Exhibit 10.19
New Skies Satellites B.V.,
as Issuer
Floating Rate Senior Notes due 2011
INDENTURE
Dated as of November 2, 2004
U.S. Bank National Association,
as Trustee
TABLE OF
CONTENTS
i
ii
iii
iv
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Appendix A
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–
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Provisions Relating to Initial Notes, Additional
Notes and Exchange Notes
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EXHIBIT INDEX
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Exhibit A
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–
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Initial Note
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Exhibit B
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–
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Exchange Note
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Exhibit C
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–
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Form of Transferee Letter of
Representation
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Exhibit D
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–
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Form of Supplemental Indenture
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v
CROSS-REFERENCE TABLE
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TIA
Section
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Indenture
Section
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310(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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N.A.
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(a)(4)
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N.A.
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(b)
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7.08; 7.10
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(c)
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N.A.
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311(a)
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7.11
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(b)
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7.11
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(c)
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N.A.
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312(a)
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2.06
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(b)
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13.03
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(c)
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13.03
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313(a)
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7.06
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(b)(1)
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N.A.
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(b)(2)
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7.06
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(c)
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7.06
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(d)
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4.02; 4.09
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314(a)
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4.02; 4.09
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(b)
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N.A.
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(c)(1)
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13.04
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(c)(2)
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13.04
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(c)(3)
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N.A.
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(d)
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N.A.
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(e)
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13.05
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(f)
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4.10
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315(a)
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7.01
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(b)
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7.05
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(c)
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7.01
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(d)
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7.01
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(e)
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6.11
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316(a) (last sentence)
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13.06
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(a)(1)(A)
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6.05
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(a)(1)(B)
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6.04
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(a)(2)
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N.A.
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(b)
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6.07
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317(a)(1)
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6.08
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(a)(2)
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6.09
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(b)
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2.05
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318(a)
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13.01
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N.A. Means Not Applicable.
Note:
This Cross-Reference Table shall
not, for any purposes, be deemed to be part of this
Indenture.
vi
INDENTURE dated as of
November 2, 2004 between NEW SKIES SATELLITES B.V., a company
organized under the laws of The Netherlands and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as trustee.
Each party agrees as follows for the
benefit of the other parties and for the equal and ratable benefit
of the Holders of (a) $160,000,000 aggregate principal amount of
the Issuer’s Floating Rate Senior Notes due 2011 (the “
Original Notes ”) issued on the date hereof, (b) any
Additional Notes (as defined herein) that may be exchanged for
Original Notes or otherwise issued after the date hereof in the
form of Exhibit A (the “ Initial Notes ”), and
(c) if and when issued as provided in the Registration Rights
Agreement (as defined in Appendix A hereto (the “
Appendix ”)) or otherwise registered under the
Securities Act (as defined in the Appendix) and issued, the
Issuer’s Floating Rate Senior Notes due 2011 (the “
Exchange Notes ” and, together with the Initial Notes,
the “ Notes ”) issued in the Registered Exchange
Offer (as defined in the Appendix) in exchange for any Initial
Notes or otherwise registered under the Securities Act and issued
in the form of Exhibit B.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
“ Acceptable Exclusions
” means:
(1)
war, invasion, hostile or warlike
action in time of peace or war, including action in hindering,
combating or defending against an actual, impending or expected
attack by:
(a)
any government or sovereign power
(de jure or de facto),
(b)
any authority maintaining or using a
military, naval or air force,
(c)
a military, naval, or air force,
or
(d)
any agent of any such government,
power, authority or force;
(2)
any anti-satellite device, or device
employing atomic or nuclear fission or fusion, or device employing
laser or directed energy beams;
(3)
insurrection, strikes, labor
disturbances, riots, civil commotion, rebellion, revolution, civil
war, usurpation, or action taken by a government authority in
hindering, combating or defending against such an occurrence,
whether there be declaration of war or not;
(4)
confiscation, nationalization,
seizure, restraint, detention, appropriation, requisition for title
or use by or under the order of any government or governmental
authority or agent (whether secret or otherwise or whether civil,
military or de facto) or public or local authority or
agency;
(5)
nuclear reaction, nuclear radiation,
or radioactive contamination of any nature, whether such loss or
damage be direct or indirect, except for radiation naturally
occurring in the space environment;
(6)
electromagnetic or radio frequency
interference, except for physical damage to the Satellite directly
resulting from such interference;
(7)
willful or intentional acts of the
directors or officers of the named insured, acting within the scope
of their duties, designed to cause loss or failure of the
Satellite;
(8)
an act of one or more Persons,
whether or not agents of a sovereign power, for political or
terrorist purposes and whether the loss, damage or failure
resulting therefrom is accidental or intentional;
(9)
any unlawful seizure or wrongful
exercise of control of the Satellite made by any individual or
individuals acting for political or terrorist purposes;
(10)
loss of revenue, incidental damages
or consequential loss;
(11)
extra expenses, other than the
expenses insured under this policy;
(12)
third party liability;
(13)
loss of a redundant component(s)
that does not cause a transponder failure; and
(14)
such other similar exclusions as may
be customary for policies of such type as of the date of issuance
or renewal of such coverage.
“ Acquired Debt ”
means, with respect to any specified Person:
(1)
Indebtedness of any other Person
existing at the time such other Person is merged with or into or
became a Restricted Subsidiary of such specified Person,
and
(2)
Indebtedness secured by an existing
Lien encumbering any asset acquired by such specified
Person,
but excluding in any event Indebtedness incurred
in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Restricted Subsidiary of, such
specified Person.
“ Acquisition ”
means the acquisition of substantially all of the assets of New
Skies Satellites N.V. by Neptune One Holdings Ltd. and the
Issuer pursuant to the transaction agreement relating to such
acquisition dated as of June 5, 2004, as amended or otherwise
modified from time to time.
“ Acquisition Documents
” means the transaction agreement dated as of June 5,
2004 among Neptune One Holdings Ltd., the Issuer and New Skies
Satellites N.V., and any other document entered into in
connection therewith from time to time, in each case, as amended,
modified or supplemented from time to time.
“ Additional Notes
” means Floating Rate Senior Notes due 2011 issued under the
terms of this Indenture subsequent to the Issue Date.
“ Adjusted EBITDA
” means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period
(A) plus, without duplication, and in each case to the extent
deducted in calculating Consolidated Net Income for such
period:
(1)
provision for taxes based on income,
profits or capital of such Person for such period, including,
without limitation, state, franchise and similar taxes (such as the
Texas franchise tax and Michigan single business tax) (including
any Tax Distribution taken into account in calculating Consolidated
Net Income), plus
2
(2)
Consolidated Interest Expense of
such Person for such period, plus
(3)
Consolidated Depreciation and
Amortization Expense of such Person for such period,
plus
(4)
any reasonable expenses or charges
related to any Equity Offering, Permitted Investment, acquisition,
recapitalization or Indebtedness permitted to be incurred under
this Indenture or to the Transactions (including any refinancing
thereof as permitted under this Indenture), plus
(5)
the amount of any restructuring
charges (which, for the avoidance of doubt, shall include
retention, severance, systems establishment cost or excess pension
charges), plus
(6)
the minority interest expense
consisting of subsidiary income attributable to minority equity
interests of third parties in any non-Wholly Owned Subsidiary in
such period or any prior period, except to the extent of dividends
declared or paid on Equity Interests held by third parties,
plus
(7)
the amount of any expense to the
extent a corresponding amount is received in cash by the Issuer and
its Restricted Subsidiaries from a Person other than the Issuer or
any Subsidiary of the Issuer under any agreement providing for
reimbursement of any such expense, provided such
reimbursement payment has not been included in determining
Consolidated Net Income or Adjusted EBITDA (it being understood
that if the amounts received in cash under any such agreement in
any period exceed the amount of expense in respect of such period,
such excess amounts received may be carried forward and applied
against expense in future periods), plus
(8)
the amount of management,
consulting, monitoring and advisory fees and related expenses paid
to Blackstone or any other Permitted Holder (or any accruals
related to such fees and related expenses) during such period,
provided that such amount shall not exceed in any four
quarter period the greater of (x) $2.5 million and
(y) 2.0% of Adjusted EBITDA of the Issuer and its Restricted
Subsidiaries for each period (assuming for purposes of this
clause (y) that the amount to be added to Consolidated Net
Income under this clause (8) solely for the purpose of
determining the amount of Cumulative Credit is $2.5 million),
plus
(9)
without duplication, any other
non-cash charges (including any impairment charges and the impact
of purchase accounting excluding any such charge that represents an
accrual or reserve for a cash expenditure for a future period),
plus
(10)
any net losses resulting from
Hedging Obligations entered into in the ordinary course of business
relating to intercompany loans, to the extent that the notional
amount of the related Hedging Obligation does not exceed the
principal amount of the related intercompany loan,
and (B) less the sum of, without
duplication, (1) non-cash items increasing Consolidated Net
Income for such period (excluding any items which represent the
reversal of any accrual of, or cash reserve for, anticipated cash
charges or asset valuation adjustments made in any prior period);
(2) the minority interest income consisting of subsidiary
losses attributable to the minority equity interests of third
parties in any non-Wholly Owned Subsidiary, and (3) any net
gains resulting from Hedging Obligations entered into in the
ordinary course of business relating to intercompany loans, to the
extent that the notional amount of the related Hedging Obligation
does not exceed the principal amount of the related intercompany
loan.
3
“ Affiliate ” of
any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this
definition, “control” (including, with correlative
meanings, the terms “controlling,” “controlled
by” and “under common control with”), as used
with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the
ownership of voting securities, by agreement or
otherwise.
“ Applicable Premium
” means, on the applicable 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 (i) the redemption price of the Notes at
November 1, 2006 (such redemption price being set forth in the
table appearing under Section 3.01) plus (ii) all required
interest payments due on the Notes through November 1, 2006
(excluding accrued but unpaid interest), computed using a discount
rate equal to the Treasury Rate as of such redemption date plus 50
basis points; over
(b)
the then outstanding principal
amount of the Notes.
“ Asset Sale ”
means:
(1)
the sale, conveyance, transfer or
other disposition (whether in a single transaction or a series of
related transactions) of property or assets of the Issuer or any
Restricted Subsidiary (each referred to in this definition as a
“disposition”); or
(2)
the issuance or sale of Equity
Interests of any Restricted Subsidiary (whether in a single
transaction or a series of related transactions);
in each case other than:
(a)
a disposition of Cash Equivalents or
obsolete or worn out property or equipment in the ordinary course
of business or inventory (including the sale or leasing (including
by way of sales-type lease) of transponder capacity and the leasing
or licensing of teleports) held for sale in the ordinary course of
business;
(b)
the disposition of all or
substantially all of the assets of the Issuer in a manner permitted
pursuant to Article 5 hereof or any disposition that constitutes a
Change of Control;
(c)
the making of any Restricted Payment
or Permitted Investment that is permitted to be made, and is made,
pursuant to Section 4.04;
(d)
any disposition of assets or
issuance or sale of Equity Interests of any Restricted Subsidiary
in any transaction or series of transactions with an aggregate fair
market value of less than $5.0 million;
(e)
any disposition of property or
assets or issuance of securities by a Restricted Subsidiary to the
Issuer or by the Issuer or a Restricted Subsidiary to another
Restricted Subsidiary;
4
(f)
the lease, assignment or sublease of
any real or personal property in the ordinary course of
business;
(g)
any sale of Equity Interests in, or
Indebtedness or other securities of, an Unrestricted Subsidiary
(with the exception of Investments in Unrestricted Subsidiaries
acquired pursuant to clause (1) of the definition of
“Permitted Investments”);
(h)
sales of assets received by the
Issuer or any Restricted Subsidiary upon foreclosure on a
Lien;
(i)
sales of Securitization Assets and
related assets of the type specified in the definition of
“Securitization Financing” to a Securitization
Subsidiary in connection with any Qualified Securitization
Financing;
(j)
a transfer of Securitization Assets
and related assets of the type specified in the definition of
“Securitization Financing” (or a fractional undivided
interest therein) by a Securitization Subsidiary in a Qualified
Securitization Financing;
(k)
any exchange of assets for assets
related to a Permitted Business of comparable market value, as
determined in good faith by the Issuer, which in the event of an
exchange of assets with a fair market value in excess of (1) $5.0
million shall be evidenced by a certificate of a Responsible
Officer of the Issuer, and (2) $10.0 million shall be set forth in
a resolution approved in good faith by at least a majority of the
Management Board of the Issuer;
(l)
any Event of Loss; and
(m)
prior to the entry into commercial
service of NSS-8, an NSS-8 Asset Sale (as defined in Section 4.17),
but only to the extent that the proceeds of any such NSS-8 Asset
Sale are applied in accordance with Section 4.17(2).
