exv4w1






Exhibit 4.1


EXECUTION
VERSION

 

 



INDENTURE




Dated as of October 22, 2009




Among




VIASAT, INC.,




THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO




and




WILMINGTON TRUST FSB,




as Trustee




8.875% SENIOR NOTES DUE 2016



 

 



 









 








CROSS-REFERENCE TABLE*




	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	310
	(a)(1)	 	7.10
	 
	(a)(2)	 	7.10
	 
	(a)(3)	 	N.A.
	 
	(a)(4)	 	N.A.
	 
	(a)(5)	 	7.10
	 
	(b)	 	7.10
	 
	(c)	 	N.A.
	311
	(a)	 	7.11
	 
	(b)	 	7.11
	 
	(c)	 	N.A.
	312
	(a)	 	2.05
	 
	(b)	 	12.03
	 
	(c)	 	12.03
	313
	(a)	 	7.06
	 
	(b)(1)	 	N.A.
	 
	(b)(2)	 	7.06;7.07
	 
	(c)	 	7.06;12.02
	 
	(d)	 	7.06
	314
	(a)	 	12.05
	 
	(b)	 	N.A.
	 
	(c)(1)	 	12.04
	 
	(c)(2)	 	12.04
	 
	(c)(3)	 	N.A.
	 
	(d)	 	N.A.
	 
	(e)	 	12.05
	 
	(f)	 	N.A.
	315
	(a)	 	7.01
	 
	(b)	 	7.05
	 
	(c)	 	7.01
	 
	(d)	 	7.01
	 
	(e)	 	N.A.
	316
	(a)(last sentence)	 	2.11
	 
	(a)(1)(A)	 	6.05
	 
	(a)(1)(B)	 	6.04
	 
	(a)(2)	 	N.A.
	 
	(b)	 	6.07
	 
	(c)	 	1.05, 2.14
	317
	(a)(1)	 	6.08
	 
	(a)(2)	 	6.12
	 
	(b)	 	2.04
	318
	(a)	 	12.01
	 
	(b)	 	N.A.
	 
	(c)	 	12.01








 




			
	 	 	N.A.means not applicable.
	 
	*	 	This Cross-Reference Table is not part of this Indenture.






 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	1	 
	 
	 	 	 	 	 	 
	Section 1.01
	 	Definitions	 	 	1	 
	Section 1.02
	 	Other Definitions	 	 	33	 
	Section 1.03
	 	Incorporation by Reference of Trust Indenture Act	 	 	34	 
	Section 1.04
	 	Rules of Construction	 	 	34	 
	Section 1.05
	 	Acts of Holders	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE 2 THE NOTES	 	 	36	 
	 
	 	 	 	 	 	 
	Section 2.01
	 	Form and Dating; Terms	 	 	36	 
	Section 2.02
	 	Execution and Authentication	 	 	43	 
	Section 2.03
	 	Registrar and Paying Agent	 	 	44	 
	Section 2.04
	 	Paying Agent to Hold Money in Trust	 	 	44	 
	Section 2.05
	 	Holder Lists	 	 	44	 
	Section 2.06
	 	Transfer and Exchange	 	 	45	 
	Section 2.07
	 	Form of Certificate to be Delivered in Connection with Transfers to Institutional Accredited Investors	 	 	49	 
	Section 2.08
	 	Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S	 	 	50	 
	Section 2.09
	 	Replacement Notes	 	 	51	 
	Section 2.10
	 	Outstanding Notes	 	 	51	 
	Section 2.11
	 	Treasury Notes	 	 	52	 
	Section 2.12
	 	Temporary Notes	 	 	52	 
	Section 2.13
	 	Cancellation	 	 	52	 
	Section 2.14
	 	Defaulted Interest	 	 	52	 
	Section 2.15
	 	CUSIP Numbers	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE 3 REDEMPTION	 	 	53	 
	 
	 	 	 	 	 	 
	Section 3.01
	 	Notices to Trustee	 	 	53	 
	Section 3.02
	 	Selection of Notes to Be Redeemed or Purchased	 	 	53	 
	Section 3.03
	 	Notice of Redemption	 	 	54	 
	Section 3.04
	 	Effect of Notice of Redemption	 	 	55	 
	Section 3.05
	 	Deposit of Redemption or Purchase Price	 	 	55	 
	Section 3.06
	 	Notes Redeemed or Purchased in Part	 	 	55	 
	Section 3.07
	 	Optional Redemption	 	 	55	 
	Section 3.08
	 	Mandatory Redemption	 	 	56	 
	Section 3.09
	 	Offers to Repurchase by Application of Excess Proceeds	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE 4 COVENANTS	 	 	58	 
	 
	 	 	 	 	 	 
	Section 4.01
	 	Payment of Notes	 	 	58	 
	Section 4.02
	 	Maintenance of Office or Agency	 	 	58	 
	Section 4.03
	 	Reports and Other Information	 	 	58	 
	Section 4.04
	 	Compliance Certificate	 	 	59	 






-i-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 4.05
	 	Taxes	 	 	60	 
	Section 4.06
	 	Stay, Extension and Usury Laws	 	 	60	 
	Section 4.07
	 	Limitation on Restricted Payments	 	 	60	 
	Section 4.08
	 	Limitation on restrictions on distributions from Restricted Subsidiaries	 	 	66	 
	Section 4.09
	 	Limitation on Indebtedness	 	 	68	 
	Section 4.10
	 	Sales of assets and subsidiary stock	 	 	72	 
	Section 4.11
	 	Transactions with Affiliates	 	 	76	 
	Section 4.12
	 	Limitation on Liens	 	 	78	 
	Section 4.13
	 	Corporate Existence	 	 	79	 
	Section 4.14
	 	Offer to Repurchase Upon Change of Control	 	 	79	 
	Section 4.15
	 	Future Subsidiary Guarantors	 	 	81	 
	Section 4.16
	 	Maintenance of Insurance	 	 	81	 
	Section 4.17
	 	Suspension of covenants	 	 	82	 
	 
