ORBIMAGE INC.
AND
HSBC BANK USA
as Trustee
_______________________
Indenture
Dated as of November ____, 2003
_______________________
$54,000,000
Senior Subordinated Notes Due 2008
_______________________
Reconciliation and tie between Trust Indenture Act
of 1939, as amended, and Indenture, dated as of December
___, 2003
Trust Indenture
Indenture Section
Act
Section
310(a)(1) 7.11
(a)(2) 7.11
(a)(5) 7.11
(b) 7.8, 7.11
311(a) 7.12
(b) 7.12
312(a) 2.5
(c) n/a
313(a) 7.6
(b) 7.6
(c) 7.6, 4.8
(d) 7.6
314(a) 4.8
(a)(4) 4.6
(c)(1) 11.5
(c)(2) 11.5
(e) 11.5
315(a) 7.1(c)
(b) 7.5
(c) 7.1(b)
(d) 6.5, 7.2
(e) 6.11
316(a)* 2.9
(a)(1)(A) 6.2, 6.5
(a)(1)(B) 6.4
(b) 6.7
(c) 11.7
317(a)(1) 6.8
(a)(2) 6.9
(b) 2.4
318(a) 11.1
*(last sentence)
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of this Indenture.
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION 3
SECTION 1.1 DEFINITIONS. 3
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. 3
SECTION 1.3 RULES OF CONSTRUCTION. 3
ARTICLE II. THE NOTES 3
SECTION 2.1 FORM AND DATING. 3
SECTION 2.2 EXECUTION AND AUTHENTICATION. 3
SECTION 2.3 TRUSTEE, REGISTRAR AND PAYING AGENT. 3
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST. 3
SECTION 2.5 HOLDER LISTS. 3
SECTION 2.6 TRANSFER AND EXCHANGE. 3
SECTION 2.7 REPLACEMENT NOTES. 3
SECTION 2.8 OUTSTANDING NOTES. 3
SECTION 2.9 TREASURY NOTES. 3
SECTION 2.10 TEMPORARY NOTES. 3
SECTION 2.11 CANCELLATION. 3
SECTION 2.12 DEFAULTED INTEREST. 3
SECTION 2.13 PERSONS DEEMED OWNERS. 3
SECTION 2.14 CUSIP NUMBERS. 3
ARTICLE III. REDEMPTION AND
PREPAYMENT 3
SECTION 3.1 NOTICES TO TRUSTEE. 3
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED OR REPURCHASED. 3
SECTION 3.3 NOTICE OF REDEMPTION. 3
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION. 3
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. 3
SECTION 3.6 NOTES REDEEMED IN PART. 3
SECTION 3.7 OPTIONAL REDEMPTION. 3
SECTION 3.8 MANDATORY REDEMPTION. 3
ARTICLE IV. 3
COVENANTS 3
SECTION 4.1 PAYMENT OF NOTES. 3
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY. 3
SECTION 4.3 CORPORATE EXISTENCE. 3
SECTION 4.4 PAYMENT OF TAXES AND OTHER CLAIMS. 3
SECTION 4.5 MAINTENANCE OF PROPERTIES AND INSURANCE. 3
SECTION 4.6 COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT. 3
SECTION 4.7 COMPLIANCE WITH LAWS. 3
SECTION 4.8 REPORTS. 3
SECTION 4.9 WAIVER OF STAY, EXTENSION OR USURY LAWS. 3
SECTION 4.10 LIMITATION ON RESTRICTED PAYMENTS. 3
SECTION 4.11 LIMITATION ON TRANSACTIONS WITH AFFILIATES. 3
SECTION 4.12 LIMITATION ON INCURRENCE OF
INDEBTEDNESS OR ISSUANCE OF DISQUALIFIED
STOCK. 3
SECTION 4.13 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES. 3
SECTION 4.14 LIMITATION ON CHANGE OF CONTROL. 3
SECTION 4.15 LIMITATION ON SALES OF ASSETS AND SUBSIDIARY INTERESTS. 3
SECTION 4.16 LIMITATION ON LIENS. 3
SECTION 4.17 BUSINESS ACTIVITIES. 3
SECTION 4.18 LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS. 3
SECTION 4.19 LIMITATION ON SALE OF CAPITAL STOCK OF SUBSIDIARIES. 3
SECTION 4.20 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES. 3
SECTION 4.21 LIMITATIONS ON CAPITAL EXPENDITURES. 3
SECTION 4.22 SUBSIDIARY GUARANTEES. 3
SECTION 4.23 LIMITATION ON PAYMENTS FOR CONSENT. 3
ARTICLE V. MERGER, CONSOLIDATION OR
SALE OF ASSETS 3
SECTION 5.1 MERGERS, CONSOLIDATIONS AND SALES OF ASSETS. 3
SECTION 5.2 SUCCESSOR SUBSTITUTED. 3
ARTICLE VI. EVENTS OF DEFAULT AND
REMEDIES 3
SECTION 6.1 EVENTS OF DEFAULT. 3
SECTION 6.2 ACCELERATION. 3
SECTION 6.3 OTHER REMEDIES. 3
SECTION 6.4 WAIVER OF PAST DEFAULTS. 3
SECTION 6.5 CONTROL BY MAJORITY. 3
SECTION 6.6 LIMITATION ON SUITS. 3
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. 3
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. 3
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM. 3
SECTION 6.10 PRIORITIES. 3
SECTION 6.11 UNDERTAKING FOR COSTS. 3
ARTICLE VII. TRUSTEE 3
SECTION 7.1 DUTIES OF TRUSTEE. 3
SECTION 7.2 RIGHTS OF TRUSTEE. 3
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE AND AGENTS. 3
SECTION 7.4 TRUSTEE'S DISCLAIMER. 3
SECTION 7.5 NOTICE OF DEFAULT. 3
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. 3
SECTION 7.7 COMPENSATION AND INDEMNITY. 3
SECTION 7.8 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. 3
SECTION 7.9 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. 3
SECTION 7.10 SUCCESSOR TRUSTEE BY MERGER, ETC. 3
SECTION 7.11 TRUSTEE REQUIRED; ELIGIBILITY; DISQUALIFICATION. 3
SECTION 7.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. 3
ARTICLE VIII. DEFEASANCE AND
SATISFACTION AND DISCHARGE 3
SECTION 8.1 LEGAL DEFEASANCE AND COVENANT DEFEASANCE. 3
SECTION 8.2 SATISFACTION AND DISCHARGE. 3
SECTION 8.3 SURVIVAL OF CERTAIN OBLIGATIONS. 3
SECTION 8.4 ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE. 3
SECTION 8.5 APPLICATION OF TRUST MONEYS AND GOVERNMENT SECURITIES. 3
SECTION 8.6 REPAYMENT TO THE COMPANY; UNCLAIMED MONEY. 3
SECTION 8.7 REINSTATEMENT. 3
ARTICLE IX. AMENDMENTS, SUPPLEMENTS
AND WAIVERS 3
SECTION 9.1 WITHOUT CONSENT OF HOLDERS. 3
SECTION 9.2 WITH CONSENT OF HOLDERS. 3
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES. 3
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES. 3
SECTION 9.5 COMPLIANCE WITH TRUST INDENTURE ACT. 3
SECTION 9.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. 3
SECTION 9.7 REVOCATION AND EFFECT OF CONSENTS. 3
ARTICLE X. SUBORDINATION 3
SECTION 10.1 AGREEMENT TO SUBORDINATE. 3
SECTION 10.2 LIQUIDATION; DISSOLUTION; BANKRUPTCY. 3
SECTION 10.3 DEFAULT ON SENIOR INDEBTEDNESS. 3
SECTION 10.4 ACCELERATION OF SECURITIES. 3
SECTION 10.5 WHEN DISTRIBUTION MUST BE PAID OVER. 3
SECTION 10.6 NOTICE BY COMPANY. 3
SECTION 10.7 SUBROGATION. 3
SECTION 10.8 RELATIVE RIGHTS. 3
SECTION 10.9 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. 3
SECTION 10.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE. 3
SECTION 10.11 RIGHTS OF TRUSTEE AND PAYING AGENT. 3
SECTION 10.12 AUTHORIZATION TO EFFECT SUBORDINATION. 3
ARTICLE XI. MISCELLANEOUS 3
SECTION 11.1 TRUST INDENTURE ACT CONTROLS. 3
SECTION 11.2 NOTICES TO COMPANY AND TRUSTEE. 3
SECTION 11.3 NOTICES TO HOLDERS. 3
SECTION 11.4 TRUSTEE, PAYING AGENT AND REGISTRAR PROCEDURES. 3
SECTION 11.5 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES. 3
SECTION 11.6 COMPLIANCE CERTIFICATES AND OPINIONS. 3
SECTION 11.7 FORM OF DOCUMENTS DELIVERED TO TRUSTEE. 3
SECTION 11.8 ACTS OF HOLDERS; REGISTERED HOLDERS; RECORD DATES. 3
SECTION 11.9 SUCCESSORS AND ASSIGNS. 3
SECTION 11.10 SEVERABILITY. 3
SECTION 11.11 BENEFITS OF INDENTURE. 3
SECTION 11.12 GOVERNING LAW; JURISDICTION. 3
SECTION 11.13 LEGAL HOLIDAYS. 3
SECTION 11.14 NO RECOURSE AGAINST OTHERS; LIMITATION ON LIABILITY. 3
SECTION 11.15 COUNTERPARTS. 3
INDENTURE, dated as of November ___,
2003, by and between ORBIMAGE Inc. (the
"Company" or "ORBIMAGE") with its principal
office at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx
00000, xxx XXXX Xxxx XXX a New York banking
corporation and trust company, as trustee (the
"Trustee").
RECITALS:
WHEREAS, the Company has duly
authorized the issuance of $54,000,000 aggregate
principal amount of its Senior Subordinated Notes
Due 2008 (the "Notes") of substantially the tenor
and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make
the Notes, when executed by the Company and
authenticated and delivered hereunder, duly issued
by the Company, the valid obligations of the
Company, and to make this Indenture a valid and
binding agreement of Company, in accordance with
its terms, have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH: for and in consideration of the
premises and the purchase of the Notes by the
Holders (as hereinafter defined) thereof, each party
hereto hereby mutually covenants and agrees, for
the equal and proportionate benefit of all Holders of
the Notes, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 Definitions.
"Acceleration Notice" has the meaning set
forth in Section 6.2(a).
"Acquired Debt" means, with respect to any
specified Person:
(a) 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, including,
without limitation, 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; and
(b) Indebtedness secured by a
Lien encumbering any asset acquired by such
specified Person.
"Act" has the meaning set forth in Section
11.8(a).
"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
Equity Interests, by agreement or otherwise;
provided that beneficial ownership of 10% or more
of the Voting Equity Interests (or the equivalent) of
a Person shall be deemed to be control.
"Affiliate Transaction" has the meaning set
forth in Section 4.11.
"Agent Member" means members of, or
participants in, the Depositary.
"Asset Sale" means:
(a) the sale, lease, license,
conveyance or other disposition of any assets or
rights (including, without limitation, by way of a
Sale and Leaseback Transaction or similar
arrangement) by the Company or a Restricted
Subsidiary of the Company (a "disposition"),
provided that the disposition of all or substantially
all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by
Sections 4.14 and/or 5.1 of this Indenture, and not
by Section 4.15; and
(b) except to the extent excluded
by clause (i) above, the issuance or disposition by
the Company or any of its Restricted Subsidiaries of
Equity Interests of the Company's Restricted
Subsidiaries;
in the case of either clause (i) or (ii) above, whether
in a single transaction or a series of related
transactions: (a) that has a Fair Market Value in
excess of $2.5 million; or (b) for net proceeds in
excess of $2.5 million.
Notwithstanding the foregoing, Asset Sales
will not be deemed to include: (i) sales of imagery,
imagery distribution or satellite tasking rights,
software or rights in software for processing and
storing imagery, license grants to imagery value-
added resellers or distributors and other associated
rights, and other sales of services, products or
inventory, in each case, in the ordinary course of
business and consistent with industry practice; (ii) a
transfer of assets by the Company to any Guarantor
or by a Restricted Subsidiary of the Company to the
Company; (iii) an issuance of Equity Interests by a
Restricted Subsidiary of the Company to the
Company or to a Guarantor; (iv) an exchange of an
asset held by the Company or a Restricted
Subsidiary of the Company for an asset of a third
party upon a determination by the disinterested
members of the Board of Directors of the Company
made in good faith (evidenced by a resolution
approved by a majority of the disinterested
members of the Board of Directors of the Company
and set forth in an Officers' Certificate delivered to
the Trustee) that the asset received by the Company
or a Restricted Subsidiary of the Company in such
exchange (x) is a Related Asset, (y) has a Fair
Market Value at least equal to the fair market value
of the asset transferred by the Company or such
Restricted Subsidiary of the Company and (z) is
usable in the ordinary course of the Company's
business to at least the same extent as the asset
transferred by the Company or such Restricted
Subsidiary; and (v) sales or dispositions of
damaged, worn out or other obsolete property in the
ordinary course of business so long as such property
is no longer necessary for the proper conduct of the
business of the Company or any of its Restricted
Subsidiaries.
"Asset Sale Offer" has the meaning set forth
in Section 4.15(a).
"Asset Sale Offer Trigger Date" has the
meaning set forth in Section 4.15(a).
"Attributable Debt" means, with respect to
any Sale and Leaseback Transaction, the present
value at the time of determination (discounted at a
rate consistent with accounting guidelines, as
determined in good faith by the Company) of the
payments during the remaining term of the lease
(including any period for which such lease has been
extended or may, at the option of the lessor, be
extended) or until the earliest date on which the
lessee may terminate such lease without penalty or
upon payment of a penalty (in which case the rental
payments shall include such penalty, after excluding
all amounts required to be paid on account of
maintenance and repairs, insurance, taxes,
assessments, water, utilities and similar charges).
"Bankruptcy Code" means title 11, United
States Code, as amended from time to time.
"Business Assets" means any hardware,
software, technology, Intellectual Property, or other
rights in or assets (or, in the case of clause (vi),
inventory) relating to (i) the remote imaging
satellites owned and/or operated by ORBIMAGE on
the Issue Date, (ii) the lease for the OrbView-2
satellite held by ORBIMAGE, (iii) the OrbView
Satellite, (iv) any other remote imaging satellites
developed, constructed or acquired by
ORBIMAGE, (v) the ground segment (or any
components thereof) related to the operation of, and
processing of data from, the satellites described in
clauses (i)-(iv) above, and (vi) the Company's
imagery catalogue and archive.
"Business Day" means any day other than a
Saturday, Sunday or day on which commercial
banking institutions in The City of New York, New
York are authorized or obligated by law or
executive order to close.
"Capital Expenditures" means, for any
period, expenditures (including the aggregate
amount of Capital Lease Obligations incurred
during such period) made by the Company or any of
its Subsidiaries to acquire or construct fixed assets,
plant and equipment (including renewals,
improvements and replacements, but excluding
repairs) during such period computed in accordance
with GAAP; provided, however, that for the
purposes of Section 4.21, Capital Expenditures shall
include any acquisition of Business Assets.
"Capital 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
on a balance sheet in accordance with GAAP.
"Capital Stock" means: (i) in the case of a
corporation, corporate stock; (ii) in the case of an
association or business entity, any and all shares,
interests, participations, rights or other equivalents
(however designated) of corporate stock; (iii) in the
case of a partnership, partnership interests (whether
general or limited); and (iv) 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 Consideration" means any
consideration received from an Asset Sale in the
form of cash or Cash Equivalents, in either case in
U.S. dollars or freely convertible into U.S. dollars.
"Cash Equivalents" means:
(a) United States dollars;
(b) Government Securities;
(c) certificates of deposit and
euro dollar time deposits with maturities of six
months or less from the date of acquisition,
bankers' acceptances or money market deposit
accounts with maturities not exceeding six months
and overnight bank deposits, in each case with any
Eligible Institution;
(d) repurchase obligations with a
term of not more than seven days for underlying
securities of the types described in clauses (ii) and
(iii) above entered into with any Eligible Institution;
(e) commercial paper having the
highest rating obtainable from Xxxxx'x or S&P and
in each case maturing within six months after the
date of acquisition; and
(f) mutual funds or other pooled
investment vehicles investing solely in investments
of the types described in (a) through (e) above.
"Change of Control" means:
(a) the direct or indirect
acquisition of beneficial ownership of Voting
Equity Interests of the Company by any Person or
group of Persons acting in concert, in an amount
greater than the amount of Voting Equity Interests
held contemporaneously by the current holders of a
majority of the Voting Equity Interests of the
Company.
(b) the acquisition of the
Company, or the sale, lease, transfer, conveyance or
other disposition, in one transaction or a series of
related transactions, directly or indirectly, including
through a liquidation or dissolution, of all or
substantially all of the assets of the Company and
its Restricted Subsidiaries or the combination of the
Company or all or substantially all its assets with
another Person (other than any such transfer to any
Wholly Owned Restricted Subsidiary of the
Company), unless the acquiring or surviving Person
shall be a corporation more than 50% of the
combined voting power of which corporation's then
outstanding Voting Equity Interests, after giving
effect to such acquisition or combination, are
owned, immediately after such acquisition or
combination, by the owners of the Voting Equity
Interests of the Company outstanding immediately
prior to such acquisition or combination;
(c) the adoption of a plan
relating to the liquidation or dissolution of the
Company (other than any such liquidation or
dissolution to or for the benefit of any Wholly
Owned Restricted Subsidiary of the Company);
(d) the revocation of any License
which revocation is not cured within thirty (30)
days of the occurrence thereof or such later date
when all applicable appeals have been finally
determined, if during such appeal period the
Company has received regulatory approval to
continue operations under the License pending the
outcome of such appeals; or
(e) during any period of two
consecutive years, individuals who at the beginning
of such period constituted the Board of Directors of
the Company (together with any new directors
whose election by such Board of Directors or whose
nomination for election by the shareholders of the
Company was approved by a vote of a majority of
the directors of the Company then still in office who
were either directors at the beginning of such period
or whose election or nomination for election was
previously so approved), cease for any reason to
constitute a majority of the Board of Directors of
the Company then in office.
"Change of Control Date" has the meaning set forth in
Section 4.14(b).
"Change of Control Offer" has the meaning
set forth in Section 4.14(a).
"Change of Control Payment" has the
meaning set forth in Section 4.14(a).
"Change of Control Payment Date" has the
meaning set forth in Section 4.14(b).
"Checkout" means that there has been a
determination by the Company (evidenced by a
resolution approved by a majority of the
disinterested members of the Board of Directors of
the Company as set forth in an Officer's Certificate
delivered to the _______________ and the Trustee
(the "Checkout Notice")) that (i) the OrbView
Satellite has achieved a performance capability such
that it can be pursuant to the terms of the
Procurement Agreement, and (ii) there is no further
possibility of payment under the Initial Insurance
Policy or the Continuing Insurance Policy because
the OrbView Satellite failed to achieve such
performance capability prior to the Company's
acceptance of the OrbView Satellite pursuant to the
terms of the Procurement Agreement.
"Commission" means the U.S. Securities
and Exchange Commission or any successor body.
"Common Stock" means the common stock,
$.01 par value, of the Company.
"Consolidated Net Worth" means, with
respect to any Person as of any date:
(a) the consolidated equity of the
equity holders of such Person and its consolidated
Restricted Subsidiaries as of such date; plus
(b) the respective amounts
reported on such Person's balance sheet as of such
date with respect to any series of preferred Equity
Interests (other than Disqualified Stock) that by its
terms is not entitled to the payment of dividends
unless such dividends may be declared and paid
only out of net earnings in respect of the year of
such declaration and payment, but only to the extent
of any cash received by such Person upon issuance
of such preferred stock; minus
(c) all write-ups (other than
write-ups resulting from foreign currency
translations and write-ups of tangible assets of a
going-concern business made within 12 months
after the acquisition of such business) subsequent to
the Issue Date in the book value of any asset owned
by such Person or a consolidated Subsidiary of such
Person; minus
(d) all investments as of such
date in unconsolidated Subsidiaries and in Persons
that are not Restricted Subsidiaries; minus
(e) all unamortized debt discount
and expense and unamortized deferred charges as of
such date.
"Continuing Insurance Policy" has the
meaning set forth in Section 4.5(c).
"Copyright" means (a) all copyrights arising
under the laws of the United States, any other
country or any political subdivision thereof,
whether registered or unregistered and whether
published or unpublished, all registrations and
recordings thereof, and all applications in
connection therewith, including all registrations,
recordings and applications in the United States
Copyright Office or in any foreign counterparts
thereof and (b) the right to obtain all renewals
thereof.
"Copyright Licenses" means any written
agreement naming the Company or any Guarantor
as licensor or licensee granting any right under any
Copyright, including the grant of rights to copy,
publicly perform, create derivative works,
manufacture, distribute, exploit and sell materials
derived from any Copyright.
"Corporate Trust Office" means, with
respect to the Trustee or any agent, the principal
corporate trust office of such Person.
"Covenant Defeasance" has the meaning set
forth in Section 8.1(c).
"Default" means any event that is, or with
the passage of time or the giving of notice, or both,
would be an Event of Default.
"Definitive Note" has the meaning set forth
in Section 2.6.
"Depository" means, with respect to the
Notes issuable or issued in whole or in part in the
form of one or more Global Notes, The Depository
Trust Company, for so long as it shall be a clearing
agency registered under the Exchange Act, or such
successor as the Company shall designate from time
to time in an Officers' Certificate delivered to the
Trustee.
"Disqualified Stock" means any Capital
Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it
is exchangeable, at the option of the holder thereof),
or upon the happening of any event: (i) matures or
is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise at the option of the
holder thereof; or (ii) is redeemable or is convertible
or exchangeable for Indebtedness at the option of
the holder thereof, in whole or in part, on or prior to
the date on which the Notes are repaid, redeemed or
retired in full.
"Eligible Institution" means a domestic
commercial banking institution that has combined
capital and surplus of not less than $500 million or
its equivalent in foreign currency, whose debt is
rated "A" or higher according to S&P or Moody's
at the time as of which any investment or rollover
therein is made.
"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).
"Event of Default" has the meaning
specified in Section 6.1.
"Exchange Act" means the Securities
Exchange Act of 1934, as amended (or any
successor act) and the rules and regulations
thereunder.
"Fair Market Value" means, with respect
to any asset, the sale value that would be obtained
in an arm's-length free market transaction, between
a willing seller and a willing buyer, neither of which
is under pressure or compulsion to complete the
transaction; provided that the Fair Market Value of
any such asset or assets shall be determined by the
Board of Directors of the Company, acting in good
faith and by unanimous resolution, and which
determination shall be evidenced by an Officers'
Certificate delivered to the Trustee.
"GAAP" means generally accepted
accounting principles set forth in the opinions and
pronouncements of the Accounting Principles
Board of the American Institute of Certified Public
Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in
such other statements by such other entity as have
been approved by a significant segment of the
accounting profession and which are in effect on the
Issue Date.