“ beneficial owner
” has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular “person” (as
that term is used in Section 13(d)(3) of the Exchange Act), such
“person” will be deemed to have beneficial ownership of
all securities that such “person” has the right to
acquire by conversion or exercise of other securities, whether such
right is currently exercisable or is exercisable only upon the
occurrence of a subsequent condition. The terms “
beneficially owns ” and “ beneficially
owned ” have a corresponding meaning.
“ Business Day ”
means a day other than a Saturday, Sunday or other day on which
banking institutions are authorized or required by law to close in
New York City.
“ Capitalized Lease
Obligation ” means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized and
reflected as a liability on a balance sheet (excluding the
footnotes thereto) in accordance with GAAP.
“ Capital Stock ”
means:
(1)
in the case of a corporation,
corporate stock;
(2)
in the case of an association or
business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate
stock;
5
(3)
in the case of a partnership or
limited liability company, partnership or membership interests
(whether general or limited); and
(4)
any other interest or participation
that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing
Person.
“ Cash Contribution
Amount ” means the aggregate amount of cash contributions
made to the capital of the Issuer described in the definition of
“Contribution Indebtedness.”
“ Cash Equivalents
” means:
(1)
U.S. Dollars, pounds sterling, Euros
or, in the case of any foreign subsidiary, such local currencies
held by it from time to time in the ordinary course of
business;
(2)
direct obligations of the United
States of America or any member of the European Union or any agency
thereof or obligations guaranteed by the United States of America
or any member of the European Union or any agency thereof, in each
case with maturities not exceeding two years;
(3)
certificates of deposit, time
deposits and eurodollar time deposits with maturities of 12 months
or less from the date of acquisition, bankers’ acceptances
with maturities not exceeding 12 months and overnight bank
deposits, in each case, with any lender party to the Credit
Agreement or with any commercial bank having capital and surplus in
excess of $500.0 million;
(4)
repurchase obligations for
underlying securities of the types described in clauses (2) and (3)
above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5)
commercial paper maturing within 12
months after the date of acquisition and having a rating of at
least A-1 from Moody’s or P-1 from S&P;
(6)
securities with maturities of two
years or less from the date of acquisition issued or fully
guaranteed by any State, commonwealth or territory of the United
States of America, or by any political subdivision or taxing
authority thereof, and rated at least A by S&P or A-2 by
Moody’s;
(7)
investment funds at least 95% of the
assets of which constitute Cash Equivalents of the kinds described
in clauses (1) through (6) of this definition; and
(8)
money market funds that (i) comply
with the criteria set forth in Rule 2a-7 under the Investment
Company Act of 1940, (ii) are rated AAA by S&P and Aaa by
Moody’s and (iii) have portfolio assets of at least $500.0
million.
“ Change of Control
” means the occurrence of any of the following:
(1)
the sale, lease, transfer or other
conveyance, in one or a series of related transactions, of all or
substantially all of the assets of the Issuer and its Subsidiaries,
taken as a whole, to any Person other than a Permitted
Holder;
(2)
the Issuer becomes aware of (by way
of a report or any other filing pursuant to Section 13(d) of the
Exchange Act, proxy, vote, written notice or otherwise) the
acquisition by
6
any Person or group (within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act, or any successor provision), including any group acting for
the purpose of acquiring, holding or disposing of securities
(within the meaning of Rule 13d-5(b)(1) under the Exchange Act),
other than the Permitted Holders, in a single transaction or in a
related series of transactions, by way of merger, consolidation or
other business combination or purchase of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act, or any
successor provision), of 50% or more of the total voting power of
the Voting Stock of the Issuer or Parent; or
(3)
(A) prior to the first public
offering of common stock of either Parent or the Issuer, the first
day on which the Management Board of Parent shall cease to consist
of a majority of directors who (i) were members of the Management
Board of Parent on the Issue Date or (ii) were either (x)
nominated for election by the Management Board of Parent, a
majority of whom were directors on the Issue Date or whose election
or nomination for election was previously approved by a majority of
such directors, or (y) designated or appointed by a Permitted
Holder (each of the directors selected pursuant to clauses (A)(i)
and (A)(ii), “ Continuing Directors ”) and (B)
after the first public offering of common stock of either Parent or
the Issuer, (i) if such public offering is of common stock of
Parent the first day on which a majority of the members of the
Management Board of Parent are not Continuing Directors or
(ii) if such public offering is of the Issuer’s common
stock, the first day on which a majority of the members of the
Management Board of the Issuer are not Continuing
Directors.
“ Code ” means
the United States Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code as
in effect on the Issue Date, and any subsequent provisions of the
Code, amendatory thereof, supplemental thereto or substituted
therefor.
“ Commission ”
means the Securities and Exchange Commission.
“ consolidated ”
means, with respect to any Person, such Person consolidated with
its Restricted Subsidiaries, and shall not include any Unrestricted
Subsidiary, but the interest of such Person in an Unrestricted
Subsidiary shall be accounted for as an Investment.
“ Consolidated Depreciation
and Amortization Expense ” means with respect to any
Person for any period, the total amount of depreciation and
amortization expense, including the amortization of deferred
financing fees and other related non-cash charges, of such Person
and its Restricted Subsidiaries for such period on a consolidated
basis and otherwise determined in accordance with GAAP.
“ Consolidated Interest
Expense ” means, with respect to any Person for any
period, (1) the sum, without duplication, of consolidated interest
expense of such Person and its Restricted Subsidiaries for such
period (including amortization of original issue discount, the
interest component of Capitalized Lease Obligations and net
payments (if any) pursuant to interest rate Hedging Obligations,
but excluding non-cash interest on the Subordinated Shareholder PIK
Loan and amortization of deferred financing fees, expensing of any
bridge or other financing fees and expenses less (2) interest
income of such Person and its Restricted Subsidiaries for such
period.
“ Consolidated Net
Income ” means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis,
and otherwise in accordance with GAAP; provided ,
however , that:
(1)
any net after-tax extraordinary,
unusual or nonrecurring gains or losses (less all fees and expenses
relating thereto) or income or expense or charge (including,
without limitation,
7
severance, relocation and other
restructuring costs) including, without limitation, any severance
expense, and fees, expenses or charges related to any offering of
Equity Interests of such Person, any Investment, acquisition or
Indebtedness permitted to be incurred hereunder (in each case,
whether or not successful), including all fees, expenses, charges
and change in control payments related to the Transactions, in each
case shall be excluded;
(2)
the Net Income for such period shall
not include the cumulative effect of a change in accounting
principles during such period;
(3)
any net after-tax income or loss
from discontinued operations and any net after-tax gain or loss on
disposal of discontinued operations shall be excluded;
(4)
any net after-tax gains or losses
(less all fees and expenses or charges relating thereto)
attributable to business dispositions or asset dispositions other
than in the ordinary course of business (as determined in good
faith by the Management Board of the Issuer) shall be
excluded;
(5)
any net after-tax income or loss
(less all fees and expenses or charges relating thereto)
attributable to the early extinguishment of indebtedness shall be
excluded;
(6)
an amount equal to the amount of Tax
Distributions actually made to the holders of capital stock of the
Parent in respect of the net taxable income allocated by such
Person to such holders for such period to the extent funded by the
Issuer shall be included as though such amounts had been paid as
income taxes directly by such Person;
(7)
(a) the Net Income for such period
of any Person that is not a Subsidiary, or that is an Unrestricted
Subsidiary, or that is accounted for by the equity method of
accounting, shall be included only to the extent of the amount of
dividends or distributions or other payments in respect of equity
that are actually paid in cash (or to the extent converted into
cash) by the referent Person to the Issuer or a Restricted
Subsidiary thereof in respect of such period and (b) the Net Income
for such period shall include any dividend, distribution or other
payments in respect of equity paid in cash by such Person to the
Issuer or a Restricted Subsidiary thereof in excess of the amounts
included in clause (a);
(8)
any increase in amortization or
depreciation or any one-time non-cash charges resulting from
purchase accounting in connection with the Transactions or any
acquisition that is consummated prior to or after the Issue Date
shall be excluded;
(9)
accruals and reserves that are
established within twelve months after the Issue Date and that are
so required to be established as a result of the Transactions in
accordance with GAAP shall be excluded;
(10)
any non-cash impairment charges
resulting from the application of Statements of Financial
Accounting Standards No. 142 and No. 144 and the amortization of
intangibles pursuant to Statement of Financial Accounting Standards
No. 141 shall be excluded;
(11)
any non-cash compensation expense
realized from grants of stock appreciation or similar rights, stock
options or other rights to officers, directors and employees of
such Person or any of its Restricted Subsidiaries shall be
excluded;
8
(12)
solely for the purpose of
determining the amount of Cumulative Credit, the Net Income for
such period of any Restricted Subsidiary (other than a Guarantor)
shall be excluded if the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of its Net
Income is not at the date of determination permitted without any
prior governmental approval (which has not been obtained) or,
directly or indirectly, by the operation of the terms of its
charter or any agreement, instrument, judgment, decree, order,
statute, rule, or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, unless such restriction
with respect to the payment of dividends or in similar
distributions has been legally waived; provided that
Consolidated Net Income of such Person shall be increased by the
amount of dividends or distributions or other payments that are
actually paid in cash (or to the extent converted into cash) by
such Person to the Issuer or another Restricted Subsidiary thereof
in respect of such period, to the extent not already included
therein; and
(13)
the impact of non-cash interest on
the Subordinated Shareholder PIK Loan shall be excluded from the
consolidated net income of such Person.
Notwithstanding the foregoing, for
the purpose of Section 4.04 only, there shall be excluded from
Cumulative Credit any income arising from any sale or other
disposition of Restricted Investments made by the Issuer and the
Restricted Subsidiaries, any repurchases and redemptions of
Restricted Investments by the Issuer and the Restricted
Subsidiaries, any repayments of loans and advances which constitute
Restricted Investments by the Issuer and any Restricted Subsidiary,
any sale of the stock of an Unrestricted Subsidiary or any
distribution or dividend from an Unrestricted Subsidiary, in each
case only to the extent such amounts increase the amount of
Restricted Payments permitted under Section 4.04 pursuant to the
definition of Cumulative Credit.
“ Consolidated Secured Debt
Ratio ” as of any date of determination means, the ratio
of (a) Consolidated Total Indebtedness of the Issuer and its
Restricted Subsidiaries that is secured by Liens as of the end of
the most recent fiscal period for which financial reports have been
filed with the Commission or provided to the Trustee, to
(b) the aggregate amount of Adjusted EBITDA for the then most
recent four fiscal quarters for which reports have been filed with
the Commission or provided to the Trustee, in each case with such
pro forma adjustments to Consolidated Total Indebtedness and
Adjusted EBITDA as are appropriate and consistent with the pro
forma adjustment provisions set forth in the definition of Debt to
Adjusted EBITDA Ratio.
“ Consolidated Total
Indebtedness ” means, as at any date of determination, an
amount equal to the sum of (1) the aggregate amount of all
outstanding Indebtedness of the Issuer and the Restricted
Subsidiaries and (2) the aggregate amount of all outstanding
Disqualified Stock of the Issuer and all Preferred Stock of the
Restricted Subsidiaries, with the amount of such Disqualified Stock
and Preferred Stock equal to the greater of their respective
voluntary or involuntary liquidation preferences and maximum fixed
repurchase prices, in each case determined on a consolidated basis
in accordance with GAAP.
For purposes hereof, the
“maximum fixed repurchase price” of any Disqualified
Stock or Preferred Stock that does not have a fixed repurchase
price shall be calculated in accordance with the terms of such
Disqualified Stock or Preferred Stock as if such Disqualified Stock
or Preferred Stock were purchased on any date on which Consolidated
Total Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by,
the fair market value of such Disqualified Stock or Preferred
Stock, such fair market value shall be determined reasonably and in
good faith by the Management Board of the Issuer.
