplement until the Board of Directors
of
the General Partner of the Company, the Board of Directors of Finance Co. or
the
Board of Directors or Board of Managers of such Guarantor, as appropriate,
approves it.
-81-
ARTICLE
9
DISCHARGE
OF INDENTURE; DEFEASANCE
|
Section
9.01.
|
Discharge
of Indenture.
|
The
Indenture will be discharged and will cease to be of further effect (except
as
to rights of registration of transfer or exchange of Notes which shall survive
until all Notes have been canceled) as to all outstanding Notes when
either
(i) all
Notes
that have been authenticated and delivered (except lost, stolen or destroyed
Notes which have been replaced or paid and any such Notes for the payment of
which money has been deposited in trust or segregated and held in trust by
the
Issuers and thereafter repaid to the Issuers or discharged from this trust)
have
been delivered to the Trustee for cancellation, or
(ii) the
following conditions are met:
(a) all
Notes
not delivered to the Trustee for cancellation otherwise (i) have become due
and
payable, (ii) will become due and payable, or may be called for redemption,
within one year or (iii) have been called for redemption pursuant to paragraph
5
of the Notes and, in any case, the Issuers have irrevocably deposited or caused
to be deposited with the Trustee as trust funds, in trust solely for the benefit
of the holders of outstanding Notes, U.S. legal tender, U.S. Government
Obligations or a combination thereof, in such amounts as will be sufficient
(without consideration of any reinvestment of interest) to pay and discharge
the
entire Debt (including all principal and accrued interest) on any Notes not
theretofore delivered to the Trustee for cancellation,
(b) the
Issuers have paid all sums payable with respect to the Notes,
(c) the
Issuers have delivered irrevocable instructions to the Trustee to apply the
deposited money toward the payment of the Notes or on the date of redemption,
as
the case may be, and
(d) the
Company has delivered an Officer’s Certificate and an Opinion of Counsel to the
Trustee stating that the conditions to satisfaction and discharge of this
Indenture set forth above have been complied with.
After
such delivery the Trustee upon request shall acknowledge in writing the
discharge of the Issuers’ and the Guarantors’ obligations under the Notes, the
Guarantees and this Indenture except for those surviving obligations specified
below.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Issuers
in Sections 7.07, 9.05 and 9.06 hereof shall survive such satisfaction and
discharge.
-82-
|
Section
9.02.
|
Legal
Defeasance.
|
The
Issuers may at their option, by Board Resolution delivered to the Trustee,
be
discharged from their obligations with respect to the Notes and the Guarantors
discharged from their obligations under the Guarantees on the date the
conditions set forth in Section 9.04 below are satisfied (hereinafter,
“Legal
Defeasance”).
For
this purpose, such Legal Defeasance means that the Issuers shall be deemed
to
have paid and discharged the entire indebtedness represented by the Notes and
to
have satisfied all its other obligations under such Notes and this Indenture
insofar as such Notes are concerned (and the Trustee, at the expense of the
Issuers, shall, subject to Section 9.06 hereof, execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of holders of
outstanding Notes to receive solely from the trust funds described in Section
9.04 hereof and as more fully set forth in such Section, payments in respect
of
the principal of, premium, if any, and interest on such Notes when such payments
are due, (B) the Issuers’ obligations with respect to the Notes under
Sections 2.1 through 2.10 hereof, Section 2.13 hereof and Section 4.17
hereof, (C) the rights, powers, trusts, duties, and immunities of the
Trustee hereunder (including claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof) and (D) this Article 9. If the Issuers
exercises their Legal Defeasance option, payment of the Notes may not be
accelerated because of an Event of Default with respect thereto and each
Guarantor will be released from all of its obligations under its Guarantee.
Subject to compliance with this Article 9, the Issuers may exercise their option
under this Section 9.02 with respect to the Notes notwithstanding the prior
exercise of its option under Section 9.03 below with respect to the
Notes.
|
Section
9.03.
|
Covenant
Defeasance.
|
At
the
option of the Company, pursuant to a Board Resolution delivered to the Trustee,
the Issuers and the Guarantors shall be released from (A) their respective
obligations under Sections 4.02, 4.04 through 4.14, inclusive, 4.16 and 4.18
through 4.21, inclusive, (B) the operation of Sections 6.01(5), (6),
(7) and (8) (only as such clauses (7) and (8) apply to Significant Subsidiaries)
and (9), and (C) the Company’s obligations under Section 5.01(a)(3) with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 9.04 hereof are satisfied (hereinafter, “Covenant
Defeasance”).
For
this purpose, such Covenant Defeasance means that the Issuers and the Guarantors
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section or portion
thereof, whether directly or indirectly by reason of any reference elsewhere
herein to any such specified section or portion thereof or by reason of any
reference in any such specified Section or portion thereof to any other
provision herein or in any other document, but the remainder of this Indenture
and the Notes shall be unaffected thereby. If the Company exercises its Covenant
Defeasance option, each Guarantor will be released from all its obligations
under its Guarantee.
|
Section
9.04.
|
Conditions
to Defeasance or Covenant Defeasance.
|
The
following shall be the conditions to application of Section 9.02 or Section
9.03
hereof to the outstanding Notes:
(1) the
Issuers shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 7.10 hereof
who shall agree to comply with the provisions of this Article 9 applicable
to
it) as funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of
the holders of the Notes, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than the due date of any payment, money in an amount sufficient, in the
opinion of a firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of, premium, if any, and accrued interest on the
outstanding Notes at the maturity date of such principal, premium, if any,
or
interest, or on dates for payment and redemption of such principal, premium,
if
any, and interest selected in accordance with the terms of this Indenture and
of
the Notes, without reinvestment on the deposited U.S. Government Obligations
and
without reinvestment of any deposited money;
-83-
(2) no
Event
of Default or Default with respect to the Notes shall have occurred and be
continuing on the date of such deposit or after giving effect to such deposit,
or shall have occurred and be continuing at any time during the period ending
on
the 123rd day after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period under any Bankruptcy
Law applicable to the Issuers in respect of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of such
period);
(3) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute default under any other agreement or instrument
to
which the Issuers is a party or by which it is bound;
(4) in
the
case of an election under Section 9.02 above, the Company shall have delivered
to the Trustee an Opinion of Counsel stating that (i) the Company has
received from, or there has been published by, the Internal Revenue Service
a
ruling to the effect that or (ii) there has been a change in any applicable
Federal income tax law with the effect that, and such opinion shall confirm
that, the holders of the outstanding Notes or persons in their positions will
not recognize income, gain or loss for Federal income tax purposes as a result
of such Legal Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner, and at the same times as would have been the case
if such Legal Defeasance had not occurred;
(5) in
the
case of an election under Section 9.03 hereof, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the holders of the
outstanding Notes will not recognize income, gain or loss for Federal income
tax
purposes as a result of such Covenant Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not
occurred;
(6) the
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for
relating to either the Legal Defeasance under Section 9.02 above or the Covenant
Defeasance under Section 9.03 hereof (as the case may be) have been complied
with; and
(7) the
Company shall have paid or duly provided for payment under terms mutually
satisfactory to the Company and the Trustee all amounts then due to the Trustee
pursuant to Section 7.07 hereof.
Section
9.05. Deposited
Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions.
All
money
and U.S. Government Obligations (including the proceeds thereof) deposited
with
the Trustee pursuant to Section 9.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly
or
through any Paying Agent as the Trustee may determine, to the holders of such
Notes, of all sums due and to become due thereon in respect of principal,
premium, if any, and accrued interest, but such money need not be segregated
from other funds except to the extent required by law.
-84-
The
Issuers and the Guarantors shall pay and indemnify the Trustee against any
tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 9.04 hereof or the principal, premium,
if any, and interest received in respect thereof other than any such tax, fee
or
other charge which by law is for the account of the holders of the outstanding
Notes.