"Global Note" has the meaning set forth in
Section 2.1.
"Governmental Authority" means any
nation, sovereign or government, any state or other
political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to
government.
"Government Securities" means securities
that are direct obligations of, or obligations fully
guaranteed by, the United States of America for the
payment of which guarantee or obligations the full
faith and credit of the United States is pledged.
"Guarantee" or "guarantee" means a
guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of
business), direct or indirect, in any manner
(including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all
or any part of any Indebtedness.
"Guarantor" means any Subsidiary of the
Company that executes a Subsidiary Guarantee in
accordance with the provisions of this Indenture,
and its successors and assigns.
"Hedging Obligations" means, with respect
to any Person, the obligations of such Person under:
(i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements; (ii)
foreign currency hedge obligations; and (iii) other
agreements or arrangements designed to protect
such Person against fluctuations in interest and
foreign currency rates.
"Holder" means a Person in whose name a
Note is registered in the Note Register.
"Indebtedness" means, with respect to any
Person, any indebtedness of such Person, whether
or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement
agreements in respect thereof) or bankers'
acceptances or representing Capital Lease
Obligations or the balance deferred and unpaid of
the purchase price of any property or representing
any Hedging Obligations, except any such balance
that constitutes an accrued expense or trade payable
to the extent that any such accrued expense or trade
payable is not more than 90 days overdue or is
otherwise being contested in good faith by
appropriate proceedings promptly instituted and
diligently conducted, if and to the extent any of the
foregoing indebtedness (other than letters of credit
and Hedging Obligations) would appear as a
liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all
indebtedness of others secured by a Lien on any
asset of such Person (whether or not such
indebtedness is assumed by such Person and, in the
event such indebtedness is not assumed by, and is
otherwise non-recourse to, such Person, the amount
of such indebtedness shall be deemed to equal the
greater of book value or Fair Market Value of such
assets), all obligations to purchase, redeem, retire,
defease or otherwise acquire for value any
Disqualified Stock or any warrants, rights or options
to acquire such Disqualified Stock valued, in the
case of Disqualified Stock, at the greatest amount
payable in respect thereof on a liquidation (whether
voluntary or involuntary) plus accrued and unpaid
dividends, the liquidation value of any preferred
stock issued by Subsidiaries of such Person, plus
accrued and unpaid dividends, and, to the extent not
otherwise included, the Guarantee by such Person
of any indebtedness of any other Person; and
provided, that "Indebtedness" shall be calculated
without duplication and after elimination of
Intercompany Indebtedness.
"Indenture" means this instrument as
originally executed or as it may from time to time
be supplemented or amended by one or more
indentures supplemental hereto entered into
pursuant to the applicable provisions hereof.
"Independent Financial Advisor" means an
accounting, appraisal or investment banking firm of
nationally recognized standing that is, in the good
faith judgment of the Board of Directors of the
Company (evidenced by a resolution of the majority
of the Board of Directors of the Company as set
forth in an Officers' Certificate delivered to the
Trustee), qualified to perform the task for which it
has been engaged and is disinterested with respect
to the Company and its Affiliates.
"Initial Insurance Policy" means the
$51,000,000 combined risk insurance policy
purchased by the Company for insurance coverage
for combined risk of launch, satellite checkout and
on-orbit satellite operations on the OrbView
Satellite.
"Intercompany Indebtedness" has the
meaning set forth in Section 4.12(b).
"Interest Payment Date" means, with
respect to any installment of interest on the Notes,
June 30 and December 31 of each year.
"Investments" means, with respect to any
Person, all investments by such Person in other
Persons (including Affiliates) in the forms of direct
or indirect loans, guarantees, advances or capital
contributions (excluding commission, travel and
similar advances to officers and employees made in
the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness,
Equity Interests or other securities and all other
items that are or would be classified as investments
on a balance sheet prepared in accordance with
GAAP. Notwithstanding the foregoing,
Investments shall not include advance payments for
satellite capacity or imagery related services or
products in the ordinary course of business.
"Issue Date" means November __, 2003
the date on which the Notes are first authenticated
and delivered under this Indenture.
"Legal Defeasance" has the meaning set
forth in Section 8.1(b).
"License" means any Federal
Communications Commission license or
Department of Commerce license issued to the
Company relating to the operation of the OrbView
Satellite (including the Department of Commerce
license and the Federal Communications
Commission license currently owned by Orbital
relating to the operation of OrbView-2), in line with
the Company's current and planned commercial
operations, and any other existing or future license
issued to the Company or any of its Restricted
Subsidiaries relating to the operation of any existing
or future satellites of the Company or any of its
Restricted Subsidiaries, the revocation of which
would have a Material Adverse Effect.
"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise
perfected under applicable law (including any
conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and
any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"Material" means material in relation to the
business, operations, affairs, financial condition,
assets or properties of the Company and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material
adverse effect on (a) the business, operations,
affairs, financial condition, assets or properties of
the Company and its Subsidiaries taken as a whole,
whether or not arising from transactions in the
ordinary course of business, or (b) the ability of the
Company to perform its obligations under this
Indenture and the Notes, or (c) the validity or
enforceability of this Indenture or the Notes.
"Moody's" means Xxxxx'x Investors
Service, Inc. or its successors.
"Net Income" means, with respect to any
Person, the net income (or loss) of such Person,
determined in accordance with GAAP, excluding,
however,
(a) any gain (but not loss),
together with any related provision for taxes on
such gain (but not loss), realized in connection with:
(a) any sale of assets (including, without limitation,
dispositions pursuant to Sale and Leaseback
Transactions); or (b) the disposition of any
securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted
Subsidiaries; and
(b) any extraordinary or
nonrecurring gain (but not loss), together with any
related provision for taxes on such extraordinary or
nonrecurring gain (but not loss).
"Net Proceeds" means (a) with respect to
any Asset Sale, the aggregate cash proceeds
received by the Company or any of its Restricted
Subsidiaries in respect of such Asset Sale
(including, without limitation, any cash received
upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of the
direct costs relating to such Asset Sale (including,
without limitation, legal, accounting and investment
banking fees, and sales commissions) and any
relocation 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 and provided that
any such amount not so required to be paid for taxes
shall be deemed to constitute Net Proceeds at the
time such amount is not retained for such purpose),
amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the asset or
assets (including Equity Interests) that were the
subject of such Asset Sale and any reserve for
adjustment in respect of the sale price of such asset
or assets (including Equity Interests) established in
accordance with GAAP (provided that the amount
of any such reserve shall be deemed to constitute
Net Proceeds at the time such reserve shall have
been released or is not otherwise required to be
retained for such purpose) and (b) with respect to
any issuance or sale of Capital Stock, the proceeds
of such issuance or sale in the form of cash or Cash
Equivalents, including payments in respect of
deferred payment obligations (to the extent
corresponding to the principal, but not interest,
component thereof) when received in the form of
cash or Cash Equivalents (except to the extent such
obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary of the
Company) and proceeds from the conversion of
other property received when converted to cash or
Cash Equivalents, net of legal, accounting and
investment banking fees, discounts and sales
commissions and net of taxes paid or payable as a
result thereof.
"Non-Recourse Debt" means Indebtedness:
(a) as to which neither
the Company nor any of its Restricted Subsidiaries:
(i) provides credit support of any kind (including
any undertaking, agreement or instrument that
would constitute Indebtedness); (ii) is directly or
indirectly liable (as a guarantor or otherwise); or
(iii) constitutes the lender;
(b) no default with
respect to which (including any rights that the
Holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would
permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of the Company or
any of its Restricted Subsidiaries to declare a
default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior
to its Stated Maturity; and
(c) as to which the
lenders have been notified in writing that they will
not have any recourse to the stock or assets of any
of the Company or any of its Restricted
Subsidiaries.
"Note Custodian" means the Trustee, as
custodian with respect to the Global Notes, or any
successor entity thereto.
"Note Register" has the meaning specified
in Section 2.3.
"Notes" means the Notes issued under this
Indenture.
"Obligations" means any principal, interest,
penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the
documentation governing any Indebtedness.
"Officer" means, with respect to any
Person, the Chief Executive Officer, the President,
any Vice President or the chief financial and
accounting officer of such Person.
"Officers' Certificate" means, with respect
to any Person, a certificate signed by the Chief
Executive Officer, President or a Vice-President
and the chief financial and accounting officer of
such Person.
"Opinion of Counsel" means a written
opinion of legal counsel reasonably acceptable to
the Trustee, and delivered to the Trustee.
"Orbital" means Orbital Sciences
Corporation, a Delaware corporation, or any
successor entity whether by merger, sale of all or
substantially all its assets or otherwise.
"OrbView Satellite" means the high-
resolution satellite currently designated as
OrbView-3 under the Amended and Restated
Procurement Agreement between the Company and
Orbital dated February 25, 1998, as amended on
December 31, 1998, and any Replacement Satellite.
"Pari Passu Indebtedness" means any
Indebtedness of the Company or a Restricted
Subsidiary that ranks equal in right of payment to
the Notes.
"Patents" means (a) all letters patent of the
United States, any other country or any political
subdivision thereof and all reissues and extensions
thereof, (b) all applications for letters patent of the
United States or any other country and all divisions,
continuations and continuations-in-part thereof, and
(c) all rights to obtain any reissues or extensions of
the foregoing.
"Patent License" means all agreements,
whether written or oral, providing for the grant by
or to the Company or any Guarantor of any right to
manufacture, have manufactured, use, import, sell
or offer for sale any invention covered in whole or
in part by a Patent.
"Paying Agent" has the meaning set forth in
Section 2.3.
"Permitted Investment" means:
(a) any Investments in the
Company or any Guarantor;
(b) any Investments in cash or
Cash Equivalents;
(c) Investments by the Company
or any Guarantor in a Person, provided that (i) the
primary business of such Person is a Related
Business, (ii) the consideration paid by the
Company or any of its Subsidiaries for such
Investment consists solely of common Equity
Interests (other than Disqualified Stock) of the
Company, (iii) immediately following such
Investment, the Company's consolidated operating
income, as determined in accordance with GAAP,
for the four full fiscal quarters (the "Four Quarter
Period") ending on or prior to the date (the
"Transaction Date") of the Investment giving rise to
the need to calculate such operating income and for
which financial statements are then available and
have been filed with the SEC pursuant to Section
4.8 hereof, after giving effect to such Investment on
a pro forma basis, would be at least $1.00 greater
than the Company's actual consolidated operating
income for the Four Quarter Period immediately
preceding such Investment, and (iv) such Person
either (x) becomes a Guarantor ; or (y) is merged,
consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to,
or is liquidated into, the Company or any
Guarantor;
(d) Investments by the Company
or any of its Unrestricted Subsidiaries in a Person,
provided that (i) the primary business of such
Person is a Related Business, (ii) immediately
following such Investment, the Company's
consolidated operating income, as determined in
accordance with GAAP, for the Four Quarter Period
ending on or prior to the Transaction Date of the
Investment giving rise to the need to calculate such
operating income and for which financial statements
are then available and have been filed with the SEC
pursuant to Section 4.8 hereof, after giving effect to
such Investment on a pro forma basis, would be at
least $1.00 greater than the Company's actual
consolidated operating income for the Four Quarter
Period immediately preceding such Investment, (iii)
as a result of such Investment, such Person becomes
an Unrestricted Subsidiary of the Company and (iv)
the consideration paid for by the Company or any of
its Subsidiaries consists solely of common Equity
Interests (other than Disqualified Stock) of the
Company, or Non-Recourse Debt of any of its
Unrestricted Subsidiaries;
(e) any Investment made as a
result of the receipt of non-Cash Consideration from
an Asset Sale that was made pursuant to and in
compliance with Section 4.15 of this Indenture or a
transaction not constituting an Asset Sale by reason
of the $2.5 million threshold contained in the
definition therein; and
(f) any Investments constituting
Capital Expenditures which are permitted by and in
compliance with Section 4.21.
"Permitted Liens" means:
(a) Liens in favor of the
Company;
(b) Liens securing Senior
Secured Indebtedness (including Permitted
Refinancing Indebtedness of the Senior Secured
Indebtedness);
(c) Liens on property of a Person
existing at the time such Person is merged into or
consolidated with the Company or any of its
Restricted Subsidiaries; provided that such Liens
were in existence prior to the contemplation of such
merger or consolidation and were not incurred in
contemplation of such merger or consolidation and
do not extend to any assets other than those of the
Person merged into or consolidated with the
Company or its Restricted Subsidiary;
(d) Liens on property existing at
the time of acquisition thereof by the Company or
any of its Restricted Subsidiaries; provided that
such Liens were in existence prior to the
contemplation of such acquisition and were not
incurred in contemplation of such acquisition and
following such acquisition do not extend to any
property other than that acquired;
(e) Liens to secure the
performance of statutory obligations, surety, appeal
or performance bonds or other obligations of a like
nature or mechanics' or purchase money Liens
incurred in the ordinary course of business and
consistent with industry practice; and
(f) Liens for taxes, assessments
or governmental charges or claims that are not yet
delinquent or that are being contested in good faith
by appropriate proceedings promptly instituted and
diligently concluded; provided that any reserve or
other appropriate provision as shall be required in
conformity with GAAP shall have been made
therefor.
"Permitted Refinancing Indebtedness" has
the meaning set forth in Section 4.12.
"Person" means any individual,
corporation, limited liability company, partnership,
joint venture, association, joint stock company,
trust, unincorporated organization, government or
any agency or political subdivision thereof or any
other entity.
"PIK Period" means any period in which
interest is payable in kind pursuant to Section 4.1 of
this Indenture and Section 1 of the Notes.
"Proceeds Purchase Date" has the meaning
set forth in Section 4.15(b)(ii).
"Record Date" shall have the meaning set
forth in the form of the Note attached hereto as
Exhibit A.
"Refinanced Indebtedness" has the meaning
set forth in Section 4.12.
"Registrar" has the meaning set forth in
Section 2.3.
"Related Asset" means any asset used in
connection with a Related Business or Related
Satellite Business.
"Related Business" means any Related
Satellite Business and any business relating to the
worldwide acquisition, marketing, processing and
sales of remote imagery-based products and
services.
"Related Satellite Business" means any
business relating to the design, development, and
operation of remote imaging satellites and the
worldwide marketing and sales of satellite-based
remote imagery-based products and services.
"Replacement Satellite" means any satellite
constructed to replace the OrbView Satellite in the
event of a failure of the OrbView Satellite.
"Representative" means the indenture
trustee, if applicable, or other trustee, agent or
representative for any Senior Secured Indebtedness.
"Requirement of Law" means, as to any
Person, the certificate of incorporation and by-laws
or other organizational or governing documents of
such Person, and all federal, state and local laws,
rules and regulations, and all orders, judgments,
decrees or other determinations of any
Governmental Authority or arbitrator, applicable to
or binding upon such Person or any of its property
or to which such Person or any of its property is
subject.
"Responsible Officer" when used with
respect to the Trustee, means any officer within the
corporate trust department of the Trustee (or any
successor group of the Trustee) with direct
responsibility for the administration of this
Indenture and also means, with respect to a
particular corporate trust matter, any other officer to
whom such matter is referred because of his
knowledge of and familiarity with the particular
subject.
"Restricted Investment" means an
Investment other than a Permitted Investment.
"Restricted Payment" means: (i) the
declaration or payment of any dividend or any
distribution on account of the Equity Interests of the
Company (including, without limitation, any
payment in connection with any merger or
consolidation involving the Company or any of its
Restricted Subsidiaries), other than dividends or
distributions declared or payable (x) in Equity
Interests (other than Disqualified Stock) of the
Company or any of its Restricted Subsidiaries or (y)
to the Company or any Wholly Owned Restricted
Subsidiary of the Company; (ii) the purchase,
redemption, defeasance, retirement for value or
other acquisition or return for value of any Equity
Interests of the Company other than any such
Equity Interests owned by the Company or any
Wholly Owned Restricted Subsidiary of the
Company; (iii) any principal payment on (except at
maturity), or any unscheduled payment or interest
on, or purchase, redemption, defeasance or other
acquisition or retire for value of any Indebtedness
that is subordinated (whether pursuant to its terms,
by operation of law, structurally or otherwise) to the
Notes, including trade payables, which shall be paid
only in accordance with customary business
practices; or (iv) any Restricted Investment.
"Restricted Security" has the meaning set
forth in Rule 144(a)(3) under the Securities Act.
"Restricted Subsidiary" of a Person means
any Subsidiary of such Person that is not an
Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings
Services, or its successors.
"Sale and Leaseback Transaction" means
any direct or indirect arrangement pursuant to
which any property (other than Capital Stock) or
assets is sold or transferred by a Person or a
Subsidiary and is thereafter leased back from the
purchaser or transferee thereof by such Person or
one or more of its Subsidiaries.
"Securities Act" means the Securities Act of
1933, as amended (or any successor act) and the
rules and regulations thereunder.
"Senior Indebtedness" means:
(1) Indebtedness of the Company
or any Restricted Subsidiary outstanding under
Senior Secured Indebtedness,
(2) Indebtedness represented by
the Senior Notes;
(3) Hedging Obligations with
respect to the items listed in the preceding clauses
(1) and (2); and
(4) all Obligations with respect
to the preceding clause (1), (2) and (3).
"Senior Note and Security Agreement"
means the Note and Security Agreement, dated as
of November ___, 2003, among the Company,
Xxxxxxx Distressed Investment Master Fund, Ltd.,
Magten Group Trust, Magten Partners, LP,
Redwood Master Fund, Ltd., Triage Offshore Fund,
Ltd., and Triage Capital Management, LP.
"Senior Notes" means the Senior Notes due
2008, issued by the Company pursuant to the Senior
Note and Security Agreement.
"Senior Secured Indebtedness" means any
Indebtedness of the Company or a Restricted
Subsidiary permitted to be incurred by Section
4.12(a)(b) or (h) that ranks senior in right of
payment to the Notes and that is secured by any
assets or property of the Company or any Restricted
Subsidiary.
"Significant Subsidiary" means any
Subsidiary that would be a "significant subsidiary"
as defined in Article I, Rule 1-02 of Regulation S-
X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the date hereof.
"Stated Maturity" means, when used with
respect to any Note, June 30, 2008.
"Subsidiary" means, with respect to any
Person:
(a) 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
(b) any partnership (a) the sole
general partner or the managing general partner of
which is such Person or a Subsidiary of such Person
or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person
(or any combination thereof).
"Subsidiary Guarantee" means, the
Guarantee by each Guarantor of the Company's
payment obligations under this Indenture and the
Notes, executed pursuant to the terms of this
Indenture, which Guarantee will be substantially in
the form of Exhibit C hereto.
"Successor Note" of any particular Note
means every Note issued after, and evidencing all or
a portion of the same debt as that evidenced by,
such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered
under Section 2.7 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be
deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Note.
"TIA" means the Trust Indenture Act of
1939, as amended, as in force at the date as of
which this instrument was executed; provided,
however, that in the event the Trust Indenture Act is
amended after such date, "TIA" means, to the extent
required by such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trademarks" means (a) all trademarks,
trade names, corporate names, company names,
business names, fictitious business names, trade
styles, service marks, logos and other source or
business identifiers, and all goodwill associated
therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof;
and all applications in connection therewith,
whether in the United States Patent and Trademark
Office or in any similar office or agency of the
United States, any State thereof or any other
country or any political subdivision thereof, or
otherwise, and all common-law rights related
thereto, and (b) the right to obtain all renewals
thereof.
"Trademark License" means any agreement,
whether written or oral, providing for the grant by
or to the Company or any Guarantor of any right to
use any Trademark.
"Transfer Restricted Security" means each
Note, until the earliest to occur of (a) the date on
which such Note has been disposed of in
accordance with a registration statement under the
Securities Act or (b) the date on which such Note is
distributed to the public pursuant to Rule 144 or
another exempt transaction under the Securities Act.
"Trustee" means HSBC Bank USA until a
successor Trustee shall have been appointed
pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such
successor Trustee.
"Unrestricted Cash" means cash or Cash
Equivalents as set forth on the balance sheet of the
Company prepared in accordance with GAAP as of
5:00 p.m. on the last day of the applicable six-
month period or fiscal quarter minus, without
duplication, the sum of cash or cash equivalents
equal to (i) $10,000,000, (ii) amounts required to be
shown as restricted cash or cash equivalents in
accordance with GAAP on such balance sheet (or
the notes thereto) and (iii) amounts required to be
paid prior to or at the end of the applicable six-
month period or fiscal quarter pursuant to any
outstanding checks, commercial paper or other
instruments issued by the Company through the last
day of the applicable six-month period or fiscal
quarter.
"Unrestricted Subsidiary" means:
(a) any Subsidiary of the
Company that is designated after the Issue Date as
an Unrestricted Subsidiary as permitted or required
pursuant to Section 4.20 hereof and is not thereafter
redesignated as a Restricted Subsidiary as permitted
pursuant thereto; and
(b) any Subsidiary of an
Unrestricted Subsidiary.
"Voting Equity Interests" means the Equity
Interest in a corporation or other Person with voting
power under ordinary circumstances entitling the
holders thereof to elect or appoint the board of
directors, executive committee or other governing
body of such corporation or Person, whether at all
times or only so long as no senior class of securities
has such voting power by reason of any
contingency.
"Wholly Owned Restricted Subsidiary" of
any Person means a Restricted Subsidiary of such
Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors'
qualifying shares) shall at the time be owned by
such Person and/or one or more other Wholly
Owned Restricted Subsidiaries of such Person.
Section 1.2 Incorporation by Reference of Trust Indenture
Act.
Whenever this Indenture refers to a
provision of the TIA, such provision is incorporated
by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture
have the following meanings: (1) "indenture
securities" means the Notes; (2) "indenture security
holder" means a Holder; (3) "indenture to be
qualified" means this Indenture; (4) "indenture
trustee" or "institutional trustee" means the Trustee;
and (5) "obligor" on the indenture securities means
the Company or 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 Commission rule
under the TIA and not otherwise defined herein
have the meanings assigned to them therein.
Section 1.3 Rules of Construction.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context
otherwise requires:
(1) the terms
defined in this Article have the meanings assigned
to them in this Article and, where appropriate,
words of the masculine gender shall mean and
include correlative words of the feminine and
neutral genders and where applicable words in the
singular shall mean and include the plural, and vice
versa;
(2) accounting
terms used herein and not otherwise defined have
the meanings ascribed to them in accordance with
GAAP;
(3) the words
"herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other
subdivision;
(4) Articles and
Sections referred to by number shall mean the
corresponding Articles and Sections of this
Indenture;
(5) any headings
preceding the texts of the several Articles and
Sections of this Indenture, shall be solely for
convenience of reference, and shall not constitute a
part of this Indenture, nor shall they affect its
meaning, construction or effect; and
(6) any reference
to a statute shall be construed to include any
statutory provision consolidating, amending or
replacing the statute referred to.
ARTICLE II.
THE NOTES
Section 2.1 Form and Dating.