“ Contingent
Obligations ” means, with respect to any Person, any
obligation of such Person guaranteeing any leases, dividends or
other obligations that do not constitute Indebtedness (“
primary
9
obligations ”) of any other Person (the “
primary obligor ”) in any manner, whether directly or
indirectly, including, without limitation, any obligation of such
Person, whether or not contingent:
(1)
to purchase any such primary
obligation or any property constituting direct or indirect security
therefor,
(2)
to advance or supply
funds:
(a)
for the purchase or payment of any
such primary obligation; or
(b)
to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor; or
(3)
to purchase property, securities or
services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to
make payment of such primary obligation against loss in respect
thereof.
“ Contribution
Indebtedness ” means Indebtedness of the Issuer or any
Guarantor in an aggregate principal amount not greater than twice
the aggregate amount of cash contributions (other than Excluded
Contributions) made to the capital of the Issuer after the Issue
Date; provided that
(1)
if the aggregate principal amount of
such Contribution Indebtedness is greater than the aggregate amount
of such cash contributions to the capital of the Issuer, the amount
in excess shall be (a) Indebtedness (other than Secured
Indebtedness) ranking subordinate to the Senior Subordinated Notes
or (b) Indebtedness (other than Secured Indebtedness) that
ranks pari passu with the Senior Subordinated Notes with a
Stated Maturity later than the Stated Maturity of the Senior
Subordinated Notes, and
(2)
such Contribution Indebtedness
(a) is incurred within 180 days after the making of such
cash contribution and (b) is so designated as Contribution
Indebtedness pursuant to an Officers’ Certificate on the
incurrence date thereof.
“ Credit Agreement
” means that certain Credit Agreement to be entered into as
of the closing date of the Acquisition among Parent, the Issuer,
certain other subsidiaries of the Issuer from time to time party
thereto, the Lenders party thereto, Deutsche Bank AG, New York
Branch, as Administrative Agent, ABN AMRO Bank N.V., as Syndication
Agent and the other agents and lenders party thereto from time to
time, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection
therewith, and in each case as amended, restated, supplemented,
modified, renewed, refunded, replaced or refinanced from time to
time in one or more agreements or indentures (in each case with the
same or new lenders or institutional investors), including any
agreement or indenture extending the maturity thereof or otherwise
restructuring all or any portion of the Indebtedness thereunder or
increasing the amount loaned or issued thereunder or altering the
maturity thereof.
“ Cumulative Credit
” means the sum of (without duplication):
(a)
Adjusted EBITDA of the Issuer for
the period (taken as one accounting period) from the beginning of
the first fiscal quarter commencing after the Issue Date, to the
end of the Issuer’s most recently ended fiscal quarter for
which internal financial statements are available at the time of
such Restricted Payment (or, in the case such Adjusted EBITDA for
such period is a negative, minus the amount by which cumulative
Adjusted EBITDA is less than zero), plus
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(b)
100% of the aggregate net cash
proceeds and the fair market value, as determined in good faith by
the Management Board of the Issuer, of property and marketable
securities received by the Issuer since immediately after the date
of this Indenture from the issue or sale of (x) Equity
Interests of the Issuer (including Retired Capital Stock) (other
than (i) Excluded Contributions, (ii) Designated
Preferred Stock and (iii) cash proceeds and marketable
securities received from the sale of Equity Interests to members of
management, directors or consultants of the Issuer, any direct or
indirect parent corporation of the Issuer and the Subsidiaries to
the extent such amounts have been applied to Restricted Payments
made in accordance with Section 4.04(b)(iv)) and, to the extent
actually contributed to the Issuer, Equity Interests of the
Issuer’s direct or indirect parent entities and (y) debt
securities of the Issuer that have been converted into such Equity
Interests of the Issuer (other than, in the case of each of clauses
(x) and (y), Refunding Capital Stock or Equity Interests or
convertible debt securities of the Issuer sold to a Restricted
Subsidiary or the Issuer, as the case may be, and other than
Disqualified Stock or debt securities that have been converted into
Disqualified Stock), plus
(c)
100% of the aggregate amount of cash
and the fair market value, as determined in good faith by the
Management Board of the Issuer, of property and marketable
securities contributed to the capital of the Issuer following the
Issue Date (other than (i) Excluded Contributions,
(ii) the Cash Contribution Amount and (iii) contributions
by a Restricted Subsidiary), plus
(d)
100% of the aggregate amount
received in cash and the fair market value, as determined in good
faith by the Management Board of the Issuer, of property and
marketable securities received by means of (A) the sale or
other disposition (other than to the Issuer or a Restricted
Subsidiary) of Restricted Investments made by the Issuer or its
Restricted Subsidiaries and repurchases and redemptions of such
Restricted Investments from the Issuer or its Restricted
Subsidiaries and repayments of loans or advances which constitute
Restricted Investments by the Issuer or its Restricted Subsidiaries
or (B) the sale (other than to the Issuer or a Restricted
Subsidiary) of the Capital Stock of an Unrestricted Subsidiary or a
distribution from an Unrestricted Subsidiary (other than in each
case to the extent the Investment in such Unrestricted Subsidiary
was made by a Restricted Subsidiary pursuant to Section
4.04(b)(xii) or to the extent such Investment constituted a
Permitted Investment) or a dividend from an Unrestricted
Subsidiary, plus
(e)
in the case of the redesignation of
an Unrestricted Subsidiary as a Restricted Subsidiary or the merger
or consolidation of an Unrestricted Subsidiary into the Issuer or a
Restricted Subsidiary or the transfer of assets of an Unrestricted
Subsidiary to the Issuer or a Restricted Subsidiary, the fair
market value of the Investment in such Unrestricted Subsidiary, as
determined by the Management Board of the Issuer in good faith at
the time of the redesignation of such Unrestricted Subsidiary as a
Restricted Subsidiary or at the time of such merger, consolidation
or transfer of assets (other than an Unrestricted Subsidiary to the
extent the Investment in such Unrestricted Subsidiary was made by a
Restricted Subsidiary pursuant to Section 4.04(b)(xii) or to the
extent such Investment constituted a Permitted
Investment).
“ Cumulative Interest
Expense ” means, in respect of any Restricted Payment,
the sum of the aggregate amount of Consolidated Interest Expense of
the Issuer and the Restricted Subsidiaries for the period from the
beginning of the first fiscal quarter commencing after the Issue
Date, to the end of the Issuer’s most recently ended fiscal
quarter for which internal financial statements are available and
immediately preceding the proposed Restricted Payment.
“ Deadline ”
means January 31, 2005, or such earlier date as the Issuer
determines that it will not pursue the consummation of the
Acquisition.
11
“ Debt to Adjusted EBITDA
Ratio ” means, with respect to any Person for any period
consisting of such Person and its Restricted Subsidiaries’
most recently ended four fiscal quarters for which internal
financial statements are available, the ratio of
(1) Consolidated Total Indebtedness as of the date of
calculation (the “ Calculation Date ”) to
(2) Adjusted EBITDA of such Person for such period. In
the event that the Issuer or any Restricted Subsidiary incurs,
assumes, guarantees or redeems any Indebtedness or issues or repays
Disqualified Stock or Preferred Stock subsequent to the
commencement of the period for which the Debt to Adjusted EBITDA
Ratio is being calculated but prior to the Calculation Date, then
the Debt to Adjusted EBITDA Ratio shall be calculated giving pro
forma effect to such incurrence, assumption, guarantee or repayment
of Indebtedness, or such issuance or redemption of Disqualified
Stock or Preferred Stock, as if the same had occurred at the
beginning of the applicable four-quarter period. For purposes
of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, consolidations and disposed
operations (as determined in accordance with GAAP) that have been
made by the Issuer or any Restricted Subsidiary during the
four-quarter reference period or subsequent to such reference
period and on or prior to or simultaneously with the Calculation
Date shall be calculated on a pro forma basis assuming that all
such Investments, acquisitions, dispositions, mergers,
consolidations and disposed operations (and the change in any
associated fixed charge obligations and the change in Adjusted
EBITDA resulting therefrom) had occurred on the first day of the
four-quarter reference period. If since the beginning of such
period any Person (that subsequently became a Restricted Subsidiary
or was merged with or into the Issuer or any Restricted Subsidiary
since the beginning of such period) shall have made any Investment,
acquisition (including the Transactions), disposition, merger,
consolidation or disposed operation that would have required
adjustment pursuant to this definition, then the Debt to Adjusted
EBITDA Ratio shall be calculated giving pro forma effect thereto
for such period as if such Investment, acquisition (including the
Transactions), disposition, merger, consolidation or disposed
operation had occurred at the beginning of the applicable
four-quarter period. For purposes of this definition,
whenever pro forma effect is to be given to an acquisition
(including the Transactions) or other Investment and the amount of
income or earnings relating thereto, the pro forma calculations
shall be determined in good faith by a responsible financial or
accounting Officer of the Issuer and such pro forma calculations
may include operating expense reductions for such period resulting
from the acquisition (including the Transactions) which is being
given pro forma effect that have been realized or for which the
steps necessary for realization have been taken or are reasonably
expected to be taken within six months following any such
acquisition, including, but not limited to, the execution or
termination of any contracts, the termination of any personnel or
the closing (or approval by the Management Board of the Issuer of
any closing) of any facility, as applicable; provided that,
in either case, such adjustments are set forth in an
Officers’ Certificate signed by the Issuer’s chief
financial officer and another Officer which states (i) the
amount of such adjustment or adjustments, (ii) that such
adjustment or adjustments are based on the reasonable good faith
beliefs of the Officers executing such Officers’ Certificate
at the time of such execution and (iii) that any related
incurrence of Indebtedness is permitted pursuant to this
Indenture. If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest on such
Indebtedness shall be calculated as if the rate in effect on the
Calculation Date had been the applicable rate for the entire period
(taking into account any Hedging Obligations applicable to such
Indebtedness). Interest on a Capitalized Lease Obligation
shall be deemed to accrue at an interest rate reasonably determined
by a responsible financial or accounting officer of the Issuer to
be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP. For purposes of making
the computation referred to above, interest on any Indebtedness
under a revolving credit facility computed on a pro forma basis
shall be computed based upon the average daily balance of such
Indebtedness during the applicable period. Interest on
Indebtedness that may optionally be determined at an interest rate
based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rate, shall be deemed to have been
based upon the rate actually chosen, or, if none, then based upon
such optional rate chosen as the Issuer may designate.
12
“ Default ” means
any event which is, or with the passage of time or the giving of
notice or both would be, an Event of Default.
“ Designated Non-cash
Consideration ” means the fair market value of non-cash
consideration received by the Issuer or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated
as Designated Non-cash Consideration pursuant to an Officers’
Certificate setting forth the basis of such valuation, less the
amount of cash or Cash Equivalents received in connection with a
subsequent sale of such Designated Non-cash
Consideration.
“ Designated Preferred
Stock ” means Preferred Stock of the Issuer or any direct
or indirect parent company of the Issuer (other than Disqualified
Stock), that is issued for cash (other than to the Issuer or any of
its Subsidiaries or an employee stock ownership plan or trust
established by the Issuer or any of its Subsidiaries) and is so
designated as Designated Preferred Stock, pursuant to an
Officers’ Certificate, on the issuance date thereof, the cash
proceeds of which are excluded from the calculation set forth in
the definition of “Cumulative Credit”.
“ Disqualified Stock
” means, with respect to any Person, any Capital Stock of
such Person which, by its terms (or by the terms of any security
into which it is convertible or for which it is putable or
exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable (other than as a result of a change of
control or asset sale), pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof
(other than as a result of a change of control or asset sale), in
whole or in part, in each case prior to the date 91 days after the
earlier of the Final Maturity Date of the Notes or the date the
Notes are no longer outstanding; provided , however ,
that if such Capital Stock is issued to any plan for the benefit of
employees of the Parent or its Subsidiaries or by any such plan to
such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be
repurchased by the Parent or its Subsidiaries in order to satisfy
applicable statutory or regulatory obligations.
“ Equity Interests
” means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security
that is convertible into, or exchangeable for, Capital
Stock).
“ Equity Offering
” means any public or private sale of common stock or
Preferred Stock of the Issuer or any successor thereto or any of
its direct or indirect parent corporations or any successor thereto
(excluding Disqualified Stock), other than (i) public offerings
with respect to common stock of the Issuer or of any direct or
indirect parent corporation of the Issuer registered on Form S-8
and (ii) any such public or private sale that constitutes an
Excluded Contribution.