	 	 	 	 	 	 
	ARTICLE 5 SUCCESSORS	 	 	83	 
	 
	 	 	 	 	 	 
	Section 5.01
	 	Merger and Consolidation	 	 	83	 
	Section 5.02
	 	Successor Entity Substituted	 	 	85	 
	 
	 	 	 	 	 	 
	ARTICLE 6 DEFAULTS AND REMEDIES	 	 	85	 
	 
	 	 	 	 	 	 
	Section 6.01
	 	Events of Default	 	 	85	 
	Section 6.02
	 	Acceleration	 	 	88	 
	Section 6.03
	 	Other Remedies	 	 	88	 
	Section 6.04
	 	Waiver of Past Defaults	 	 	89	 
	Section 6.05
	 	Control by Majority	 	 	89	 
	Section 6.06
	 	Limitation on Suits	 	 	89	 
	Section 6.07
	 	Rights of Holders of Notes to Receive Payment	 	 	90	 
	Section 6.08
	 	Collection Suit by Trustee	 	 	90	 
	Section 6.09
	 	Restoration of Rights and Remedies	 	 	90	 
	Section 6.10
	 	Rights and Remedies Cumulative	 	 	90	 
	Section 6.11
	 	Delay or Omission Not Waiver	 	 	90	 
	Section 6.12
	 	Trustee May File Proofs of Claim	 	 	90	 
	Section 6.13
	 	Priorities	 	 	91	 
	Section 6.14
	 	Undertaking for Costs	 	 	91	 
	 
	 	 	 	 	 	 
	ARTICLE 7 TRUSTEE	 	 	92	 
	 
	 	 	 	 	 	 
	Section 7.01
	 	Duties of Trustee	 	 	92	 
	Section 7.02
	 	Rights of Trustee	 	 	93	 
	Section 7.03
	 	Individual Rights of Trustee	 	 	94	 
	Section 7.04
	 	Trustee’s Disclaimer	 	 	94	 
	Section 7.05
	 	Notice of Defaults	 	 	94	 
	Section 7.06
	 	Reports by Trustee to Holders of the Notes	 	 	94	 
	Section 7.07
	 	Compensation and Indemnity	 	 	95	 
	Section 7.08
	 	Replacement of Trustee	 	 	96	 
	Section 7.09
	 	Successor Trustee by Merger, etc	 	 	96	 
	Section 7.10
	 	Eligibility; Disqualification	 	 	96	 
	Section 7.11
	 	Preferential Collection of Claims Against the Company	 	 	97	 






-ii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE	 	 	97	 
	 
	 	 	 	 	 	 
	Section 8.01
	 	Option to Effect Legal Defeasance or Covenant Defeasance	 	 	97	 
	Section 8.02
	 	Legal Defeasance and Discharge	 	 	97	 
	Section 8.03
	 	Covenant Defeasance	 	 	98	 
	Section 8.04
	 	Conditions to Legal or Covenant Defeasance	 	 	98	 
	Section 8.05
	 	Deposited Money and U.S. Government Obligations to Be Held	 	 	 	 
	 
	 	in Trust; Other Miscellaneous Provisions	 	 	99	 
	Section 8.06
	 	Repayment to the Company	 	 	100	 
	Section 8.07
	 	Reinstatement	 	 	100	 
	 
	 	 	 	 	 	 
	ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER	 	 	100	 
	 
	 	 	 	 	 	 
	Section 9.01
	 	Without Consent of Holders of Notes	 	 	100	 
	Section 9.02
	 	With Consent of Holders of Notes	 	 	102	 
	Section 9.03
	 	Compliance with Trust Indenture Act	 	 	103	 
	Section 9.04
	 	Revocation and Effect of Consents	 	 	103	 
	Section 9.05
	 	Notation on or Exchange of Notes	 	 	103	 
	Section 9.06
	 	Trustee to Sign Amendments, etc.	 	 	104	 
	Section 9.07
	 	Payment for Consent	 	 	104	 
	 
	 	 	 	 	 	 
	ARTICLE 10 SUBSIDIARY GUARANTEES	 	 	104	 
	 
	 	 	 	 	 	 
	Section 10.01
	 	Subsidiary Guarantee	 	 	104	 
	Section 10.02
	 	Limitation on Subsidiary Guarantor Liability	 	 	105	 
	Section 10.03
	 	Execution and Delivery	 	 	106	 
	Section 10.04
	 	Subrogation	 	 	106	 
	Section 10.05
	 	Benefits Acknowledged	 	 	106	 
	Section 10.06
	 	Release of Subsidiary Guarantees	 	 	106	 
	 
	 	 	 	 	 	 
	ARTICLE 11 SATISFACTION AND DISCHARGE	 	 	107	 
	 
	 	 	 	 	 	 
	Section 11.01
	 	Satisfaction and Discharge	 	 	107	 
	Section 11.02
	 	Application of Trust Money	 	 	108	 
	 
	 	 	 	 	 	 
	ARTICLE 12 MISCELLANEOUS	 	 	109	 
	 
	 	 	 	 	 	 
	Section 12.01
	 	Trust Indenture Act Controls	 	 	109	 
	Section 12.02
	 	Notices	 	 	109	 
	Section 12.03
	 	Communication by Holders of Notes with Other Holders of Notes	 	 	110	 
	Section 12.04
	 	Certificate and Opinion as to Conditions Precedent	 	 	110	 
	Section 12.05
	 	Statements Required in Certificate or Opinion	 	 	110	 
	Section 12.06
	 	Rules by Trustee and Agents	 	 	111	 
	Section 12.07
	 	No Personal Liability of Directors, Officers, Employees and Stockholders	 	 	111	 
	Section 12.08
	 	Governing Law	 	 	111	 
	Section 12.09
	 	Waiver of Jury Trial	 	 	111	 
	Section 12.10
	 	Force Majeure	 	 	111	 
	Section 12.11
	 	No Adverse Interpretation of Other Agreements	 	 	111	 
	Section 12.12
	 	Successors	 	 	112	 
	Section 12.13
	 	Severability	 	 	112	 
	Section 12.14
	 	Counterpart Originals	 	 	112	 