Anything
in this Article 9 to the contrary notwithstanding, the Trustee shall deliver
or
pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 9.04 hereof which,
in
the opinion of a nationally-recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are
in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
|
Section
9.06.
|
Reinstatement.
|
If
the
Trustee or Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof by reason
of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuers’ and each Guarantor’s obligations under this Indenture,
the Notes and the Guarantees shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 9 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 9.01 hereof; provided,
however,
that if
the Issuers or the Guarantors have made any payment of principal of, premium,
if
any, or accrued interest on any Notes because of the reinstatement of their
obligations, the Issuers or the Guarantors, as the case may be, shall be
subrogated to the rights of the holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
|
Section
9.07.
|
Moneys
Held by Paying Agent.
|
In
connection with the satisfaction and discharge of this Indenture, all moneys
then held by any Paying Agent under the provisions of this Indenture shall,
upon
demand of the Company, be paid to the Trustee, or if sufficient moneys have
been
deposited pursuant to Section 9.01 hereof, to the Issuers (or, if such moneys
had been deposited by the Guarantors, to such Guarantors), and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
|
Section
9.08.
|
Moneys
Held by Trustee.
|
Any
moneys deposited with the Trustee or any Paying Agent or then held by the
Issuers or the Guarantors in trust for the payment of the principal of or
premium, if any, or interest on any Note that are not applied but remain
unclaimed by the holder of such Note for two years after the date upon which
the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Company (or, if
appropriate, Finance Co. or the Guarantors) upon Company Request, or if such
moneys are then held by the Issuers or the Guarantors in trust, such moneys
shall be released from such trust; and the holder of such Note entitled to
receive such payment shall thereafter, as an unsecured general creditor, look
only to the Issuers and the Guarantors for the payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided,
however,
that
the Trustee or any such Paying Agent, before being required to make any such
repayment, may, at the expense of the Company and the Guarantors, either mail
to
each holder affected, at the address shown in the register of the Notes
maintained by the Registrar pursuant to Section [2.03] hereof, or cause to
be
published once a week for two successive weeks, in a newspaper published in
the
English language, customarily published each Business Day and of general
circulation in The City of New York, New York, a notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than
30 days from the date of such mailing or publication, any unclaimed balance
of
such moneys then remaining will be repaid to the Company. After payment to
the
Company, Finance Co. or the Guarantors or the release of any money held in
trust
by the Company, Finance Co. or any Guarantors, as the case may be, holders
entitled to the money must look only to the Company and the Guarantors for
payment as general creditors unless applicable abandoned property law designates
another Person.
-85-
ARTICLE
10
GUARANTEE
OF SECURITIES
|
Section
10.01.
|
Guarantee.
|
Subject
to the provisions of this Article 10, each Guarantor hereby jointly and
severally unconditionally guarantees to each holder and to the Trustee, on
behalf of the holders, (i) the due and punctual payment of the principal,
and, premium, if any, and interest on the Notes when and as the same shall
become due and payable, whether at maturity, by acceleration or otherwise,
the
due and punctual payment of interest on the overdue principal of, and premium,
if any, and interest on the Notes, including PIK Interest, to the extent lawful,
and the due and punctual performance of all other Obligations of the Issuers
to
the holders or the Trustee all in accordance with the terms of this Indenture,
and (ii) in the case of any extension of time of payment or renewal of the
Notes or any of such other Obligations, that the same will be promptly paid
in
full when due or performed in accordance with the terms of the extension or
renewal, at stated maturity, by acceleration or otherwise. Each Guarantor hereby
agrees that its obligations hereunder shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of any such Note or this Indenture, any failure to enforce
the
provisions of any such Note or this Indenture, any waiver, modification or
indulgence granted to the Issuers with respect thereto by the holder of such
Note or the Trustee, or any other circumstances which may otherwise constitute
a
legal or equitable discharge of a surety or such Guarantor.
Each
Guarantor hereby waives diligence, presentment, filing of claims with a court
in
the event of merger or bankruptcy of the Issuers, any right to require a
proceeding first against the Issuers, protest or notice with respect to any
such
Note or the Indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged as to any such Note except
by payment in full of the principal thereof, premium if any, and interest
thereon and as provided in Section 9.01 hereof. Each Guarantor further agrees
that, as between such Guarantor, on the one hand, and the holders and the
Trustee, on the other hand, (i) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes
of
this Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations guaranteed hereby,
and (ii) in the event of any declaration of acceleration of such
Obligations as provided in Article 6 hereof, such Obligations (whether or not
due and payable) shall forthwith become due and payable by each Guarantor for
the purpose of this Guarantee. In addition, without limiting the foregoing
provisions, upon the effectiveness of an acceleration under Article 6 hereof,
the Trustee shall promptly make a demand for payment on all Obligations under
the Guarantee provided for in this Article 10 and not discharged.
-86-
The
Guarantee set forth in this Section 10.01 shall not be valid or become
obligatory for any purpose with respect to a Note until the certificate of
authentication on such Note shall have been signed by or on behalf of the
Trustee.
|
Section
10.02.
|
Execution
and Delivery of Guarantees.
|
To
evidence the Guarantee set forth in this Article 10, each Guarantor hereby
agrees that a notation of such Guarantee may be placed on each Note
authenticated and made available for delivery by the Trustee and that this
Guarantee shall be executed on behalf of each Guarantor by the manual or
facsimile signature of an Officer of each Guarantor.
Each
Guarantor hereby agrees that the Guarantee set forth in Section 10.01 shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Guarantee.
If
an
Officer of a Guarantor whose signature is on the Guarantee no longer holds
that
office at the time the Trustee authenticates the Note on which the Guarantee
is
endorsed, the Guarantee shall be valid nevertheless.
The
delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Guarantee set forth in this Indenture
on
behalf of each Guarantor.
|
Section
10.03.
|
Limitation
of Guarantee.
|
The
obligations of each Guarantor pursuant to Section 10.01 are limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from
or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee hereunder or pursuant
to
its contribution obligations under this Indenture, result in the obligations
of
such Guarantor under the Guarantee not constituting a fraudulent conveyance
or
fraudulent transfer under federal or state or provincial law. Each Guarantor
that makes a payment or distribution under a Guarantee shall be entitled to
a
contribution from each other Guarantor and the Company in a pro
rata
amount
based on the proportion that the net worth of the Company or the relevant
Guarantor represents relative to the aggregate net worth of the Company and
all
of the Guarantors combined.
|
Section
10.04.
|
Additional
Guarantors.
|
Each
of
the Issuers covenants and agrees that it will cause any Person which becomes
obligated to guarantee the Notes, pursuant to the terms of Section 4.12
hereof, to execute a supplemental indenture pursuant to which such Guarantor
shall guarantee the obligations of the Company under this Indenture with respect
to the Notes in accordance with this Article 10 with the same effect and to
the
same extent as if such Person had been named herein as a Guarantor.
|
Section
10.05.
|
Release
of Guarantor.
|
A
Guarantor shall be released from all of its obligations under its Guarantee
hereunder upon:
(i) 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 an applicable Guarantor is no longer a Restricted
Entity), or all or substantially all the assets, of the applicable Guarantor
if
such sale, disposition or other transfer is made in compliance with this
Indenture;
-87-
(ii) the
Issuers designating a Guarantor to be an Unrestricted Entity in accordance
with
Section 4.08 and the definition of “Unrestricted Entity”; or
(iii) the
Issuers’ exercise of their legal defeasance option or covenant defeasance option
set forth in Section 9.02 and Section 9.03, or if the Issuers’ obligations under
the Indenture are discharged in accordance with the terms of the
Indenture;
and
in
each such case, the Guarantor delivering to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to such transactions have been complied with.