“ Escrow Agent ”
has the meaning set forth in the Escrow and Pledge
Agreement.
“ Escrow and Pledge
Agreement ” means the escrow and pledge agreement dated
the Issue Date among the Escrow Agent, the Trustee and the Company
relating to the Notes.
“ Escrowed Property
” means the funds to be held in escrow pursuant to the Escrow
and Pledge Agreement.
“ Event of Loss ”
means any event that results in the Issuer or its Restricted
Subsidiaries receiving proceeds from any insurance covering any
Satellite owned by the Issuer or any of its Restricted
Subsidiaries, or in the event that the Issuer or any of its
Restricted Subsidiaries receives proceeds from any insurance
maintained for it by any Satellite Manufacturer or any launch
provider covering any of such Satellites.
13
“ Event of Loss
Proceeds ” means, with respect to any Event of Loss, all
Satellite insurance proceeds received by the Issuer or any of the
Restricted Subsidiaries in connection with such Event of Loss,
after
(1)
provision for all income or other
taxes measured by or resulting from such Event of Loss,
(2)
payment of all reasonable legal,
accounting and other reasonable fees and expenses related to such
Event of Loss,
(3)
payment of amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the
Satellite that is the subject of such Event of Loss,
(4)
provision for payments to Persons
who own an interest in the Satellite (including any transponder
thereon) in accordance with terms of the agreement(s) governing the
ownership of such interest by such Person (other than payments to
insurance carriers required to be made based on the future revenues
generated from such Satellite), and
(5)
deduction of appropriate amounts to
be provided by the Issuer or such Restricted Subsidiary as a
reserve, in accordance with GAAP, against any liabilities
associated with the Satellite that was the subject of the Event of
Loss.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated
thereunder.
“ Exchange Offer
Registration Statement ” means the registration statement
filed with the Commission in connection with the Registered
Exchange Offer.
“ Excluded Contribution
” means net cash proceeds, marketable securities or Qualified
Proceeds, in each case received by the Issuer and its Restricted
Subsidiaries from:
(1)
contributions to its common equity
capital, and
(2)
the sale (other than to a Subsidiary
or to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement of the Issuer or
any Subsidiary) of Capital Stock (other than Disqualified
Stock),
in each case designated as Excluded
Contributions pursuant to an Officers’ Certificate on the
date such capital contributions are made or the date such Equity
Interests are sold, as the case may be, which are excluded from the
calculation set forth in the definition of “Cumulative
Credit”.
“ Excluded Satellite
” means any Satellite (i) that is not expected or
intended, in the good faith determination of the Management Board
of the Issuer and evidenced by a resolution of the Management Board
delivered to the Trustee, to earn revenues from the operation of
such Satellite in excess of $20.0 million for the immediately
succeeding 12-month period or (ii) that has a net book value
not in excess of $50.0 million or (iii) that due to
failures or anomalies affecting the Satellite or affecting other
Satellites of the same model or series or that employ the same or
similar systems or components (1) the procurement of In-Orbit
Insurance therefor in the amount and on the terms required by this
Indenture would not be available for a price that is, and on other
terms and conditions that are, commercially reasonable or
(2) such In-Orbit Insurance would be subject to exclusions or
limitations of coverage that would make the terms of the insurance
commercially unreasonable, in either case, as determined in good
faith by the Management Board of the Issuer
14
and evidenced by a resolution of the Management
Board delivered to the Trustee or (iv) for which In-Orbit
Spare Capacity is available or (v) whose primary purpose is to
provide In-Orbit Spare Capacity for the Issuer’s other
Satellites and otherwise that is not expected or intended, in the
good faith determination of the Management Board of the Issuer and
evidenced by a resolution of the Management Board delivered to the
Trustee, to earn revenues from the operation of such Satellite in
excess of $20.0 million for the immediately succeeding
12-month period.
“ Flow Through Entity
” means an entity that is treated as a partnership not
taxable as a corporation, a grantor trust or a disregarded entity
for United States federal income tax purposes or subject to
treatment on a comparable basis for purposes of state, local or
foreign tax law.
“ FSS Operators ”
means each of (i) PanAmSat Corporation,
(ii) Intelsat, Ltd., (iii) SES Global,
(iv) Eutelsat S.A. and (v) any successor entities of each
of the foregoing; provided , however , that at the
time of such acquisition of all of the capital stock or all or
substantially all of the assets of the Issuer, such FSS Operator
generates annual revenues at least equal to two times the revenues
of the Issuer and its Restricted Subsidiaries for the most recently
ended four fiscal quarters for which internal financial statements
are available.
“ GAAP ” means
generally accepted accounting principles in the United States in
effect on the Issue Date. For purposes of this Indenture, the
term “ consolidated ” with respect to any Person
means such Person consolidated with its Restricted Subsidiaries and
does not include any Unrestricted Subsidiary.
“ Government Securities
” means securities that are:
(1)
direct obligations of the United
States of America for the timely payment of which its full faith
and credit is pledged; or
(2)
obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America,
which, in either case, are not callable or
redeemable at the option of the issuers thereof, and shall also
include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act), as custodian with respect
to any such Government Securities or a specific payment of
principal of or interest on any such Government Securities held by
such custodian for the account of the holder of such depository
receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Securities
or the specific payment of principal of or interest on the
Government Securities evidenced by such depository
receipt.
“ guarantee ”
means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation,
through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness or other
obligations.
“ Guarantee ”
means any guarantee of the obligations of the Issuer under this
Indenture and the Notes by a Guarantor in accordance with the
provisions of this Indenture. When used as a verb, “
Guarantee ” shall have a corresponding
meaning.
15
“ Guarantor ”
means any Person that incurs a Guarantee of the Notes;
provided that upon the release and discharge of such Person
from its Guarantee in accordance with this Indenture, such Person
shall cease to be a Guarantor.
“ Hedging Obligations
” means, with respect to any Person, the obligations of such
Person under:
(1)
currency exchange, interest rate or
commodity swap agreements, currency exchange, interest rate or
commodity cap agreements and currency exchange, interest rate or
commodity collar agreements; and
(2)
other agreements or arrangements
designed to protect such Person against fluctuations in currency
exchange, interest rates or commodity prices.
“ Holder ” means
the Person in whose name a Note is registered on the
Registrar’s books.
“ Indebtedness ”
means, with respect to any Person,
(a)
any indebtedness (including
principal and premium) of such Person, whether or not
contingent,
(i)
in respect of borrowed
money,
(ii)
evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or, without
double counting, reimbursement agreements in respect
thereof),
(iii)
representing the balance deferred
and unpaid of the purchase price of any property (including
Capitalized Lease Obligations), except (A) any such balance
that constitutes a trade payable or similar obligation to a trade
creditor, in each case accrued in the ordinary course of business
and (B) reimbursement obligations in respect of trade letters
of credit obtained in the ordinary course of business with
expiration dates not in excess of 365 days from the date of
issuance (x) to the extent undrawn or (y) if drawn, to
the extent repaid in full within 20 business days of any such
drawing, or
(iv)
representing any Hedging
Obligations, if and to the extent that any of the foregoing
Indebtedness (other than letters of credit and Hedging Obligations)
would appear as a liability upon a balance sheet (excluding the
footnotes thereto) of such Person prepared in accordance with
GAAP,
(b)
Disqualified Stock of such
Person,
(c)
to the extent not otherwise
included, any obligation by such Person to be liable for, or to
pay, as obligor, guarantor or otherwise, on the Indebtedness of
another Person (other than by endorsement of negotiable instruments
for collection in the ordinary course of business),
(d)
to the extent not otherwise
included, Indebtedness of another Person secured by a Lien on any
asset owned by such Person (whether or not such Indebtedness is
assumed by such Person), and
(e)
to the extent not otherwise
included, the amount then outstanding (i.e., advanced, and received
by, and available for use by, the Issuer or any of its
Restricted
16
Subsidiaries) under any
Securitization Financing (as set forth in the books and records of
the Issuer or any Restricted Subsidiary and confirmed by the agent,
trustee or other representative of the institution or group
providing such Securitization Financing),
provided , however , that Indebtedness shall be
deemed not to include (1) Contingent Obligations incurred in
the ordinary course of business and not in respect of borrowed
money; (2) obligations to make payments to one or more
insurers under satellite insurance policies in respect of premiums
or the requirement to remit to such insurer(s) a portion of the
future revenues generated by a satellite which has been declared a
constructive total loss, in each case in accordance with the terms
of the insurance policies relating thereto; (3) any
obligations to make progress or incentive payments under any
satellite manufacturing contract or to make payments under
satellite launch contracts in respect of launch services provided
thereunder, in each case, to the extent not overdue by more than
90 days; or (4) for purposes of calculating the Debt to
Adjusted EBITDA Ratio only, the Subordinated Shareholder PIK
Loan.
“ Indenture ”
means this Indenture as amended or supplemented from time to
time.
“ Independent Financial
Advisor ” means an accounting, appraisal or investment
banking firm or consultant to Persons engaged in a Permitted
Business of nationally recognized standing that is, in the good
faith judgment of the Issuer, qualified to perform the task for
which it has been engaged.
“ In-Orbit Insurance
” means, with respect to any Satellite, insurance or other
contractual arrangement providing for coverage against the risk of
loss of or damage to such Satellite attaching upon the expiration
of the launch insurance therefor and renewing, during the
commercial in-orbit service of such Satellite, prior to the
expiration of the immediately preceding corresponding In-Orbit
Insurance policy, subject to the terms and conditions set forth in
this Indenture.
“ In-Orbit Spare
Capacity ” means transponder capacity that in the good
faith judgment of the Management Board and evidenced by a
resolution of the Management Board as set forth in an
Officers’ Certificate:
(1)
is available at all times in the
event of a Satellite loss or failure to restore service for at
least 25% of the revenue-generating capacity on the
Satellite;
(2)
meets or exceeds the contractual
performance specifications for the transponders being protected;
and
(3)
may be provided directly by the
Issuer or by another FSS Operator or another Satellite operator
pursuant to a contractual arrangement;
provided that if such “In-Orbit Spare
Capacity” is available with respect to less than 100% of the
revenue-generating transponder capacity on a Satellite, the
Satellite shall be deemed to be insured for a percentage of the
Satellite’s net book value for which In-Orbit Spare Capacity
is available.
“
Intercreditor Agreement
” means
that certain intercreditor agreement dated as of the Issue Date, or
the date of the closing of the Acquisition, as applicable, by and
among Deutsche Bank AG, New York Branch, as administrative agent
under the Credit Agreement, the Issuer and the Trustee.
“
Investment Grade Securities
”
means:
(1)
securities issued by the U.S.
government or by any agency or instrumentality thereof and directly
and fully guaranteed or insured by the U.S. Government (other than
Cash
17
Equivalents) and in each case with
maturities not exceeding two years from the date of
acquisition,
(2)
investments in any fund that invests
exclusively in investments of the type described in clause (1)
which fund may also hold immaterial amounts of cash pending
investment and/or distribution, and
(3)
corresponding instruments in
countries other than the United States customarily utilized for
high quality investments and in each case with maturities not
exceeding two years from the date of acquisition.
“
Investments ” means, with respect
to any Person, all direct or indirect investments by such Person in
other Persons (including Affiliates) in the forms of loans
(including guarantees or other obligations), advances or capital
contributions (excluding accounts receivable, endorsements for
collection or deposit, deposits, prepaid expenses, trade credit,
advances to customers or suppliers, commission, travel and similar
advances to officers and employees, in each case made in the
ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities
issued by any other Person and investments that are required by
GAAP to be classified on the balance sheet (excluding the
footnotes) of such Person in the same manner as the other
investments included in this definition to the extent such
transactions involve the transfer of cash or other property.