-iii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 12.15
	 	Table of Contents, Headings, etc.	 	 	112	 
	Section 12.16
	 	Qualification of Indenture	 	 	112	 






	 	 	 
	Exhibit A

	 	Form of Initial Note
	Exhibit B

	 	Form of Exchange Note
	Exhibit C

	 	Form of Supplemental Indenture to Be Delivered by Subsequent Subsidiary Guarantors







-iv-











 





          INDENTURE, dated as of October 22, 2009, among ViaSat, Inc., a Delaware corporation (the
“Company”), the Subsidiary Guarantors (as defined herein) listed on the signature pages
hereto and Wilmington Trust FSB, as Trustee.




W I T N E S S E T H




          WHEREAS, the Company has duly authorized the issuance of $275,000,000 aggregate principal
amount of 8.875% Senior Notes due 2016 (the “Initial Notes”); and




          WHEREAS, the Company and each of the Subsidiary Guarantors has duly authorized the execution
and delivery of this Indenture.




          NOW, THEREFORE, the Company, the Subsidiary Guarantors and the Trustee agree as follows for
the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.




ARTICLE  1

DEFINITIONS AND INCORPORATION BY REFERENCE





     Section 1.01 Definitions.




     “Acceptable Exclusions” means:




     (1) war, invasion or hostile or warlike action in time of peace or war, including
action in hindering, combating or defending against an actual, impending or expected attack
by:




     (a) any government or sovereign power (de jure or de facto),




     (b) any authority maintaining or using a military, naval or air force,




     (c) a military, naval or air force, or




     (d) any agent of any such government, power, authority or force;




     (2) any anti-satellite device, or device employing atomic or nuclear fission and/or
fusion, or device employing laser or directed energy beams;




     (3) insurrection, strikes, labor disturbances, riots, civil commotion, rebellion,
revolution, civil war, usurpation, or action taken by a government authority in hindering,
combating or defending against such an occurrence, whether there be declaration of war or
not;




     (4) confiscation, nationalization, seizure, restraint, detention, appropriation,
requisition for title or use by or under the order of any government or governmental
authority or agent (whether secret or otherwise or whether civil, military or de facto) or
public or local authority or agency (whether secret or otherwise);




     (5) nuclear reaction, nuclear radiation, or radioactive contamination of any nature,
whether such loss or damage be direct or indirect, except for radiation naturally occurring
in the space environment;




     (6) electromagnetic or radio frequency interference, except for physical damage to the
Covered Satellite directly resulting from such interference;



 









 






     (7) willful or intentional acts of the named insured designed to cause loss or failure
of the Covered Satellite;




     (8) any act of one or more Persons, whether or not agents of a sovereign power, for
political or terrorist purposes and whether the loss, damage or failure resulting therefrom
is accidental or intentional;




     (9) any unlawful seizure or wrongful exercise of control of the Covered Satellite
and/or launch vehicle made by any Person or Persons acting for political or terrorist
purposes;




     (10) loss of income or revenue, incidental damages or indirect and/or consequential
loss;




     (11) extra expenses, except to the extent this exclusion conflicts with the insuring
agreements’ provisions for corrective measures;




     (12) third party liability;




     (13) loss of a redundant component(s) that does not cause a transponder failure; and




     (14) such other similar exclusions or modifications to the foregoing exclusions as may
be customary for policies of such type as of the date of issuance or renewal of such
coverage.




     “Acquired Indebtedness” means, with respect to any specified Person,




     (a) Indebtedness of any Person or any of its Subsidiaries existing at the time such
Person becomes a Restricted Subsidiary or merges with or into the Company or a Restricted
Subsidiary; or




     (b) assumed in connection with the acquisition of property or assets from such Person,
in each case whether or not Incurred by such Person in connection with, or in anticipation
or contemplation of, such Person becoming a Restricted Subsidiary or such merger or
acquisition, and Indebtedness secured by a Lien encumbering any property or asset acquired
by such specified Person.




     Acquired Indebtedness shall be deemed to have been Incurred, with respect to clause (a)
of the preceding sentence, on the date such Person becomes a Restricted Subsidiary or merges
with or into the Company or a Restricted Subsidiary and, with respect to clause (b) of the
preceding sentence, on the date of consummation of such acquisition of property or assets.
The term “Acquired Indebtedness” does not include Indebtedness of a Person which is
redeemed, defeased, retired or otherwise repaid at the time of or immediately upon
consummation of the transactions by which such Person becomes a Restricted Subsidiary or
merges with or into the Company or a Restricted Subsidiary or such property or assets are
acquired, which Indebtedness of such Person will not be deemed to be Indebtedness of the
Company or any Restricted Subsidiary.



          “Acquisition” means the acquisition of WildBlue Holding, Inc. contemplated by the
Merger Agreement.




-2-









 








          “Additional Assets” means:





     (1) any property, plant, equipment or other asset (excluding any asset classified as a
current asset under GAAP), including improvements thereto through capital expenditures or
otherwise, to be used, or that is useful, in a Similar Business;




     (2) all or substantially all of the assets of a Similar Business;




     (3) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of
the acquisition of such Capital Stock by the Company or a Restricted Subsidiary; or




     (4) Capital Stock in any Person that at such time is a Restricted Subsidiary;



          provided, however, that, in the case of clauses (3) and (4), such Restricted Subsidiary is
primarily engaged in a Similar Business.