(a) General Form of
Notes. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of
Exhibit A hereto, which Exhibit is part of this
Indenture. The Notes may have notations, legends
or endorsements required by law, stock exchange
rule or usage. Each Note shall be dated the date of
its authentication. The Notes shall be issued only in
registered form without coupons and only in
minimum denominations of $1 and integral
multiples thereof. The terms and provisions
contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and
the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note
conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall
govern and be controlling. The Notes will initially
be issued in global form (the "Global Notes") and
may be issued as one or more Global Notes. Global
Notes shall be substantially in the form of Exhibit A
attached hereto (including the text and schedule
called for by footnote 1 thereto). Definitive Notes
shall be substantially in the form of Exhibit A
attached hereto (excluding the text and schedule
called for by footnotes 1).
(b) Form of Global Notes
.. Each Global Note (i) shall represent such
portion of the outstanding Notes as shall be
specified therein, (ii) shall provide that it shall
represent the aggregate amount of outstanding
Notes from time to time endorsed thereon and that
the aggregate amount of outstanding Notes
represented thereby may from time to time be
reduced or increased, as appropriate, to reflect
exchanges and redemptions, (iii) shall be registered
in the name of the Depositary or its nominee, duly
executed by the Company and authenticated by the
Trustee as provided herein, for credit to the
respective accounts of the Agent Members (or such
accounts as they may direct) at the Depositary, (iv)
shall be delivered by the Trustee or its agent to the
Company or a Note Custodian pursuant to the
Depositary's instructions and (v) shall bear a
legend substantially to the following effect:
Unless and until it is exchanged in whole or in part
for Notes in definitive form, this Note may not be
transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of
such successor Depositary. Unless this certificate is
presented by an authorized representative of The
Depository Trust Company, a New York
corporation ("DTC"), New York, New York, to the
Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other
name as may be requested by an authorized
representative of DTC (and any payment is made to
Cede & Co. or such other entity as may be
requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an
interest herein.
Agent Members shall have no rights under
this Indenture with respect to any Global Note held
on their behalf by the Depositary, and the
Depositary may be treated by the Company, the
Trustee, and any agent of the Company or the
Trustee as the absolute owner of such Global Note
for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company
or the Trustee from giving effect to any written
certification, proxy or other authorization furnished
to the Depositary or impair, as between the
Depositary and its Agent Members, the operation of
customary practices governing the exercise of the
rights of a Holder of any Note.
Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the
amount of outstanding Notes represented thereby
shall be made by the Trustee or the Note Custodian,
at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required
by Section 2.6 hereof.
(c) Form of Definitive
Notes. Definitive Notes may be produced in any
manner determined by the Officers of the Company
executing such Notes, as evidenced by their
execution of such Notes. The Trustee must register
Definitive Notes so issued in the name of, and cause
the same to be delivered to, such Person (or its
nominee). Except as provided in this Section 2.1 or
Section 2.6, no Person having a beneficial interest
in the Global Note may exchange such beneficial
interest for fully certificated Definitive Notes in
duly registered form.
(d) Provisions Applicable
to Forms of Notes. The Notes may also have such
additional provisions, omissions, variations or
substitutions as are not inconsistent with the
provisions of this Indenture, and may have such
letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be
required to comply with this Indenture, any applicable
law or with any rules made pursuant thereto or with the
rules of any securities exchange or governmental
agency or as may be determined consistently
herewith by the Officers of the Company executing
such Notes, as conclusively evidenced by their
execution of such Notes. All Notes shall be
otherwise substantially identical except as provided
herein.
Subject to the provisions of this Article II,
the Holder of a Global Note may grant proxies and
otherwise authorize any Person to take any action
that a Holder is entitled to take under this Indenture
or the Notes.
Section 2.2 Execution and Authentication.
A duly authorized Officer of the Company
shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal may be
reproduced on the Notes and may be in facsimile
form. If an Officer of the Company whose
signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall
nevertheless be valid. A Note shall not be valid or
obligatory for any purpose or entitled to the benefits
of this Indenture until authenticated by the manual
signature of the Trustee or its authenticating agent.
The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon the delivery to the
Trustee of a written order of the Company signed
by two Officers, from time to time, authenticate
Notes for original issue up to an aggregate principal
amount of $54,000,000. The aggregate principal
amount of Notes outstanding at any time may not
exceed such amount except as provided in Section
2.7 hereof.
The Trustee may appoint an authenticating
agent to authenticate Notes. An authenticating
agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to
authentication by the Trustee includes
authentication by such agent. An authenticating
agent has the same rights as the Trustee to deal with
the Company or an Affiliate of the Company.
Section 2.3 Trustee, Registrar and Paying Agent.
The Company shall maintain an office or
agency in the Borough of Manhattan, the City of
New York, where Notes may be presented for
registration of transfer or for exchange ("Registrar")
and an office or agency where Notes may be
presented for payment ("Paying Agent"). The
Registrar shall keep a note register ("Note
Register") of the Notes and of their transfer and
exchange. The Company may also from time to
time appoint one or more co-registrars and one or
more additional paying agents. The term
"Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying
agent. The Company may change any Paying
Agent or Registrar upon notice to the Holders. The
Company shall notify the Trustee in writing of the
name and address of any Paying Agent or Registrar
not a party to this Indenture. If the Company fails
to appoint or maintain another entity as Registrar or
Paying Agent, the Trustee shall act, subject to the
last paragraph of this Section 2.3, as such. The
Company or any of its Subsidiaries may act as
Paying Agent or Registrar; provided, however, that
none of the Company, its Subsidiaries or the
Affiliates of the foregoing shall act (i) as Paying
Agent in connection with any redemption, offer to
purchase, discharge or defeasance, as otherwise
specified in this Indenture, and (ii) as Paying Agent
or Registrar if a Default or Event of Default has
occurred and is continuing.
The Company hereby appoints HSBC Bank
USA, at its Corporate Trust Office, as the Trustee
hereunder and HSBC Bank USA, hereby accepts
such appointment. The Trustee shall have the
powers and authority granted to and conferred upon
it in the Notes and hereby and such further powers
and authority to act on behalf of the Company as
may be mutually agreed upon in writing by the
Company and the Trustee, and the Trustee shall
keep a copy of this Indenture available for
inspection during normal business hours at its
Corporate Trust Office.
The Company initially appoints The
Depository Trust Company to act as Depositary
with respect to the Global Notes. The Company
initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Note Custodian with
respect to the Global Notes.
All of the terms and provisions with respect
to such powers and authority contained in the Notes
are subject to and governed by the terms and
provisions hereof.
The Trustee may resign as Registrar or
Paying Agent upon 30 days prior written notice to
the Company.
Section 2.4 Paying Agent To Hold Money In Trust.
The Company shall require each Paying
Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of
the Holders and the Trustee all money held by the
Paying Agent for the payment of principal of,
premium, if any, interest on the Notes, and shall
notify the Trustee of any default by the Company in
making any such payment. While any such default
or an Event of Default continues, the Trustee may
require a Paying Agent to pay all money held by it
to the Trustee.
The Company at any time may require a
Paying Agent to pay all money held by it to the
Trustee. Upon payment of all such money over to
the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further
liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
Upon any bankruptcy or reorganization proceedings
relating to the Company, the Trustee shall serve as
Paying Agent for the Notes.
Section 2.5 Holder Lists.
The Trustee shall preserve in as current a
form as is reasonably practicable to it the most
recent list available to it of the names and addresses
of all Holders. If the Trustee is not the Registrar,
the Company shall furnish to the Trustee at least ten
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 require of the names and addresses
of the Holders of Notes and the Company shall
otherwise comply with TIA Section 312(a).
Section 2.6 Transfer and Exchange.
(a) Transfer and
Exchange of Definitive Notes
.. If notes in definitive form ("Definitive
Notes") are presented by a Holder to the Registrar
with a request: (x) to register the transfer of the
Definitive Notes; or (y) to exchange such Definitive
Notes for an equal principal amount of Definitive
Notes of other authorized denominations, the
Registrar shall register the transfer or make the
exchange as requested if its requirements for such
transactions are met; provided, however, that the
Definitive Notes presented or surrendered for
registration of transfer or exchange: (i) shall be
duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by such
Xxxxxx's attorney, duly authorized in writing; and
(ii) in the case of a Definitive Note that is a Transfer
Restricted Security, such request shall be
accompanied by the following additional
information and documents, as applicable:
(i) if such
Transfer Restricted Security is being delivered to
the Registrar by a Holder for registration in the
name of such Holder, without transfer, a
certification to that effect from such Holder (in
substantially the form of Exhibit B hereto);
(ii) if such
Transfer Restricted Security is being transferred
pursuant to an effective registration statement under
the Securities Act, a certification to that effect (in
substantially the form of Exhibit B hereto);
(iii) if such
Transfer Restricted Security is being transferred to
an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement
exemption from the registration requirements of the
Securities Act (and based on an Opinion of Counsel
if the Company so requests in the case of a transfer
of Notes with an aggregate principal amount of
$100,000 or less), a certification to that effect (in
substantially the form of Exhibit B hereto) and a
certification of the applicable transferee (in
substantially the form of Exhibit C hereto);
(iv) if such
Transfer Restricted Security is being transferred
pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act,
a certification to that effect (in substantially the
form of Exhibit B hereto); or
(v) if such
Transfer Restricted Security is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act (and based on an
Opinion of Counsel if the Company so requests) a
certification to that effect (in substantially the form
of Exhibit B hereto).
(b) Restrictions on
Transfer of a Definitive Note for a Beneficial
Interest in a Global Note
.. A Definitive Note may not be exchanged
for a beneficial interest in a Global Note except
upon satisfaction of the requirements set forth
below. Upon receipt by the Trustee of a Definitive
Note, duly endorsed or accompanied by appropriate
instruments of transfer, together with: (i) if such
Definitive Note is a Transfer Restricted Security, a
certification from the Holder thereof (in
substantially the form of Exhibit B hereto) to the
effect that such Definitive Note is being transferred
by such Holder pursuant to a valid exemption from
the registration requirements of the Securities Act
(provided that the applicable transferor furnishes an
Opinion of Counsel if the Company so requests)
who wishes to take delivery thereof in the form of a
beneficial interest in a Global Note; and (ii) whether
or not such Definitive Note is a Transfer Restricted
Security, written instructions from the Holder
thereof directing the Trustee to make, or to direct
the Note Custodian to make, an endorsement on the
appropriate Global Note to reflect an increase in the
aggregate principal amount of the Notes represented
by such Global Note, in which case the Trustee or
its agent shall cancel such Definitive Note in
accordance with Section 2.11 hereof and cause, or
direct the Note Custodian to cause, in accordance
with the standing instructions and procedures
existing between the Depositary and the Note
Custodian, the aggregate principal amount of Notes
represented by the Global Note to be increased
accordingly. If no Global Notes are then
outstanding, the Company shall issue and, upon
receipt of an authentication order in accordance
with Section 2.2 hereof, the Trustee shall
authenticate a new Global Note in the appropriate
principal amount.
(c) Transfer and
Exchange of a Beneficial Interest in a Global Note
.. The transfer and exchange of beneficial
interests in Global Notes shall be effected through
the Depositary, in accordance with this Indenture
and the procedures of the Depositary therefor,
which shall include restrictions on transfer
comparable to those set forth herein to the extent
required by the Securities Act, provided that if such
Global Note is a Transfer Restricted Security, the
Holder thereof will furnish to the Trustee a
certification (in substantially the form of Exhibit B
hereto) to the effect that such beneficial interest is
being transferred by such Holder pursuant to a valid
exemption from the registration requirements of the
Securities Act (provided that the applicable
transferor furnishes an Opinion of Counsel if the
Company so requests) who wishes to take delivery
thereof in the form of a beneficial interest in a
Global Note. Notwithstanding the foregoing, in the
case of a Transfer Restricted Security, a beneficial
interest in a Global Note being transferred in
reliance on an exemption from the registration
requirements of the Securities Act (other than in
accordance with Rule 144 or Rule 904 under the
Securities Act) may only be transferred for a
Definitive Note and pursuant to the provisions of
Section 2.6(d) below.
(d) Transfer and
Exchange of a Beneficial Interest in a Global Note
for a Definitive Note.
(i) Any Person
having a beneficial interest in a Global Note may
upon request exchange such beneficial interest for a
Definitive Note. Upon receipt by the Trustee of
written instructions or such other form of
instructions as is customary for the Depositary from
the Depositary or its nominee on behalf of any
Person having a beneficial interest in a Global Note
and, in the case of any Transfer Restricted Security,
the following additional information and documents
(all of which may be submitted by facsimile):
(A) if such
beneficial interest is being delivered to the Person
designated by the Depositary as being the beneficial
owner, a certification to that effect (in substantially
the form of Exhibit B hereto);
(B) if such
beneficial interest is being transferred pursuant to
an effective registration statement under the
Securities Act, a certification to that effect (in
substantially the form of Exhibit B hereto);
(C) if such
beneficial interest is being transferred pursuant to
an exemption from the registration requirements of
the Securities Act (and based on an Opinion of
Counsel if the Company so requests), a certification
to that effect (in substantially the form of Exhibit B
hereto);
in which case the Trustee or the Note Custodian, at
the direction of the Trustee, shall, in accordance
with the standing instructions and procedures
existing between the Depositary and the Note
Custodian, cause the aggregate principal amount of
Global Notes to be reduced accordingly and,
following such reduction, the Company shall
execute and, upon receipt of an authentication order
in accordance with Section 2.2 hereof, the Trustee
shall authenticate and deliver to the transferee a
Definitive Note in the principal amount.
(ii) Definitive
Notes issued in exchange for a beneficial interest in
a Global Note pursuant to this Section 2.6(d) shall
be registered in such names and in such authorized
denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered.
(e) Restrictions on
Transfer and Exchange of Global Notes
.. Notwithstanding any other provision of
this Indenture (other than the provisions set forth in
subsection (f) of this Section 2.6), a Global Note
may not be transferred as a whole except by the
Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the
Depositary or any such nominee to a successor
Depositary or a nominee of such successor
Depositary.
(f) Authentication of
Definitive Notes in Absence of Depositary
.. If at any time: (i) the Depositary for the
Notes notifies the Company that the Depositary is
unwilling or unable to continue as Depositary for
the Global Notes or, if at any time such Depositary
ceases to be a "clearing agency" registered under
the Exchange Act, and a successor Depositary for
the Global Notes is not appointed by the Company
within 90 days after delivery of such notice; or (ii)
the Company, at its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance
of Definitive Notes under this Indenture in
exchange for all or any part of the Notes
represented by a Global Note or Global Notes, the
Depositary or the Note Custodian shall surrender
such Global Note to the Trustee, without charge,
and then the Company shall execute, and the
Trustee shall, upon receipt of an authentication
order in accordance with Section 2.2 hereof,
authenticate and deliver in exchange for such
Global Notes, Definitive Notes in an aggregate
principal amount equal to the principal amount of
such Global Notes. Such Definitive Notes shall be
registered in such names, as the Depositary shall
direct in writing.
(g) Legends
.. (i) Except as permitted by the following
paragraphs (ii), and (iii), each Note evidencing
Global Notes and Definitive Notes (and Notes
issued in exchange therefor or substitution thereof)
shall bear legends in substantially the following
form:
THE NOTE (OR ITS PREDECESSOR)
EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE
UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"),
AND THE NOTE EVIDENCED HEREBY MAY
NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. THE HOLDER OF
THE NOTE EVIDENCED XXXXXX AGREES
FOR THE BENEFIT OF ORBIMAGE INC. AND
ITS SUCCESSORS (THE "COMPANY") THAT
(A) SUCH NOTE MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED, ONLY IN
ACCORDANCE WITH AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON
AN OPINION OF COUNSEL IF THE COMPANY
OR TRUSTEE, REGISTRAR OR TRANSFER
AGENT FOR THE SECURITIES SO
REQUESTS), (2) TO THE COMPANY OR (3)
PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE NOTE
EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer
Restricted Security represented by a Global Note)
pursuant to an effective registration statement under
the Securities Act or pursuant to Rule 144 under the
Securities Act (pursuant to an Opinion of Counsel
reasonably satisfactory to the Company that no
legend is required):
(A) in the
case of any Transfer Restricted Security that is a
Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted
Security for a Definitive Note that does not bear the
legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer
Restricted Security;
(B) in the
case of any Transfer Restricted Security represented
by a Global Note, such Transfer Restricted Security
shall not be required to bear the legend set forth in
(i) above, but shall continue to be subject to the
provisions of Section 2.6(c) hereof; provided,
however, that with respect to any request for an
exchange of a Transfer Restricted Security that is
represented by a Global Note for a Definitive Note
that does not bear the legend set forth in (i) above,
which request is made in reliance upon Rule 144
under the Securities Act (and based upon an
Opinion of Counsel if the Company so requests),
the Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant
to Rule 144 under the Securities Act (such
certification to be substantially in the form of
Exhibit B hereto).
(h) Cancellation and/or
Adjustment of Global Notes
.. At such time as all beneficial interests in
Global Notes have been exchanged for Definitive
Notes, redeemed, repurchased or canceled, all
Global Notes shall be returned to or retained and
canceled by the Trustee or its agent in accordance
with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, redeemed,
repurchased or canceled, the principal amount of
Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be
made on such Global Note, by the Trustee or the
Note Custodian, at the direction of the Trustee, to
reflect such reduction.
(i) General Provisions
Relating to Transfers and Exchanges.
(i) To permit
registrations of transfers and exchanges, the
Company shall execute and the Trustee shall
authenticate Definitive Notes and Global Notes at
the Registrar's request.
(ii) No service
charge shall be made to the Holder for any
registration of transfer or exchange, but the
Company or the Trustee may require payment of a
sum sufficient to cover any transfer tax or similar
governmental charge payable in connection
therewith (other than any such transfer taxes or
similar governmental charge payable upon
exchange or registration of transfer pursuant to
Sections 2.2, 2.10, 3.5, 3.8 and 4.14 hereto).
(iii) All Definitive
Notes and Global Notes issued upon any
registration of transfer or exchange of Definitive
Notes or Global Notes shall be the valid obligations
of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Definitive Notes or Global Notes surrendered
upon such registration of transfer or exchange.
(iv) Neither the
Registrar nor the Company shall be required:
(A) to
issue, to register the transfer of or to exchange
Notes during a period beginning at the opening of
business 15 days before the day of any selection of
Notes for redemption under Section 3.1 hereof and
ending at the close of business on the day of
selection; or
(B) to
register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except
the unredeemed portion of any Note being
redeemed in part; or
(C) to
register the transfer of or to exchange a Note
between a Record Date and the next succeeding
Interest Payment Date.
(v) The Trustee
shall authenticate Definitive Notes and Global
Notes in accordance with the provisions of Section
2.2 hereof.
Section 2.7 Replacement Notes.
If any mutilated Note is surrendered to the
Trustee, or the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss
or theft of any Note, the Company shall, upon the
written request of the Holder thereof, issue and the
Trustee, upon the written order of the Company
signed by two Officers of the Company, shall
authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or
the Company, an indemnity bond must be supplied
by such Holder that is sufficient in the judgment of
the Trustee and the Company to protect the
Company, the Trustee, any Paying Agent, the
Registrar and any authenticating agent from any
loss that any of them may suffer if a Note is
replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional
obligation of the Company and shall be entitled to
all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued
hereunder.
The provisions of this Section 2.7 are
exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed,
lost or stolen Notes.
Section 2.8 Outstanding Notes.
The Notes outstanding at any time are all the
Notes authenticated by the Trustee except for those
canceled by it (or its agent), those delivered to it (or
its agent) for cancellation, those reductions in the
interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those
described in this Section as not outstanding. Except
as set forth in Section 2.9 hereof, a Note does not
cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.7
hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the
replaced Note (other than a mutilated Note
surrendered for replacement) is held by a "protected
purchaser" (as such term is defined in Section 8-303
of the Uniform Commercial Code as in effect in the
State of New York).
If the principal amount of any Note is
considered paid under Section 4.1 hereof, it ceases
to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the
Company, a Subsidiary or an Affiliate of any
thereof) holds, on a maturity date, money sufficient
to pay Notes payable on that date, then on and after
that date such Notes shall be deemed to be no
longer outstanding and shall cease to accrue
interest.
Section 2.9 Treasury Notes.
In determining whether the Holders of the
required principal amount of Notes have concurred
in any direction, waiver or consent, Notes owned by
the Company, or by any Person directly or
indirectly controlling or controlled by or under
direct or indirect common control with the
Company, shall be considered as though not
outstanding, except that for the purposes of
determining whether the Trustee shall be protected
in relying on any such direction, waiver or consent,
only Notes that a Responsible Officer of the Trustee
has actual knowledge are so owned shall be so
disregarded.
Section 2.10 Temporary Notes.
Until definitive Notes are ready for delivery,
the Company may prepare and the Trustee shall
authenticate temporary Notes upon a written order
of the Company signed by two Officers of the
Company. Temporary Notes shall be substantially
in the form of definitive Notes but may have
variations that the Company considers appropriate
for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable
delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for
temporary Notes.
Until such exchange, Holders of temporary
Notes shall be entitled to all of the benefits of this
Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes
to the Trustee or its agent for cancellation. The
Registrar and Paying Agent shall forward to the
Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The
Trustee (or its agent) and no one else shall cancel all
Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation
and shall destroy canceled Notes (subject to the
record retention requirement of the Exchange Act)
in accordance with its usual procedures.
Certification of the destruction of all canceled Notes
shall be delivered to the Company upon the
Company's written request. The Company may not
issue new Notes to replace Notes that it has paid or
that have been delivered to the Trustee (or its agent)
for cancellation. If the Company acquires any of
the Notes, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness
represented by such Notes unless and until the same
are surrendered to the Trustee (or its agent) for
cancellation pursuant to this Section 2.11.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of
interest on the Notes, it shall pay the defaulted
interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to
the Persons who are Holders on a subsequent
special record date, in each case at the rate provided
in the Notes and in Section 4.1 hereof. The
Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on
each Note and the date of the proposed payment.
The Company shall fix or cause to be fixed each
such special record date and payment date, provided
that no such special record date shall be less than 10
days prior to the related payment date for such
defaulted interest. At least 15 days before the
special record date, the Company (or, upon the
written request of the Company, the Trustee in the
name and at the expense of the Company) shall mail
or cause to be mailed to Holders a notice that states
the special record date, the related payment date and
the amount of such defaulted interest to be paid.
Section 2.13 Persons Deemed Owners.
Prior to due presentment for the registration
of a transfer of any Note, the Trustee, any Paying
Agent, the Registrar, the Company and any agent of
the foregoing shall deem and treat the Person in
whose name any Note is registered as the absolute
owner of such Note for all purposes (including the
purpose of receiving payment of principal of and
interest on such Notes; provided that defaulted
interest shall be paid as set forth in Section 2.12),
and none of the Trustee, Paying Agent, the
Registrar, the Company or any agent of the
foregoing shall be affected by notice to the contrary.
Section 2.14 CUSIP Numbers.