If the Issuer or any Subsidiary of the Issuer sells or otherwise
disposes of any Equity Interests of any direct or indirect
Subsidiary of the Issuer such that, after giving effect to any such
sale or disposition, such Person is no longer a Subsidiary of the
Issuer, the Issuer will be deemed to have made an Investment on the
date of any such sale or disposition equal to the fair market value
of the Equity Interests of such Subsidiary not sold or disposed of
in an amount determined as provided in Section 4.04(d). For
purposes of the definition of “Unrestricted Subsidiary”
and Section 4.04:
(1)
“Investments” shall
include the portion (proportionate to the Issuer’s equity
interest in such Subsidiary) of the fair market value of the net
assets of a Subsidiary of the Issuer at the time that such
Subsidiary is designated an Unrestricted Subsidiary;
provided , however , that upon a redesignation of
such Subsidiary as a Restricted Subsidiary, the Issuer shall be
deemed to continue to have a permanent “Investment” in
an Unrestricted Subsidiary in an amount (if positive) equal
to:
(a)
the Issuer’s
“Investment” in such Subsidiary at the time of such
redesignation, less
(b)
the portion (proportionate to the
Issuer’s equity interest in such Subsidiary) of the fair
market value of the net assets of such Subsidiary at the time of
such redesignation;
(2)
any property transferred to or from
an Unrestricted Subsidiary shall be valued at its fair market value
at the time of such transfer, in each case as determined in good
faith by the Issuer; and
(3)
any transfer of Capital Stock that
results in an entity which became a Restricted Subsidiary after the
Issue Date and not in connection with the Transactions ceasing to
be a Restricted Subsidiary shall be deemed to be an Investment in
an amount equal to the fair market value (as determined by the
Management Board of the Issuer in good faith as of the date of
initial acquisition) of the Capital Stock of such entity owned by
the Issuer and the Restricted Subsidiaries immediately after such
transfer.
18
“ Issue Date ”
means November 2, 2004.
“ Issuer ” means
New Skies Satellites B.V.
“ Lien ” means,
with respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, encumbrance, charge or security interest in
or on such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset and
(c) in the case of securities (other than securities representing
an interest in a joint venture that is not a Subsidiary), any
purchase option, call or similar right of a third party with
respect to such securities.
“ Management Board
” means:
(1)
with respect to a corporation, the
board of directors of the corporation;
(2)
with respect to a partnership, the
board of directors of the general partner or manager of the
partnership; and
(3)
with respect to any other Person,
the board or committee of such Person serving a similar
function.
“ Moody’s ”
means Moody’s Investors Service, Inc. and any successor to
its rating agency business.
“ Net Income ”
means, with respect to any Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction
in respect of Preferred Stock dividends or accretion of any
Preferred Stock.
“ Net Proceeds ”
means the aggregate cash proceeds received by the Issuer or any of
its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received in respect of or
upon the sale or other disposition of any Designated Non-cash
Consideration received in any Asset Sale and any cash payments
received by way of deferred payment of principal pursuant to a note
or installment receivable or otherwise, but only as and when
received, but excluding the assumption by the acquiring Person of
Indebtedness relating to the disposed assets or other consideration
received in any other non-cash form), net of the direct costs
relating to such Asset Sale and the sale or disposition of such
Designated Non-cash Consideration (including, without limitation,
legal, accounting and investment banking fees, and brokerage and
sales commissions), and any relocation expenses incurred as a
result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any
tax sharing arrangements related thereto), amounts required to be
applied to the repayment of principal, premium (if any) and
interest on Indebtedness required (other than pursuant to Section
4.06(b)) to be paid as a result of such transaction, and any
deduction of appropriate amounts to be provided by the Issuer as a
reserve in accordance with GAAP against any liabilities associated
with the asset disposed of in such transaction and retained by the
Issuer after such sale or other disposition thereof, including,
without limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters or
against any indemnification obligations associated with such
transaction.
“ Net Transponder
Capacity ” means the aggregate transponder transmission
capacity for all in-orbit transponders then owned by the Issuer and
the Restricted Subsidiaries, less the amount of capacity relating
to transponders that are not at such time available for use,
whether due to legal, regulatory, technical or contractual
restrictions or otherwise.
19
“ Obligations ”
means any principal, interest, penalties, fees, indemnifications,
reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit), damages and other
liabilities, and guarantees of payment of such principal, interest,
penalties, fees, indemnifications, reimbursements, damages and
other liabilities, payable under the documentation governing any
Indebtedness.
“ Offering Memorandum
” means the offering memorandum relating to the offering of
the Notes dated October 22, 2004.
“ Officer ” means
one of the managing directors of the Issuer.
“ Officers’
Certificate ” means a certificate signed on behalf of the
Issuer by two Officers of the Issuer, one of whom is the principal
financial officer, the treasurer or the principal accounting
officer of the Issuer that meets the requirements set forth in this
Indenture.
“ Opinion of Counsel
” means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of
or counsel to the Issuer or the Trustee.
“ Parent ” means,
with respect to any Person, any direct or indirect parent company
of such Person.
“
Pari Passu
Indebtedness ” means:
(1)
with respect to the Issuer, the
Notes and any Indebtedness which ranks pari passu in right
of payment to the Notes; and
(2)
with respect to any Guarantor, its
Guarantee and any Indebtedness which ranks pari passu in
right of payment to such Guarantor’s Guarantee.
“ Permitted Business
” means any business conducted or proposed to be conducted by
the Issuer on the Issue Date or any business activity that is a
reasonable extension, development or expansion thereof or ancillary
thereto.
“ Permitted Debt
” has the meaning assigned to it in Section
4.03(c).
“ Permitted Holders
” means, at any time, each of (i) the Sponsors and their
Affiliates (not including, however, any portfolio companies of any
of the Sponsors) and (ii) any FSS Operator; provided
that a Rating Decline shall not have occurred in connection with
the transaction (including any incurrence of indebtedness used to
finance the acquisition thereof) involving such FSS Operator that
causes a Change of Control to occur. Any person or group
whose acquisition of beneficial ownership constitutes a Change of
Control in respect of which a Change of Control Offer is made in
accordance with the requirements of this Indenture will thereafter,
together with its Affiliates, constitute an additional Permitted
Holder.
“
Permitted Investments
”
means:
(1)
any Investment by the Issuer in any
Restricted Subsidiary or by a Restricted Subsidiary in another
Restricted Subsidiary;
(2)
any Investment in cash and Cash
Equivalents or Investment Grade Securities;
(3)
any Investment by the Issuer or any
Restricted Subsidiary of the Issuer in a Person that is engaged in
a Permitted Business if as a result of such Investment
(A) such Person becomes a
20
Restricted Subsidiary or
(B) such Person, in one transaction or a series of related
transactions, is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or is
liquidated into, the Issuer or a Restricted Subsidiary;
(4)
any Investment in securities or
other assets not constituting cash or Cash Equivalents and received
in connection with an Asset Sale made pursuant to the provisions
described under Section 4.06 or any other disposition of assets not
constituting an Asset Sale;
(5)
any Investment existing on the Issue
Date and Investments made pursuant to binding commitments in effect
on the Issue Date;
(6)
(A) loans and advances to officers,
directors and employees, not in excess of $5.0 million in the
aggregate outstanding at any one time and (B) loans and
advances of payroll payments and expenses to officers, directors
and employees in each case incurred in the ordinary course of
business;
(7)
any Investment acquired by the
Issuer or any Restricted Subsidiary (A) in exchange for any
other Investment or accounts receivable held by the Issuer or any
such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the
issuer of such other Investment or accounts receivable or
(B) in satisfaction of a judgment or as a result of a
foreclosure by the Issuer or any Restricted Subsidiary with respect
to any secured Investment or other transfer of title with respect
to any secured Investment in default;
(8)
Hedging Obligations permitted under
clause (ix) of the definition of “Permitted
Debt”;
(9)
Investments resulting from the
receipt of non-cash consideration in an Asset Sale received in
compliance with Section 4.06;
(10)
Investments the payment for which
consists of Equity Interests of the Issuer or any of its parent
companies (exclusive of Disqualified Stock);
(11)
guarantees (including Guarantees) of
Indebtedness permitted under Section 4.03 and performance
guarantees consistent with past practice;
(12)
any transaction to the extent it
constitutes an Investment that is permitted and made in accordance
with the provisions of Section 4.07 (except transactions described
in clauses (ii), (vi), (vii) and (xi) of Section
4.07(b));
(13)
Investments of a Restricted
Subsidiary acquired after the Issue Date or of an entity merged
into the Issuer or merged into or consolidated with a Restricted
Subsidiary in accordance with Article 5 after the Issue Date to the
extent that such Investments were not made in contemplation of or
in connection with such acquisition, merger or consolidation and
were in existence on the date of such acquisition, merger or
consolidation;
(14)
guarantees by the Issuer or any
Restricted Subsidiary of operating leases (other than Capitalized
Lease Obligations) or of other obligations that do not constitute
Indebtedness, in each case entered into by any Restricted
Subsidiary in the ordinary course of business;
(15)
Investments consisting of licensing
or contribution of intellectual property pursuant to joint
marketing arrangements with other Persons;
21
(16)
Investments consisting of purchases
and acquisitions of inventory, supplies, materials and equipment or
purchases of contract rights or licenses or leases of intellectual
property, in each case in the ordinary course of
business;
(17)
any Investment in a Securitization
Subsidiary or any Investment by a Securitization Subsidiary in any
other Person in connection with a Qualified Securitization
Financing, including Investments of funds held in accounts
permitted or required by the arrangements governing such Qualified
Securitization Financing or any related Indebtedness;
provided , however , that any Investment in a
Securitization Subsidiary is in the form of a Purchase Money Note,
contribution of additional Securitization Assets or an equity
interest;
(18)
additional Investments by the Issuer
or any of its Restricted Subsidiaries having an aggregate fair
market value, taken together with all other Investments made
pursuant to this clause (18), not to exceed the greater of
(x) $20.0 million and (y) 2.0% of Total Assets at
the time of such Investment (with the fair market value of each
Investment being measured at the time made and without giving
effect to subsequent changes in value);
(19)
Investments in Subsidiaries or joint
ventures formed for the purpose of selling or leasing transponder
capacity to third party customers in the ordinary course of
business of the Issuer and its Restricted Subsidiaries which
Investments are in the form of transfers to such Subsidiaries or
joint ventures for fair market value of transponders or transponder
capacity sold or to be sold or leased or to be leased by such
Subsidiaries or joint ventures; provided that all such
Investments in Subsidiaries and joint ventures do not exceed 10% of
Net Transponder Capacity; and
(20)
Investments made after the Issue
Date in any joint venture; provided that all such
Investments made pursuant to this clause (20) in all such
joint ventures do not exceed $10.0 million.