     “Additional Interest” means the additional interest payable as a consequence of
the failure to effectuate in a timely manner the Exchange Offer and/or shelf registration
procedures set forth in the Registration Rights Agreement.



          “Additional Notes” means additional Notes (other than the Initial Notes and other than
Exchange Notes for such Initial Notes) issued from time to time under this Indenture in accordance
with Sections 2.01 and 4.09 hereof.




          “Affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”) when used with respect to any
Person means possession, directly or indirectly, of the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.




          “Agent” means any Registrar or Paying Agent.




          “Aggregate In-Orbit Insurance Amount” means 80% of the aggregate net book value of all
in-orbit Covered Satellites other than Excluded Satellites. For the purposes of this definition,
aggregate net book value with respect to a Covered Satellite shall exclude any liability of a
satellite purchaser to pay the satellite manufacturer any satellite performance incentive payments
and any liability of a satellite manufacturer to pay the satellite purchaser any satellite
performance warranty paybacks.




          “Applicable Premium” means, with respect to a Note on any date of redemption, the
greater of:





     (1) 1.0% of the principal amount of such Note; and




     (2) the excess, if any, of (a) the present value as of such date of redemption of (i)
the redemption price of such Note on September 15, 2012, (each such redemption price being
described under Section 3.07) plus (ii) all required interest payments due on such Note
through September 15, 2012 (excluding accrued but unpaid interest to the date of
redemption), computed using a discount rate equal to the Treasury Rate as of such date of
redemption plus 50 basis points, over (b) the then-outstanding principal of such Note.



-3-









 





          “Applicable Procedures” means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and
Clearstream that apply to such transfer or exchange.




          “Asset Sale” means any direct or indirect sale, lease (other than an operating lease
entered into in the ordinary course of business), transfer, issuance or other disposition, or a
series of related sales, leases, transfers, issuances or dispositions that are part of a common
plan, of shares of Capital Stock of a Subsidiary of the Company (other than directors’ qualifying
shares and shares issued to foreign nationals to the extent required by applicable law), property
or other assets (each referred to for the purposes of this definition as a “disposition”) by the
Company or any of its Restricted Subsidiaries, including any disposition by means of a merger,
consolidation or similar transaction.




          Notwithstanding the preceding, the following items shall not be deemed to be Asset Sales:





     (1) a disposition of Capital Stock, property or other assets by a Restricted Subsidiary
to the Company or by the Company or a Restricted Subsidiary to a Restricted Subsidiary;




     (2) the disposition of Cash Equivalents in the ordinary course of business;




     (3) a disposition of equipment, inventory, receivables or other tangible or intangible
assets or property (x) in the ordinary course of business or (y) to any Permitted Joint
Venture in compliance with Section 4.11;




     (4) a disposition of obsolete, damaged or worn out property or equipment or property or
equipment that is no longer useful in the conduct of the business of the Company and its
Restricted Subsidiaries;




     (5) a disposition pursuant to a Sale/Leaseback Transaction;




     (6) the disposition of all or substantially all of the assets of the Company in a
manner permitted pursuant to Article 5 or any disposition that constitutes a Change of
Control pursuant to this Indenture;




     (7) an issuance of Capital Stock by a Restricted Subsidiary to the Company or to a
Wholly Owned Subsidiary;




     (8) for purposes of Section 4.10 only, the making of a Permitted Investment (other than
a Permitted Investment to the extent such transaction results in the receipt of cash or Cash
Equivalents by the Company or its Restricted Subsidiaries) or a disposition subject to
Section 4.07;




     (9) dispositions of property or assets in a single transaction or series of related
transactions with an aggregate fair market value in any fiscal year of less than $15.0
million (with unused amounts in any fiscal year being carried over to the next succeeding
fiscal year subject to a maximum of $20.0 million in such next succeeding fiscal year);




     (10) the creation or incurrence of a Permitted Lien or any other Lien created or
incurred in compliance with Section 4.12, and dispositions in connection therewith;



-4-









 






     (11) dispositions of receivables in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in bankruptcy or similar
proceedings and exclusive of factoring or similar arrangements;




     (12) the issuance by a Restricted Subsidiary of Preferred Stock or Disqualified Stock
that is permitted by Section 4.09;




     (13) the licensing or sublicensing of intellectual property or other general
intangibles and licenses, leases or subleases of other property in the ordinary course of
business;




     (14) the licensing or sublicensing of intellectual property related to the ViaSat-1
satellite and any subsequent high-capacity satellite and/or related ground infrastructure
and equipment;




     (15) a disposition of satellite capacity in a single transaction or series of related
transactions of up to 50% of the total capacity of a satellite;




     (16) a surrender or waiver of contract rights or a settlement, release or surrender of
contract, tort or other claims in the ordinary course of business;




     (17) foreclosure on assets or property;




     (18) any sale or other disposition of Capital Stock in, or Indebtedness or other
securities of, an Unrestricted Subsidiary;




     (19) any disposition of satellite capacity or interests in the ViaSat-1 satellite
pursuant to or in connection with the Acquisition as described in the Offering Memorandum;
and 


     (20) an Asset Swap effected in compliance with Section 4.10.



          “Asset Swap” means a concurrent purchase and sale or exchange of assets related to a
Similar Business (or a combination of such assets and cash or Cash Equivalents) between the Company
or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash
Equivalents received must be applied in accordance with Section 4.10.




          “Attributable Indebtedness” in respect of a Sale/Leaseback Transaction means, as at
the time of determination, the present value (discounted at the interest rate implicit in the
transaction) of the total obligations of the lessee for rental payments during the remaining term
of the lease included in such Sale/Leaseback Transaction (including any period for which such lease
has been extended), determined in accordance with GAAP; provided, however, that if such
Sale/Leaseback Transaction results in a Capitalized Lease Obligation, the amount of Indebtedness
represented thereby will be determined in accordance with the definition of “Capitalized Lease
Obligations.”