Pursuant to a recommendation promulgated
by the Committee on Uniform Security
Identification Procedures, the Company will print
CUSIP numbers on the Notes, and the Trustee may
use CUSIP numbers in notices of redemption and
purchase as a convenience to Holders; provided,
however, that any such notices may state that no
representation is made as to the correctness of such
numbers as printed on the Notes, and any such
redemption or purchase shall not be affected by any
defect or omission in such numbers. The Company
shall promptly notify the Trustee in writing of any
change in the CUSIP numbers.
ARTICLE III.
REDEMPTION AND PREPAYMENT
Section 3.1 Notices to Trustee.
If the Company elects to redeem Notes
pursuant to the optional redemption provisions of
Section 3.7 or is required to redeem Notes pursuant
to Section 3.8, the Company shall furnish to the
Trustee, at least 45 days but not more than 60 days
before an optional redemption date pursuant to
Section 3.7 or at least 15 days but not more than 20
days before a mandatory redemption date pursuant
to Section 3.8, an Officers' Certificate setting forth
(i) that the redemption is an optional redemption
pursuant to Section 3.7 or a mandatory redemption
pursuant to Section 3.8, (ii) the redemption date,
(iii) the principal amount of Notes to be redeemed,
(iv) the redemption price and (v) in a mandatory
redemption pursuant to Section 3.8(a), the amount
of Unrestricted Cash of the Company for the
applicable fiscal period.
Section 3.2 Selection of Notes to Be Redeemed or
Repurchased.
Any payments made pursuant to this Article
III shall be applied first to unpaid charges or fees
relating to the Notes, second to the accrued and
unpaid interest on the Notes, and third to redeem
Notes at a price equal to 100% of their principal
amount.
If less than all of the Notes are to be
redeemed or purchased in an offer to purchase at
any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the
Notes pro rata in accordance with the outstanding
principal amount of the Notes outstanding
immediately prior to such redemption or purchase.
The Trustee shall promptly notify the
Company, the Registrar and the Paying Agent in
writing of the Notes selected for redemption and, in
the case of any Note selected for partial redemption,
the principal amount thereof to be redeemed. Notes
and portions of Notes selected to be redeemed may
be in whole dollar amounts of less than $1,000.
Provisions of this Indenture that apply to Notes
called for redemption also apply to portions of
Notes called for redemption.
Section 3.3 Notice of Redemption.
Subject to the provisions of Sections 3.7 and
3.8 hereof, at least 30 days but not more than 60
days before an optional redemption date pursuant to
Section 3.7 or at least 5 days but not more than 10
days before a mandatory redemption date pursuant
to Section 3.8, the Company shall mail or cause to
be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be
redeemed at its registered address.
The notice shall identify the Notes to be
redeemed and shall state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Note is being
redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after
the redemption date upon surrender of such Note, a
new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon
cancellation of the original Note;
(iv) the name and address
of the Paying Agent to which the Notes are to be
surrendered for redemption;
(v) that Notes called for
redemption must be surrendered to the Paying
Agent to collect the redemption price;
(vi) that, unless the
Company defaults in making such redemption
payment, interest on Notes (or a portion thereof)
called for redemption ceases to accrue on and after
the redemption date;
(vii) the paragraph of the
Notes and/or Section of this Indenture pursuant to
which the Notes called for redemption are being
redeemed; and
(viii) that no representation
is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice or
printed on the Notes.
At the Company's written request, the
Trustee shall give the notice of redemption in the
Company name and at the Company expense;
provided, however, that the Company shall have
delivered to the Trustee, at least 10 Business Days
prior to the date on which any notice of redemption
pursuant to this Article 3 is requested to be mailed
by the Trustee, Officers' Certificates requesting that
the Trustee give such notice and setting forth the
information to be stated in such notice as provided
in the preceding paragraph.
Section 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed in
accordance with Section 3.3 hereof, Notes called for
redemption become irrevocably due and payable on
the redemption date at the redemption price. A
notice of redemption may not be conditional.
Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice
to any other Holder.
Section 3.5 Deposit of Redemption Price.
Not less than one Business Day prior to the
redemption date, the Company shall deposit with
the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and
accrued interest (subject to the right of Holders of
record on the relevant record date to receive interest
due on the related interest payment date) on all
Notes to be redeemed on that date. The Trustee or
the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or
the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of,
and accrued interest on, all Notes to be redeemed.
If the Company complies with the
provisions of the preceding paragraph, on and after
the redemption date, interest shall cease to accrue
on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after an
interest record date but on or prior to the related
interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name
such Note was registered at the close of business on
such record date. If any Note called for redemption
shall not be so paid upon surrender for redemption
because of the failure of the Company to comply
with the preceding paragraph, interest shall be paid
on the unpaid principal, from the redemption date
until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in
each case at the rate provided in the Notes and in
Section 4.1 hereof.
Section 3.6 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed
in part, the Company shall issue and, upon the
Company's written request, the Trustee shall
authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
Section 3.7 Optional Redemption.
(a) The Company may, at
its option at any time after the Issue Date and after
the Senior Notes have been repaid in full, redeem
the Notes, in whole or in part, on at least 30 days'
but not more than 60 days' notice to each Holder of
Notes to be redeemed in cash at its registered
address, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid
interest thereon to the redemption date.
(b) Any redemption
pursuant to this Section 3.7 shall be made pursuant
to the provisions of Section 3.1 through 3.6 hereof.
Section 3.8 Mandatory Redemption.
(a) On or before the 10th
day after the end of the first fiscal quarter following
the fiscal quarter in which the Senior Notes are
repaid in full, and on or before the 10th day after the
end of each six-month period thereafter, the
Company shall be required to make mandatory
redemptions of the Notes in an amount equal to
100% of Unrestricted Cash as of the end of the
applicable six-month period (or in the case of the
first such payment, as of the end of the immediately
preceding fiscal quarter). Any such mandatory
redemption shall be made pro rata among all
Holders of the Notes on at least 5 days' but not
more than 10 days' notice to each Holder of the
Notes to be redeemed in cash at its registered
address, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid
interest thereon to the redemption date, provided
that the foregoing provision shall cease to be in
further force and effect in the event that the
Company has redeemed 50% of the aggregate
principal amount of Notes initially issued and, if
during the PIK Period, the Company pays the
interest in cash that is otherwise required to be paid
by this Indenture.
(b) After the Senior Notes are repaid in
full, the Company shall be required to make
mandatory redemptions of the Notes equal to 100%
of the proceeds of any payments under the
Initial Insurance Policy or the Continuing
Insurance Policy to the extent any proceeds exist
or are paid. Any such mandatory redemption shall
be made on at least 5 days' but not more than 30
days' notice to each Holder of the Notes to be
redeemed in cash at its registered address, at a
redemption price equal to 100% of the principal
amount thereof plus accrued and unpaid interest
thereon to the redemption date.
(c) Any redemption pursuant to this Section
3.8 shall be made pursuant to the provisions of
Section 3.1 through 3.6 hereof.
ARTICLE IV.
COVENANTS
Section 4.1 Payment of Notes.
The Company shall pay or cause to be paid
the principal and premium (if any) of, and interest
on, the Notes on the dates and in the manner
provided in the Notes and in this Indenture. An
installment of principal and premium (if any) of, or
interest on, the Notes shall be considered paid on
the date it is due if the Paying Agent (other than the
Company or an Affiliate of the Company) holds no
later than 10:00 a.m., New York City time, on that
date U.S. dollars designated for and sufficient to
pay the installment in full and is not prohibited from
paying such money to the Holders pursuant to the
terms of this Indenture. The Paying Agent shall
return to the Company no later than five days
following the date of payment, any money that
exceeds such installment of principal and premium
(if any) of, and interest payable on, the Notes.
The Company shall pay, to the extent such
payments are lawful, interest on overdue principal
and on overdue installments of interest (without
regard to any applicable grace periods) from time to
time on demand at the rate borne by the Notes plus
2% per annum. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day
months.
Notwithstanding anything to the contrary
contained in this Indenture, the Company may, to
the extent it is required to do so by a Requirement
of Law, deduct or withhold income or other similar
taxes imposed by the United States of America from
principal or interest payments hereunder.
Section 4.2 Maintenance of Office or Agency.
The Company shall maintain the office or
agency required under Section 2.3. The Company
shall give prior written notice to the Trustee of the
location, and any change in the location, of such
office or agency. If at any time the Company shall
fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and
demands may be made or served at the address of
the Trustee set forth in Section 11.2.
The Company may also from time to time
designate one or more other offices or agencies
where the Notes may be presented or surrendered
for any or all such purposes and may from time to
time rescind such designations; provided, however,
that no such designation or rescission shall in any
manner relieve the Company of its obligation to
maintain an office or agency in the Borough of
Manhattan, the City of New York for such
purposes. The Company shall give prior written
notice to the Trustee of any such designation or
rescission and of any change in the location of any
such other office or agency.
The Company hereby designates the
Corporate Trust Office of the Trustee as such office
or agency of the Company in accordance with
Section 2.3.
Section 4.3 Corporate Existence.
Except as otherwise permitted by Articles
IV and V, the Company shall do or cause to be
done, at its own cost and expense, all things
necessary to preserve and keep in full force and
effect its corporate existence and the corporate
existence of each of its Subsidiaries (if any) in
accordance with the respective organizational
documents of the Company and each such
Subsidiary and the material rights (charter and
statutory) and franchises of the Company and each
such Subsidiary;
Section 4.4 Payment of Taxes and Other Claims.
The Company shall pay or discharge or
cause to be paid or discharged, before the same
shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding
taxes and any penalties, interest and additions to
taxes) levied or imposed upon it or any of its
Subsidiaries or its properties or any of its
Subsidiaries' properties and (ii) all lawful claims for
labor, materials and supplies that, if unpaid, would
by law become a Lien upon its properties or any of
its Subsidiaries' properties; provided, however, that
the Company shall not be required to pay or
discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose
amount, applicability or validity is being contested
in good faith and by appropriate proceedings
properly instituted and diligently conducted and for
which adequate reserves, to the extent required
under GAAP, have been taken.
Section 4.5 Maintenance of Properties and Insurance.
(a) The Company shall
maintain its properties in good working order and
condition (subject to ordinary wear and tear) and
make all reasonably necessary repairs, renewals,
replacements, additions and improvements required
for it to actively conduct and carry on its business.
The Company shall do or cause to be done, at its
own cost and expense, all things necessary to
preserve and keep in full force and existence its
Patents, Patent Licenses, Copyrights, Copyright
Licenses, Trademarks and Trademark Licenses,
except in so far as failure to do so could not
reasonably be expected to result in a Material
Adverse Effect.
(b) The Company shall
maintain insurance (including appropriate self-
insurance) against loss or damage of the kinds that,
in the good faith judgment of the Company, are
adequate and appropriate for the conduct of the
business of the Company and its Subsidiaries in a
prudent manner, with reputable insurers or with the
government of the United States of America or an
agency or instrumentality thereof, in such amounts,
with such deductibles, and by such methods as shall
be customary, in the good faith judgment of the
Company, for companies similarly situated in the
industry (provided that insurance with respect to the
OrbView Satellite, any Replacement Satellites shall
be governed by clause (c) below).
(c) In addition to the
foregoing, the Company shall obtain or maintain (as
applicable) in full force and effect covering satellite
Checkout on-orbit operations (the "Continuing
Insurance Policy") with respect to the OrbView
Satellite, to be in effect for such period of time as
required by the Senior Note and Security
Agreement, for total coverage in the amount of the
lesser of (x) $50,000,000 and (y) the maximum
amount of coverage which the Company may obtain
at such time in the insurance market. The
Continuing Insurance Policy shall be payable in the
event that such satellite fails to be checked out
because it cannot be, or after checkout it ceases to
be, used for commercial revenue producing service
(provided that the Continuing Insurance Policy may
contain customary provisions for deductible
payments and minimum thresholds for satellite
failure). Following the termination of the
Continuing Insurance Policy, the Company shall
obtain or maintain (as applicable) in full force and
effect on-orbit operations insurance with respect to
the OrbView Satellite, upon such terms as are
determined in good faith by the Board of Directors
of the Company (evidenced by a resolution
approved by a majority of the Board of Directors
and set forth in an Officers' Certificate delivered to
the Trustee) to be in the best interests of the
Company.
Within 30 days following any date on which
the Company is required to obtain insurance
pursuant to this clause (c), the Company will deliver
to the Trustee an insurance certificate certifying the
amount of insurance then carried, and in full force
and effect, and an Officers' Certificate stating that
such insurance, together with any other insurance
maintained by the Company, complies with this
Indenture. In addition, the Company will cause to
be delivered to the Trustee no less than once each
year an insurance certificate setting forth the
amount of insurance then carried, which insurance
certificate shall entitle the Trustee to (i) notice of
any claim under any such insurance policy; and (ii)
at least 30 days' notice from the provider of such
insurance prior to the cancellation of any such
insurance and an Officers' Certificate that complies
with the first sentence of this paragraph.
Section 4.6 Compliance Certificate; Notice of Default.
(a) The Company shall
deliver to the Trustee, within 90 days after the end
of each of the Company's fiscal years, an Officers'
Certificate stating that a review of its activities
during the preceding fiscal year has been made
under the supervision of the signing officers with a
view to determining whether it has kept, observed,
performed and fulfilled its obligations under this
Indenture and further stating, as to each such officer
signing such certificate, that to the best of such
officer's knowledge, the Company during such
preceding fiscal year has kept, observed, performed
and fulfilled each and every such covenant and no
Default or Event of Default occurred during such
year and that, to each officer's knowledge, at the
date of such certificate there is no Default or Event
of Default that has occurred and is continuing or, if
such signers do know of such Default or Event of
Default, the certificate shall describe the Default or
Event of Default and its status with particularity and
that to the best of his or her knowledge no event has
occurred and remains in existence by reason of
which payments on account of the principal or
interest, if any, on the Notes is prohibited or if such
event has occurred, a description of the event and
what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not
contrary to the then current recommendations of the
American Institute of Certified Public Accountants,
the annual financial statements delivered pursuant
to Section 4.8 shall be accompanied by a written
report of the Company's independent accountants
(who shall be a firm of established national
reputation) that in conducting their audit of such
financial statements nothing has come to their
attention that would lead them to believe that the
Company has violated any provisions of Article IV,
V or VI of this Indenture insofar as they relate to
accounting matters or, if any such violation has
occurred, specifying the nature and period of
existence thereof, it being understood that such
accountants shall not be liable directly or indirectly
to any Person for any failure to obtain knowledge of
any such violation. In the event that such written
report of the Company's independent accountants
cannot be obtained, the Company shall deliver an
Officers' Certificate certifying that it has used its
best efforts to obtain such written report but was
unable to do so.
(c) If any Default or
Event of Default has occurred and is continuing or
if any Holder seeks to exercise any remedy
hereunder with respect to a claimed Default under
this Indenture or the Notes, the Company shall
deliver to the Trustee, at its address set forth in
Section 11.2 hereof, by registered or certified mail
or by telegram or facsimile transmission followed
by hard copy by registered or certified mail an
Officers' Certificate specifying such event, notice
or other action within five Business Days of its
becoming aware of such occurrence and what action
the Company is proposing to take with respect to
thereto.
Section 4.7 Compliance with Laws.
The Company shall, and shall cause each of
its Subsidiaries to, comply with all applicable
statutes, rules, regulations and orders of the United
States of America, all states and municipalities
thereof, and of any governmental department,
commission, board, regulatory authority, bureau,
agency and instrumentality of the foregoing, in
respect of the conduct of its businesses and the
ownership of its properties.
Section 4.8 Reports.
Whether or not required by the rules and
regulations of the Commission, so long as any
Notes are outstanding, the Company will furnish to
the Holders of Notes within the time periods
specified in the Commission's rules and regulations,
copies of:
(i) all Forms 8-K,
10-Q and 10-K filed with the Commission and, with
respect to the annual information only, a report
thereon by the Company's independent certified
public accountants; and
(ii) if the
Company is not required to file such reports with
the Commission, all quarterly and annual financial
information that would be required to be contained
in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such
Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of
Operations" that describes the financial condition
and results of operations of the Company and its
Restricted Subsidiaries and, with respect to the
annual information only, a report thereon by the
Company's independent certified public
accountants, and all information that would be
required to be filed with the Commission on Form
8-K if the Company were required to file such
reports.
Section 4.9 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that
it may lawfully do so) that it will not at any time
insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay
or extension law or any usury law, wherever
enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance
of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly
waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede
the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of
every such power as though no such law had been
enacted.
Section 4.10 Limitation on Restricted Payments.
The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly
or indirectly, make any Restricted Payment.
Section 4.11 Limitation on Transactions with Affiliates.
(a) The Company shall
not, and shall not permit any of its Restricted
Subsidiaries to, sell, lease transfer or otherwise
dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into
or make any contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an
"Affiliate Transaction"), unless:
(i) such Affiliate
Transaction is on terms that are no less favorable to
the Company or such Restricted Subsidiary than
those that would have been obtained in a
comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and
(ii) the Company
delivers to the Trustee: (a) with respect to any
Affiliate Transaction involving aggregate
consideration in excess of $2.5 million, (x) a
determination by the disinterested members of the
Board of Directors of the Company made in good
faith (evidenced by a resolution approved by at least
a majority of the disinterested members of the
Board of Directors of the Company and set forth in
an Officers' Certificate delivered to the Trustee) or
(y) an opinion as to the fairness of such Affiliate
Transaction to the Company or Restricted
Subsidiary of the Company involved in such
Affiliate Transaction from a financial point of view
issued by an Independent Financial Advisor or, with
respect to development, launch and operations of
satellites and remote imaging-related matters, a
nationally recognized expert in the respective
applicable industry; and (b) with respect to any
Affiliate Transaction involving aggregate
consideration in excess of $10 million, an opinion
as to the fairness of such Affiliate Transaction to the
Company or Restricted Subsidiary of the Company
involved in such Affiliate Transaction from a
financial point of view issued by an Independent
Financial Advisor or, with respect to development,
launch and operations of satellites and remote
imaging-related matters, a nationally recognized
expert in the respective applicable industry.
(b) The following shall
not be deemed Affiliate Transactions:
(i) any
employment agreement, stock option or stock
purchase agreement entered into by the Company or
any of its Restricted Subsidiaries with any of their
respective employees in the ordinary course of
business and approved by the Board of Directors of
the Company;
(ii) transactions
between or among the Company and/or the
Guarantors;
(iii) Permitted
Investments of a type referred to in clauses (i), (iii)
and (iv) of the definition of Permitted Investments;
(iv) the sale of
common Equity Interests (other than Disqualified
Stock) of the Company for cash to an Affiliate of
the Company;
(v) transactions
pursuant to agreements entered into with resellers
(other than any such reseller that is an Affiliate of
any Person (other than the Company or any of its
Subsidiaries) who owns, directly or indirectly, 5%
or more of the Voting Equity Interests of any of the
Company or its Subsidiaries or possesses, directly
or indirectly, the power to direct or cause the
direction of the management or policies of the
Company or any of its Subsidiaries, whether by
agreement or otherwise) of the Company's products
and services on terms no less favorable to the
Company, in the aggregate taking the totality of the
circumstances into consideration, than the
Company's standard agreements entered into with
such parties in the ordinary course of business;
(vi) payment of
reasonable directors fees to Persons who are not
otherwise Affiliates of the Company; and
(vii) the sale of
securities (other than common Equity Interests) of
the Company for cash to an Affiliate of the
Company; provided that: (A) an amount of such
securities at least equal to the amount sold to such
Affiliate have been or are being sold substantially
simultaneously to Persons that are not Affiliates of
the Company; (B) the price per security paid by
such Affiliate is no less than the price paid by such
non-Affiliates; and (C) the Company shall not have
entered into any other arrangement with such non-
Affiliates to induce such non-Affiliates to purchase
such securities.
Section 4.12 Limitation on Incurrence of Indebtedness or
Issuance of Disqualified Stock.
The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guaranty or
otherwise become directly or indirectly liable,
contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including
Acquired Debt) or any Disqualified Stock except:
(a) Senior Secured
Indebtedness not to exceed $15,000,000 in
aggregate principal amount at any one time
outstanding;
(b) Indebtedness
represented by the Senior Notes and the Senior Note
and Security Agreement;
(c) Indebtedness
represented by the Notes and this Indenture;
(d) Indebtedness under (A) Hedging Obligations,
provided that (1) the notional principal amount of
any interest rate protection agreement does not
significantly exceed the principal amount of payments
due with respect to the Indebtedness being hedged
therebyand (2) any agreements related to fluctuations
in currency rates do not increase the outstanding
Indebtedness other than as a result of fluctuations
in foreign currency exchange rates, and (B) performance,
surety and workers' compensation bonds or other
obligations of a like nature incurred in the ordinary
course of business;
(e) Indebtedness of any
Unrestricted Subsidiary of the Company that is
Non-Recourse Debt; provided that if any such
Indebtedness ceases to be Non-Recourse Debt of an
Unrestricted Subsidiary such event shall be deemed
to constitute an incurrence of Indebtedness by a
Restricted Subsidiary;
(f) Indebtedness owed to
and held by the Company or any Guarantors (the
Indebtedness incurred pursuant to this clause (f)
being hereafter referred to as "Intercompany
Indebtedness"); provided that an incurrence of
Indebtedness shall be deemed to have occurred
upon (x) any sale or other disposition of
Intercompany Indebtedness to a Person other than
the Company or any Guarantors, (y) any sale or
other disposition of Equity Interests of the
Company's Restricted Subsidiaries which holds
Intercompany Indebtedness such that such
Restricted Subsidiary ceases to be a Restricted
Subsidiary after such sale or other disposition or (z)
designation of a Restricted Subsidiary as an
Unrestricted Subsidiary;
(g) Indebtedness of the
Company or any of its Restricted Subsidiaries that
is Non-Recourse Debt to finance purchase money
obligations;
(h) Indebtedness of the
Company or any of its Restricted Subsidiaries
("Permitted Refinancing Indebtedness") incurred to
refinance, replace or refund Indebtedness
("Refinanced Indebtedness") incurred pursuant to
clause (a) through (c), inclusive, of this Section
4.12; provided that: (x) the aggregate principal
amount of such Permitted Refinancing Indebtedness
does not exceed the aggregate principal amount of
the Refinanced Indebtedness (including accrued and
unpaid interest thereon and the amount of all
expenses, discounts and premiums incurred in
connection therewith); and (y) the Permitted
Refinanced Indebtedness is on terms at least as
favorable to the Holders of Notes as those contained
in the documentation governing the Refinanced
Indebtedness;.
(i) Capital Lease
Obligations in an aggregate amount for all such
Persons not to exceed $5 million at any one time
outstanding; and
(j) Indebtedness of the
Company or any of its Restricted Subsidiaries in
addition to that described in clauses (b) through (i)
of this Section 4.12, so long as the aggregate
principal amount of all such Indebtedness, together
with any Senior Secured Indebtedness permitted to
be incurred pursuant to clause (a) shall not exceed
$15 million outstanding at any one time in the
aggregate.