“ Permitted Liens
” means the following types of Liens:
(1)
deposits of cash or government bonds
made in the ordinary course of business to secure surety or appeal
bonds to which such Person is a party;
(2)
Liens in favor of issuers of
performance, surety bid, indemnity, warranty, release, appeal or
similar bonds or with respect to other regulatory requirements or
letters of credit or bankers’ acceptances issued, and
completion guarantees provided for, in each case pursuant to the
request of and for the account of such Person in the ordinary
course of its business or consistent with past practice;
(3)
Liens on property or shares of stock
of a Person at the time such Person becomes a Subsidiary;
provided , however , that such Liens are not created
or incurred in connection with, or in contemplation of, such other
Person becoming such a Subsidiary; provided , further
, however , that such Liens may not extend to any other
property owned by the Issuer or any Restricted
Subsidiary;
(4)
Liens on property at the time the
Issuer or a Restricted Subsidiary acquired the property, including
any acquisition by means of a merger or consolidation with or into
the Issuer or any Restricted Subsidiary; provided, howeve r,
that such Liens are not created or incurred in connection with, or
in contemplation of, such acquisition; provided, further ,
however , that such Liens may not extend to any other
property owned by the Issuer or any Restricted
Subsidiary;
22
(5)
Liens securing Indebtedness or other
obligations of a Restricted Subsidiary owing to the Issuer or
another Restricted Subsidiary permitted to be incurred pursuant to
Section 4.03 hereof;
(6)
Liens securing Hedging Obligations
so long as the related Indebtedness is permitted to be incurred
under this Indenture and is secured by a Lien on the same property
securing such Hedging Obligation;
(7)
Liens on specific items of inventory
or other goods and proceeds of any Person securing such
Person’s obligations in respect of bankers’ acceptances
issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other
goods;
(8)
Liens in favor of the Issuer or any
Restricted Subsidiary;
(9)
Liens to secure any refinancing,
refunding, extension, renewal or replacement (or successive
refinancings, refundings, extensions, renewals or replacements) as
a whole, or in part, of any Indebtedness secured by any Liens
referred to in clauses (3), (4), (24) and (25) of this definition;
provided , however , that (A) such new Lien shall be
limited to all or part of the same property that secured the
original Liens (plus improvements on such property), and (B) the
Indebtedness secured by such Lien at such time is not increased to
any amount greater than the sum of (1) the outstanding principal
amount or, if greater, committed amount of the Indebtedness
described under clauses (3), (4), (24) and (25) at the time the
original Lien became a Permitted Lien under this Indenture and (2)
an amount necessary to pay any fees and expenses, including
premiums, related to such refinancing, refunding, extension,
renewal or replacement;
(10)
Liens on Securitization Assets and
related assets of the type specified in the definition of
“Securitization Financing” incurred in connection with
any Qualified Securitization Financing;
(11)
Liens for taxes, assessments or
other governmental charges or levies not yet delinquent, or which
are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted or for property taxes
on property that the Issuer or one of its Subsidiaries has
determined to abandon if the sole recourse for such tax,
assessment, charge, levy or claim is to such property;
(12)
judgment Liens not giving rise to an
Event of Default so long as any appropriate legal proceedings that
may have been duly initiated for the review of such judgment shall
not have been finally terminated or the period within which such
legal proceedings may be initiated shall not have
expired;
(13)
(A) pledges and deposits made in the
ordinary course of business in compliance with the Federal
Employers Liability Act or any other workers’ compensation,
unemployment insurance and other social security laws or
regulations and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements in respect of such
obligations and (B) pledges and deposits securing liability for
reimbursement or indemnification obligations of (including
obligations in respect of letters of credit or bank guarantees for
the benefit of) insurance carriers providing property, casualty or
liability insurance to the Parent, the Issuer or any Restricted
Subsidiary;
23
(14)
landlord’s, carriers’,
warehousemen’s, mechanics’, materialmen’s,
repairmen’s, construction or other like Liens arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or that are being contested in good
faith by appropriate proceedings and in respect of which, if
applicable, the Issuer or any Restricted Subsidiary shall have set
aside on its books reserves in accordance with GAAP;
(15)
zoning restrictions, easements,
trackage rights, leases (other than Capitalized Lease Obligations),
licenses, special assessments, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the
ordinary course of business that, in the aggregate, do not
interfere in any material respect with the ordinary conduct of the
business of the Issuer or any Restricted Subsidiary;
(16)
Liens that are contractual rights of
set-off (A) relating to the establishment of depository relations
with banks not given in connection with the issuance of
Indebtedness, (B) relating to pooled deposit or sweep accounts of
the Issuer or any Restricted Subsidiary to permit satisfaction of
overdraft or similar obligations incurred in the ordinary course of
business of the Issuer and the Restricted Subsidiaries or (C)
relating to purchase orders and other agreements entered into with
customers of the Issuer or any Restricted Subsidiary in the
ordinary course of business;
(17)
Liens arising solely by virtue of
any statutory or common law provision relating to banker’s
liens, rights of set-off or similar rights;
(18)
Liens securing obligations in
respect of trade-related letters of credit permitted pursuant to
Section 4.03 hereof and covering the goods (or the documents of
title in respect of such goods) financed by such letters of credit
and the proceeds and products thereof;
(19)
any interest or title of a lessor
under any lease or sublease entered into by the Issuer or any
Restricted Subsidiary in the ordinary course of
business;
(20)
licenses of intellectual property
granted in a manner consistent with past practice;
(21)
Liens in favor of customs and
revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of
goods;
(22)
Liens solely on any cash earnest
money deposits made by the Issuer or any of the Restricted
Subsidiaries in connection with any letter of intent or purchase
agreement permitted hereunder;
(23)
other Liens securing Indebtedness
for borrowed money with respect to property or assets of the Issuer
or a Restricted Subsidiary with an aggregate fair market value
(valued at the time of creation thereof) of not more than $10.0
million at any time;
(24)
Liens securing Capitalized Lease
Obligations permitted to be incurred pursuant to Section 4.03
and Indebtedness permitted to be incurred pursuant to
Section 4.03(c)(iv); provided, however, that such Liens
securing Capitalized Lease Obligations or Indebtedness incurred
under Section 4.03(c)(iv) hereof may not extend to property
owned by the Issuer or any Restricted Subsidiary other than the
property being leased or acquired pursuant to Section 4.03(c)(iv)
hereof;
(25)
Liens existing on the Issue Date to
the extent and in the manner such Liens are in effect on the Issue
Date; and
24
(26)
deposits or pledges in conjunction
with bids, tenders, leases and contracts (other than contracts for
the payment of money) entered into in the ordinary course of
business.
“ Person ” means
any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other
entity.
“ Preferred Stock
” means any Equity Interest with preferential rights of
payment of dividends or upon liquidation, dissolution or winding
up.
“ Presumed Tax Rate
” means the highest effective marginal statutory combined
U.S. federal, state and local income tax rate prescribed for an
individual residing in New York City (taking into account (i) the
deductibility of state and local income taxes for U.S. federal
income tax purposes, assuming the limitation of Section 68(a)(2) of
the Code applies and taking into account any impact of the Code,
and (ii) the character (long-term or short-term capital gain,
dividend income or other ordinary income) of the applicable
income).
“ Purchase Money Note
” means a promissory note of a Securitization Subsidiary
evidencing a line of credit, which may be irrevocable, from the
Issuer or any Subsidiary of the Issuer to a Securitization
Subsidiary in connection with a Qualified Securitization Financing,
which note is intended to finance that portion of the purchase
price that is not paid in cash or a contribution of equity and
which (a) shall be repaid from cash available to the Securitization
Subsidiary, other than (i) amounts required to be established as
reserves, (ii) amounts paid to investors in respect of interest,
(iii) principal and other amounts owing to such investors and (iv)
amounts paid in connection with the purchase of newly generated
receivables and (b) may be subordinated to the payments described
in clause (a).
“ Qualified Proceeds
” means assets that are used or useful in, or Capital Stock
of any Person engaged in, a Permitted Business; provided
that the fair market value of any such assets or Capital Stock
shall be determined by the Management Board in good faith, except
that in the event the value of any such assets or Capital Stock
exceeds $25.0 million or more, the fair market value shall be
determined by an Independent Financial Advisor.
“
Qualified Securitization
Financing ” means any
Securitization Financing of a Securitization Subsidiary that meets
the following conditions:
(i)
the Management Board shall have
determined in good faith that such Qualified Securitization
Financing (including financing terms, covenants, termination events
and other provisions) is in the aggregate economically fair and
reasonable to the Issuer and the Securitization
Subsidiary;
(ii)
all sales of Securitization Assets
and related assets to the Securitization Subsidiary are made at
fair market value (as determined in good faith by the Issuer);
and
(iii)
the financing terms, covenants,
termination events and other provisions thereof shall be market
terms (as determined in good faith by the Issuer) and may include
Standard Securitization Undertakings.
The grant of a security interest in
any Securitization Assets of the Issuer or any of its Restricted
Subsidiaries (other than a Securitization Subsidiary) to secure
Indebtedness under the Credit Agreement and any Refinancing
Indebtedness with respect thereto shall not be deemed a Qualified
Securitization Financing.
25
“ Rating Agency ”
means (1) each of Moody’s and S&P and (2) if
Moody’s or S&P ceases to rate the notes for reasons
outside of our control, a “nationally recognized statistical
rating organization” within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by us
as a replacement agency for Moody’s or S&P, as the case
may be.
“ Rating Decline
” means the occurrence on any date from and after the date of
the public notice by the Issuer or another Person seeking to effect
a Change in Control of an arrangement that, in our good faith
judgment, is expected to result in a Change of Control until the
end of the 30-day period following public notice of the occurrence
of a Change of Control or abandonment of the expected Change in
Control transaction (which period shall be extended so long as the
rating of the Notes is under publicly announced consideration for
possible downgrade by any Rating Agency) of: (1) a decline in
the rating of either of the Notes by such Rating Agency by at least
one notch in the gradation of the rating scale (e.g.,
+ or
-
for S&P or 1, 2 and 3 for
Moody’s) from such Rating Agency’s rating of the
applicable Notes; or (2) withdrawal by such Rating Agency of
such Rating Agency’s rating of either of the
Notes.
“ Registration Rights
Agreement ” means each registration rights agreement
dated as of November 2, 2004 between the Issuer and the
initial purchasers named therein relating to the Notes and any
other similar registration rights agreement relating to any
Additional Notes.
“ Release ” means
the release of the Escrowed Property pursuant to the Escrow and
Pledge Agreement.
“ Responsible Officer
” of any Person means any executive officer or financial
officer of such Person and any other officer or similar official
thereof responsible for the administration of the obligations of
such Person in respect of this Indenture.
“ Restricted Investment
” means an Investment other than a Permitted
Investment.
“ Restricted Subsidiary
” means, at any time, any direct or indirect Subsidiary of
the Issuer that is not then an Unrestricted Subsidiary;
provided , however , that upon the occurrence of an
Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary,
such Subsidiary shall be included in the definition of Restricted
Subsidiary.
“ S&P ” means
Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor to its rating agency
business.
“ Satellite ”
means any satellite owned by, or leased to, the Issuer or any of
its Restricted Subsidiaries and any satellite purchased pursuant to
the terms of a Satellite Purchase Agreement, whether such satellite
is in the process of manufacture, has been delivered for launch or
is in orbit (whether or not in operational service).
“ Satellite
Manufacturer ” means, with respect to any Satellite, the
prime contractor and manufacturer of such Satellite.
“ Satellite Purchase
Agreement ” means, with respect to any Satellite, the
agreement between the applicable Satellite Purchaser and the
applicable Satellite Manufacturer relating to the manufacture,
testing and delivery of such Satellite.
“ Satellite Purchaser
” means the Issuer or Restricted Subsidiary that is a party
to a Satellite Purchase Agreement.
26
“ Secured Indebtedness
” means any Indebtedness secured by a Lien.
“ Securities Act
” means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated
thereunder.
“ Securitization Assets
” means any accounts receivable, inventory, royalty or
revenue streams from sales of inventory subject to a Qualified
Securitization Financing.
“ Securitization Fees
” means reasonable distributions or payments made directly or
by means of discounts with respect to any participation interest
issued or sold in connection with, and other fees paid to a Person
that is not a Securitization Subsidiary in connection with any
Qualified Securitization Financing.
“ Securitization
Financing ” means any transaction or series of
transactions that may be entered into by the Issuer or any of its
Subsidiaries pursuant to which the Issuer or any of its
Subsidiaries may sell, convey or otherwise transfer to (a) a
Securitization Subsidiary (in the case of a transfer by the Issuer
or any of its Subsidiaries) and (b) any other Person (in the case
of a transfer by a Securitization Subsidiary), or may grant a
security interest in, any Securitization Assets (whether now
existing or arising in the future) of the Issuer or any of its
Subsidiaries, and any assets related thereto including, without
limitation, all collateral securing such Securitization Assets, all
contracts and all guarantees or other obligations in respect of
such Securitization Assets, proceeds of such Securitization Assets
and other assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with
asset securitization transactions involving Securitization Assets
and any Hedging Obligations entered into by the Issuer or any such
Subsidiary in connection with such Securitization
Assets.
“ Securitization Repurchase
Obligation ” means any obligation of a seller of
Securitization Assets in a Qualified Securitization Financing to
repurchase Securitization Assets arising as a result of a breach of
a representation, warranty or covenant or otherwise, including as a
result of a receivable or portion thereof becoming subject to any
asserted defense, dispute, off-set or counterclaim of any kind as a
result of any action taken by, any failure to take action by or any
other event relating to the seller.