          “Average Life” means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (1) the sum of the products of
the numbers of years from the date of determination to the dates of each successive scheduled
principal payment of such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (2) the sum of all such payments.




          “Bankruptcy Custodian” means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.




          “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the
relief of debtors.





-5-









 








          “beneficial ownership” has the meaning assigned to such term in Rule 13d-3 and Rule
13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular
“person” (as such term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be
deemed to have beneficial ownership of all securities that such “person” has the right to acquire,
whether such right is currently exercisable or is exercisable only after the passage of
time. The term “beneficial owner” shall have a corresponding meaning.





     “Board of Directors” means:




     (1) with respect to a corporation, the board of directors of the corporation or (other
than for purposes of determining Change of Control) a duly authorized committee of the board
of directors;




     (2) with respect to a partnership, the board of directors of the general partner of the
partnership;




     (3) with respect to a limited liability company, the managing member or members or any
controlling committee or board of managers of such company or the Board of Directors of the
sole member or the managing member thereof; and




     (4) with respect to any other Person, the board or committee of such Person serving a
similar function.



          “Business Day” means each day that is not a Saturday, Sunday or other day on which
banking institutions in New York, New York are authorized or required by law to close.




          “Capital Stock” of any Person means any and all shares, interests, rights to purchase,
participations (including rights to receive a share of profits or losses), equity appreciation
rights or other equivalents (however designated) of or in equity of such Person, including any
Preferred Stock or any limited liability company, membership or partnership interests (whether
general or limited), together with any and all warrants, options or other rights to purchase or
acquire any of the foregoing, but excluding any debt securities convertible into or exchangeable
for any of the foregoing.




          “Capitalized Lease Obligations” means an obligation that is required to be classified
and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP,
and the amount of Indebtedness represented by such obligation will be the capitalized amount of
such obligation at the time any determination thereof is to be made as determined in accordance
with GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or any
other amount due under such lease prior to the first date such lease may be terminated without
penalty.




          “Cash Equivalents” means:





     (1) U.S. dollars, or in the case of any Foreign Subsidiary, such local currencies held
by it from time to time in the ordinary course of business;




     (2) securities issued or directly and fully guaranteed or insured by the United States
Government or any agency or instrumentality of the United States (provided that the full
faith and credit of the United States is pledged in support thereof), having maturities of
not more than one year from the date of acquisition;



-6-









 






     (3) marketable general obligations issued by any state of the United States of America
or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition and, at the time of acquisition,
having a credit rating of “A” or better from either Standard & Poor’s Ratings Group, Inc. or
Moody’s Investors Service, Inc.;




     (4) certificates of deposit, demand deposits, time deposits, eurodollar time deposits,
overnight bank deposits or bankers’ acceptances having maturities of not more than one year
from the date of acquisition thereof issued by any commercial bank the long-term debt of
which is rated at the time of acquisition thereof at least “A” or the equivalent thereof by
Standard & Poor’s Ratings Group, Inc., or “A” or the equivalent thereof by Moody’s Investors
Service, Inc., and having combined capital and surplus in excess of $500.0 million;




     (5) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2), (3) and (4) entered into with any bank
meeting the qualifications specified in clause (4) above;




     (6) commercial paper rated at the time of acquisition thereof at least “A-2” or the
equivalent thereof by Standard & Poor’s Ratings Group, Inc. or “P-2” or the equivalent
thereof by Moody’s Investors Service, Inc., or carrying an equivalent rating by a nationally
recognized Rating Agency, if both of the two named Rating Agencies cease publishing ratings
of investments, and in any case maturing within one year after the date of acquisition
thereof; and




     (7) interests in any investment company or money market fund which invests 95% or more
of its assets in instruments of the type specified in clauses (1) through (6) above.



          “Change of Control” means:





     (1) the Company becomes aware (by way of a report or an other filing pursuant to
Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the
acquisition by any “person” or “group” of related persons (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) of the beneficial ownership, directly or
indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or
any of its direct or indirect parent entities (or their successors by merger, consolidation
or purchase of all or substantially all of their assets); or




     (2) the first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors; or




     (3) the sale, assignment, lease, conveyance, transfer or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all
or substantially all of the assets of the Company and its Subsidiaries taken as a whole
to any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act); or




     (4) the adoption by the stockholders of the Company of a plan or proposal for the
liquidation or dissolution of the Company.



          “Code” means the Internal Revenue Code of 1986, as amended.




          “Commodity Agreement” means any commodity futures contract, commodity swap, commodity
option or other similar agreement or arrangement entered into by the Company or any Restricted
Subsidiary designed or intended to protect the Company or any of its Restricted Subsidiaries






-7-









 







against fluctuations in the price of commodities actually used in the ordinary course of business
of the Company and its Restricted Subsidiaries.




          “Common Stock” means with respect to any Person, any and all shares of, interest or
other participations in, and other equivalents (however designated and whether voting or nonvoting)
of such Person’s common stock whether or not outstanding on the Issue Date, and includes, without
limitation, all series and classes of such common stock.




          “Company Order” means a written request or order signed on behalf of the Company by an
Officer of the Company, who must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Company, and delivered to the
Trustee.