Section 4.13 Dividend and Other Payment Restrictions
Affecting Subsidiaries.
(a) The Company shall
not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to:
(i) pay dividends
or make any other distributions to the Company or
any of its Restricted Subsidiaries on its Capital
Stock or with respect to any other interest or
participation in, or measured by, its profits;
(ii) pay any
Indebtedness owed to the Company or any of its
Restricted Subsidiaries;
(iii) make loans or
advances to the Company or any of its Restricted
Subsidiaries; or
(iv) transfer any of
its properties or assets to the Company or any of its
Restricted Subsidiaries.
(b) The restrictions set
forth in clause (a) above shall not apply to
encumbrances or restrictions existing under or by
reason of:
(i) this Indenture
or the Notes;
(ii) the Senior
Notes and the Senior Note and Security Agreement;
(iii) Senior
Secured Indebtedness;
(iv) applicable
law;
(v) any instrument
governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of
such acquisition (except to the extent such
Indebtedness was incurred in connection with or in
contemplation of such acquisition), which
encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person,
other than the Person, or the property or assets of
the Person, so acquired;
(vi) customary
non-assignment provisions in leases or other
agreements entered into in the ordinary course of
business;
(vii) purchase
money obligations for property acquired in the
ordinary course of business and consistent with
industry practice that impose restrictions of the
nature described in clause (iv) above on the
property so acquired;
(viii) Permitted
Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing
such Permitted Refinancing Indebtedness are no
more restrictive than those contained in the
agreements governing the Refinanced Indebtedness;
(ix) restrictions on
cash or other deposits or net worth imposed by
customers under contracts entered into in the
ordinary course of business;
(x) restrictions
relating to Permitted Liens that limit the right of the
debtor to transfer the asset or assets subject to such
Permitted Lien; or
(xi) in the case of
clauses (i), (ii), (iii), (v), (vi), (vii), (viii) and (ix)
above, any amendments, modifications,
restatements, renewals, increases, supplements,
modifications, restatements or refinancings thereof,
provided that such amendments, modifications,
restatements or refinancings are not more restrictive
with respect to such dividend and other payment
restrictions than those contained in such instruments
as in effect on the date of their incurrence.
Section 4.14 Limitation on Change of Control.
(a) Upon the occurrence
of a Change of Control, each Holder shall have the
right to require the Company to repurchase all or
any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control
Offer") at an offer price in cash equal to 100% of
the aggregate principal amount thereof, plus
accrued and unpaid interest thereon to the date of
purchase (the "Change of Control Payment").
(b) Within ten days
following the date on which any Change of Control
occurs (the "Change of Control Date"), the
Company shall send, by first class mail, a notice to
each Holder, with a copy to the Trustee, which
notice shall govern the terms of the Change of
Control Offer. The notice to the Holders shall
contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the
Change of Control Offer. The notice shall state:
(i) that the
Change of Control Offer is being made pursuant to
this Section 4.14 and that all Notes tendered and not
withdrawn shall be accepted for payment;
(ii) the purchase
price (including the amount of accrued interest) and
the purchase date (which shall be no earlier than 30
days nor later than 40 days from the date such
notice is mailed, other than as may be required by
law) (the "Change of Control Payment Date");
(iii) that any Note
not tendered will continue to accrue interest;
(iv) that, unless the
Company defaults in making payment therefor, any
Note accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after
the Change of Control Payment Date;
(v) that Holders
electing to have a Note purchased pursuant to a
Change of Control Offer will be required to
surrender the Note, with the form entitled "Option
of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business
on the third Business Day prior to the Change of
Control Payment Date;
(vi) that Holders
will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business
Days prior to the Change of Control Payment Date,
a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal
amount of the Notes the Holder delivered for
purchase and a statement that such Xxxxxx is
withdrawing such Xxxxxx's election to have such
Notes purchased;
(vii) that Holders
whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the
unpurchased portion of the Notes surrendered;
provided that each Note purchased and each new
Note issued shall be in an original principal amount
of $1,000 or integral multiples thereof; and
(viii) the
circumstances and relevant facts regarding such
Change of Control.
(c) On or before the
Change of Control Payment Date, the Company
shall, to the extent lawful: (i) accept for payment
all Notes or portions thereof tendered pursuant to
the Change of Control Offer; (ii) deposit with the
Paying Agent in U.S. dollars, an amount equal to
the Change of Control Payment in respect of all
Notes or portions thereof so tendered; and (iii)
deliver or cause to be delivered to the Trustee,
Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of
Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail
to the Holders of Notes so accepted the Change of
Control Payment for such Notes, and the Trustee
shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new
Note equal in principal amount to any unpurchased
portion of the Note surrendered; provided that each
such new Note will be in a principal amount of
$1,000 or an integral multiple thereof. Any Notes
not so accepted shall be promptly mailed by the
Company to the Holder thereof. Any amounts
remaining after the purchase of Notes pursuant to a
Change of Control Offer shall be returned by the
Trustee to the Company.
The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations
thereunder to the extent such laws and regulations
are applicable in connection with the repurchase of
Notes pursuant to a Change of Control Offer. To
the extent the provisions of any securities laws or
regulations conflict with the provisions under this
Section 4.14, the Company shall comply with the
applicable securities laws and regulations and shall
not be deemed to have breached its obligations
under this Section 4.14 by virtue thereof. The
Company shall publicly announce the results of the
Change of Control Offer on or as soon as
practicable after the Change of Control Payment
Date. Any amounts remaining after the purchase of
Notes pursuant to a Change of Control Offer shall
be returned by the Trustee to the Company.
(d) The Company will
not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the time
and otherwise in compliance with the requirements
set forth in this Indenture applicable to a Change of
Control Offer made by the Company and purchases
all Notes validly tendered and not withdrawn under
such Change of Control Offer.
Section 4.15 Limitation on Sales of Assets and Subsidiary
Interests.
(a) The Company shall
not, and shall not permit any of its Restricted
Subsidiaries to consummate an Asset Sale unless:
(i) the Company
or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale
at least equal to the Fair Market Value of the assets
sold or otherwise disposed of;
(ii) at least 75% of
the consideration received in the Asset Sale by the
Company or such Restricted Subsidiary, as the case
may be, consists of (a) cash or Cash Equivalents or
(b) the assumption of Indebtedness (other than
Indebtedness that is subordinated) of the Company
or such Restricted Subsidiary and the release of the
Company and the Restricted Subsidiaries, as
applicable, from all liability on the Indebtedness
assumed; and
(iii) the aggregate
Fair Market Value of all non-Cash Consideration
received therefor by the Company or such
Restricted Subsidiary, as the case may be, when
aggregated with the Fair Market Value of all other
non-Cash Consideration received by the Company
and its Restricted Subsidiaries from all other Asset
Sales since the Issue Date that has not yet been
converted into cash or Cash Equivalents (in either
case, in U.S. dollars or freely convertible into U.S.
dollars), does not exceed (without duplication) 5%
of the aggregate Consolidated Tangible Net Assets
of the Company at the time of such Asset Sale;
provided, however, that any securities, notes or
similar obligations received by any of the Company
or such Restricted Subsidiaries from such
transferees that are contemporaneously (subject to
ordinary settlement periods) converted by the
Company or such Restricted Subsidiaries into cash,
shall be deemed to be cash (to the extent of the net
cash received) for purposes of clauses (ii) and (iii).
Within 270 days after the receipt of any Net
Proceeds from an Asset Sale, the Company may
apply such Net Proceeds to: (i) make Capital
Expenditures permitted by Section 4.21 hereof, and
(ii) repay Senior Indebtedness. Pending the final
application of any such Net Proceeds, the Company
may temporarily invest such Net Proceeds in any
manner that is not prohibited by this Indenture. Any
Net Proceeds from an Asset Sale that are not
applied or invested as provided in the first sentence
of this paragraph will be deemed to constitute
"Excess Proceeds." When the aggregate amount of
Excess Proceeds exceeds $7.5 million (the "Asset
Sale Offer Trigger Date"), the Company will be
required to make an offer to all Holders of Notes
(an "Asset Sale Offer") to purchase on a date not
less than 30 nor more than 45 days following the
Asset Sale Offer Trigger Date the maximum
principal amount of Notes that may be purchased
out of the Excess Proceeds (and not solely the
amount in excess of $7.5 million), at an offer price
in cash in an amount equal to 100% of the principal
amount thereof, plus accrued and unpaid interest
thereon to the date of purchase, in accordance with
the procedures set forth in clause (b) below. To the
extent that the aggregate amount of Notes tendered
pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company may use any
remaining Excess Proceeds for general business
purposes. If the aggregate amount of Notes
surrendered by Holders thereof exceeds the amount
of Excess Proceeds, the Trustee will select the
Notes to be purchased on a pro rata basis in
accordance with the procedures set forth in Section
3.2.
Upon completion of such offer to purchase,
the amount of Excess Proceeds will be reset at zero.
The Asset Sale Offer shall remain open for a period
of 20 Business Days or such longer period as may
be required by law.
If the Purchase Date is on or after a Record
Date and on or before the related Interest Payment
Date, any accrued and unpaid interest shall be paid
to the Person in whose name a Note is registered at
the close of business on such Record Date, and no
additional interest shall be payable to Holders who
tender Notes pursuant to the Asset Sale Offer.
(b) Each notice of an
Asset Sale Offer pursuant to this Section 4.15 shall
be mailed or caused to be mailed, by first class mail,
by the Company not more than 25 days after the
Asset Sale Offer Trigger Date to all Holders at their
last registered addresses determined as of a date
within 15 days of the mailing of such notice, with a
copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Asset Sale
Offer and shall state the following terms:
(i) that the Asset
Sale Offer is being made pursuant to Section 4.15
and that all Notes tendered will be accepted for
payment; provided, however, that if the aggregate
principal amount of Notes tendered in an Asset Sale
Offer plus accrued interest at the expiration of such
offer exceeds the aggregate amount of the Excess
Proceeds, the Trustee shall select the Notes to be
purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the
Trustee so that only Notes in denominations of
$1,000 or multiples thereof shall be purchased);
(ii) the purchase
price (including the amount of accrued interest) and
the purchase date (which shall be 20 Business Days
from the date of mailing of notice of such Asset
Sale Offer, or such longer period as required by
law) (the "Proceeds Purchase Date");
(iii) that any Note
not tendered will continue to accrue interest;
(iv) that, unless the
Company defaults in making payment therefor, any
Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the
Proceeds Purchase Date;
(v) that Holders
electing to have a Note purchased pursuant to an
Asset Sale Offer will be required to surrender the
Note, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address
specified in the notice prior to the close of business
on the third Business Day prior to the Proceeds
Purchase Date;
(vi) that Holders
will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business
Days prior to the Proceeds Purchase Date, a
telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal
amount of the Notes the Holder delivered for
purchase and a statement that such Xxxxxx is
withdrawing such Xxxxxx's election to have such
Note purchased; and
(vii) that Holders
whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the
unpurchased portion of the Notes surrendered;
provided that each Note purchased and each new
Note issued shall be in an original principal amount
of $1,000 or integral multiples thereof.
On or before the Proceeds Purchase Date,
the Company shall, to the extent lawful, (i) accept
for payment Notes or portions thereof tendered
pursuant to the Asset Sale Offer which are to be
purchased in accordance with this Section 4.15, (ii)
deposit with the Paying Agent in U.S. dollars, an
amount sufficient to pay the purchase price plus
accrued interest of all Notes to be purchased and
(iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate stating the
Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail
to the Holders of Notes so accepted payment in an
amount equal to the purchase price plus accrued
interest.
Any amounts remaining after the purchase
of Notes pursuant to an Asset Sale Offer shall be
returned by the Trustee to the Company.
The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations
thereunder to the extent such laws and regulations
are applicable in connection with the repurchase of
Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or
regulations conflict with this Section 4.15, the
Company shall comply with the applicable
securities laws and regulations and shall not be
deemed to have breached its obligations under
Section 4.15 by virtue thereof.
(c) The foregoing
provisions shall not apply to the sale, lease,
conveyance or other disposition of all or
substantially all of the assets of the Company,
which shall be governed by the provisions of Article
V.
Section 4.16 Limitation on Liens.
The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or suffer to exist
any Lien (other than Permitted Liens) on any asset
or property now owned or hereafter acquired, or any
income or profits therefrom, or assign or convey
any right to receive income therefrom.
Section 4.17 Business Activities.
The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, engage in any
business other than that which is related to the
design, development and operation of remote
imaging satellites and the worldwide marketing and
sales of remote imagery-based products and
services.
Section 4.18 Limitations on Sale and Leaseback Transactions.
The Company shall not, and shall not permit
any Restricted Subsidiary of the Company to,
directly or indirectly, enter into any Sale and
Leaseback Transaction with respect to any property
or assets (whether now owned or hereafter
acquired), unless (i) the gross cash proceeds of the
Sale and Leaseback Transaction are at least equal to
the Fair Market Value of the property that is the
subject of the Sale and Leaseback Transaction; (ii)
the sale or transfer of such property or assets to be
leased is treated as an Asset Sale and complies with
the covenants contained in Section 4.15 hereof; and
(iii) the Company or such Restricted Subsidiary
would be entitled under Section 4.12 hereof to incur
Indebtedness (with the lease obligations being
treated as Indebtedness for purposes of ascertaining
compliance with this covenant) in respect of such
Sale and Leaseback Transaction.
Section 4.19 Limitation on Sale of Capital Stock of
Subsidiaries.
The Company shall not, and shall not permit
any Restricted Subsidiary of the Company to, issue,
transfer, convey, lease or otherwise dispose of any
shares of Capital Stock or other ownership interests
in a Restricted Subsidiary of the Company or
securities convertible or exchangeable into, or
options, warrants, rights or other interest with
respect to, Capital Stock of or other ownership
interests in a Restricted Subsidiary of the Company
to any Person (other than to the Company or a
Wholly Owned Restricted Subsidiary of the
Company) except in a transaction that consists of a
sale of all of the Capital Stock of or other ownership
interests, such that the Subsidiary no longer
constitutes a Subsidiary, in such Subsidiary owned
by the Company and any Subsidiary of the
Company that complies with the provisions
contained in Section 4.15 and Article V hereof to
the extent such provisions apply.
Section 4.20 Designation of Restricted and Unrestricted
Subsidiaries.
(a) The Board of
Directors may designate any Subsidiary of the
Company to be an Unrestricted Subsidiary if such
designation if the Company could make an
Investment (other than a Restricted Investment) in
such Subsidiary under Section 4.10 hereof to be so
designated:
(i) has no
Indebtedness other than Non-Recourse Debt;
(ii) is not party to
any agreement, contract, arrangement or
understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any
such agreement, contract, arrangement or
understanding are no less favorable to the Company
or such Restricted Subsidiary than those that might
be obtained at the time from Persons who are not
Affiliates of the Company;
(iii) is a Person
with respect to which neither the Company nor any
of its Restricted Subsidiaries has any direct or
indirect obligation: (1) to subscribe for additional
Equity Interests; or (2) to maintain or preserve such
Person's financial condition or to cause such Person
to achieve any specified levels of operating results;
(iv) has not
guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of any
of the Company or any of its Restricted
Subsidiaries;
(v) in the case of a
corporate entity or limited liability company, has at
least one director on its board of directors and at
least one executive officer, in each case who is not a
director or executive officer of the Company or any
of its Restricted Subsidiaries; and
(vi) has no
Subsidiaries that are Restricted Subsidiaries;
(vii) provided,
however, that in the case of a Restricted Subsidiary
to be so designated as an Unrestricted Subsidiary,
neither the Company nor any Restricted Subsidiary
shall at the time of such designation or at any time
thereafter be directly or indirectly liable for any
Indebtedness that provides that the holder thereof
may (with the passage of time or notice or both)
declare a default thereon or cause the payment
thereof to be accelerated or payable prior to its
stated maturity upon the occurrence of a default
with respect to any Indebtedness, Lien or other
Obligation of the Subsidiary to be so designated
(including any right to take enforcement action
against such Unrestricted Subsidiary).
(b) Unless so designated
as an Unrestricted Subsidiary, any Person that
becomes a Subsidiary of the Company will be
classified as a Restricted Subsidiary. Upon
designation of a Restricted Subsidiary as an
Unrestricted Subsidiary, in compliance with this
Section 4.20, such Restricted Subsidiary shall be
released from any Subsidiary Guarantee previously
made by such Restricted Subsidiary.
(c) The Board of
Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary if,
immediately after giving pro forma effect to such
designation,
(i) such
designation is permitted, and is compliance with
Section 4.12 hereof (with any Indebtedness of such
Unrestricted Subsidiary existing at the time of such
designation being treated as an incurrence of such
Indebtedness for purposes of Section 4.12 hereof),
and
(ii) no default or
Event of Default shall have occurred and be
continuing or would result therefrom.
(d) Any such designation
or redesignation by the Board of Directors in
accordance with this Section 4.20 shall be
evidenced to the Trustee by filing with the Trustee a
resolution of the Board of Directors giving effect to
such designation or redesignation and an Officer's
Certificate that:
(i) certifies that
such designation or redesignation complies with the
preceding provisions, and
(ii) gives the
effective date of such designation or redesignation,
such filing with the Trustee to occur within 45 days
after the end of the fiscal quarter of the Company in
which such designation or redesignation is made
(or, in the case of a designation or redesignation
made during the last fiscal quarter of the
Company's fiscal year, within 90 days after the end
of such fiscal year).
Section 4.21 Limitations on Capital Expenditures.
The Company shall not pay or cause to be
paid, any amounts for Capital Expenditures unless it
has complied with this Section. For the year ended
December 31, 2003, the Company may make
Capital Expenditures up to and including
$4,300,000. For the period from January 1, 2004 to
December 31, 2004, the Company may make
Capital Expenditures up to and including
$4,000,000, plus the amount, if any, by which
Capital Expenditures in 2003 did not equal the
maximum amount allowed hereunder for such year.
For every twelve-month period thereafter, the
Company may make Capital Expenditures up to and
including $2,500,000, plus the amount, if any, by
which Capital Expenditures in prior periods had not
equaled the maximum amount allowed hereunder
for such periods. Notwithstanding the foregoing, the
Company may make additional Capital
Expenditures during any period, provided that the
funds for such Capital Expenditures consist of
proceeds from the sale of Equity Interests of the
Company.
Section 4.22 Subsidiary Guarantees.
If the Company or any of its Subsidiaries
acquires or creates another Subsidiary after the date
of this Indenture, excluding all Subsidiaries that
have been properly designated as Unrestricted
Subsidiaries in accordance with this Indenture for
so long as they continue to constitute Unrestricted
Subsidiaries, then that newly acquired or created
Subsidiary shall become a Guarantor and execute a
supplemental indenture, substantially in the form of
Exhibit D hereto, and deliver an Opinion of Counsel
reasonably satisfactory to the Trustee that such
supplemental indenture has been duly authorized,
executed and delivered by such Subsidiary and is a
legal, valid, binding and enforceable obligation of
such Subsidiary, among other things, within five
business days of the date on which it was acquired
or created.
Section 4.23 Limitation on Payments for Consent.
The Company shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, pay
or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to or for the
benefit of any Holder for, or as an inducement to,
any consent, waiver or amendment of any of the
terms or provisions of the Indenture or the Notes
unless such consideration is offered to be paid to all
Holders which so consent, waive or agree to amend
in the time frame set forth in the solicitation of
documents relating to such consent, waiver or
agreement, which solicitation documents must be
mailed to all Holders prior to the expiration of the
solicitation.
ARTICLE V.
MERGER, CONSOLIDATION OR SALE OF
ASSETS
Section 5.1 Mergers, Consolidations and Sales of Assets.
(a) The Company may
not consolidate or merge with or into (whether or
not the Company is the surviving Person), or sell,
assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its properties or assets in
one or more related transactions to, another Person
unless:
(i) the Company
is the surviving Person or the Person formed by or
surviving any such consolidation or merger (if other
than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation
organized and existing under the laws of the United
States, any state thereof or the District of Columbia;
(ii) the Person
formed by or surviving any such consolidation or
merger (if other than the Company) or the entity or
Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have
been made assumes all the Obligations of the
Company under the Notes and this Indenture
pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee;
(iii) immediately
after such transaction, no Default or Event of
Default exists;
(iv) the Company,
or the Person formed by or surviving any such
consolidation or merger (if other than the Company)
or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been
made will have Consolidated Net Worth
immediately after the transaction equal to or greater
than the Consolidated Net Worth of the Company
immediately preceding the transaction; and
(v) the Company
and the surviving entity shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease,
conveyance or other disposition and, if a
supplemental indenture is required in connection
with such transaction, such supplemental indenture,
comply with all applicable provisions of this
Indenture and that all conditions precedent in this
Indenture relating to such transaction have been
satisfied.
(b) The Company will
not permit any Guarantor to consolidate with or
merge with or into, or convey, transfer or lease all
or substantially all of its assets to any Person unless:
(i) the resulting,
surviving or transferee Person will be a corporation,
partnership or limited liability company organized
and existing under the laws of the United States of
America, any State thereof or the District of
Columbia, and such Person (if not such Guarantor)
will expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all the
obligations of such Guarantor under its Subsidiary
Guarantee;
(ii) immediately
after giving effect to such transaction (and treating
any Indebtedness which becomes an obligation of
the resulting, surviving or transferee Person as a
result of such transaction as having been incurred
by such Person at the time of such transaction), no
Default or Event of Default shall have occurred and
be continuing; and
(iii) the Company
will have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and such
supplemental indenture, if any, comply with this
Indenture;
provided, however, that the foregoing shall not
apply to any such consolidation or merger with or
into, or conveyance, transfer or lease to, any Person
if the resulting, surviving or transferee Person will
not be a Subsidiary of the Company and the other
terms of this Indenture, including Section 5.1
hereof, are complied with.
(c) For purposes of the
foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of
transactions) of all or substantially all of the
properties or assets of one or more Subsidiaries of
the Company, the Capital Stock of which
constitutes all or substantially all of the properties
and assets of the Company, shall be deemed to be
the transfer of all or substantially all of the
properties and assets of the Company.
Section 5.2 Successor Substituted.
Upon any consolidation of the Company
with, or merger of either of the Company with or
into, any other Person or any conveyance, transfer
or lease of the properties and assets of the Company
substantially as an entity in accordance with Section
5.1, the successor Person formed by such
consolidation or into which the Company is merged
or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for (so
that from and after the date of such consolidation,
merger, sale, lease, conveyance or other disposition,
the provisions of this Indenture referring to the
"Company" shall refer to the successor corporation
or entity and not the Company), and may exercise
every right and power of, the Company under this
Indenture with the same effect as if such successor
Person had been named as the Company herein;
provided, however, that the predecessor Company
shall not be relieved from the obligation to pay the
principal and interest on the Notes except in the
case of a sale of all of the Company's assets in a
transaction that is subject to, and that complies with,
the provisions of Section 5.1 hereof.
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default.