Notwithstanding
the foregoing, upon designation of a Restricted Subsidiary as an Unrestricted
Entity, such Restricted Subsidiary shall, by execution and delivery of a
supplemental indenture, be released from any Guarantee previously made by such
Restricted Subsidiary.
|
Section
10.06.
|
Waiver
of Subrogation.
|
Until
this Indenture is discharged and all of the Notes are discharged and paid in
full, each Guarantor hereby irrevocably waives and agrees not to exercise any
claim or other rights which it may now or hereafter acquire against the Issuers
that arise from the existence, payment, performance or enforcement of the
Issuers’ obligations under the Notes or this Indenture and such Guarantor’s
obligations under its Guarantee hereunder and this Indenture, in any such
instance including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, and any right to participate in
any
claim or remedy of the holders against the Issuers, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from the Issuers,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the preceding sentence
and
any amounts owing to the Trustee or the Noteholders under the Notes, this
Indenture, or any other document or instrument delivered under or in connection
with such agreements or instruments, shall not have been paid in full, such
amount shall have been deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Trustee or the Noteholders
and shall forthwith be paid to the Trustee for the benefit of itself or such
Noteholders to be credited and applied to the obligations in favor of the
Trustee or the Noteholders, as the case may be, whether matured or unmatured,
in
accordance with the terms of this Indenture. Each Guarantor acknowledges that
it
will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
10.06 is knowingly made in contemplation of such benefits.
|
Section
10.07.
|
Taxes.
|
All
payments by the Canadian Guarantors under their Guarantees hereunder will be
made free and clear of and without deduction or withholding for any and all
Taxes, unless such Taxes are required by applicable law to be deducted or
withheld. If the Canadian Guarantors are required by applicable law to deduct
or
withhold any such Taxes from or in respect of any amount payable under its
Guarantee (i) the amount payable shall be increased (and for greater certainty,
in the case of interest, the amount of interest shall be increased) as may
be
necessary so that after making all required deductions or withholdings
(including deductions or withholdings applicable to any additional amounts
paid
under this Section 10.07), the Noteholder receives an amount equal to the amount
they would have received if no such deduction or withholding had been made,
(ii)
the Canadian Guarantors will make such deductions or withholdings, and (iii)
the
Canadian Guarantors will immediately pay the full amount deducted or withheld
to
the relevant Governmental Authority in accordance with applicable
law.
-88-
ARTICLE
11
MISCELLANEOUS
|
Section
11.01.
|
Notices.
|
Any
notice or other communication shall be given in writing and delivered in person,
sent by facsimile, delivered by commercial courier service or mailed by
first-class mail, postage prepaid, addressed as follows:
If
to the
Issuers or any Guarantor:
Mobile
Satellite Ventures LP
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief
Financial Officer and General Counsel
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
If
to the
Trustee:
The
Bank
of New York
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: Corporate
Trust Division — Corporate Finance Unit
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Such
notices or communications shall be effective when received and shall be
sufficiently given if so given within the time prescribed in this
Indenture.
The
Issuers, the Guarantors or the Trustee by written notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any
notice or communication mailed to a holder shall be mailed to him by first-class
mail, postage prepaid, at his address shown on the register kept by the
Registrar.
Failure
to mail a notice or communication to a holder or any defect in it shall not
affect its sufficiency with respect to other holders. If a notice or
communication to a holder is mailed in the manner provided above, it shall
be
deemed duly given, whether or not the addressee receives it.
In
case
by reason of the suspension of regular mail service, or by reason of any other
cause, it shall be impossible to mail any notice as required by this Indenture,
then such method of notification as shall be made with the approval of the
Trustee shall constitute a sufficient mailing of such notice.
-89-
Anything
herein to the contrary notwithstanding, no notice or communication given to
the
Trustee shall be effective unless and until it is actually received by the
Trustee at its Corporate Trust Office.
|
Section
11.02.
|
Communications
by Holders with Other Holders.
|
Holders
may communicate pursuant to TIA § 312(b) with other holders with respect to
their rights under this Indenture or the Notes. The Issuers, the Guarantors,
the
Trustee, the Registrar and anyone else shall have the protection of TIA
§ 312(c).
|
Section
11.03.
|
Certificate
and Opinion as to Conditions Precedent.
|
Upon
any
request or application by the Issuers or any Guarantor to the Trustee to take
any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an
Officer’s Certificate (which shall include the statements set forth in Section
11.04 below) stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) except
in
the case of the issuance of the Notes on the Issue Date or the Payment-in-Kind
Notes on any Interest Payment Date, an Opinion of Counsel (which shall include
the statements set forth in Section 11.04 below) stating that, in the opinion
of
such counsel, all such conditions precedent have been complied
with.
|
Section
11.04.
|
Statements
Required in Certificate and Opinion.
|
Each
certificate and opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(2) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(3) a
statement that, in the opinion of such Person, it or he has made such
examination or investigation as is necessary to enable it or him to express
an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a
statement as to whether or not, in the opinion of such Person, such covenant
or
condition has been complied with.
|
Section
11.05.
|
When
Treasury Notes Disregarded.
|
In
determining whether the holders of the required aggregate principal amount
of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuers, any Guarantor or any other obligor on the Notes or by any Affiliate
of
any of them shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which a Responsible Officer of the Trustee actually
knows
are so owned shall be so disregarded. Notes so owned which have been pledged
in
good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to the
Notes and that the pledgee is not an Issuer, a Guarantor or any other obligor
upon the Notes or any Affiliate of any of them.
-90-
|
Section
11.06.
|
Rules
by Trustee and Agents.
|
The
Trustee may make reasonable rules for action by or meetings of holders. The
Registrar and Paying Agent may make reasonable rules for their
functions.
|
Section
11.07.
|
Legal
Holidays.
|
If
a
payment date is a Legal Holiday at a place of payment, payment may be made
at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
|
Section
11.08.
|
Governing
Law.
|
THIS
INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO, AND
THE
HOLDERS BY THEIR ACCEPTANCE OF THE NOTES, AGREES TO SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
|
Section
11.09.
|
No
Adverse Interpretation of Other Agreements.
|
This
Indenture may not be used to interpret another indenture, loan, security or
debt
agreement of the Company or any Subsidiary thereof. No such indenture, loan,
security or debt agreement may be used to interpret this Indenture.
|
Section
11.10.
|
No
Recourse Against Others.
|
No
director, officer, employee, incorporator, shareholder, parent company, partner
or controlling entities of the Company, Finance Co., the Guarantors, the General
Partner or Parent after a Parent Rollup Transaction or any of their respective
Subsidiaries (including, without limitation, TMI and its successors and assigns)
will have any liability for any obligations of the Issuers or any of their
Subsidiaries under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of such obligations or their creation. Each holder
of
the Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes. Such waiver
and release may not be effective to waive liabilities under the U.S. Federal
securities laws, and it is the view of the SEC that such a waiver is against
public policy.
|
Section
11.11.
|
Successors.
|
All
agreements of the Issuers and the Guarantors in this Indenture and the Notes
shall bind their respective successors. All agreements of the Trustee, any
additional trustee and any Paying Agents in this Indenture shall bind their
successors.
|
Section
11.12.
|
Multiple
Counterparts.
|
The
parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent
one
and the same agreement.
-91-
|
Section
11.13.
|
Table
of Contents, Headings, etc.
|
The
table
of contents, cross-reference sheet and headings of the Articles and Sections
of
this Indenture have been inserted for convenience of reference only, are not
to
be considered a part hereof, and shall in no way modify or restrict any of
the
terms or provisions hereof.
|
Section
11.14.
|
Separability.
|
Each
provision of this Indenture shall be considered separable and if for any reason
any provision which is not essential to the effectuation of the basic purpose
of
this Indenture or the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
|
Section
11.15.
|
Waiver
of Jury Trial.
|
EACH
OF
THE ISSUERS, THE GUARANTORS, EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF
AND
THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.
|
Section
11.16.
|
Force
Majeure.
|
In
no
event shall the Trustee be responsible or liable for any failure or delay in
the
performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable
efforts which are consistent with accepted practices in the banking industry
to
resume performance as soon as practicable under the circumstances.
|
Section
11.17.
|
Currency
of Account; Conversion of Currency; Foreign Exchange
Restrictions.
|
(a) U.S.
Dollars are the sole currency of account and payment for all sums payable by
the
Company and the Guarantors under or in connection with the Notes, the Guarantees
of the Notes or this Indenture to the extent it relates to the Notes, 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 Issuers or otherwise) in respect of any sum
expressed to be due to it from the Issuers shall only constitute a discharge
to
the Issuers 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 Notes, the Issuers and the Guarantors shall
indemnify it against any loss sustained by it as a result as set forth in
Section 11.17(b). In any event, the Company and the Guarantors shall
indemnify the recipient against the cost of making any such purchase. For the
purposes of this Section 11.17, 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 11.17 constitute separate
and independent obligations from other obligations of the Issuers 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.
-92-
(b) The
Issuers 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).