          “Consolidated Coverage Ratio” means as of any date of determination, with respect to
any Person, the ratio of (x) the aggregate amount of Consolidated EBITDA of such Person for the
period of the most recent four consecutive fiscal quarters ending prior to the date of such
determination for which financial statements prepared on a consolidated basis in accordance with
GAAP are available to (y) Consolidated Interest Expense for such four fiscal quarters, provided,
however, that:





     (1) if the Company or any Restricted Subsidiary: (a) has Incurred any Indebtedness
since the beginning of such period that remains outstanding on such date of determination or
if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio
includes an Incurrence of Indebtedness, Consolidated EBITDA and Consolidated Interest
Expense for such period will be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day of such period
(except that in making such computation, the amount of Indebtedness under any revolving
Credit Facility outstanding on the date of such calculation will be deemed to be (i) the
average daily balance of such Indebtedness during such four fiscal quarters or such shorter
period for which such facility was outstanding or (ii) if such facility was created after
the end of such four fiscal quarters, the average daily balance of such Indebtedness during
the period from the date of creation of such facility to the date of such calculation) and
the discharge of any other Indebtedness repaid, repurchased, defeased or otherwise
discharged with the proceeds of such new Indebtedness as if such discharge had occurred on the first day of such
period; or (b) has repaid, repurchased, redeemed, retired, defeased or otherwise discharged
any Indebtedness since the beginning of the period that is no longer outstanding on such
date of determination or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio includes a discharge of Indebtedness (in each case, other than
Indebtedness Incurred under any revolving Credit Facility unless such Indebtedness has been
permanently repaid and the related commitment terminated), Consolidated EBITDA and
Consolidated Interest Expense for such period will be calculated after giving effect on a
pro forma basis to such discharge of such Indebtedness, including with the proceeds of such
new Indebtedness, as if such discharge had occurred on the first day of such period;




     (2) if since the beginning of such period the Company or any Restricted Subsidiary will
have made any Asset Sale or disposed of or discontinued (as defined under GAAP) any company,
division, operating unit, segment, business, group of related assets or properties or line
of business or if the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio includes such a transaction: (a) the Consolidated EBITDA for such period will
be reduced by an amount equal to the Consolidated EBITDA (if positive) directly attributable
to the assets or properties that are the subject of such disposition or discontinuation for
such period or increased by an amount equal to the Consolidated EBITDA (if negative)
directly attributable thereto for such period; and (b) Consolidated Interest Expense for
such period will be reduced by an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the



-8-









 






Company or any Restricted Subsidiary repaid,repurchased, redeemed, retired, defeased or otherwise discharged with respect to the Company
and its continuing Restricted Subsidiaries in connection with such transaction for such
period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the Indebtedness of such
Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries
are no longer liable for such Indebtedness after such sale);




     (3) if since the beginning of such period the Company or any Restricted Subsidiary (by
merger or otherwise) will have made an Investment in any Restricted Subsidiary (or any
Person that becomes a Restricted Subsidiary or is merged or consolidated with or into the
Company or a Restricted Subsidiary) or an acquisition of assets or property, including any
acquisition of assets or property occurring in connection with a transaction causing a
calculation to be made hereunder, which constitutes all or substantially all of a company,
division, operating unit, segment, business, group of related assets or properties or line
of business, Consolidated EBITDA and Consolidated Interest Expense for such period will be
calculated after giving pro forma effect thereto (including the Incurrence of any
Indebtedness) as if such Investment or acquisition occurred on the first day of such period;
and




     (4) if since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged or consolidated with or into the Company or any
Restricted Subsidiary since the beginning of such period) will have Incurred any
Indebtedness or discharged any Indebtedness, made any disposition or any Investment or
acquisition of assets or property that would have required an adjustment pursuant to clause
(1), (2) or (3) above if made by the Company or a Restricted Subsidiary during such period,
Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated
after giving pro forma effect thereto as if such transaction occurred on the first day of
such period.



          For purposes of this definition, whenever pro forma effect is to be given to any calculation
under this definition, the pro forma calculations will be determined in good faith by a responsible
financial or accounting Officer of the Company (including, but not limited to, pro forma expense
and cost reductions calculated on a basis consistent with Regulation S-X under the Securities Act).
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness will be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into account any Interest
Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term
in excess of 12 months). If any Indebtedness that is being given pro forma effect bears an interest
rate at the option of the Company, the interest rate shall be calculated by applying such optional
rate chosen by the Company.




          “Consolidated EBITDA” means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period:





     (1) increased (without duplication) by the following items to the extent deducted in
calculating such Consolidated Net Income:




     (a) Consolidated Interest Expense; plus




     (b) Consolidated Income Taxes; plus




     (c) consolidated depreciation expense; plus




     (d) consolidated amortization expense or impairment charges; plus



-9-









 






     (e) other non-cash charges reducing Consolidated Net Income, including any write-offs
or write-downs (excluding any such non-cash charge to the extent it represents an accrual of
or reserve for cash charges in any future period or amortization of a prepaid cash expense
that was paid in a prior period not included in the calculation); plus




     (f) the amount of any Restructuring Charges or reasonable expenses or charges related
to any proposed or consummated Equity Offering, Investment, acquisition, Incurrence of
Indebtedness or recapitalization; provided that any amounts added to Consolidated Net Income pursuant to this clause will not exceed $15.0 million
in the aggregate during any fiscal year;




     (2) decreased (without duplication) by non-cash items increasing Consolidated Net
Income of such Person for such period (excluding any items which represent the reversal of
any accrual of, or reserve for, anticipated cash charges that reduced Consolidated EBITDA in
any prior period), and




     (3) increased or decreased by (without duplication) the following items reflected in
Consolidated Net Income:




     (a) any net gain or loss resulting in such period from Hedging Obligations and the
application of Statement of Financial Accounting Standards No. 133;




     (b) any net gain or loss resulting in such period from currency translation gains or
losses related to currency remeasurements of Indebtedness (including any net loss or gain
resulting from Hedging Obligations for currency exchange risk); and




     (c) effects of adjustments (including the effects of such adjustments pushed down to
the Company and its Restricted Subsidiaries) in any line item in such Person’s consolidated
financial statements pursuant to GAAP resulting from the application of purchase accounting
in relation to the Acquisition and any completed acquisition.