"Event of Default," wherever used herein,
means any one of the following events (whatever
the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or
regulation of any administrative or governmental
body):
(i) default for 5
days in the payment when due of interest on the
Notes;
(ii) default in
payment when due (whether at maturity, upon
redemption or repurchase or acceleration, or
otherwise) of the principal of or premium (if any)
on the Notes;
(iii) default in the
payment of principal or interest on the Notes
required to be redeemed pursuant to Section 3.8 or
purchased pursuant to Section 4.14 or Section 4.15
or failure by the Company to comply with the
provisions of Article V;
(iv) failure by the
Company or any of its Restricted Subsidiaries to
comply with any of their covenants in this Indenture
or the Notes within 30 days of the earlier of (A)
receipt of notice to the Company by the Trustee or
to the Company and the Trustee by the Holders of at
least 25% of the outstanding principal amount of the
Notes or (B) actual knowledge by the Company of
such failure;
(v) default under
any indenture, mortgage or instrument (other than
Senior Indebtedness) under which there may be
issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by
the Company or any of its Restricted Subsidiaries
(or the payment of which is guaranteed by any the
Company or any of its Restricted Subsidiaries),
whether such Indebtedness or guarantee now exists,
or is created after the date of this Indenture, which
default:
(A) is
caused by a failure to pay principal of, or premium,
if any, or interest on, such Indebtedness prior to the
expiration of the grace period provided in such
Indebtedness on the date of such default (a
"Payment Default"); or
(B) results
in the acceleration (which acceleration has not been
rescinded) of such Indebtedness prior to its express
maturity;
and, in each case described in clause (A) and (B) of
this paragraph, the principal amount of any such
Indebtedness, together with the principal amount of
any other such Indebtedness under which there has
been a Payment Default or the maturity of which
has been so accelerated, in the case of clause (iii),
aggregates $1 million or more;
(vi) default under
any instruments governing Senior Indebtedness,
which default results in the acceleration (which
acceleration has not been rescinded) of such Senior
Indebtedness prior to its express maturity or the
right of the holders of such Senior Indebtedness to
delay payment or distribution on the Notes;
(vii) failure by the
Company or any of its Restricted Subsidiaries to
pay final judgments (other than any judgments as to
which a reputable insurance company has accepted
full liability and whose bond, premium or similar
charge therefor is not in excess of $1 million)
aggregating in excess of $1 million, which
judgments are not paid, discharged or stayed within
60 days after their entry;
(viii) any Subsidiary
Guarantee is, or Subsidiary Guarantees are, held in
any judicial proceeding to be unenforceable or
invalid, or ceases for any reason to be in full force
and effect, including any denial or disaffirmation by
a Guarantor or group of Guarantors of its or their
Obligations under its or their Subsidiary
Guarantee(s), and such default continues for ten
days after written notice, if such Guarantor
individually is a Significant Subsidiary or if such
group of Guarantors in the aggregate, would be
considered a Significant Subsidiary if taken
together;
(ix) the entry by a
court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company
or any Restricted Subsidiary of the Company in an
involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree
or order adjudging the Company or any Restricted
Subsidiary of the Company bankrupt or insolvent,
or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or
composition of or in respect of the Company or any
Restricted Subsidiary of the Company under any
applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of either of the
Company or any Restricted Subsidiary of the
Company or of any substantial part of its property,
or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or
order for relief or any such other decree or order
unstayed and in effect for a period of 30
consecutive days; or
(x) the
commencement by the Company or any Restricted
Subsidiary of the Company of a voluntary case or
proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in
respect of the Company or any Restricted
Subsidiary of the Company in an involuntary case
or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any
applicable federal or state law, or the consent by it
to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official of the either of Company or any
Restricted Subsidiary of the Company, or of any
substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of
corporate action by the Company or any Restricted
Subsidiary of the Company in furtherance of any
such action.
Section 6.2 Acceleration.
(a) If an Event of
Default, other than an Event of Default specified in
Section 6.1(ix) or (x) with respect to the Company,
any Significant Subsidiary of the Company or any
group of Restricted Subsidiaries of the Company
that, if considered to be one entity when taken
together, would constitute a Significant Subsidiary,
occurs and is continuing and has not been waived
pursuant to Section 6.4, then the Trustee or the
Holders of at least 25% in principal amount of the
then outstanding Notes may declare the principal of
and accrued interest on all the outstanding Notes to
be due and payable by notice in writing to the
Company and the Trustee specifying the respective
Event of Default, such notice to be deemed a
"notice of acceleration" (an "Acceleration Notice"),
and the same shall become immediately due and
payable.
(b) If an Event of Default
specified in Section 6.1(ix) or (x) with respect to the
Company, any Significant Subsidiary or any group
of Restricted Subsidiaries that, if considered to be
one entity when taken together, would constitute a
Significant Subsidiary occurs and is continuing,
then all unpaid principal of, and premium (if any)
and accrued and unpaid interest on all of the
outstanding Notes shall become immediately due
and payable without further action or notice on the
part of the Trustee or any Holder.
(c) At any time after a
declaration of acceleration with respect to the Notes
in accordance with Section 6.2(a), the Holders of a
majority in principal amount of the Notes may
rescind and cancel such declaration and its
consequences, but only: (i) if the rescission would
not conflict with any judgment or decree, (ii) if all
existing Events of Default have been cured or
waived except nonpayment of principal or interest
that has become due solely because of the
acceleration, (iii) to the extent the payment of such
interest is lawful, interest on overdue installments of
interest and overdue principal, which has become
due otherwise than by such declaration of
acceleration, has been paid, (iv) if the Company has
paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses,
disbursements and advances and all other amounts
due the Trustee pursuant to Section 7.7, and (v) if
the Trustee shall have received an Officers'
Certificate that such Event of Default has been
cured or waived. No such rescission shall affect
any subsequent Default or impair any right
consequent thereto.
Section 6.3 Other Remedies.
If an Event of Default occurs and is
continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect
the payment of principal or premium (if any) of or
interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding
even if it does not possess any of the Notes or does
not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an
Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in
the Event of Default. No remedy is exclusive of
any other remedy. All available remedies are
cumulative to the extent permitted by law. For
clarification purposes, any Holder may pursue its
remedies hereunder and upon payment of such
Xxxxxx's Notes, such Holder shall not be required to
deliver any proceeds relating thereto to the other
Holders of outstanding Notes.
Section 6.4 Waiver of Past Defaults.
Subject to Sections 2.9, 6.2, 6.7 and 9.2, at
any time prior to a declaration of acceleration with
respect to the Notes in accordance with Section
6.2(a), the Holders of a majority in aggregate
principal amount of the Notes then outstanding, by
notice to the Trustee may, on behalf of the Holders
of all the Notes, waive an existing Default or Event
of Default and its consequences, except a
continuing Default or Event of Default in the
payment of principal or premium (if any) of or
interest on any Note as specified in clauses (i) and
(ii) of Section 6.1. Such waiver by the Holders shall
not constitute a waiver by the Holders of any
subsequent Default or Event of Default.
Section 6.5 Control by Majority.
Subject to Section 2.9, the Holders of a
majority in principal amount of the outstanding
Notes may direct the time, method and place of
conducting any proceeding for any remedy
available to the Trustee or exercising any trust or
power conferred on it, including, without limitation,
any remedies provided for in Section 6.3. Subject
to Section 7.1, however, the Trustee may refuse to
follow any direction that the Trustee reasonably
believes conflicts with any law or this Indenture or
that the Trustee determines may be unduly
prejudicial to the rights of another Holder.
Section 6.6 Limitation on Suits.
A Holder may not pursue any remedy with
respect to this Indenture or the Notes unless:
(i) the Holder
gives to the Trustee written notice of a continuing
Event of Default;
(ii) Holders of at
least 25% in principal amount of the outstanding
Notes make a written request to the Trustee to
pursue the remedy;
(iii) such Holders
offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability
or expense to be incurred in compliance with such
request;
(iv) the Trustee
does not comply with the request within 30 days
after receipt of the request and the offer of
satisfactory indemnity; and
(v) during such
30-day period the Holders of a majority in principal
amount of the outstanding Notes do not give the
Trustee a direction which, in the opinion of the
Trustee, is inconsistent with the request.
The foregoing limitations shall not apply to
a suit instituted by a Holder for the enforcement of
the payment of principal and premium (if any) or
interest on such Note on or after the respective due
dates set forth in such Note (including upon
acceleration thereof) or the institution of any
proceeding with respect to this Indenture or any
remedy hereunder, including, without limitation,
acceleration, by the Holders of a majority in
principal amount of outstanding Notes, provided
that upon institution of any proceeding or exercise
of any remedy, such Holders provide the Trustee
with prompt notice thereof.
A Holder may not use this Indenture to
prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder, it
being understood and intended that no one or more
Holders shall have any right by virtue of any
provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders, or to
obtain or to seek to obtain priority or preference
over any other Holders, or to enforce any right
under this Indenture except in the manner herein
provided and for the equal and ratable benefit of all
the Holders.
Section 6.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this
Indenture, the right of any Holder to receive
payment of principal of, and interest on a Note, on
or after the respective due dates expressed in such
Note, or to bring suit for the enforcement of any
such payment on or after such respective dates,
shall not be impaired or affected without the
consent of such Holder.
Section 6.8 Collection Suit by Trustee.
If an Event of Default in payment of
principal or interest specified in clause (i) or (ii) of
Section 6.1 occurs and is continuing, the Trustee is
authorized to recover judgment in its own name and
as trustee of an express trust against the Company
or any other obligor on the Notes for the whole
amount of principal and accrued interest remaining
unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is
lawful, interest on overdue installments of interest,
and such further amount as shall be sufficient to
cover the costs and expenses of collection,
including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its
agents and counsel and all other amounts due to the
Trustee pursuant to Section 7.7.
Section 6.9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim
and other papers or documents as may be necessary
or advisable in order to have the claims of the
Trustee (including any claim for the reasonable
compensation, expenses, taxes, disbursements and
advances of the Trustee, its agents and counsel and
all other amounts due to the Trustee pursuant to
Section 7.7) and the Holders allowed in any judicial
proceedings relating to the Company or any other
obligor upon the Notes, any of their respective
creditors or any of their respective property and
shall be entitled and empowered to collect and
receive any monies or other property payable or
deliverable on any such claims and to distribute the
same, and any custodian, receiver, assignee, trustee,
liquidator or other similar official in any such
judicial proceedings is hereby authorized by each
Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the
reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agent
and counsel, and any other amounts due the Trustee
under Section 7.7. The Company's payment
obligations to the Trustee under this Section 6.9
shall be secured in accordance with the provisions
of Section 7.7.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any
Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such
proceeding.
Section 6.10 Priorities.
If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out
the money in the following order:
First: to the Trustee for amounts due under
Section 7.7;
Second: if the Holders are forced to proceed
against the Company directly without the Trustee,
to the Holders for their collection costs including,
without limitation, any costs incurred in connection
with protection or assertion of their rights under this
Indenture or the Bankruptcy Code in a bankruptcy
or reorganization of the Company;
Third: to Holders for amounts due and
unpaid on the Notes for principal and premium (if
any) and interest, ratably, without preference or
priority of any kind, according to the amounts due
and payable on the Notes for principal, premium
and interest, respectively; and
Fourth: to the Company or any other
obligor on the Notes, as their interests may appear,
or as a court of competent jurisdiction may direct.
The Trustee, upon prior notice to the
Company, may fix a record date and payment date
for any payment to Holders pursuant to this Section
6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does
not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7, or a suit by a Holder or
Holders of more than 10% in principal amount of
the outstanding Notes.
ARTICLE VII.
TRUSTEE
Section 7.1 Duties of Trustee.
(a) The duties and
responsibilities of the Trustee shall be as provided
by the TIA and this Indenture. No provision of this
Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial
liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate
indemnity against such risk or liability is not
reasonably assured to it.
(b) If an Event of Default
has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it
by this Indenture and use the same degree of care
and skill in its exercise thereof as a prudent person
would exercise or use under the circumstances in
the conduct of his own affairs.
(c) Except during the
continuance of an Event of Default:
(i) The Trustee
need perform only those duties as are required by
the TIA or specifically set forth in this Indenture
and no other covenants or obligations shall be
implied in this Indenture against the Trustee.
(ii) In the absence
of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine
the certificates and opinions to determine whether
or not they conform to the requirements of this
Indenture.
(d) Notwithstanding
anything to the contrary herein contained, the
Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to
act or its own willful misconduct.
(e) Every provision of
this Indenture that relates to the Trustee is subject to
paragraphs (a), (b), (c) and (d) of this Section 7.1.
(f) The Trustee shall not
be liable for interest on any money or assets
received by it except as the Trustee may agree in
writing. Assets held in trust by the Trustee need not
be segregated from other assets except to the extent
required by law.
Section 7.2 Rights of Trustee.
Subject to Section 7.1:
(i) The Trustee
may rely and shall be fully protected in acting or
refraining from acting upon any document believed
by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the
document.
(ii) Before the
Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers'
Certificate or an Opinion of Counsel, or both. The
Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(iii) The Trustee
may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence
of any agent appointed with due care.
(iv) The Trustee
shall not be liable for any action that it takes or
omits to take in good faith which it reasonably
believes to be authorized or within its rights or
powers.
(v) The Trustee
shall not be bound to make any investigation into
the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, notice,
request, direction, consent, order, bond, debenture,
or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled,
upon reasonable notice to the Company, to examine
the books, records, and premises of the Company,
personally or by agent or attorney and to consult
with the officers and representatives of the
Company, including the Company's accountants
and attorneys.
(vi) The Trustee
shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders
pursuant to the provisions of this Indenture, unless
such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the
Trustee against the costs, expenses and liabilities
which may be incurred by it in compliance with
such request, order or direction.
(vii) The Trustee
shall not be required to give any bond or surety in
respect of the performance of its powers and duties
hereunder.
(viii) the Trustee
shall not be charged with knowledge of any Default
or Event of Default unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge
of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall
have been given to the Trustee by the Company, (it)
the permissive rights of the Trustee to do things
under this Indenture shall not be construed as
duties, or any Holder.
Section 7.3 Individual Rights of Trustee and Agents.
Each of the Trustee, any Paying Agent and
any Registrar, in its individual or any other
capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company or
any of its Subsidiaries or Affiliates with the same
rights it would have if it were not Trustee or such
agent.
Section 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to
the validity or adequacy of this Indenture, or the
Notes, and it shall not be accountable for the
Company's use of the proceeds from the Notes, and
it shall not be responsible for any statement of the
Company in this Indenture or the Notes, other than
the Trustee's certificate of authentication.
Section 7.5 Notice of Default.
If a Default or an Event of Default occurs
and is continuing and if it is known to the Trustee,
the Trustee shall mail to each Holder notice of the
uncured Default or Event of Default within 30 days
after such Default or Event of Default becomes
known to the Trustee. Except in the case of a
Default or an Event of Default in payment of
principal of, premium, if any, interest on any Note,
including an accelerated payment and the failure to
make payment on the Change of Control Payment
Date pursuant to a Change of Control Offer or on
the Proceeds Purchase Date pursuant to an Asset
Sale Offer, and, except in the case of a failure to
comply with Article V hereof, the Trustee may
withhold the notice if and so long as it in good faith
determines that withholding such notice is in the
interest of the Holders.
Section 7.6 Reports by Trustee to Holders.
Within 60 days after each May 15, the
Trustee shall, to the extent that any of the events
described in TIA Section 313(a) occurred within the
previous twelve months, but not otherwise, mail to
each Holder a report dated as of such date that
complies with TIA Section 313(a). The Trustee
also shall comply with TIA Sections 313(b) and (c).
A copy of each report at the time of its
mailing to Holders shall be mailed to the Company
and filed with the Commission and each securities
exchange, if any, on which the Notes are listed.
The Company shall promptly notify the
Trustee in writing if the Notes become listed on any
securities exchange and the Trustee shall comply
with TIA Section 313(d).
Section 7.7 Compensation and Indemnity.
(a) The Company agrees:
(i) to pay to the
Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which
compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of
an express trust);
(ii) except as
otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or
made by the Trustee in accordance with any
provision of this Indenture (including the reasonable
compensation and the expenses and disbursements
of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to
its negligence or bad faith; and
(iii) to indemnify
the Trustee for, and to hold it harmless against, any
loss, liability or expense (including the reasonable
compensation, expenses and disbursements of its
agents, accountants, experts and counsel) incurred
without negligence or bad faith on its part, arising
out of or in connection with the acceptance or
administration of this trust, including the costs and
expenses of enforcing this Indenture against the
Company (including, without limitation, this
Section 7.7) and of defending itself against any
claim (whether asserted by any Holder or the
Company) or liability in connection with the
exercise or performance of any of its powers or
duties hereunder.
(b) The Trustee shall
notify the Company promptly of any claim asserted
against the Trustee for which it may seek
indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its
obligations hereunder.
(c) The Company or such
Guarantor will defend the claim and the Trustee will
cooperate in the defense. The Company need not
pay for any settlement made without its consent,
which consent will not be unreasonably withheld.
(d) The Company need
not reimburse any expense or indemnify the Trustee
against any loss or liability to the extent incurred by
the Trustee through its negligence, bad faith or
willful misconduct.
(e) To secure the
Company's payment obligations in this Section 7.7,
the Trustee shall have a lien prior to the Notes on all
assets or money held or collected by the Trustee, in
its capacity as Trustee, except assets or money held
in trust to pay principal of, or interest on, particular
Notes. The Trustee's right to receive payment of
any amounts due under this Section 7.7 shall not be
subordinate to any other liability or indebtedness of
the Company.
(f) When the Trustee
incurs expenses or renders services after an Event of
Default specified in Section 6.1(viii) or (x) occurs,
such expenses and the compensation for such
services are intended to constitute expenses of
administration under Title 11, U.S. Code, or any
similar federal or state law.
(g) The provisions of this
Section 7.7 shall survive the resignation or removal
of the Trustee and the satisfaction and discharge of
this Indenture.
(h) The Trustee shall
comply with the provisions of TIA Section
313(b)(2) to the extent possible.
Section 7.8 Resignation and Removal; Appointment of
Successor.
(a) No resignation or
removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article VII shall
become effective until the acceptance of
appointment by the successor Trustee under Section
7.9, at which time the retiring Trustee shall be fully
discharged from its obligations hereunder.
(b) The Trustee may
resign at any time by giving at least 30 days'
advance written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within
30 days after the giving of such notice of
resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment
of a successor Trustee.
(c) The Trustee may be
removed at any time by notice, in writing, of the
Holders of a majority in principal amount of the
outstanding Notes, delivered to the Trustee and to
the Company.
(d) If at any time:
(i) the Trustee
shall fail to comply with Section 7.11 hereof; or
(ii) the Trustee
shall cease to be eligible under Section 7.11 and
shall fail to resign after written request therefor by
the Company or by any such Holder; or
(iii) the Trustee
shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any
public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then,
in any such case (1) the Company by an appropriate
board resolution evidenced by an Officers'
Certificate may remove the Trustee, or (2) subject
to Section 6.11, any Holder may, on behalf of
himself and all others similarly situated, petition
any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall
resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee
for any cause, the Company, by an appropriate
board resolution evidenced by an Officers'
Certificate shall promptly appoint a successor
Trustee. If, within one year after such resignation,
removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by
Act of the Holders of a majority in principal amount
of the outstanding Notes delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee
and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders
and accepted appointment in the manner herein
provided, any Holder may, on behalf of himself and
all others similarly situated, petition any court of
competent jurisdiction for the appointment of a
successor Trustee.
(f) If the Trustee, after
written request by the Company or by any Holder
who has been a Holder for at least six months, fails
to comply with Section 7.11 hereof, such Holder
may petition any court of competent jurisdiction for
the removal of the Trustee or the appointment of a
successor Trustee.
(g) The Company shall
give or cause to be given notice of each resignation
and each removal of the Trustee and each
appointment of a successor Trustee to all Holders in
the manner provided herein. Each notice shall
include the name of the successor Trustee and the
address of its Corporate Trust Office.
Section 7.9 Acceptance of Appointment by Successor.
Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee a written
instrument accepting such appointment, and
thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor
Trustee, without any further act, deed or
conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee.
Upon request of the Company or the successor
Trustee, the retiring Trustee shall execute and
deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, in
each case subject to the lien of the retiring Trustee
granted pursuant hereto. Upon request of any such
successor Trustee, the Company shall execute any
and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee
all such rights, powers and trusts.
No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article VII.
Section 7.10 Successor Trustee by Xxxxxx, Etc.
If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of
its corporate trust business to, another corporation,
the resulting, surviving or transferee corporation
without any further act shall, if such resulting,
surviving or transferee corporation is otherwise
eligible hereunder, be the successor Trustee,
provided that such corporation shall be otherwise
qualified and eligible under this Article VII. In case
any Notes shall have been authenticated, but not
delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such
authentication and deliver the Notes so
authenticated with the same effect as if such
successor Trustee had itself authenticated such
Notes.
Section 7.11 Trustee Required; Eligibility; Disqualification.
There shall at all times be a Trustee
hereunder which shall be a Person that is eligible
pursuant to the TIA to act as such, and has a
combined capital and surplus of at least
$50,000,000 and its Corporate Trust Office in the
Borough of Manhattan, The City of New York,
New York. If such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of a federal, state, territorial or District
of Columbia supervising or examining authority,
then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in
its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it
shall resign immediately in the manner and with the
effect specified in this Article VII. If the Trustee
has or shall acquire a conflicting interest within the
meaning of the TIA, the Trustee shall either
eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the
provisions of, the TIA and this Indenture.
Section 7.12 Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a
creditor of the Company (or any other obligor upon
the Notes), the Trustee shall be subject to the
provisions of the TIA regarding the collection of
claims against the Company (or any such other
obligor).
ARTICLE VIII.
DEFEASANCE AND SATISFACTION AND
DISCHARGE
Section 8.1 Legal Defeasance and Covenant Defeasance.
(a) Company's Option to
Effect Defeasance or Covenant Defeasance. The Company may
at its option, by an appropriate board resolution
evidenced by an Officers' Certificate, at any time
(subject to 10-day prior written notification to the
Trustee), elect to have the provisions of either
Section 8.1(b) or (c) applied to the outstanding
Notes upon compliance with the conditions set forth
below in this Article VIII.
(b) Legal Defeasance and
Discharge. Upon the Company's exercise of the option
provided in Section 8.1(a) applicable to this Section, the
Company shall be deemed to have been discharged
from its obligations with respect to the outstanding
Notes on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this
purpose, such Legal Defeasance means that the
Company shall be deemed to have paid and
discharged the entire indebtedness represented by
the outstanding Notes and to have satisfied all its
other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and
the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the
same), except for the following which shall survive
until otherwise terminated or discharged hereunder:
(i) the rights of Holders of outstanding Notes to
receive, solely from the trust fund described in
Section 8.1(d) and as more fully set forth in such
Section, payments in respect of the principal and
premium (if any) of and interest on such Notes
when such payments are due, (ii) the Company's
Obligations with respect to such Notes under
Sections 2.4, 2.6, 2.7, 2.10 and 4.2, (iii) the rights,
powers, trusts, duties and immunities of the Trustee
hereunder and (iv) this Article VIII. Subject to
compliance with this Article VIII, the Company
may exercise its option under this Section 8.1(b)
notwithstanding the prior exercise of its option
under Section 8.1(c).