(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 Issuers 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 con-verted
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 Issuers 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
Issuers and the Guarantors shall indemnify and hold the Noteholders 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 Applicable
Currency 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 Issuers 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 Issuers
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
11.17 shall constitute separate and independent obligations from the other
obligations of the Issuers and the Guarantors under this Indenture, shall give
rise to separate and independent causes of action against the Issuers and the
Guarantors, shall apply irrespective of any waiver or extension granted by
any
Noteholder 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 Issuers or any Guarantor for a
liquidated sum in respect of amounts due hereunder (other than under subsection
(b)(2) above) or under any such judgment or order. Any such deficiency as
aforesaid shall be deemed to constitute a loss suffered by the Noteholders
or
the Trustee, as the case may be, and no proof or evidence of any actual loss
shall be required by the Issuers 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.
-93-
(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.
|
Section
11.18.
|
Agent
for Service.
|
By
the
execution and delivery of this Indenture, each Canadian Guarantor
(i) acknowledges that it has irrevocably designated and appointed CT
Corporation System, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (and any
successor entity) as its authorized agent upon which process may be served
in
any suit or proceeding arising out of or relating to this Indenture, the Notes
and the Guarantees that may be instituted in any Federal or state court in
the
State of New York, The City of New York, the Borough of Manhattan or brought
under Federal or state securities laws, and acknowledges that CT Corporation
System has accepted such designation, (ii) irrevocably submits to the
jurisdiction of any such court in any such suit or proceeding and
(iii) agrees that service of process upon CT Corporation System and written
notice of said service to the Canadian Guarantors in accordance with this
Section 11.18 shall be deemed in every respect effective service of process
upon the Canadian Guarantors, if any, in any such suit or proceeding. Each
Canadian Guarantor further agrees to take any and all such action, including
the
execution and filing of any and all such documents and instruments as may be
necessary to continue such designation and appointment of CT Corporation System
in full force and effect so long as this Indenture shall be in full force and
effect or any of the Notes shall be outstanding; provided,
however,
that
any Canadian Guarantor may, by written notice to the Trustee, designate such
additional or alternative agent for service of process under this
Section 11.18 that (i) maintains an office located in the Borough of
Manhattan, The City of New York, the State of New York, (ii) is a corporate
service company which acts as agent for service of process for other Persons
in
the ordinary course of its business and (iii) agrees to act as agent for
service of process in accordance with this Section 11.18. Such notice shall
identify the name of such agent for process and the address of such agent for
process in the Borough of Manhattan, The City of New York, the State of New
York.
|
Section
11.19.
|
Interest
Act (Canada).
|
The
Canadian Guarantors acknowledge that certain of the rates of interest applicable
to their obligations may be computed on the basis of a year of 360 days or
365
days, as the case may be, and be paid for the actual number of days elapsed.
For
purposes of the Interest Act (Canada), whenever any interest is calculated
using
a rate based on a year of 360 days or 365 days, as the case may be, such rate
determined pursuant to such calculation, when expressed as an annual rate,
is
equivalent to (i) the applicable rate based on a year of 360 days or 365 days,
as the case may be, (ii) multiplied by the actual number of days in the calendar
year in respect of which such interest is payable, and (iii) divided by 360
or
365, as the case may be.
|
Section
11.20.
|
Joint
and Several Obligations.
|
All
of
the obligations of the Issuers under the Notes shall be joint and several
obligations of the Issuers.
-94-
IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed
as
of the date and year first written above.
| MOBILE SATELLITE VENTURES LP | ||
|
(a
Delaware limited partnership) by its general partner, Mobile Satellite
Ventures GP, Inc.
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Executive
Vice President and Chief Financial Officer
|
||
| MSV FINANCE CO. | ||
| (a Delaware corporation) | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Executive
Vice President and Chief Financial Officer
|
||
-95-
| ATC TECHNOLOGIES, LLC | ||
|
(a
Delaware limited liability company)
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title:
Senior Vice President and General Counsel
|
||
| MOBILE SATELLITE VENTURES SUBSIDIARY LLC | ||
| (a Delaware limited liability company) | ||
| |
|
|
| By: | /s/▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title:
Senior Vice President and General
Counsel
|
||
-96-
| MSV INTERNATIONAL, LLC | ||
|
(a
Delaware limited liability company)
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title:
Senior Vice President and General Counsel
|
||
| MOBILE SATELLITE VENTURES INC. OF VIRGINIA | ||
| (a Virginia corporation) | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title:
Senior Vice President and General
Counsel
|
||
| MOBILE SATELLITE VENTURES HOLDINGS (CANADA) INC. (an Ontario corporation) | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President, Corporate Counsel and Secretary
|
||
| MOBILE SATELLITE VENTURES (CANADA) INC. | ||
| (an Ontario corporation) | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President, Corporate Counsel and
Secretary
|
||
-▇▇-
|
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
as
Trustee
|
||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | |
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President
|
||
-98-
EXHIBIT
A-1
FORM
OF
FACE OF CERTIFICATED NOTE
MOBILE
SATELLITE VENTURES LP
MSV
FINANCE CO.
16.5%
SENIOR NOTES DUE 2013
THIS
NOTE
HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO
MATURITY OF THIS NOTE MAY BE OBTAINED AT ANY TIME BEGINNING JANUARY 17, 2008
BY
WRITING TO: MOBILE
SATELLITE VENTURES LP OR MSV FINANCE CO., C/O MOBILE SATELLITE VENTURES LP,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
ATTENTION: CHIEF FINANCIAL OFFICER.
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE SECURITIES ACT), AND ACCORDINGLY, THIS NOTE MAY NOT BE OFFERED
OR
SOLD WITHIN THE UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
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); OR
(B) IT
IS AN
INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501 (a)(1), (2), (3), OR
(7) OF REGULATION D UNDER THE SECURITIES ACT) (AN INSTITUTIONAL ACCREDITED
INVESTOR); OR
(C) IT
IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S
UNDER THE SECURITIES ACT; AND
(2) AGREES
THAT IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE
SECURITIES ACT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT:
(A) TO
MOBILE
SATELLITE VENTURES LP, MSV FINANCE CO. OR ANY SUBSIDIARY THEREOF;
(B) INSIDE
THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT;
(C) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT;
(D) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT;
A-1-1
(E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT
(IF AVAILABLE);
(F) PURSUANT
TO ANY AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT (PROVIDED THAT AS A CONDITION TO THE REGISTRATION OF TRANSFER
OF
ANY NOTES OTHERWISE THAN AS DESCRIBED HEREIN, THE COMPANY OR THE TRUSTEE MAY,
IN
CIRCUMSTANCES THAT ANY OF THEM DEEMS APPROPRIATE, REQUIRE EVIDENCE AS TO
COMPLIANCE WITH ANY SUCH EXEMPTION); AND
(3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO
ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE.
AS
USED
HEREIN, THE TERMS “OFFSHORE TRANSACTION,” AND “UNITED STATES” HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS
A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE
IN VIOLATION OF THE FOREGOING RESTRICTIONS.
A-1-2
No.
US$
[●]
MOBILE
SATELLITE VENTURES LP
MSV
FINANCE CO.
16.5%
SENIOR NOTES DUE 2013
Certificated
Note
Mobile
Satellite Ventures LP, a Delaware limited partnership, and MSV Finance Co.,
a
Delaware Corporation (the "Issuers"),
for
value received, hereby promise to pay to [●] upon surrender hereof the principal
sum of [●] UNITED STATES DOLLARS (U.S. $ [●]) on May 1, 2013, or on such earlier
date as the principal hereof may become due in accordance with the provisions
hereof.
Interest
Rate: 16.5%
per
annum.
Interest
Payment Dates: June
15
and December 15 of each year, commencing June 15, 2008.
Interest
Record Dates: June
1
and December 1.
PIK
Period: Interest
on the Notes may be paid in cash or, at the election of the Issuers, will be
payable semi-annually in the form of Payment-in-Kind Notes in an amount
reflecting the applicable PIK Interest. On and after June 15, 2012, all payments
of interest must be in cash for the remainder of the term of the
Notes.
Reference
is hereby made to the further provisions set forth on the reverse hereof. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
This
Note
shall not be valid or obligatory until it shall have been duly signed by the
Trustee acting under the Indenture.
A-1-3
IN
WITNESS WHEREOF, the Issuers have caused this Note to be signed manually or
by
facsimile by their duly authorized officers.