     Notwithstanding the foregoing, clauses (1)(b) through (e) relating to amounts of a
Restricted Subsidiary of a Person will be added to Consolidated Net Income to compute
Consolidated EBITDA of such Person only to the extent (and in the same proportion) that the
net income (loss) of such Restricted Subsidiary was included in calculating the Consolidated
Net Income of such Person and, to the extent the amounts set forth in clauses (1)(b) through
(e) are in excess of those necessary to offset a net loss of such Restricted Subsidiary or
if such Restricted Subsidiary has net income for such period included in Consolidated Net
Income, only if a corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior approval (that has not
been obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations applicable to that
Restricted Subsidiary or its stockholders.



          “Consolidated Income Taxes” means, with respect to any Person for any period, taxes
imposed upon such Person or other payments required to be made by such Person by any governmental
authority which taxes or other payments are calculated by reference to the income or profits or
capital of such Person or such Person and its Restricted Subsidiaries (to the extent such income or
profits were included in computing Consolidated Net Income for such period), including, without
limitation, state, franchise and similar taxes and foreign withholding taxes regardless of whether
such taxes or payments are required to be remitted to any governmental authority.




-10-









 








          “Consolidated Interest Expense” means, for any period, the total interest expense of
the Company and its consolidated Restricted Subsidiaries, whether paid or accrued, plus, to the
extent not included in such interest expense (without duplication):





     (1) interest expense attributable to Capitalized Lease Obligations and the interest
portion of rent expense associated with Attributable Indebtedness in respect of the relevant
lease giving rise thereto, determined as if such lease were a capitalized lease in
accordance with GAAP and the interest component of any deferred payment obligations;




     (2) amortization of debt discount (including the amortization of original issue
discount resulting from the issuance of Indebtedness at less than par) and debt issuance
cost; provided, however, that any amortization of bond premium will be credited to reduce
Consolidated Interest Expense unless, pursuant to GAAP, such amortization of bond premium
has otherwise reduced Consolidated Interest Expense;




     (3) non-cash interest expense, but excluding any non-cash interest expense attributable
to the movement in the mark to market valuation of Hedging Obligations or other derivative
instruments pursuant to GAAP;




     (4) commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financing;




     (5) interest actually paid by the Company or any such Restricted Subsidiary under any
Guarantee of Indebtedness or other obligation of any other Person;




     (6) costs associated with Hedging Obligations (including amortization of fees)
provided, however, that if Hedging Obligations result in net benefits rather than costs,
such benefits shall be credited to reduce Consolidated Interest Expense unless, pursuant to
GAAP, such net benefits are otherwise reflected in Consolidated Net Income;




     (7) the Consolidated Interest Expense of such Person and its Restricted Subsidiaries
that was capitalized during such period;




     (8) the product of (a) all dividends paid or payable, in cash, Cash Equivalents or
Indebtedness or accrued during such period on any series of Disqualified Stock of such
Person or on Preferred Stock of its Restricted Subsidiaries that are not Subsidiary
Guarantors payable to a party other than the Company or a Wholly Owned Subsidiary, times (b)
a fraction, the numerator of which is one and the denominator of which is one minus the then
current combined federal, state, provincial and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP;




     (9) Receivables Fees; and




     (10) the cash contributions to any employee stock ownership plan or similar trust to
the extent such contributions are used by such plan or trust to pay interest or fees to any
Person (other than the Company and its Restricted Subsidiaries) in connection with
Indebtedness Incurred by such plan or trust.




     For the purpose of calculating the Consolidated Coverage Ratio, the calculation of
Consolidated Interest Expense shall include all interest expense (including any amounts
described in clauses (1) through (10) above) relating to any Indebtedness of the Company or
any Restricted Subsidiary described in the final paragraph of the definition of
“Indebtedness.”



-11-









 






     For purposes of the foregoing, total interest expense will be determined (i) after
giving effect to any net payments made or received by the Company and its Subsidiaries with
respect to Interest Rate Agreements and (ii) exclusive of amounts classified as other
comprehensive income in the balance sheet of the Company. Notwithstanding anything to the
contrary contained herein, without duplication of clause (9) above, commissions, discounts,
yield and other fees and charges Incurred in connection with any transaction pursuant to
which the Company or its Restricted Subsidiaries may sell, convey or otherwise transfer or
grant a security interest in any accounts receivable or related assets shall be included in
Consolidated Interest Expense.




     “Consolidated Leverage Ratio,” as of any date of determination, means the ratio of:




     (1) the sum of the aggregate outstanding Indebtedness of the Company and its Restricted
Subsidiaries as of the date of calculation on a consolidated basis in accordance with GAAP;
to




     (2) Consolidated EBITDA of the Company and its Restricted Subsidiaries for the period
of the most recent four consecutive fiscal quarters ending prior to the date of such
determination for which financial statements prepared on a consolidated basis in accordance
with GAAP are available; provided, however, that:




     (3) if the Company or any Restricted Subsidiary:




     (a) has Incurred any Indebtedness since the beginning of such period that remains
outstanding on such date of determination or if the transaction giving rise to the need to
calculate the Consolidated Leverage Ratio is an Incurrence of Indebtedness, Indebtedness at
the end of such period, Consolidated EBITDA and Consolidated Interest Expense for such
period will be calculated after giving effect on a pro forma basis to such Indebtedness as
if such Indebtedness had been Incurred on the first day of such period (except that in
making such computation, the amount of Indebtedness under any revolving credit facility
outstanding on the date of such calculation will be deemed to be:




     (i) the average daily balance of such Indebtedness during such four fiscal quarters or
such shorter period for which such facility was outstanding or




     (ii) if such facility was created after the end of such four fiscal quarters, the
average daily balance of such Indebtedness during the period from the date of creation of
such facility to the date of such calculation) and the discharge of any other Indebtedness
repaid, repurchased, defeased or otherwise discharged with the proceeds of such new
Indebtedness as if such discharge had occurred on the first day of such period; or