(c) Covenant Defeasance. Upon the
Company's exercise of the option provided in
Section 8.1(a) applicable to this Section and
compliance with Section 8.1(d), (i) the Company
shall be released from its obligations under Sections
4.5 through 4.22, inclusive, and (ii) the occurrence
of an event specified in Section 6.1(iv) shall not be
deemed to be an Event of Default, on and after the
date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that the
Company may omit to comply with and shall have
no liability in respect of any term, condition or
limitation set forth in any such covenant, whether
directly or indirectly by reason of any reference
elsewhere herein to any such covenant or by reason
of any reference in any such covenant to any other
provision herein or in any other document, but the
remainder of this Indenture and such Notes shall be
unaffected thereby.
(d) Conditions to Legal
Defeasance or Covenant Defeasance. The following shall
be the conditions to application of either Section
8.1(b) or 8.1(c) to the outstanding Notes:
(i) The Company
shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for
the purpose of making the following payments,
specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Notes:
(A) cash in U.S. dollars, or (B) non-callable
Government Securities which through the scheduled
payment of principal and interest in respect thereof
in accordance with their terms will provide, not
later than one day before the due date of any
payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally
recognized firm of independent certified public
accountants expressed in a written certification
thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee
to pay and discharge, the principal and premium (if
any) of, and interest on the Notes at the Stated
Maturity of such principal or installment of interest
on the day on which such payments are due and
payable in accordance with the terms of this
Indenture and of such Notes;
(ii) No Default or
Event of Default shall have occurred and be
continuing on the date of such deposit;
(iii) Such Legal
Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest as
described in Section 7.11 and for purposes of the
TIA with respect to any securities of the Company;
(iv) Such Legal
Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or
instrument to which any Issuer or Guarantor is a
party or by which it is bound;
(v) The Company
shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day (or such
applicable date) following the deposit, the trust
funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally
including avoidance as a preference under Section
547 of the Bankruptcy Code;
(vi) The Company
shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by
the Company with the intent of preferring the
Holders of Notes over the other creditors of the
Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or
others;
(vii) The Company
shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to
either the Legal Defeasance under Section 8.1(b) or
the Covenant Defeasance under Section 8.1(c), as
the case may be, have been complied with;
(viii) In the case of
an election under Section 8.1(b), the Company shall
have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or
there has been published by, the Internal Revenue
Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable
federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm
that, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income
tax purposes as a result of such deposit, defeasance
and discharge and will be subject to federal income
tax on the same amounts, in the same manner and at
the same times as would have been the case if such
deposit, defeasance and discharge had not occurred;
(ix) In the case of
an election under Section 8.1(c), the Company shall
have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the outstanding
Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such
deposit and Covenant Defeasance and will be
subject to federal income tax on the same amounts,
in the same manner and at the same times as would
have been the case if such covenant defeasance had
not occurred; and
(x) The Company
shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit and Legal
Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an
investment company as defined in the Investment
Company Act of 1940, as amended, or such trust
shall be qualified under such act or exempt from
regulation thereunder.
Section 8.2 Satisfaction and Discharge.
In addition to the Company's rights under
Section 8.1, the Company may terminate all of its
obligations under this Indenture when:
(i) all Notes
theretofore authenticated and delivered (other than
Notes which have been destroyed, lost or stolen and
which have been replaced or paid as provided in
Section 2.7 and Notes for whose payment money
has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter
repaid to the Company or discharged from such
trust) have been delivered to the Trustee for
cancellation or all such Notes not theretofore
delivered to the Trustee for cancellation have
become due and payable and the Company has
irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust solely for that
purpose an amount of money sufficient to pay and
discharge the entire principal and premium (if any)
of and interest on the Notes not theretofore
delivered to the Trustee for cancellation;
(ii) the Company
has paid or caused to be paid all other sums payable
hereunder;
(iii) the Company
has delivered irrevocable instructions to the Trustee
to apply the deposited money toward the payment
of the Notes at maturity or redemption, as the case
may be; and
(iv) the Company
has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, stating that all
conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture have
been complied with.
Section 8.3 Survival of Certain Obligations.
Notwithstanding the satisfaction and
discharge of this Indenture and of the Notes referred
to in Section 8.1 or 8.2, the respective obligations of
the Company and the Trustee under Sections 2.2,
2.3, 2.4, 2.5, 2.6, 2.7, 2.10, 2.11, 2.12, 2.13, 4.1, 4.2,
6.7, Article VII, and Sections 8.5, 8.6 and 8.7 shall
survive until no Notes are outstanding, and
thereafter the obligations of the Company and the
Trustee under Sections 7.7, 8.5, 8.6 and 8.7 shall
survive. Nothing contained in this Article VIII shall
abrogate any of the obligations or duties of the
Trustee under this Indenture.
Section 8.4 Acknowledgment of Discharge by Trustee.
After (i) the conditions of Section 8.1 or 8.2
have been satisfied, (ii) the Company has paid or
caused to be paid all other sums payable hereunder
and (iii) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent referred to
in clause (i) above relating to the satisfaction and
discharge of this Indenture have been complied
with, the Trustee, upon written request, shall
acknowledge in writing the discharge of the
Company's obligations under this Indenture, except
for those surviving obligations specified in Section
8.3.
Section 8.5 Application of Trust Moneys and Government
Securities.
Subject to the provisions of Section 2.4, all
money and Government Securities (including the
proceeds thereof) deposited with the Trustee
pursuant to Section 8.1(d)(i) in respect of the Notes
shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or
through any Paying Agent as the Trustee may
determine, to the Holders of such Notes, of all sums
due and to become due thereon in respect of
principal and premium (if any) of and interest on
the Notes, but such money and Government
Securities need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed
on or assessed against the Government Securities
deposited pursuant to Section 8.1(d)(i) or the
principal and interest received in respect thereof
other than any such tax, fee or other charge which
by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article VIII to the contrary
notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon request by an
Officers' Certificate any money or Government
Securities held by it as provided in Section 8.1(d)(i)
which, in the opinion of a nationally recognized
firm of independent certified public accountants
expressed in a written certification thereof delivered
to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to
effect an equivalent defeasance or covenant
defeasance.
Section 8.6 Repayment to the Company; Unclaimed Money.
Any money or Government Securities
deposited with the Trustee or the Paying Agent in
trust for the payment of the principal and premium
(if any) of and interest on the Notes and remaining
unclaimed for two years after it has become due and
payable shall be paid to the Company upon written
request in the form of an Officers' Certificate, and
the Holder of such Notes shall thereafter, as a
creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall
thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of
the Company cause to be published once, in the
New York Times and The Wall Street Journal
(national edition), notice that such money remains
unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date
of such notification or publication, any unclaimed
balance of such money then remaining will be
repaid to the Company.
Section 8.7 Reinstatement.
If the Trustee or the Paying Agent is unable
to apply any money or Government Securities in
accordance with Section 8.1(b) or 8.1(c) by reason
of any order or judgment of any court or
governmental authority enjoining, restraining or
otherwise prohibiting such application, then the
Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII
until such time as the Trustee or Paying Agent is
permitted to apply all such money or Government
Securities in accordance with Section 8.1(b) or
8.1(c); provided, however, that if the Company
makes any payment of principal and premium (if
any) on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or the
Paying Agent.
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND
WAIVERS
Section 9.1 Without Consent of Holders.
Notwithstanding Section 9.2 of this
Indenture, without notice to or the consent of any
Holder, the Company, when authorized by an
appropriate board resolution evidenced by an
Officers' Certificate, at any time and from time to
time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the
Trustee, and may amend this Indenture or the Notes,
for any of the following purposes:
(i) to cure any
ambiguity, defect or inconsistency; provided that
such amendment or supplement does not, as
evidenced by an Opinion of Counsel delivered to
the Trustee, adversely affect the legal rights of any
Holder;
(ii) to comply
with Article V;
(iii) to provide for
uncertificated Notes in addition to or in place of
certificated Notes;
(iv) to comply
with any requirements of the Commission in order
to effect or maintain the qualification of this
Indenture under the TIA;
(v) to allow any
Guarantor to execute a supplemental indenture
and/or a Subsidiary Guarantee with respect to the
Notes;
(vi) to make any
change that would provide any additional benefit or
rights to the Holders or that does not, as evidenced
by an Opinion of Counsel delivered to the Trustee,
adversely affect the legal rights of any Holder; or
(vii) to make any
other change that does not, as evidenced by an
Opinion of Counsel delivered to the Trustee,
adversely affect the legal rights of any Holder;
provided that the Company deliver to the Trustee in
addition to the documents required by Section 11.6
an Opinion of Counsel and an Officers' Certificate
stating that such amendment or supplement
complies with the provisions of this Section.
Section 9.2 With Consent of Holders.
Subject to Section 6.7, the Company, when
authorized by an appropriate board resolution
evidenced by an Officers' Certificate, and the
Trustee, may amend or supplement the Indenture
and the Notes with the consent of the Holders of at
least a majority in principal amount of the Notes
then outstanding (including consents obtained in
connection with a purchase of, or tender offer or
exchange offer for, Notes), and any existing default
or compliance with any provision of the Indenture
or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the
then outstanding Notes (including consents obtained
in connection with a purchase of, or tender offer or
exchange offer for Notes).
Without the consent of each Holder of each
Note affected thereby, an amendment, supplement
or waiver may not (with respect to any Note held by
a non-consenting Holder):
(i) reduce the
principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(ii) reduce the
principal of or change the fixed maturity of any
Note, or alter the provisions with respect to the
redemption of the Notes (other than provisions set
forth in Sections 4.14 and 4.15 of this Indenture);
(iii) reduce the rate
of or change the time for payment of interest on any
Note or extend the PIK Period;
(iv) waive a
Default or Event of Default in the payment of
principal and premium (if any) of, and interest on,
the Notes (except a rescission of acceleration of the
Notes by the Holders of at least a majority in
aggregate principal amount of the Notes and a
waiver of the payment default that resulted from
such acceleration);
(v) make any
Note payable in money other than that stated in the
Notes;
(vi) make any
change in provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of
Notes to receive payments of principal and
premium (if any) of, and interest on, the Notes;
(vii) waive a
redemption payment with respect to any Note (other
than a payment required by Section 4.14 and 4.15);
or
(viii) make any
change in the amendment and waiver provisions of
this Section 9.2.
Upon the request of the Company
accompanied by an Officers' Certificate in form
satisfactory to the Trustee certifying corporate
resolutions, authorizing the execution of any
amended or supplemental indenture, and upon the
filing with the Trustee of evidence satisfactory of
the consent of the Holders as aforesaid, and upon
receipt by the Trustee of the documents described in
Section 11.6 hereof, the Trustee shall join with the
Company in the execution of such amended or
supplemental indenture unless such amended or
supplemental indenture affects the Trustee's own
rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into
such amended or supplemental indenture. It shall
not be necessary for the consent of the Holders
under this Section to approve the particular form of
any proposed amendment, supplement or waiver,
but it shall be sufficient if such consent approves
the substance thereof. After an amendment,
supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the
Holders affected thereby a notice briefly describing
the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or
affect the validity of any such supplemental
indenture.
Section 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional
trusts created by, any supplemental indenture
permitted by this Article IX or the modifications
thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to
Section 7.1) shall be fully protected in relying upon,
in addition to the documents required by Section
11.6, an Opinion of Counsel stating that the
execution of such supplemental indenture is
authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental
indenture under this Article IX, this Indenture shall
be modified in accordance therewith, and such
supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of
Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 9.5 Compliance with Trust Indenture Act.
Every amendment, waiver or supplement of
this Indenture or the Notes shall comply with the
TIA as then in effect.
Section 9.6 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to
this Article IX may, and shall if required by the
Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so
determine, new Notes so modified as to conform, in
the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and
executed by the Company and authenticated and
delivered by the Trustee in exchange for
outstanding Notes.
Section 9.7 Revocation and Effect of Consents.
Until an amendment, waiver or supplement
becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note
that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not
made on any Note. Subject to the following
paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or
portion of such Note by notice to the Trustee or the
Company received before the date on which the
Trustee receives an Officers' Certificate certifying
that the Holders of the requisite principal amount of
Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or
waiver.
The Company may, but shall not be
obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date
is fixed, then notwithstanding the last sentence of
the immediately preceding paragraph, those Persons
who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall
be entitled to revoke any consent previously given,
whether or not such Persons continue to be Holders
after such record date. No such consent shall be
valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver
becomes effective, it shall bind every Holder, unless
it makes a change described in any of clauses (a)
through (h) of Section 9.2, in which case, the
amendment, supplement or waiver shall bind only
each Holder of a Note who has consented to it and
every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting
Holder's Note; provided that any such waiver shall
not impair or affect the right of any Holder to
receive payment of principal of, and interest on, a
Note, on or after the respective due dates expressed
in such Note, or to bring suit for the enforcement of
any such payment on or after such respective dates
without the consent of such Holder.
ARTICLE X.
SUBORDINATION
Section 10.1 Agreement to Subordinate.
The Company agrees, and each Holder by
accepting a Note agrees, that the Obligations under
this Indenture and the Notes is subordinated in right
of payment, to the extent and in the manner
provided in this Article, to the prior payment in full
of all Senior Indebtedness, and that the
subordination is for the benefit of the holders and
owners of Senior Indebtedness.
Section 10.2 Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the
Company in a liquidation or dissolution of the
Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding
relating to the Company or its property or in an
assignment for the benefit of creditors or any
marshalling of the assets and liabilities of the
Company:
(i) holders and
owners of Senior Indebtedness shall be entitled to
receive payment in full of all Obligations with
respect to the Senior Indebtedness before Holders
shall be entitled to receive any payment of any
Obligations with respect to the Notes; and
(ii) until all
Obligations with respect to Senior Indebtedness (as
provided in subsection (i) above) are paid in full,
any distribution to which Holders would be entitled
but for this Article shall be made to holders and
owners of Senior Indebtedness, as their interests
may appear, except that Holders may receive
securities that are subordinated to at least the same
extent as the Notes to (a) Senior Indebtedness and
(b) any securities issued in exchange for Senior
Indebtedness.
Section 10.3 Default on Senior Indebtedness.
The Company may not make any payment
or distribution to the Trustee or any Holders in
respect of Obligations with respect to the Notes and
may not acquire from the Trustee or any Holder any
Notes for cash or property (other than Indebtedness
that is subordinated to at least the same extent as the
Notes to (a) Senior Indebtedness and (b) any
securities issued in exchange for Senior
Indebtedness) until all Obligations with respect to
the Senior Indebtedness have been paid in full if:
(i) a default in the
payment of any Obligations with respect to the
Senior Indebtedness occurs and is continuing that
permits the holders of such Senior Indebtedness to
accelerate its maturity or the maturity of which has
been accelerated;
(ii) the Company
receives a notice of or has actual knowledge of a
default, other than a payment default, under any
Senior Indebtedness permitting an acceleration
thereof or that would permit an acceleration thereof
with the giving of notice or the passage of time or
both, but payments may and shall thereafter be
resumed if such payment is then otherwise
permitted by the Indenture and the maturity of such
Senior Indebtedness has not been or does not
remain accelerated;
(iii) the Company
receives a notice from holders of a majority in
aggregate principal amount of the Senior Notes of a
default thereon, but payments may and shall
thereafter be resumed upon such time as the default
is cured; or
(iv) any judicial
proceeding shall be pending with respect to a
default on Senior Indebtedness.
The Company may and shall resume
payments on and distributions in respect of the
Notes and may acquire them when the default is
cured or waived if this Article otherwise permits the
payment or acquisition at the time of such payment
or acquisition; provided that such payments and
distributions with respect to Notes will again be
subject to the limitations of this Section 10.3 if a
subsequent default under the same provisions of the
instrument governing Senior Indebtedness occurs
after a similar default has been cured or waived,
except that in no event shall the same set of facts
give rise to more than one 180-day period under
clause (ii) above, and except that payments in
respect of the Notes may not be delayed by this
Section 10.3 more than once in respect of the same
issue of Senior Indebtedness or more than once
during any 360 consecutive days with respect to any
or all issues of Senior Indebtedness.
Section 10.4 Acceleration of Securities.
If payment of the Notes is accelerated
because of an Event of Default, the Company shall
promptly notify holders and owners of Senior
Indebtedness of the acceleration. In such event,
Holders will not be entitled to receive or retain any
payment before all Senior Indebtedness has been
paid in full.
Section 10.5 When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder
receives any payment of any Obligations with
respect to the Notes at a time when the Trustee or
such Holder has actual knowledge such payment is
prohibited by Section 10.3 hereof, such payment
shall be held by the Trustee or such Holder, in trust
for the benefit of, and shall be paid forthwith over
and delivered, upon written request, to the holders
and owners of Senior Indebtedness as their interests
may appear or their agent or representative or the
trustee under the indenture or other agreement (if
any) pursuant to which Senior Indebtedness may
have been issued, as their respective interests may
appear, for application to the payment of all
Obligations with respect to Senior Indebtedness
remaining unpaid to the extent necessary to pay
such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment
or distribution to or for the holders and owners of
Senior Indebtedness.
If a distribution is made to the Trustee or
any Holder that because of this Article 10 should
not have been made to it, the Trustee or such Holder
who receives the distribution shall hold it in trust
for the benefit of, and, upon written request, pay it
over to, the holders and owners of Senior
Indebtedness as their interests may appear, or their
agent or representative or the trustee under the
indenture or other agreement (if any) pursuant to
which Senior Indebtedness may have been issued,
as their respective interests may appear, for
application to the payment of all Obligations with
respect to Senior Indebtedness remaining unpaid to
the extent necessary to pay such Obligations in full
in accordance with their terms, after giving effect to
any concurrent payment or distribution to or for the
holders and owners of Senior Indebtedness.
With respect to the holders and owners of
Senior Indebtedness, the Trustee undertakes to
perform only such obligations on the part of the
Trustee as are specifically set forth in this Article 10
and no implied covenants or obligations with
respect to the holders or owners of Senior
Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders or
owners of Senior Indebtedness, and shall not be
liable to any such holders or owners if the Trustee
shall pay over or distribute to or on behalf of
Holders or the Company or any other person money
or assets to which any holders or owners of Senior
Indebtedness shall be entitled by virtue of this
Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence
of the Trustee.
Section 10.6 Notice by Company.
The Company shall promptly notify the
Trustee and the Paying Agent of any facts known to
the Company that would cause a payment of any
Obligations with respect to the Notes to violate this
Article, but failure to give such notice shall not
affect the subordination of the Notes to the Senior
Indebtedness provided in this Article.
Section 10.7 Subrogation.
After all Senior Indebtedness is paid in full
and until the Notes are paid in full, Holders shall be
subrogated to the rights of holders and owners of
Senior Indebtedness to receive distributions
applicable to Senior Indebtedness to the extent that
distributions otherwise payable to the Holders have
been applied to the payment of Senior Indebtedness.
A distribution made under this Article to holders of
Senior Indebtedness that otherwise would have been
made to Holders is not, as between the Company
and Holders, a payment by the Company on the
Notes.
Section 10.8 Relative Rights.
This Article defines the relative rights of
Holders and holders of Senior Indebtedness.
Nothing in this Indenture shall:
(i) impair, as
between the Company and Holders, the obligation
of the Company, which is absolute and
unconditional, to pay principal of (and premium, if
any) and interest on the Notes in accordance with
their terms;
(ii) affect the
relative rights of Holders and creditors of the
Company other than their rights in relation to
holders and owners of Senior Indebtedness; or
(iii) prevent the
Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default,
subject to the rights of holders and owners of Senior
Indebtedness to receive distributions and payments
otherwise payable to Holders.
If the Company fails because of this Article
to pay principal of or interest on a Note on the due
date, the failure is still a Default or Event of
Default.
Section 10.9 Subordination May Not Be Impaired by
Company.
No right of any holder or owner of Senior
Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Notes shall be
impaired by any act or failure to act by the
Company or by its failure to comply with this
Indenture.
Section 10.10 Distribution or Notice to Representative.
Whenever a distribution is to be made or a
notice given to holders or owners of Senior
Indebtedness, the distribution may be made and the
notice given to their Representative.
Upon any payment or distribution of assets
of the Company referred to in this Article 10, the
Trustee and the Holders shall be entitled to rely
upon any order or decree made by any court of
competent jurisdiction or upon any certificate of
such Representative or of the liquidating trustee or
agent or other person making any distribution to the
Trustee or to the Holders for the purpose of
ascertaining the persons entitled to participate in
such distribution, the holders and owners of the
Senior Indebtedness and other Indebtedness of the
Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article
10.
Section 10.11 Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this
Article 10 or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the
making of any payment or distribution by the
Trustee, or the taking of any action by the Trustee,
and the Trustee or Paying Agent may continue to
make payments on the Notes unless it shall have
received at its Corporate Trust Office at least five
Business Days prior to the date of such payment
written notice of facts that would cause the payment
of any Obligations with respect to the Notes to
violate this Article. Only the Company, a
Representative or a holder or owner of an issue of
Senior Indebtedness that has no Representative may
give the notice. Nothing in this Article 10 shall
impair the claims of, or payments to, the Trustee
under Section 7.7 hereof.
The Trustee in its individual or any other
capacity may hold Senior Indebtedness with the
same rights it would have if it were not Trustee.
Any Agent may do the same with like rights.
Section 10.12 Authorization to Effect Subordination.
Each Holder of a Note by his acceptance
thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or
appropriate to effectuate the subordination as
provided in this Article 10, and appoints the Trustee
his attorney-in-fact for any and all such purposes.
Section 10.13 Trustee's Fees Not Prejudiced.
Nothing in this Article Ten will apply to
amounts due to the Trustee pursuant to other
Sections in this Indenture.
ARTICLE XI.
MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls.
If any provision of this Indenture limits,
qualifies or conflicts with a provision of the TIA
that is required under the TIA to be a part of and
govern this Indenture, such required provision shall
control. If any provision of this Indenture modifies
or excludes any provision of the TIA that may be so
modified or excluded, the provision of the TIA shall
be deemed to apply to this Indenture as so modified
or excluded, as the case may be.
Section 11.2 Notices to Company and Trustee.
Any notices or other communications
required or permitted hereunder shall be in writing,
and shall be sufficiently given if made by hand
delivery, by facsimile, or by registered or certified
mail, postage prepaid, return receipt requested, and
addressed as follows:
If to the Company:
ORBIMAGE Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 20166
Attn: Chief Financial Officer
Facsimile: 000-000-0000
If to the Trustee:
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Issuer Services
Facsimile: 000-000-0000
Each of the Company and the Trustee by written
notice as specified herein to each other Person may
designate additional or different addresses for
notices to such Person. Any notice or
communication to the Company or the Trustee shall
be deemed to have been given or made: as of the
date delivered, if personally delivered; when receipt
is confirmed, if sent by facsimile; and five calendar
days after mailing, if sent by registered or certified
mail, postage prepaid; provided that a notice of
change of address shall not be deemed to have been
given until actually received by the addressee.