MOBILE
SATELLITE VENTURES LP by its general partner, Mobile Satellite Ventures GP,
Inc.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
MSV
FINANCE CO.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
This
is
one of the Notes referred to
in
the
within-mentioned Indenture:
Dated:
[
], [ ]
THE
BANK
OF NEW YORK,
as
Trustee
By:
__________________________________
Authorized
Signatory
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
FACE OF RESTRICTED GLOBAL NOTE
MOBILE
SATELLITE VENTURES LP
MSV
FINANCE CO.
16.5%
SENIOR NOTES DUE 2013
THIS
NOTE
HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO
MATURITY OF THIS NOTE MAY BE OBTAINED AT ANY TIME BEGINNING JANUARY 17, 2008
BY
WRITING TO: MOBILE
SATELLITE VENTURES LP OR MSV FINANCE CO., C/O MOBILE SATELLITE VENTURES LP,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
ATTENTION: CHIEF FINANCIAL OFFICER.
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, THIS NOTE MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
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); OR
(B) IT
IS AN
INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501 (a)(1), (2), (3), OR
(7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED
INVESTOR”); OR
(C) IT
IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S
UNDER THE SECURITIES ACT; AND
(2) AGREES
THAT IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE
SECURITIES ACT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT:
(A) TO
MOBILE
SATELLITE VENTURES LP, MSV FINANCE CO. OR ANY SUBSIDIARY THEREOF;
(B) INSIDE
THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT;
(C) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT;
(D) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT;
A-2-1
(E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT
(IF AVAILABLE);
(F) PURSUANT
TO ANY AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT (PROVIDED THAT AS A CONDITION TO THE REGISTRATION OF TRANSFER
OF
ANY NOTES OTHERWISE THAN AS DESCRIBED HEREIN, THE COMPANY OR THE TRUSTEE MAY,
IN
CIRCUMSTANCES THAT ANY OF THEM DEEMS APPROPRIATE, REQUIRE EVIDENCE AS TO
COMPLIANCE WITH ANY SUCH EXEMPTION); AND
(3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO
ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE.
AS
USED
HEREIN, THE TERMS “OFFSHORE TRANSACTION,” AND “UNITED STATES” HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS
A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE
IN VIOLATION OF THE FOREGOING RESTRICTIONS.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
(THE “DEPOSITORY”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY), 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.
THIS
GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.01(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
▇-▇-▇
▇▇.
▇
▇▇▇▇▇:
▇▇▇▇▇▇
Code:
ISIN
Number:
MOBILE
SATELLITE VENTURES LP
MSV
FINANCE CO.
RESTRICTED
GLOBAL NOTE
US$
[●]
MOBILE
SATELLITE VENTURES LP
MSV
FINANCE CO.
16.5%
SENIOR NOTES DUE 2013
Restricted
Global Note
Mobile
Satellite Ventures LP, a Delaware limited partnership, and MSV Finance Co.,
a
Delaware corporation, (the "Issuers"),
for
value received, hereby promises to pay to CEDE & CO., or registered assigns,
upon surrender hereof the principal sum of UNITED STATES DOLLARS (U.S. $ [●]) on
May 1, 2013, or on such earlier date as the principal hereof may become due
in
accordance with the provisions hereof.
| Interest Rate: | 16.5% per annum. |
| Interest Payment Dates: | June 15 and December 15 of each year, commencing June 15, 2008. |
| Interest Record Dates: | June 1 and December 1. |
| PIK Period: | Interest on the Notes may be paid in cash or, at the election of the Issuers, will be payable semi-annually in the form of Payment-in-Kind Notes in an amount reflecting the applicable PIK Interest. On and after June 15, 2012, all payments of interest must be in cash for the remainder of the term of the Notes. |
Reference
is hereby made to the further provisions set forth on the reverse hereof. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
This
Note
shall not be valid or obligatory until it shall have been duly signed by the
Trustee acting under the Indenture.
A-2-3
IN
WITNESS WHEREOF, the Issuers have caused this Note to be signed manually or
by
facsimile by their duly authorized officers.
MOBILE
SATELLITE VENTURES LP by its general partner, Mobile Satellite Ventures GP,
Inc.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
MSV
FINANCE CO.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
This
is
one of the Notes referred to
in
the
within-mentioned Indenture:
Dated:
[
], [ ]
THE
BANK
OF NEW YORK,
as
Trustee
By:
__________________________________
Authorized
Signatory
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
FACE OF REGULATION S GLOBAL NOTE
MOBILE
SATELLITE VENTURES LP
MSV
FINANCE CO.
16.5%
SENIOR NOTES DUE 2013
THIS
NOTE
HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO
MATURITY OF THIS NOTE MAY BE OBTAINED AT ANY TIME BEGINNING JANUARY 17, 2008
BY
WRITING TO: MOBILE
SATELLITE VENTURES LP OR MSV FINANCE CO., C/O MOBILE SATELLITE VENTURES LP,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
ATTENTION: CHIEF FINANCIAL OFFICER.
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, THIS NOTE MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
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); OR
(B) IT
IS AN
INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501 (a)(1), (2), (3), OR
(7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED
INVESTOR”); OR
(C) IT
IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S
UNDER THE SECURITIES ACT; AND
(2) AGREES
THAT IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE
SECURITIES ACT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT:
(A) TO
MOBILE
SATELLITE VENTURES LP, MSV FINANCE CO. OR ANY SUBSIDIARY THEREOF;
(B) INSIDE
THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT;
(C) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT;
(D) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT;
A-3-1
(E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT
(IF AVAILABLE);
(F) PURSUANT
TO ANY AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT (PROVIDED THAT AS A CONDITION TO THE REGISTRATION OF TRANSFER
OF
ANY NOTES OTHERWISE THAN AS DESCRIBED HEREIN, THE COMPANY OR THE TRUSTEE MAY,
IN
CIRCUMSTANCES THAT ANY OF THEM DEEMS APPROPRIATE, REQUIRE EVIDENCE AS TO
COMPLIANCE WITH ANY SUCH EXEMPTION); AND
(3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO
ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE.
AS
USED
HEREIN, THE TERMS “OFFSHORE TRANSACTION,” AND “UNITED STATES” HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS
A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE
IN VIOLATION OF THE FOREGOING RESTRICTIONS.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
(THE “DEPOSITORY”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY), 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.
THIS
GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.01(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
▇-▇-▇
▇▇. ▇ ▇▇▇▇▇:
▇▇▇▇▇▇
Code:
ISIN
Number:
MOBILE
SATELLITE VENTURES LP
MSV
FINANCE CO.
REGULATION
S GLOBAL NOTE
US$
[●]
MOBILE
SATELLITE VENTURES LP
MSV
FINANCE CO.
16.5%
SENIOR NOTES DUE 2013
Regulation
S Global Note
Mobile
Satellite Ventures LP, a Delaware limited partnership, and MSV Finance Co.,
a
Delaware corporation (the “Issuers”), for value received, hereby promises to pay
to CEDE & CO., or registered assigns, upon surrender hereof the principal
sum of [●] UNITED STATES DOLLARS (U.S. $ [●]) on May 1, 2013, or on such earlier
date as the principal hereof may become due in accordance with the provisions
hereof.
| Interest Rate: | 16.5% per annum. |
| Interest Payment Dates: | June 15 and December 15 of each year, commencing June 15, 2008. |
| Interest Record Dates: | June 1 and December 1. |
| PIK Period: | Interest on the Notes may be paid in cash or, at the election of the Issuers, will be payable semi-annually in the form of Payment-in-Kind Notes in an amount reflecting the applicable PIK Interest. On and after June 15, 2012, all payments of interest must be in cash for the remainder of the term of the Notes. |
Reference
is hereby made to the further provisions set forth on the reverse hereof. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
This
Note
shall not be valid or obligatory until it shall have been duly signed by the
Trustee acting under the Indenture.
A-3-3
IN
WITNESS WHEREOF, the Issuers have caused this Note to be signed manually or
by
facsimile by their duly authorized officers.
MOBILE
SATELLITE VENTURES LP by its general partner, Mobile Satellite Ventures GP,
Inc.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
MSV
FINANCE CO.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
This
is
one of the Notes referred to
in
the
within-mentioned Indenture:
Dated:
[
], [ ]
THE
BANK
OF NEW YORK,
as
Trustee
By:
__________________________________
Authorized
Signatory
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
[Reverse
of Note]
16.5%
Senior Notes due 2013
[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert
the Restricted Notes Legend, if applicable pursuant to the provisions of the
Indenture]
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. Interest.