“ Securitization
Subsidiary ” means a Wholly Owned Subsidiary of the
Issuer (or another Person formed for the purposes of engaging in a
Qualified Securitization Financing in which the Issuer or any
Subsidiary of the Issuer makes an Investment and to which the
Issuer or any Subsidiary of the Issuer transfers Securitization
Assets and related assets) which engages in no activities other
than in connection with the financing of Securitization Assets of
the Issuer or its Subsidiaries, all proceeds thereof and all rights
(contractual and other), collateral and other assets relating
thereto, and any business or activities incidental or related to
such business, and which is designated by the Management Board of
the Issuer or such other Person (as provided below) as a
Securitization Subsidiary and (a) no portion of the
Indebtedness or any other obligations (contingent or otherwise) of
which (i) is guaranteed by the Issuer or any other Subsidiary
of the Issuer (excluding guarantees of obligations (other than the
principal of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings), (ii) is recourse to or obligates
the Issuer or any other Subsidiary of the Issuer in any way other
than pursuant to Standard Securitization Undertakings or
(iii) subjects any property or asset of the Issuer or any
other Subsidiary of the Issuer, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings, (b) with
which neither the Issuer nor any other Subsidiary of the Issuer has
any material contract, agreement, arrangement or understanding
other than on terms which the Issuer reasonably believes to be no
less favorable to the Issuer or such Subsidiary than those that
might be obtained at the time from Persons that are not Affiliates
of the Issuer and (c) to which neither the Issuer nor any
other Subsidiary of the Issuer has any obligation to maintain or
preserve such entity’s financial condition or cause such
entity to achieve certain levels of operating results. Any
such designation by the Management Board of the Issuer or such
other Person shall
27
be evidenced to the Trustee by filing with the
Trustee a certified copy of the resolution of the Management Board
of the Issuer or such other Person giving effect to such
designation and an Officers’ Certificate certifying that such
designation complied with the foregoing conditions.
“ Senior Subordinated
Notes ” means the Issuer’s 9 1 /
8 % Senior Subordinated Notes due 2012.
“ Shareholders’
Agreement ” means the Shareholders’ Agreement among
the Sponsors and/or their Affiliates and any of the Restricted
Subsidiaries and the shareholders party thereto.
“ Significant
Subsidiary ” means any Restricted Subsidiary that would
be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act, as such Regulation is in effect on the date hereof.
“ Special Mandatory
Redemption Price ” means a price equal to 101% of the
principal amount of the Notes, plus accrued and unpaid interest on
the Notes from the Issue Date to the Special Mandatory Redemption
Date.
“ Sponsors ”
means Blackstone Group Holdings L.P. and its Affiliates.
“ Standard Securitization
Undertakings ” means representations, warranties,
covenants and indemnities entered into by the Purchaser or any
Subsidiary of the Purchaser which the Purchaser has determined in
good faith to be customary in a Securitization Financing,
including, without limitation, those relating to the servicing of
the assets of a Securitization Subsidiary, it being understood that
any Securitization Repurchase Obligation shall be deemed to be a
Standard Securitization Undertaking.
“ Stated Maturity
” means, with respect to any installment of interest or
principal on any series of Indebtedness, the day on which the
payment of interest or principal was scheduled to be paid in the
original documentation governing such Indebtedness, and will not
include any contingent obligations to repay, redeem or repurchase
any such interest or principal prior to the date originally
scheduled for the payment thereof.
“ Subordinated
Indebtedness ” means (a) with respect to the Issuer,
any Indebtedness of the Issuer that is by its terms subordinated in
right of payment to the Notes and (b) if applicable, with
respect to any Guarantor of the Notes, any Indebtedness of such
Guarantor that is by its terms subordinated in right of payment to
its Guarantee of the Notes.
“ Subordinated Shareholder
PIK Loan ” means the subordinated intercompany loan
issued by Parent of Issuer to Issuer pursuant to that certain
intercompany loan agreement as in effect on the closing date of the
Acquisition Issue Date and any amendments, modifications or
supplements to such agreement that are not, in the good faith
judgment of the Issuer’s Management Board, more
disadvantageous to the holders of the Notes than those in effect on
the Issue Date.
“ Subsidiary ”
means, with respect to any specified Person:
(1)
any corporation, association or
other business entity, of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of such Person (or a combination
thereof); and
28
(2)
any partnership, joint venture,
limited liability company or similar entity of which (x) more than
50% of the capital accounts, distribution rights, total equity and
voting interests or general or limited partnership interests, as
applicable, are owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of such Person
or a combination thereof whether in the form of membership,
general, special or limited partnership or otherwise and (y) such
Person or any Restricted Subsidiary of such Person is a controlling
general partner or otherwise controls such entity.
“ Tax Distribution
” means any distribution described in Section
4.04(c)(viii).
“ TIA ” means the
Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa 77bbbb) as in
effect on the Issue Date.
“ Total Assets ”
means the total consolidated assets of the Issuer and its
Restricted Subsidiaries, as shown on the most recent balance sheet
of the Issuer.
“ Transactions ”
means the transactions contemplated by (i) the acquisition of
substantially all of the assets of New Skies Satellites N.V.,
(ii) the Credit Agreement and (iii) the issuance of the
Notes and the Senior Subordinated Notes on the Issue
Date.
“ Treasury Rate ”
means, as of the applicable 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 such
redemption date (or, if such Statistical Release is no longer
published, any publicly available source of market data)) most
nearly equal to the period from such redemption date to November 1,
2006 ; provided , however , that if the period from
such redemption date to November 1, 2006 is less than one year, the
weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be
used.
“
Trust Officer ” means any officer
within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred
because of such person’s knowledge of and familiarity with
the particular subject, and who shall have direct responsibility
for the administration of this Indenture.
“ Trustee ”
means, initially, U.S. Bank National Association, a national
banking association, in its capacity as Trustee hereunder, and its
successors in such capacity.
“ Uniform Commercial
Code ” means the New York Uniform Commercial Code as in
effect from time to time.
“ Unrestricted
Subsidiary ” means (i) any Subsidiary of the Issuer
that at the time of determination is an Unrestricted Subsidiary (as
designated by the Management Board of the Issuer, as provided
below) and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Management Board of the Issuer may designate
any Subsidiary of the Issuer (including any existing Subsidiary and
any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Equity Interests or Indebtedness of, or owns
or holds any Lien on, any property of, the Issuer or any Subsidiary
of the Issuer (other than any Subsidiary of the Subsidiary to be so
designated); provided that (a) any Unrestricted
Subsidiary must be an entity of which shares of the Capital Stock
or other equity interests (including partnership interests)
entitled to cast at least a majority of the votes that
29
may be cast by all shares or equity interests
having ordinary voting power for the election of directors or other
governing body are owned, directly or indirectly, by the Issuer,
(b) such designation complies with Section 4.04 and
(c) each of (I) the Subsidiary to be so designated and
(II) its Subsidiaries has not at the time of designation, and
does not thereafter, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of
the assets of the Issuer or any Restricted Subsidiary. The
Management Board may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that, immediately after
giving effect to such designation, no Default or Event of Default
shall have occurred and be continuing and either (A) the Debt
to Adjusted EBITDA Ratio would be at least 6.75 to 1.00 or
(B) the Debt to Adjusted EBITDA Ratio would be less than
immediately prior to such designation, in each case on a pro forma
basis taking into account such designation. Any such
designation by the Management Board shall be notified by the Issuer
to the Trustee by promptly filing with the Trustee a copy of the
board resolution giving effect to such designation and an
Officers’ Certificate certifying that such designation
complied with the foregoing provisions.
“ U.S. Government
Obligations ” means securities that are:
(1)
direct obligations of the United
States of America for the timely payment of which is full faith and
credit is pledged, or
(2)
obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America,
which, in each case, are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to
any such U.S. Government Obligations or a specific payment of
principal of or interest on any such U.S. Government Obligations
held by such custodian for the account of the holder of such
depository receipt; provided that (except as required by
law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S.
Government Obligations or the specific payment of principal of or
interest on the U.S. Government Obligations evidenced by such
depositary receipt.
“ Voting Stock ”
of any Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote in the election of the
Management Board of such Person.
“ Weighted Average Life to
Maturity ” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing:
(1)
the sum of the products obtained by
multiplying (a) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the
Indebtedness, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of
such payment; by
(2)
the then outstanding principal
amount of such Indebtedness.
“ Wholly Owned Restricted
Subsidiary ” is any Wholly Owned Subsidiary that is a
Restricted Subsidiary.
30
“ Wholly Owned
Subsidiary ” of any Person means a Subsidiary of such
Person, 100% of the outstanding Capital Stock or other ownership
interests of which (other than directors’ qualifying shares
or nominee or other similar shares required pursuant to applicable
law) shall at the time be owned by such Person or by one or more
Wholly Owned Subsidiaries of such Person or by such Person and one
or more Wholly Owned Subsidiaries of such Person.
|
Term
|
|
|
Defined in
Section
|
|
“ Acceptable Commitment
”
|
|
4.06
|
|
“ Additional Amounts
”
|
|
4.18
|
|
“ Affiliate Transaction
”
|
|
4.07
|
|
“ Appendix ”
|
|
Preamble
|
|
“ Asset Sale Offer
”
|
|
4.06(b)
|
|
“ Bankruptcy Law ”
|
|
6.01
|
|
“ Base Currency ”
|
|
13.17
|
|
“ Calculation Agent
”
|
|
Exhibit A
|
|
“ Change of Control Offer
”
|
|
4.08(a)
|
|
“ Change of Control Payment
”
|
|
4.08(b)
|
|
“ Clearstream ”
|
|
Appendix A
|
|
“ Custodian ”
|
|
6.01
|
|
“ Definitive Notes
”
|
|
Appendix A
|
|
“ Depository ”
|
|
Appendix A
|
|
“ Euroclear ”
|
|
2.04
|
|
“ Event of Default
”
|
|
6.01
|
|
“ Excess Proceeds
”
|
|
4.06(b)
|
|
“ Exchange Notes ”
|
|
Preamble
|
|
“ Exchange Offer Registration
Statement ”
|
|
Appendix A
|
|
“ Global Securities Legend
”
|
|
Appendix A
|
|
“ Guaranteed Obligations
”
|
|
11.01(d)
|
|
“ IAI ”
|
|
Appendix A
|
|
“ incorporated provision
”
|
|
13.01
|
|
“ Initial Notes ”
|
|
Appendix A
|
|
“ Initial Purchasers
”
|
|
Preamble
|
|
“ Judgment Currency
”
|
|
13.17
|
|
“ NSS-8 Asset Sale
”
|
|
4.17
|
|
“ Offer Period ”
|
|
4.06(d)
|
|
“ Original Notes ”
|
|
Preamble
|
|
“ Paying Agent ”
|
|
2.04
|
|
“ protected purchaser
”
|
|
2.08
|
|
“ Purchase Agreement
”
|
|
Appendix A
|
|
“ QIB ”
|
|
Appendix A
|
|
“ Refinancing Indebtedness
”
|
|
4.03(c)
|
|
“ Refunding Capital Stock
”
|
|
4.04(c)
|
|
“ Registration Exchange Offer
”
|
|
Appendix A
|
|
“ Registrar ”
|
|
Appendix A
|
|
“ Registration Rights Agreement
”
|
|
2.04
|
|
“ Regulation S
”
|
|
Appendix A
|
|
“ Regulation S Securities
”
|
|
Appendix A
|
|
“ Relevant Taxing Jurisdiction
”
|
|
4.18
|
31
|
Term
|
|
|
Defined in
Section
|
|
“ Restricted Payment
”
|
|
4.04(a)
|
|
“ Restricted Period
”
|
|
Appendix A
|
|
“ Restricted Securities Legend
”
|
|
Appendix A
|
|
“ Retired Capital Stock
”
|
|
4.04(c)
|
|
“ Rule 144A ”
|
|
Appendix A
|
|
“ Rule 144A Notes
”
|
|
Appendix A
|
|
“ Rule 501 ”
|
|
Appendix A
|
|
“ Securities Custodian
”
|
|
Appendix A
|
|
“ Shelf Registration Statement
”
|
|
Appendix A
|
|
“ Successor Company
”
|
|
5.01(a)
|
|
“ Successor Guarantor
”
|
|
5.02
|
|
“ Taxes ”
|
|
4.18
|
|
“ Transfer Restricted Notes
”
|
|
Appendix A
|
|
“ Unrestricted Definitive Note
”
|
|
Appendix A
|
Section 1.03
Incorporation by Reference of
Trust Indenture Act . This Indenture incorporates by reference
certain provisions of the TIA. The following TIA terms have
the following meanings:
“ Commission ”
means the Securities and Exchange Commission.
“ indenture securities
” means the Notes and the Guarantees.
“ obligor ” on
the indenture securities means the Issuer, the Guarantors and any
other obligor on the Notes.
All other TIA terms used in this
Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by the Commission have the meanings
assigned to them by such definitions.