Section 11.3 Notices to Holders.
Where this Indenture provides for notice to
Holders, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in
writing and: (i) in the case of a Global Note, by
facsimile or by overnight mail to the Depository;
and (ii) in the case of Notes other than a Global
Note, by first-class mail, postage prepaid, in each
case to each Holder affected at his address as it
appears in the Note Register, and shall be
sufficiently given if sent not later than the latest
date (if any) and not earlier than the earliest date (if
any) prescribed for the giving of such notice.
Neither the failure to mail any such notice nor any
defect in any notice so mailed to any particular
Holder shall affect the sufficiency of such notice
with respect to other Holders. Notice may be
waived in writing by any Person entitled to receive
such notice, either before or after the event
requiring notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
Section 11.4 Trustee, Paying Agent and Registrar
Procedures.
The Trustee may make reasonable rules in
accordance with the Trustee's customary practices
for action by or at meetings of Holders, and the
Paying Agent and the Registrar may make
reasonable rules for their functions.
Section 11.5 Communication by Holders of Notes with Other
Holders of Notes.
Holders may communicate pursuant to TIA
Section 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The
Company, the Trustee, the Regsitrar and anyone
else shall have the protection of TIA Section 312(c).
Section 11.6 Compliance Certificates and Opinions.
(a) Upon any application
or request by the Company to the Trustee to take
any action under any provision of this Indenture, the
Company shall furnish to the Trustee such
certificates and opinions as may be required under
the TIA and under this Indenture. Each such
certificate or opinion required to be made under this
Indenture shall be given in the form of an Officers'
Certificate, if to be given by the Company, or an
Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the TIA and
any other requirement set forth in this Indenture.
(b) Every certificate or
opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall
include:
(i) a statement
that each individual signing such certificate or
opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief
statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(iii) a statement
that, in the opinion of each such individual, he has
made such examination or investigation as is
necessary to enable him to express an informed
opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as
to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 11.7 Form of Documents Delivered to Trustee.
(a) In any case where
several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person,
or that they be so certified or covered by only one
document, but one such Person may certify or give
an opinion with respect to some matters and one or
more other such Persons as to other matters, and
any such Person may certify or give an opinion as to
such matters in one or several documents.
(b) Any Officers'
Certificate may be based, insofar as it relates to
legal matters, upon an Opinion of Counsel
submitted therewith, unless such Officer knows, or
in the exercise of reasonable care should know, that
the opinion with respect to the matters upon which
his certificate is based is erroneous. Any Opinion
of Counsel may be based, insofar as it relates to
factual matters, upon a certificate of officers of the
Company submitted therewith stating the
information on which such counsel is relying,
unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate
with respect to such matters is erroneous.
Section 11.8 Acts of Holders; Registered Holders; Record
Dates.
(a) Any request, demand,
authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given
or taken by Holders may be embodied in and
evidenced by one or more written instruments of
substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided,
such action shall become effective when such
instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments
(and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or
instruments. Proof of execution of any such
instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture
and (subject to Section 7.1) conclusive in favor of
the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of
the execution by any Person of any such instrument
or writing pursuant to this Section may be proved
by the affidavit of a witness of such execution or by
a certificate of a notary public or other officer
authorized by law to take acknowledgments of
deeds, certifying that the individual signing such
instrument or writing acknowledged to him the
execution thereof. Where such execution is by a
signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or
writing, or the authority of the Person executing the
same, may also be proved in any other manner
which the Trustee deems sufficient.
(c) The ownership of
Notes shall be proved by the Note Register.
(d) Any request, demand,
authorization, direction, notice, consent, waiver or
other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of
every Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be
done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is
made upon such Note.
(e) The Company may
set any day as a record date for the purpose of
determining the Holders of outstanding Notes
entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture
to be given, made or taken by Holders of Notes;
provided that the Company may not set a record
date for, and the provisions of this paragraph shall
not apply with respect to, the giving or making of
any notice, declaration, request or direction referred
to in paragraph (f) below. If not set by the
Company prior to the first solicitation of a Holder
made by any Person in respect of any such matter
referred to in the foregoing sentence, the record date
for any such matter shall be the 30th day (or, if
later, the date of the most recent list of Holders
required pursuant to Section 2.5) prior to such first
solicitation. If any record date is set pursuant to this
paragraph, the Holders of outstanding Notes on
such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not
such Holders remain Holders after such record date.
Nothing in this paragraph shall be construed to
prevent the Company from setting a new record
date for any action for which a record date has
previously been set pursuant to this paragraph
(whereupon the record date previously set shall
automatically and with no action by any Person be
canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective
any action taken by Holders of the requisite
principal amount of outstanding Notes on the date
such action is taken. Promptly after any record date
is set pursuant to this paragraph, the Company, at its
own expense, shall cause notice of such record date,
the proposed action by Holders to be given to the
Trustee in writing and to each Holder of Notes in
the manner set forth in Section 11.2.
(f) The Trustee may set
any day as a record date for the purpose of
determining the Holders of outstanding Notes
entitled to join in the giving or making of (i) any
notice hereunder, (ii) any declaration of acceleration
referred to in Section 6.2, (iii) any request to
institute proceedings referred to in Section 6.6 or
(iv) any direction referred to in Section 6.5. If any
record date is set pursuant to this paragraph, the
Holders of outstanding Notes on such record date,
and no other Holders, shall be entitled to join in
such notice, declaration, request or direction,
whether or not such Holders remain Holders after
such record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new
record date for any action for which a record date
has previously been set pursuant to this paragraph
(whereupon the record date previously set shall
automatically and with no action by any Person be
canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective
any action taken by Holders of the requisite
principal amount of outstanding Notes on the date
such action is taken. Promptly after any record date
is set pursuant to this paragraph, the Trustee, at the
Company's expense, shall cause notice of such
record date, the proposed action by Holders to be
given to the Company in writing and to each Holder
of Notes in the manner set forth in Section 11.2.
(g) Without limiting the
foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Note
may do so with regard to all or any part of the
principal amount of such Note or by one or more
duly appointed agents each of which may do so
pursuant to such appointment with regard to all or
any part of such principal amount.
Section 11.9 Successors and Assigns.
All covenants and agreements of the
Company in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 11.10 Severability.
In case any one or more of the provisions in
this Indenture or in the Notes shall be held invalid,
illegal or unenforceable in any jurisdiction, in any
respect for any reason, the validity, legality and
enforceability of any such provision in every other
jurisdiction and in every other respect, and of the
remaining provisions, shall not in any way be
affected or impaired thereby, it being intended that
all of the provisions hereof shall be enforceable to
the full extent permitted by law.
Section 11.11 Benefits of Indenture.
Nothing in this Indenture or in the Notes,
express or implied, shall give to any Person, other
than the parties hereto and their successors
hereunder and the Holders of Notes, any benefit or
any legal or equitable right, remedy or claim under
this Indenture.
Section 11.12 Governing Law; Jurisdiction.
This Indenture and the Notes shall be
governed by and construed in accordance with the
laws of the State of New York, as applied to
contracts made and performed entirely within the
State of New York, without regard to principles of
conflict of laws. Each of the parties hereto agrees
to submit to the jurisdiction of the courts of the
State of New York or the United States federal
courts sitting in the State of New York and the
appellate courts having jurisdiction of appeals in
such courts in any action or proceeding arising out
of or relating to this Indenture.
Section 11.13 Legal Holidays.
In any case where any Interest Payment
Date, Proceeds Purchase Date or Change of Control
Payment Date of any Note shall not be a Business
Day, then, notwithstanding any other provision of
this Indenture or of the Notes, payment of interest
on or principal and premium (if any) of the Notes
need not be made on such date, but may be made on
the next succeeding Business Day with the same
force and effect as if made on such Interest Payment
Date, Proceeds Purchase Date or Change of Control
Payment Date, as the case may be.
Section 11.14 No Recourse Against Others; Limitation on
Liability.
Notwithstanding anything contained in this
Indenture or the Notes to the contrary, (i) except for
the Company and the Guarantors to the extent
provided in clause (ii) below, no Person shall have
any liability whatsoever with respect to or arising
out of this Indenture, the Notes, or the Company's
obligations thereunder or any agreements or
documents executed by the Company in connection
therewith and (ii) claims with respect to this
Indenture, the Notes and any obligations thereunder
or under any agreements or documents executed in
connection therewith shall be satisfied solely from
the assets of the Company and the Guarantors.
Each Holder, by accepting a Note, waives and
releases all such liability. Such waiver and release
are part of the consideration for the issuance of the
Notes.
Section 11.15 Counterparts.
This Indenture may be executed in any
number of counterparts, each of which so executed
shall be deemed to be an original, but all such
counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly
executed as of the day and year first above written.
ORBIMAGE INC.
By:
Name:
Title:
HSBC BANK USA,
as Trustee
By:
Name:
Title:
EXHIBIT A
(FORM OF FACE OF NOTE)
Unless and until it is exchanged in whole or
in part for Notes in definitive form, this Note may
not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the
Depositary or any such nominee to a successor
Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by
an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"),
New York, New York, to the Company or its agent
for registration of transfer, exchange or payment,
and any certificate issued is registered in the name
of Cede & Co. or such other name as may be
requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or such
other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest
herein.[1]
THE NOTE (OR ITS PREDECESSOR)
EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE
UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"),
AND THE NOTE EVIDENCED HEREBY MAY
NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. THE HOLDER OF
THE NOTE EVIDENCED XXXXXX AGREES
FOR THE BENEFIT OF ORBIMAGE INC. AND
ITS SUCCESSORS (THE "COMPANY") THAT
(A) SUCH NOTE MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED, ONLY IN
ACCORDANCE WITH AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON
AN OPINION OF COUNSEL IF THE COMPANY
OR TRUSTEE, REGISTRAR OR TRANSFER
AGENT FOR THE SECURITIES SO
REQUESTS), (2) TO THE COMPANY OR (3)
PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE NOTE
EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
[1]This paragraph should be included only if
the Note is issued in global.
ORBIMAGE INC.
Senior Subordinated Notes due 2008
No. ___
CUSIP #_________
ORBIMAGE INC., a Delaware corporation
(the "Company"), promises to pay to ________ or
its registered assigns, the principal sum indicated on
Schedule A on June 30, 2008.
Interest Payment Dates: June 30 and
December 31, commencing on December 31, 2003.
Interest will accrue from the most recent
date on which interest has been paid or, if no
interest has been paid, from ___________ ____,
____[insert Issue Date].
Record Dates: June 15 and December 15.
Reference is made to the further provisions
of this Note contained herein, which will for all
purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company
has caused this Note to be signed manually or by
facsimile by its duly authorized officer.
ORBIMAGE INC.
By:
Name:
Title:
Dated: ________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Senior Subordinated Notes
due 2008 referred to in the within-mentioned
Indenture.
,
as Trustee
By:
Authorized Officer
(FORM OF Reverse Side of Note)
Senior Subordinated Notes due 2008
Capitalized terms used herein shall have the
meanings ascribed to them in the Indenture (as
defined below) unless otherwise indicated.
1. Interest. ORBIMAGE INC., a
Delaware corporation (the "Company"), promises to
pay interest on the principal amount of this Note as
set forth herein. This Note will bear interest at the
rate of 13.625% per annum, commencing December
31, 2003 through December 31, 2004, which
interest shall be capitalized on each Interest
Payment Date and added to the principal.
Commencing on January 1, 2005, this Note will
bear interest at the rate of 11.625% per annum,
payable in cash, beginning on June 30, 2005. The
Company will pay interest semi-annually in arrears
on each Interest Payment Date.
The Company shall pay, to the extent such
payments are lawful, interest on overdue principal
and on overdue installments of interest (without
regard to any applicable grace periods), from time
to time on demand at the rate borne by this Note
plus 2% per annum. Interest will be computed on
the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Company
shall pay the principal and premium, if any, of or
interest on, the Notes on the dates and in the manner
provided herein and in the Indenture. Principal and
premium, if any, of or interest on, Definitive Notes
will be payable, and Definitive Notes may be
presented for registration of transfer or exchange, at
the office or agency of the Company maintained for
such purpose. Principal of, and premium, interest
and on, Global Notes will be payable by the
Company through the Trustee to the Depositary by
wire transfer of immediately available funds.
Holders of Definitive Notes will be entitled to
receive interest payments by wire transfer in
immediately available funds if appropriate wire
transfer instructions have been received in writing
by the Trustee not less than 15 days prior to the
applicable Interest Payment Date. Such wire
instructions, upon receipt by the Trustee, shall
remain in effect until revoked by such Holder. If
wire instructions have not been received by the
Trustee with respect to any Holder of a Definitive
Note, payment of interest may be made by check in
immediately available funds mailed to such Holder
at the address set forth upon the Register maintained
by the Registrar.
3. Paying Agent and Registrar.
Initially, HSBC Bank USA, a New York banking
corporation and trust company (the "Trustee",
which term includes any successor trustee under the
Indenture referred to below), will act as Paying
Agent and Registrar. The Company may change
the Paying Agent or Registrar without notice to or
consent of the Holders.
4. Indenture. The Company issued this
Note under an Indenture, dated as of _______ __,
2003 (the "Indenture"), between the Company and
the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code Section 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture,
except as otherwise provided in the Indenture.
Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and the TIA for a
statement of such terms. The Notes are general
obligations of the Company limited in aggregate
principal amount to $________________. Each
Holder, by accepting a Note, agrees to be bound by
all of the terms and provisions of the Indenture, as
the same may be amended from time to time.
The Indenture contains certain covenants
that, among other things, limit the ability of the
Company and its Restricted Subsidiaries to incur
additional Indebtedness, pay dividends or make
other distributions, repurchase any capital stock or
subordinated Indebtedness, make certain
investments, create certain Liens, enter into certain
transactions with Affiliates, sell assets, enter into
certain mergers and consolidations, restrict such
Restricted Subsidiaries from making certain
dividend and other payments, enter into Sale and
Leaseback Transactions, and issue or sell capital
stock of Restricted Subsidiaries of the Company
and make capital expenditures. Such limitations are
subject to important qualifications and exceptions.
The Company must annually report to the Trustee
on compliance with such limitations. The Indenture
requires the Company to cause any Person that
becomes a Restricted Subsidiary of the Company
after the Issue Date to execute and deliver to the
Trustee a supplemental indenture pursuant to which
such Restricted Subsidiary will Guarantee the
Notes.
5. Mandatory Redemption; Offer to
Purchase. Except as set forth in Section 3.8 of the
Indenture, the Company shall not be required to
make mandatory redemption or sinking fund
payments with respect to the Notes.
Section 3.8 of the Indenture provides that,
on or before the 10th day after the end of first fiscal
quarter following the fiscal quarter in which the
Senior Notes are repaid in full and on or before the
10th day after the end of each six-month period
thereafter, subject to the conditions and limitations
contained in the Indenture, the Company will use
100% of its Unrestricted Cash to redeem Notes in
accordance with the procedures set forth in the
Indenture at a redemption price equal to 100% of
the principal amount thereof plus accrued and
unpaid interest to the date of redemption.
Sections 4.14 and 4.15 of the Indenture
provide that, after certain Asset Sales and upon the
occurrence of a Change of Control, and subject to
the conditions and limitations contained therein, the
Company will make an offer to purchase the Notes
in accordance with the procedures set forth in the
Indenture at a purchase price equal to 100% of the
principal amount thereof plus accrued and unpaid
interest to the date of purchase.
6. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered
and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish
appropriate endorsements and transfer documents
and the Company may require a Holder to pay any
taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or
register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed
portion of any Note being redeemed in part. Also, it
need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between
a Record Date and the corresponding Interest
Payment Date.
7. Persons Deemed Owners. The
registered Holder of a Note may be treated as its
owner for all purposes.
8. Unclaimed Money or Notes Paid in
Kind. If money or Notes paid in kind for the
payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent will
pay the money back to the Company and return the
Notes issued as payment in kind to the Company,
after which all liability of the Trustee and Paying
Agent with respect to such money and Notes shall
cease.
9. Discharge Prior to Redemption or
Maturity. If the Company at any time deposits with
the Trustee U.S. dollars or Government Securities
sufficient to pay the Obligations on the Notes to
redemption or maturity, and complies with the other
provisions of the Indenture relating thereto, the
Company will be discharged from certain
provisions of the Indenture and the Notes (including
certain covenants, but excluding its obligation to
pay the principal of, and interest payable on, the
Notes).
10. Amendment; Supplement; Waiver.
Subject to certain exceptions as set forth in Section
9.2 of the Indenture, the Indenture and the Notes
may be amended or supplemented with the written
consent of the Holders of at least a majority in
aggregate principal amount of the Notes then
outstanding, and certain existing Defaults or Events
of Default or noncompliance with any provision
may be waived with the written consent of the
Holders of a majority in aggregate principal amount
of the Notes then outstanding. Without notice to or
consent of any Holder, the parties thereto may make
such amendments or supplements to, among other
things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Notes in addition to or in
place of certificated Notes, comply with Article V
of the Indenture (dealing with certain mergers and
consolidations) or make any other change that does
not adversely affect the legal rights of any Holder of
a Note.
11. Defaults and Remedies. If an Event
of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all
the Notes to be due and payable in the manner, at
the time and with the effect provided in the
Indenture. Holders of Notes may not enforce the
Indenture or the Notes except as provided in the
Indenture. The Trustee is not obligated to enforce
the Indenture or the Notes unless it has received
security or indemnity reasonably satisfactory to the
Trustee. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then
outstanding to direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default
or Event of Default (except a Default in payment of
principal of, or interest payable on the Notes) if it
determines that withholding notice is in the
Holders' interest.
12. Trustee's Dealings with Company.
The Trustee, in its individual or any other capacity,
may make loans to, accept deposits from, and
perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee, subject to
the provisions of TIA Section 310.
13. No Recourse Against Others;
Limitation on Liability. Notwithstanding anything
contained in the Indenture or the Notes to the
contrary, (i) except for the Company to the extent
provided in clause (ii) below, no Person (including,
without limitation, the past, present or future
directors, officers, shareholders and employees of
the Company) shall have any liability whatsoever
with respect to or arising out of the Indenture, the
Notes or any of the Company's obligations
thereunder or any agreements or documents
executed by the Company in connection therewith
and (ii) claims with respect to the Indenture, the
Notes and any obligations thereunder or under any
agreements or documents executed in connection
therewith shall be satisfied solely from the assets of
the Company and its Subsidiaries. Each Holder, by
accepting a Note, waives and releases all such
liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
14. Authentication. This Note shall not
be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.
15. Abbreviations. Customary
abbreviations may be used in the name of a Holder
or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (=
Custodian), and U/G/M/A (=Uniform Gifts to
Minors Act).
16. CUSIP Numbers. Pursuant to a
recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed
on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience
to Holders. No representation is made as to the
accuracy of such numbers either as printed on the
Notes or as contained in any notice of redemption.
17. Governing Law. THE INDENTURE
AND THIS NOTE SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAW
OF THE STATE OF NEW YORK AS APPLIED
TO CONTRACTS MADE AND PERFORMED
ENTIRELY WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
18. Indenture. Each Holder, by
accepting a Note, agrees to be bound by all of the
terms and provisions of the Indenture, as the same
may be amended from time to time.
The Company will furnish without charge to
any Holder of a Note upon written request a copy of
the Indenture, which has the text of this Note
printed therein. Requests may be made c/o
ORBIMAGE Inc., 00000 Xxxxxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxxx 00000, Attn: Secretary.
SCHEDULE A
SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL NOTE
The initial principal amount at maturity of
this Global Note shall be $________. The
following increases or decreases in this Global Note
have been made:
Principal Amount _________________
Amount of :
decrease in
increase in
of this Global Note (or Exchange Note)
Principal Amount of the Global Note (or
Exchange Note) following such increase or decrease
$
By:
Authorized Officer
Date: _________________
EXHIBIT B
ASSIGNMENT FORM
To assign this Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Note to:
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint
, agent
to transfer this Note on the books of the Company.
The agent may substitute another to act for it.
Date: ____________________
Signed: __________________
(Signed exactly as your name appears on the other
side of this Note)
Signature Guarantee:
_________________________________________
In connection with any transfer of this Note
occurring prior to the date which is the earlier of (i)
the date of the declaration by the Securities and
Exchange Commission of the effectiveness of a
registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering
resales of this Note (which effectiveness shall not
have been suspended or terminated at the date of the
transfer) and (ii) ____________ ____, 2004, the
undersigned confirms that it has not utilized any
general solicitation or general advertising in
connection with the transfer and that this Note is
being transferred:
___________________________
(Check One)
(1) __ to the Company or a Subsidiary thereof; or
(2) __ pursuant to an effective registration statement under
the Securities Act; or
(3) __ pursuant to an available exemption from the
registration requirements of the Securities Act.
Unless one of the boxes is checked, the
Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any
Person other than the Holder thereof; provided that
if box (3) is checked, the Company or the Trustee
may require, prior to registering any such transfer of
the Notes, in its sole discretion, such legal opinions,
certifications and other information as the Trustee
or the Company may reasonably request to confirm
that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act.
If none of the foregoing boxes is checked,
the Trustee or Registrar shall not be obligated to
register this Note in the name of any Person other
than the Holder hereof unless and until the
conditions to any such transfer of registration set
forth herein and in Section 2.6 of the Indenture shall
have been satisfied.
Date: ____________________
Signed: __________________
(Signed exactly as your name appears on the other
side of this Note)
Signature Guarantee:
_________________________________________
NOTICE: Your signature must be
guaranteed by an Institution which is a member of
one of the following recognized signature
Guarantee Programs: (i) The Securities Transfer
Agent Medallion Program; (ii) The New York
Stock Exchange Medallion Program; (iii) The Stock
Exchange Medallion Program; or (iv) any other
guarantee program acceptable to the Trustee.
OPTION OF HOLDER TO ELECT
PURCHASE
If you elect to have this Note purchased by
the Company pursuant to Section 4.14 or Section
4.15 of the Indenture, check the appropriate box:
Section 4.14 [ ]
Section 4.15 [ ]
If you elect to have only part of this Note
purchased by the Company pursuant to Section 4.14
or Section 4.15 of the Indenture, state the amount
you elect to have purchased:
$________________
Dated: _________________________
NOTICE: The signature on this assignment
must correspond with the name as it appears upon
the face of the within Note in every particular
without alteration or any change whatsoever and be
guaranteed by the endorser's bank or broker.
Signature Guarantee:
_________________________________
NOTICE: Your signature must be
guaranteed by an Institution which is a member of
one of the following recognized signature
Guarantee Programs: (i) The Securities Transfer
Agent Medallion Program; (ii) The New York
Stock Exchange Medallion Program; (iii) The Stock
Exchange Medallion Program; or (iv) any other
guarantee program acceptable to the Trustee.
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