The
Issuers jointly and severally promise to pay interest on this Note at the rate
of 16.5% per annum. For any interest period through December 15, 2011, the
Issuers may elect to pay interest on the Notes, at their option, (a) entirely
in
cash (“Cash Interest”), or (b) entirely by issuing new Notes (“Payment-in-Kind
Notes”) in an amount equal to the amount of PIK Interest for the applicable
interest period (rounded up to the nearest whole dollar) on the applicable
interest payment date. Payment of any Cash Interest on the relevant Interest
Payment Date shall be made to the holder of this Note on the relevant record
date. The Issuers shall elect the form of interest payment with respect to
each
interest period by giving notice to the Trustee at least five Business Days
prior to the beginning of the applicable interest period. In the absence of
such
an election, interest will be payable in Payment-in-Kind Notes. The first
interest payment shall be paid in the form of Payment-in-Kind Notes. On and
after June 15, 2012, the Issuers must pay all interest on the Notes entirely
in
the form of cash.
The
Issuers will pay interest semi-annually in arrears on June 15 and December
15 of
each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each, an “Interest Payment Date”). Interest on the Notes will
accrue from the most recent Interest Payment Date to which interest has been
paid, either as Cash Interest or Payment-in-Kind Notes, or, if no interest
has
been paid, from the date of issuance; provided that if there is no existing
Default in the payment of interest, and if this Note is authenticated between
a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided further that the first Interest Payment Date shall be June 15,
2008. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Issuers shall pay interest on overdue principal at the rate borne
by
the Notes, and shall pay interest on overdue installments of cash interest
at
the same rate to the extent lawful.
2. Method
of Payment.
The
Issuers shall pay interest on the Notes to the Persons who are registered
holders at the close of business on the June 1 and December 1 (whether or not
a
Business Day) next preceding the Interest Payment Date even if Notes are
canceled after the record date and on or before the Interest Payment Date.
The
holders must surrender Notes to a Paying Agent to collect principal payments.
The Issuers shall pay principal, premium, if any, and interest in money of
the
United States of America that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Notes
represented by a Global Note (including principal, premium, if any, and
interest) shall be made by wire transfer of immediately available funds to
the
accounts specified by the Depository. The Issuers will make all payments in
respect of a certificated Note (including principal, premium, if any, and
interest), at the office of each Paying Agent, except that, at the option of
the
Issuers, payment of interest may be made by mailing a check to the registered
address of each holder thereof; provided,
however,
that
payments on the Notes may also be made 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).
A-4-1
3. Paying
Agent and Registrar.
Initially, The Bank of New York, the Trustee under the Indenture, will act
as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any holder. Neither the Company nor any of its Subsidiaries
or
Affiliates may act as Paying Agent but they may act as Registrar or
co-registrar.
4. Indenture;
Guarantees; Restrictive Covenants.
The
Issuers issued the Notes under an Indenture dated as of January 7, 2008 (the
“Indenture”),
among
the Company, Finance Co., the Guarantors and the Trustee. The Notes are treated
as a single class of securities under the Indenture. The terms of this Note
include those stated in the Indenture to be applicable by reference to the
Trust
Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the
date of the Indenture. This Note is subject to all such terms, and the holder
of
this Note is referred to the Indenture for a statement of them.
The
Indenture imposes certain limitations on, among other things, indebtedness,
issuance and sale of capital stock of Restricted Entities, restricted payments,
liens, asset sales, transactions with affiliates, and restrictions on
distributions from Restricted Entities.
5. Optional
Redemption.
Except
as
set forth below, the Issuers will not be entitled to redeem the Notes prior
to
April 1, 2011.
On
and
after April 1, 2011, the Issuers are entitled to redeem all or, from time to
time, a portion of the Notes upon not less than 30 nor more than 60 days’
notice, at the redemption prices (expressed in percentages of then outstanding
principal amount on the redemption date), plus accrued 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),
if
redeemed during the 12-month period commencing on April 1 of the years set
forth
below:
|
Period
|
Redemption
Price
|
|
2011
|
108.250%
|
|
2012
|
104.125%
|
|
2013
and thereafter
|
100.000%
|
Prior
to
January 15, 2011, the Issuers are entitled on one or more occasions to redeem
Notes in an aggregate principal amount not to exceed 35% of the originally
issued aggregate principal amount of the Notes at a redemption price (expressed
as a percentage of then outstanding principal amount on the redemption date)
of
116.5%, plus accrued and unpaid interest, if any, to (but excluding) 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),
with
the net cash proceeds from one or more Equity Offerings by the Company or,
after
the occurrence of a Parent Rollup Transaction, the Parent (to the extent the
net
proceeds thereof are contributed to the equity capital of the Company (other
than in the form of Disqualified Stock) or are used to purchase Capital Stock
of
the Company (other than Disqualified Stock)); provided,
however,
that
A-4-2
(1) at
least
65% of the originally issued aggregate principal amount of Notes remains
outstanding immediately after the occurrence of each such redemption (other
than
Notes held, directly or indirectly, by the Issuers or its Affiliates);
and
(2) each
such
redemption occurs within 180 days after the closing of the related Equity
Offering.
At
any
time prior to April 1, 2011, the Issuers may also redeem on one or more
occasions all or a portion of the Notes upon not less than 30 nor more than
60
days’ notice, at a redemption price equal to 100% of the then outstanding
principal amount of Notes redeemed plus the Applicable Premium (calculated
as of
a date no more than three Business Days prior to the relevant redemption notice)
as of the date of redemption.
On
and
after any Redemption Date, if money sufficient to pay the redemption price
of
and accrued interest on Notes called for redemption shall have been made
available in accordance with the terms of the Indenture, the Notes called for
redemption will cease to accrue interest and the only right of the holders
of
such Notes will be to receive payment of the redemption price of and, subject
to
the terms of the Indenture, accrued and unpaid interest on such Notes to the
redemption date.
“Applicable
Premium”
means,
with respect to any Note on any redemption date, the greater of:
(1) 1.0%
of
the then outstanding principal amount of the Note; and
(2) the
excess of:
(a) the
present value at such redemption date of the redemption price of the Note at
April 1, 2011, 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 the Note.
6. No
Mandatory Redemption.
The
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
7. Offers
to Purchase.
The
Indenture requires that certain proceeds from Asset Dispositions be used,
subject to further limitations contained therein, to make an offer to purchase
certain amounts of Notes in accordance with the procedures set forth in the
Indenture. The Company may also be required to make an offer to purchase Notes
pursuant to Section 4.16 of the Indenture.
8. Denominations;
Transfer; Exchange.
The
Notes are in registered form, without coupons, in denominations of $1,000 and
integral multiples of $1,000, or, in the case of Payment-in-Kind Notes, such
other denominations as may be required. A holder shall register the transfer
or
exchange of Notes in accordance with the Indenture. The Registrar may require
a
holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
in
connection therewith as permitted by the Indenture. The Registrar need not
register the transfer or exchange of any Notes during a period beginning 15
days
before the mailing of a redemption notice for any Notes or portions thereof
selected for redemption.
9. Persons
Deemed Owners.
The
registered holder of this Note shall be treated as the owner of it for all
purposes.
A-4-3
10. Unclaimed
Money.
If
money for the payment of principal, premium or interest on any Note remains
unclaimed for two years, the Trustee and the Paying Agent will pay the money
back to the Company at its request. After that, holders entitled to money must
look to the Company for payment as general creditors unless an “abandoned
property” law designates another person.
11. Amendment,
Supplement and Waiver.
Subject
to certain exceptions, the Indenture or the Notes may be modified, amended
or
supplemented by the Company, Finance Co., the Guarantors and the Trustee with
the consent of the holders of at least a majority in principal amount of the
Notes then outstanding and any existing default or compliance with any provision
may be waived in a particular instance with the consent of the holders of a
majority in principal amount of the Notes then outstanding. Without the consent
of holders, the Company, Finance Co., the Guarantors and the Trustee may amend
the Indenture for certain specified purposes including providing for
uncertificated Notes in addition to or in place of certificated Notes, and
curing any ambiguity, omission, defect or inconsistency, or making any other
change that does not materially adversely affect the rights, taken as a whole,
of any holder.
12. Successor
Entity.