Section 1.04
Rules of Construction
. Unless the context
otherwise requires:
(a)
a term has the meaning assigned to
it;
(b)
an accounting term not otherwise
defined has the meaning assigned to it in accordance with
GAAP;
(c)
“ or ” is not
exclusive;
(d)
“ including ”
means including without limitation;
(e)
words in the singular include the
plural and words in the plural include the singular;
(f)
unsecured Indebtedness shall not be
deemed to be subordinate or junior to Secured Indebtedness merely
by virtue of its nature as unsecured Indebtedness;
(g)
the principal amount of any
non-interest bearing or other discount security at any date shall
be the principal amount thereof that would be shown on a balance
sheet of the issuer dated such date prepared in accordance with
GAAP;
32
(h)
the principal amount of any
Preferred Stock shall be (i) the maximum liquidation value of such
Preferred Stock or (ii) the maximum mandatory redemption or
mandatory repurchase price with respect to such Preferred Stock,
whichever is greater;
(i)
unless otherwise specified herein,
all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be
prepared in accordance with GAAP;
(j)
“ $ ” and “
U.S. Dollars ” each refer to United States dollars, or
such other money of the United States of America that at the time
of payment is legal tender for payment of public and private debts;
and
(k)
whenever in this Indenture there is
mentioned, in any context, principal, interest or any other amount
payable under or with respect to any Notes, such mention shall be
deemed to include mention of the payment of additional interest, to
the extent that, in such context, additional interest is, was or
would be payable in respect thereof.
Section 2.01
Amount of Notes; Issuable in
Series . The
aggregate principal amount of Original Notes which may be
authenticated and delivered under this Indenture on the Issue Date
is $160,000,000 aggregate principal amount of Notes. The
Notes may be issued in one or more series. All Notes of any
one series shall be substantially identical except as to
denomination.
The Issuer may
from time to time after the Issue Date issue Additional Notes under
this Indenture in an unlimited principal amount, so long as (i) the
Incurrence of the Indebtedness represented by such Additional Notes
is at such time permitted by Section 4.03 and (ii) such Additional
Notes are issued in compliance with the other applicable provisions
of this Indenture. With respect to any Additional Notes
issued after the Issue Date (except for Notes authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09, 2.10,
3.03(c), 4.06(g) or 4.08(c) or the Appendix), there shall be (a)
established in or pursuant to a resolution of the Management Board
and (b) (i) set forth or determined in the manner provided in an
Officers’ Certificate or (ii) established in one or more
indentures supplemental hereto, prior to the issuance of such
Additional Notes:
(1)
whether such Additional Notes shall
be issued as part of a new or existing series of Notes and the
title of such Additional Notes (which shall distinguish the
Additional Notes of the series from Notes of any other
series);
(2)
the aggregate principal amount of
such Additional Notes which may be authenticated and delivered
under this Indenture,
(3)
the issue price and issuance date of
such Additional Notes, including the date from which interest on
such Additional Notes shall accrue;
(4)
if applicable, that such Additional
Notes shall be issuable in whole or in part in the form of one or
more Global Notes and, in such case, the respective depositaries
for such Global Notes, the form of any legend or legends which
shall be borne by such Global Notes in addition to or in lieu of
those set forth in Exhibit A hereto and any circumstances in
addition to or in lieu of those set forth in Section 2.2 of the
Appendix in which any such Global Notes may be exchanged in whole
or in part for Additional Notes registered, or any transfer of such
Global
33
Notes in whole or in part may be
registered, in the name or names of Persons other than the
depositary for such Global Notes or a nominee thereof;
and
(5)
if applicable, that such Additional
Notes that are not Transfer Restricted Notes shall not be issued in
the form of Initial Notes as set forth in Exhibit A, but shall be
issued in the form of Exchange Notes as set forth in Exhibit
B.
If any of the terms of any
Additional Notes are established by action taken pursuant to a
resolution of the Management Board, a copy of an appropriate record
of such action shall be certified by the Secretary or any Assistant
Secretary of the Issuer and delivered to the Trustee at or prior to
the delivery of the Officers’ Certificate or the indenture
supplemental hereto setting forth the terms of the Additional
Notes.
Section 2.02
Form and Dating
. Provisions relating to the
Initial Notes and the Exchange Notes are set forth in the Appendix,
which is hereby incorporated in and expressly made a part of this
Indenture. (i) The Initial Notes and the Trustee’s
certificate of authentication and (ii) any Additional Notes (if
issued as Transfer Restricted Notes) and the Trustee’s
certificate of authentication shall each be substantially in the
form of Exhibit A hereto, which is hereby incorporated in and
expressly made a part of this Indenture. (i) The
Exchange Notes and the Trustee’s certificate of
authentication and (ii) any Additional Notes issued other than as
Transfer Restricted Notes and the Trustee’s certificate of
authentication shall each be substantially in the form of Exhibit B
hereto, which is hereby incorporated in and expressly made a part
of this Indenture. The Notes may have notations, legends or
endorsements required by law, stock exchange rule, agreements to
which the Issuer or any Guarantor, if applicable, is subject, if
any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Issuer). Each Note
shall be dated the date of its authentication. The Notes
shall be issuable only in registered form without interest coupons
and only in denominations of $5,000 and integral multiples of
$1,000 in excess thereof.
Section 2.03
Execution and
Authentication .
The Trustee shall authenticate and make available for delivery upon
a written order of the Issuer signed by two Officers or an
authorized representative (a) Original Notes for original issue on
the date hereof in an aggregate principal amount of $160,000,000,
(b) subject to the terms of this Indenture, Additional Notes in an
aggregate principal amount to be determined at the time of issuance
and specified therein and (c) the Exchange Notes for issue in a
Registered Exchange Offer pursuant to the Registration Rights
Agreement for a like principal amount of Initial Notes exchanged
pursuant thereto or otherwise pursuant to an effective registration
statement under the Securities Act. Such order shall specify
the amount of the Notes to be authenticated, the date on which the
original issue of Notes is to be authenticated and whether the
Notes are to be Initial Notes or Exchange Notes.
Notwithstanding anything to the contrary in this Indenture or the
Appendix, any issuance of Additional Notes after the Issue Date
shall be in a principal amount of at least $5,000 and integral
multiples of $1,000 in excess thereof, whether such Additional
Notes are of the same or a different series than the Original
Notes.
Two Officers or an authorized
representative shall sign the Notes for the Issuer by manual or
facsimile signature.
If an Officer whose signature is on
a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an
authorized signatory of the Trustee manually signs the certificate
of authentication on the Note. The signature shall be
conclusive evidence that the Note has been authenticated under this
Indenture.
34
The Trustee may appoint one or more
authenticating agents reasonably acceptable to the Issuer to
authenticate the Notes. Any such appointment shall be
evidenced by an instrument signed by a Trust Officer, a copy of
which shall be furnished to the Issuer. Unless limited by the
terms of such appointment, an authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as
any Registrar, Paying Agent or agent for service of notices and
demands.
The Trustee is hereby authorized to
enter into a letter of representations with the Depository in the
form provided by the Issuer and to act in accordance with such
letter.
Section 2.04
Registrar, Paying Agent and
Calculation Agent .
(a) The Issuer shall maintain (i) an office or agency where
Notes may be presented for registration of transfer or for exchange
(the “ Registrar ”) and (ii) an office or
agency in the Borough of Manhattan, the City of New York, the State
of New York where Notes may be presented for payment (the “
Paying Agent ”). The Registrar shall keep a
register of the Notes and of their transfer and exchange. The
Issuer may have one or more co-registrars and one or more
additional paying agents. The term “Registrar”
includes any co-registrars. The term “Paying
Agent” includes any additional paying agents. In
addition, the Issuer shall appoint a Calculation Agent to determine
the interest rate on the Notes as provided in Section 1 of the
Notes. The Issuer initially appoints the Trustee as
(i) Registrar, Paying Agent and Calculation Agent in
connection with the Notes and (ii) the Securities Custodian
with respect to the Global Notes.
(b)
The Issuer shall enter into an
appropriate agency agreement with any Registrar, Paying Agent or
Calculation Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall
implement the provisions of this Indenture that relate to such
agent. The Issuer shall notify the Trustee of the name and
address of any such agent. If the Issuer fails to maintain a
Registrar, Paying Agent or Calculation Agent, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.07. The Issuer or any of its
domestically organized Wholly Owned Subsidiaries may act as Paying
Agent, Registrar or Calculation Agent.
(c)
The Issuer may remove any
Registrar, Paying Agent or Calculation Agent upon written notice to
such Registrar, Paying Agent or Calculation Agent and to the
Trustee; provided , however , that no such removal
shall become effective until (i) if applicable, acceptance of an
appointment by a successor as evidenced by an appropriate agreement
entered into by the Issuer and such successor Registrar, Paying
Agent or Calculation Agent, as the case may be, and delivered to
the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as Registrar, Paying Agent or Calculation Agent until
the appointment of a successor in accordance with clause (i)
above. The Registrar, Paying Agent or Calculation Agent may
resign at any time upon written notice to the Issuer and the
Trustee; provided, however , that the Trustee may resign as
Paying Agent, Registrar or Calculation Agent only if the Trustee
also resigns as Trustee in accordance with Section
7.08.
Section 2.05
Paying Agent to Hold Money in
Trust . Prior to
each due date of the principal of and interest on any Note, the
Issuer shall deposit with each Paying Agent (or if the Issuer or a
Wholly Owned Subsidiary is acting as Paying Agent, segregate and
hold in trust for the benefit of the Persons entitled thereto) a
sum sufficient to pay such principal and interest when so becoming
due. The Issuer shall require each Paying Agent (other than
the Trustee) to agree in writing that a Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by a
Paying Agent for the payment of principal of and interest on the
Notes, and shall notify the Trustee of any default by the Issuer in
making any such payment. If the Issuer or a Wholly Owned
Subsidiary of the Issuer acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it in trust for the
benefit of the Persons entitled thereto. The Issuer at any
time may require a Paying Agent to pay all money held by it to the
Trustee and
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to account for any funds disbursed by such
Paying Agent. Upon complying with this Section, a Paying
Agent shall have no further liability for the money delivered to
the Trustee.
Section 2.06
Holder Lists
. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders.
If the Trustee is not the Registrar, the Issuer shall furnish, or
cause the Registrar to furnish, to the Trustee, in writing at least
five Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders.
Section 2.07
Transfer and Exchange
. The Notes shall be issued in
registered form and shall be transferable only upon the surrender
of a Note for registration of transfer and in compliance with the
Appendix. When a Note is presented to the Registrar with a
request to register a transfer, the Registrar shall register the
transfer as requested if its requirements therefor are met.
When Notes are presented to the Registrar with a request to
exchange them for an equal principal amount of Notes of other
denominations, the Registrar shall make the exchange as requested
if the same requirements are met. To permit registration of
transfers and exchanges, the Issuer shall execute and the Trustee
shall authenticate Notes at the Registrar’s request.
The Issuer may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with
any transfer or exchange pursuant to this Section. The Issuer
shall not be required to make, and the Registrar need not register,
transfers or exchanges of Notes selected for redemption (except, in
the case of Notes to be redeemed in part, the portion thereof not
to be redeemed) or of any Notes for a period of 15 days before a
selection of Notes to be redeemed.
Prior to the due presentation for
registration of transfer of any Notes, the Issuer, the Guarantors,
the Trustee, each Paying Agent and the Registrar may deem and treat
the Person in whose name a Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of
and interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the
Issuer, any Guarantor (if applicable), the Trustee, a Paying Agent
or the Registrar shall be affected by notice to the
contrary.
Any Holder of a beneficial interest
in a Global Note shall, by acceptance of such beneficial interest,
agree that transfers of beneficial interests in such Global Note
may be effected only through a book-entry system maintained by (a)
the Holder of such Global Note (or its agent) or (b) any Holder of
a beneficial interest in such Global Note, and that ownership of a
beneficial interest in such Global Note shall be required to be
reflected in a book entry.
All Notes issued upon any transfer
or exchange pursuant to the terms of this Indenture shall evidence
the same debt and shall be entitled to the same benefits under this
Indenture as the Notes surrendered upon such transfer or
exchange.
Section 2.08
Replacement Notes
. If a mutilated Note is
surrendered to the Registrar or if the Holder of a Note claims that
the Note has been lost, destroyed or wrongfully taken, the Issuer
shall issue and the Trustee shall authenticate a replacement Note
if the requirements of Section 8-405 of the Uniform Commercial Code
are met, such that the Holder (a) satisfies the Issuer or the
Trustee within a reasonabl