When a
successor entity assumes all the obligations of its predecessors under the
Notes
and the Indenture and immediately before and thereafter no Default exists and
certain other conditions are satisfied, the predecessor entity will be released
from those obligations.
13. Defaults
and Remedies.
Events
of Default are set forth in the Indenture. If an Event of Default occurs and
is
continuing, the Trustee, by notice to the Issuers, or the holders of not less
than 25% in aggregate principal amount of the Notes, by written notice to the
Issuers and the Trustee, may declare to be immediately due and payable the
principal amount of all the Notes then outstanding plus premium, if any, and
accrued but unpaid interest to the date of acceleration and such amounts shall
become immediately due and payable. In case an Event of Default specified in
Section 6.01(7) or (8) with respect to either Issuer occurs, such principal,
premium, if any, and interest with respect to all of the Notes shall be due
and
payable immediately without any declaration or other act on the part of the
Trustee or the holders of the Notes. After any such acceleration but before
a
judgment or decree based on acceleration is obtained by the Trustee, the holders
of a majority in aggregate principal amount of outstanding Notes (by notice
to
the Trustee) may rescind and cancel such acceleration and its consequences
if
(i) all existing Events of Default, other than the nonpayment of
accelerated principal, premium, if any, or interest that has become due solely
because of the acceleration, have been cured or waived, (ii) to the extent
the payment of such interest is lawful, interest (at the same rate specified
in
the Notes) on overdue installments of interest and overdue outstanding principal
amount, premium, if any, or interest, which has become due otherwise than by
such declaration of acceleration, has been paid, (iii) the Company has paid
the Trustee its reasonable compensation and reimbursed the Trustee its expenses,
disbursements and advances, (iv) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction and (v) in the
event of the cure or waiver of a Default or Event of Default described in
Section 6.01(7) or (8), the Trustee has received an Officer’s Certificate and an
Opinion of Counsel that such Default or Event of Default has been cured or
waived. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
14. Trustee
Dealings with the Issuers.
The
Trustee under the Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the Issuers, any
Guarantor or their Affiliates, and may otherwise deal with the Issuers, any
Guarantor or their Affiliates as if it were not Trustee.
15. No
Recourse Against Others.
No
director, officer, employee, incorporator, shareholder, parent company, partner
or controlling entities of the Company, Finance Co., the Guarantors, the General
Partner or Parent following a Parent Rollup Transaction or any of their
respective Subsidiaries (including, without limitation, TMI Communications
&
Company, Limited Partnership and its successors and assigns) will have any
liability for any obligations of the Issuers or any of their Subsidiaries under
this Note or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. The holder of this Note by
accepting this Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver
and
release may not be effective to waive liabilities under the U.S. Federal
securities laws, and it is the view of the SEC that such a waiver is against
public policy.
A-4-4
16. Defeasance
and Covenant Defeasance.
The
Indenture contains provisions for defeasance of the entire debt represented
by
the Notes and for defeasance of certain covenants in the Indenture upon
compliance by the Company in each case with certain conditions set forth in
the
Indenture.
17. Abbreviations.
Customary abbreviations may be used in the name of a holder of a Note or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (joint tenants with right of survivorship and not as tenants
in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors
Act).
18. CUSIP
Numbers.
The
Company has caused CUSIP Numbers to be printed on the Notes, if applicable,
and
has directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to holders of the Notes. 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.
19. Governing
Law.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE
OR
THE NOTES.
20. Authentication.
This
Note shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
The
Company will furnish to any holder upon written request and without charge
a
copy of the Indenture. Requests may be made to:
Mobile
Satellite Ventures LP
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Chief Financial Officer
A-4-5
ASSIGNMENT
FORM
To
assign
this Note, fill in the form below:
(I)
or
(we) assign and transfer this Note to:
__________________________________________________
(Insert
assignee’s legal name)
(Insert
assignee’s soc. sec. or tax I.D. no.)
(Print
or
type assignee’s name, address and zip code)
and
irrevocably appoint
________________________________________________________________
to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Date:____________
Your
Signature:
______________________________________________
(Sign
exactly as your name appears on the face of this Note)
Signature
Guarantee*:__________________
*
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-4-6
Option
of
Holder to Elect Purchase
If
you
want to elect to have this Note purchased by the Company pursuant to Section
4.10, 4.16 or 4.18 of the Indenture, check the appropriate box
below:
If
you
want to elect to have only part of this Note purchased by the Company pursuant
to Section 4.10, 4.16 or 4.18 of the Indenture, state the aggregate principal
amount you elect to have purchased:
$_______________
Date:____________
Your
Signature:
___________________________________________
(Sign
exactly as your name appears on the face of this Note)
Signature
Guarantee*:__________________
*
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
▇-▇-▇
▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇ NOTE
RELATING
TO GUARANTEE
Each
Guarantor (a “Guarantor,”
which
term includes any successor Person under the Indenture) has unconditionally
guaranteed, on a senior unsecured basis, jointly and severally, to the extent
set forth in the Indenture and subject to the provisions of the Indenture,
(a) the due and punctual payment of the principal, premium if any, and
interest on the Notes when and as the same shall become due and payable, whether
at maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal of, premium, if any, and interest on the
Notes, to the extent lawful, and the due and punctual performance of all other
Obligations of the Company with respect to the Notes to the holders or the
Trustee, all in accordance with the terms of the Notes and the Indenture, and
(b) in the case of any extension of time for payment or renewal of any Notes
or
any of such other Obligations, that the same will be promptly paid in full
when
due or performed in accordance with the terms of the extension or renewal,
at
stated maturity, by acceleration or otherwise.
The
obligations of each Guarantor to the holders and to the Trustee pursuant to
such
Guarantee and the Indenture are expressly set forth in Article 10 of the
Indenture and reference is hereby made to the Indenture for the precise terms
of
such Guarantee.
This
Guarantee shall not be valid or obligatory for any purpose until the certificate
of authentication on the Note upon which such Guarantee is noted shall have
been
executed by the Trustee under the Indenture by the manual signature of one
of
its authorized signatories.
ATC
TECHNOLOGIES,
LLC
(a
Delaware
limited liability company)
By: ____________________________
Name:
Title:
MOBILE
SATELLITE VENTURES SUBSIDIARY LLC
(a
Delaware limited liability company)
By: ____________________________
Name:
Title:
A-4-8
MSV
INTERNATIONAL, LLC
(a
Delaware limited liability company)
By: ____________________________
Name:
Title:
MOBILE
SATELLITE VENTURES INC. OF VIRGINIA
(a
Virginia corporation)
By: ____________________________
Name:
Title:
MOBILE
SATELLITE VENTURES CORP.
(a
Nova
Scotia unlimited liability company)
By: ____________________________
Name:
Title:
MOBILE
SATELLITE VENTURES HOLDINGS (CANADA) INC. (an Ontario corporation)
By: ____________________________
Name:
Title:
MOBILE
SATELLITE VENTURES (CANADA) INC.
(an
Ontario corporation)
By: ____________________________
Name:
Title:
A-4-9
SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTEa
The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been
made:
|
Date
of Exchange
|
Amount
of decrease in
Principal
Amount
of
this Global Note
|
Amount
of increase in
Principal
Amount
of
this Global Note
|
Principal
Amount
of
this Global Note
following
such decrease
(or
increase)
|
Signature
of
authorized
officer of
Trustee
or Note
Custodian
|
a This
schedule should be included only if the Note is issued in global
form.
A-4-10
EXHIBIT
B
FORM
OF
CERTIFICATE OF TRANSFER
Mobile
Satellite Ventures LP
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Treasurer
The
Bank
of New York
as
Trustee
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Division - Corporate Finance Unit
(Mobile
Satellite Ventures LP and MSV Finance Co.
16.5%
Senior Notes due 2013)
Re: 16.5%
Senior Notes due 2013
Reference
is hereby made to the Indenture, dated as of January 7, 2008 (the “Indenture”),
among
Mobile Satellite Ventures LP, MSV Finance Co., the
Guarantors named therein
and The
Bank of New York, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
___________________
(the “Transferor”)
owns
and proposes to transfer the Note[s] or interest in such Note[s] specified
in
Annex A hereto, in the principal amount of $___________ in such Note[s] or
interests (the “Transfer”),
to
___________________________ (the “Transferee”),
as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK
ALL THAT APPLY]
1. o Check
if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Definitive Note Pursuant to Rule 144A.
The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the “Securities
Act”),
and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect
to
which such Person exercises sole investment discretion, and such Person and
each
such account is a “qualified institutional buyer” within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer
is
in compliance with any applicable blue sky securities laws of any state of
the
United States. Upon consummation of the proposed Transfer in accordance with
the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Restricted
Notes Legend printed on the 144A Global Note and/or the Definitive Note and
in
the Indenture and the Securities Act.
2. o Check
if Transferee will take delivery of a beneficial interest in the Regulation
S
Global Note or Definitive Note pursuant to
Regulation S.
The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities
of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer
in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, and (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on Transfer enumerated in the
Restricted Notes Legend printed on the Regulation S Global Note and/or
Definitive Note and in the Indenture and the Securities Act.
B-1
3. o Check
and complete if Transferee will take delivery of a beneficial interest in a
Global Note or a Definitive Note pursuant to any provision of the Securities
Act
other than Rule 144A or Regulation S.
The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act
and
any applicable blue sky securities laws of any state of the United States,
and
accordingly the Transferor hereby further certifies that (check
one):
(a) o such
Transfer is being effected pursuant to and in accordance with Rule 144 under
the
Securities Act;
or
(b) o such
Transfer is being effected to the Company or a Subsidiary thereof;
or
(c) o such
Transfer is being effected pursuant to an effective registration statement
under
the Securities Act and in compliance with the prospectus delivery requirements
of the Securities Act;
or
(d) o such
Transfer is being effected to an Institutional Accredited Investor for its
own
account or for the account of such an Institutional Accredited Investor,
pursuant to an exemption from the registration requirements of the Securities
Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general solicitation within
the
meaning of Regulation D under the Securities Act and the Transfer complies
with
the transfer restrictions applicable to beneficial interests in a Restricted
Global Note or Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed by
the
Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of
Counsel satisfactory to the Company provided by the Transferor or the Transferee
(a copy of which the Transferor has attached to this certification), to the
effect that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Restricted Notes
Legend printed on the Definitive Notes and in the Indenture and the Securities
Act.
B-2
4. o Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.
(a) o Check
if Transfer is pursuant to Rule 144.
(i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under
the
Securities Act and in compliance with the transfer restrictions contained in
the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and
the
Restricted Notes Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Restricted Notes Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) o Check
if Transfer is Pursuant to Regulation S.
(i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in
the Indenture and the Restricted Notes Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Restricted Notes Legend printed
on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) o Check
if Transfer is Pursuant to Other Exemption.
(i) The
Transfer is being effected pursuant to and in compliance with an exemption
from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained
in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Restricted Notes Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Restricted Notes Legend printed on the Restricted Global
Notes
or Restricted Definitive Notes and in the Indenture.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuers.
________________________________
[Insert
Name of Transferor]
By: _______________________________________________
Name:
Title:
Dated:
B-3
ANNEX
A
TO CERTIFICATE OF TRANSFER
1. The
Transferor owns and proposes to transfer the following:
[CHECK
ONE]
(a) o a
beneficial interest in the:
(i) o 144A
Global Note (CUSIP _________________), or
(ii) o IAI
Global Note (CUSIP _________________), or
(iii) o Regulation
S Global Note (CUSIP ________________),
or
(iv) o Unrestricted
Global Note (CUSIP ________________), or
(b) o a
Restricted Definitive Note; or
(c) o an
Unrestricted Definitive Note,
2. After
the
Transfer the Transferee will hold:
[CHECK
ONE]
(a) o a
beneficial interest in the:
(i) o 144A
Global Note (CUSIP _________________), or
(ii) o IAI
Global Note (CUSIP _________________), or
(iii) o Regulation
S Global Note (CUSIP ________________), or
(iv) o Unrestricted
Global Note (CUSIP ________________), or
(b) o
a
Restricted Definitive Note; or
(c) o an
Unrestricted Definitive Note,
in
accordance with the terms of the Indenture.
B-4
EXHIBIT
C
FORM
OF
CERTIFICATE OF EXCHANGE
Mobile
Satellite Ventures LP
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Treasurer
The
Bank
of New York
as
Trustee
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Division - Corporate Finance Unit
(Mobile
Satellite Ventures LP and MSV Finance Co.
16.5%
Senior Notes due 2013)
Re: 16.5%
Senior Notes due 2013
Reference
is hereby made to the Indenture, dated as of January 7, 2008 (the “Indenture”),
among
Mobile Satellite Ventures LP, MSV Finance Co., the
Guarantors named therein and
The
Bank of New York, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
__________________________
(the “Owner”)
owns
and proposes to exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $____________ in such Note[s] or interests
(the “Exchange”).
In
connection with the Exchange, the Owner hereby certifies that:
1. Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note.
(a) o Check
if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the “Securities
Act”),
(iii)
the restrictions on transfer contained in the Indenture and the Restricted
Notes
Legend are not required in order to maintain compliance with the Securities
Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any
state
of the United States.
(b) o Check
if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i)
the Definitive Note is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and
in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Restricted Notes Legend are not required in order
to
maintain compliance with the Securities Act and (iv) the Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of
any
state of the United States.
C-1
(c) o Check
if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note.
In
connection with the Owner’s Exchange of a Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant
to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Restricted Notes Legend are not required
in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(d) o Check
if Exchange is from Restricted Definitive Note to Unrestricted Definitive
Note.
In
connection with the Owner’s Exchange of a Restricted Definitive Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and
in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Restricted Notes Legend are not required in order
to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
2. Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes.
(a) o Check
if Exchange is from beneficial interest in a Restricted Global Note to
Restricted Definitive Note.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a Restricted Definitive Note with an equal principal amount,
the
Owner hereby certifies that the Restricted Definitive Note is being acquired
for
the Owner’s own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Restricted Notes Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.
(b) o Check
if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note.
In
connection with the Exchange of the Owner’s Restricted Definitive Note for a
beneficial interest in a Restricted Global Note with an equal principal amount,
the Owner hereby certifies (i) the beneficial interest is being acquired for
the
Owner’s own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Exchange in accordance with
the
terms of the Indenture, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Restricted Notes Legend printed
on
the relevant Restricted Global Note and in the Indenture and the Securities
Act.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
_________________________________
[Insert
Name of Transferor]
By: __________________________________________
Name:
Title:
Dated:
C-3
EXHIBIT
D
FORM
OF
CERTIFICATE FROM
ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Mobile
Satellite Ventures LP
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Treasurer
The
Bank
of New York
as
Trustee
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Division - Corporate Finance Unit
(Mobile
Satellite Ventures LP and MSV Finance Co.
16.5%
Senior Notes due 2013)
Re: 16.5%
Senior Notes due 2013
Reference
is hereby made to the Indenture, dated as of January 7, 2008 (the “Indenture”),
among
Mobile Satellite Ventures LP and MSV Finance Co., the
Guarantors named therein
and The
Bank of New York, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
In
connection with our proposed purchase of $____________ aggregate principal
amount of:
(a) o a
beneficial interest in a Global Note, or
(b) o a
Definitive Note,
we
confirm that:
1. We
understand that any subsequent transfer of the Notes or any interest therein
is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the United States Securities Act of 1933, as
amended (the “Securities
Act”).
2. We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence. We agree, on
our
own behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell the Notes or any interest therein, we will do
so
only (A) to the Company or any Subsidiary thereof, (B) in accordance with Rule
144A under the Securities Act to a “qualified institutional buyer” (as defined
therein), (C) to an institutional “accredited investor” (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter and an Opinion of Counsel in form reasonably acceptable
to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of
Rule 144(k) under the Securities Act or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing the Definitive Note or beneficial interest in a Global
Note from us in a transaction meeting the requirements of clauses (A) through
(E) of this paragraph a notice advising such purchaser that resales thereof
are
restricted as stated herein.
3. We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company
may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear
a
legend to the foregoing effect.
4. We
are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating
the
merits and risks of our investment in the Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment.
5. We
are
acquiring the Notes or beneficial interest therein purchased by us for our
own
account or for one or more accounts (each of which is an institutional
“accredited investor”) as to each of which we exercise sole investment
discretion.
You
and
the Issuers are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
__________________________
[Insert
Name of Transferor]
By: ___________________________________________
Name:
Title:
Dated:
D-2