     (b) has repaid, repurchased, defeased or otherwise discharged any Indebtedness since
the beginning of the period that is no longer outstanding on such date of determination or
if the transaction giving rise to the need to calculate the Consolidated Leverage Ratio
involves a discharge of Indebtedness (in each case other than Indebtedness Incurred under
any revolving credit facility unless such Indebtedness has been permanently repaid and the
related commitment terminated), Indebtedness, Consolidated EBITDA and Consolidated Interest
Expense for such period will be calculated after giving effect on a pro forma basis to such
discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if
such discharge had occurred on the first day of such period;




     (4) if since the beginning of such period the Company or any Restricted Subsidiary will
have made any Asset Sale or disposed of any company, division, operating unit, segment,



-12-









 






business, group of related assets or line of business or if the transaction giving rise to
the need to calculate the Consolidated Leverage Ratio is such an Asset Sale:




     (a) Indebtedness at the end of such period will be reduced by an amount equal to the
Indebtedness discharged, defeased or retired with the Net Available Cash of such Asset Sale
and the assumption of Indebtedness by the transferee;




     (b) the Consolidated EBITDA for such period will be reduced by an amount equal to the
Consolidated EBITDA (if positive) directly attributable to the assets which are the subject
of such disposition for such period or increased by an amount equal to the Consolidated
EBITDA (if negative) directly attributable thereto for such period; and




     (c) Consolidated Interest Expense for such period will be reduced by an amount equal to
the Consolidated Interest Expense directly attributable to any Indebtedness of the Company
or any Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in connection with such
disposition for such period (or, if the Capital Stock of any Restricted Subsidiary is sold,
the Consolidated Interest Expense for such period directly attributable to the Indebtedness
of such Restricted Subsidiary to the extent the Company and its continuing Restricted
Subsidiaries are no longer liable for such Indebtedness after such sale);




     (5) if since the beginning of such period the Company or any Restricted Subsidiary (by
merger or otherwise) will have made an Investment in any Restricted Subsidiary (or any
Person which becomes a Restricted Subsidiary or is merged with or into the Company) or an
acquisition of assets, including any acquisition of assets occurring in connection with a
transaction causing a calculation to be made hereunder, which constitutes all or
substantially all of a company, division, operating unit, segment, business or group of
related assets or line of business, Indebtedness, Consolidated EBITDA and Consolidated
Interest Expense for such period will be calculated after giving pro forma effect thereto
(including the Incurrence of any Indebtedness) as if such Investment or acquisition occurred
on the first day of such period; and




     (6) if since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such period) will have Incurred any Indebtedness or discharged any
Indebtedness or made any disposition or any Investment or acquisition of assets that would
have required an adjustment pursuant to clause (3), (4) or (5) above if made by the Company
or a Restricted Subsidiary during such period, Indebtedness, Consolidated EBITDA and
Consolidated Interest Expense for such period will be calculated after giving pro forma
effect thereto as if such transaction occurred on the first day of such period. The pro
forma calculations will be determined in good faith by a responsible financial or accounting
officer of the Company (including pro forma expense and cost reductions calculated on a
basis consistent with Regulation S-X under the Securities Act). If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest expense on such
Indebtedness will be calculated as if the rate in effect on the date of determination had
been the applicable rate for the entire period (taking into account any Interest Rate
Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term in excess of 12 months). If any Indebtedness that is being given pro forma effect bears
an interest rate at the option of the Company, the interest rate shall be calculated by
applying such optional rate chosen by the Company.



          “Consolidated Net Income” means, for any period, the net income (loss) of the
Company and its consolidated Restricted Subsidiaries determined on a consolidated basis in
accordance with





-13-









 








          GAAP; provided, however, that there will not be included in such Consolidated Net Income on an
after-tax basis (without duplication):





     (1) any net income (loss) of any Person if such Person is not a Restricted Subsidiary
or that is accounted for by the equity method of accounting, except that:




     (a) subject to the limitations contained in clauses (3) through (6) below, the
Company’s equity in the net income of any such Person for such period will be included in
such Consolidated Net Income up to the aggregate amount of cash actually distributed by such
Person during such period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other
distribution to a Restricted Subsidiary, to the limitations contained in clause (2) below);
and




     (b) the Company’s equity in a net loss of any such Person (other than an Unrestricted
Subsidiary) for such period will be included in determining such Consolidated Net Income to
the extent such loss has been funded with cash from the Company or a Restricted Subsidiary;




     (2) solely for the purpose of determining the amount available for Restricted Payments
under clause 4(c)(i) of Section 4.07, any net income (but not loss) of any Restricted
Subsidiary (other than a Subsidiary Guarantor) if such Subsidiary is subject to prior
government approval or other restrictions due to the operation of its charter or any
agreement, instrument, judgment, decree, order statute, rule or government regulation (which
have not been waived), directly or indirectly, on the payment of dividends or the making of
distributions by such Restricted Subsidiary, directly or indirectly, to the Company, except
that:




     (a) subject to the limitations contained in clauses (3) through (6) below, the
Company’s equity in the net income of any such Restricted Subsidiary for such period will be
included in such Consolidated Net Income up to the aggregate amount of cash that could have
been distributed by such Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend (subject, in the case of a dividend to another
Restricted Subsidiary, to the limitation contained in this clause); and




     (b) the Company’s equity in a net loss of any such Restricted Subsidiary for such
period will be included in determining such Consolidated Net Income;




     (3) any gain or loss (less all fees and expenses relating thereto) realized upon sales
or other dispositions of any assets of the Company or such Restricted Subsidiary, other than
in the ordinary course of business;




     (4) any after-tax effect of income (loss) from the early extinguishment of Indebtedness
or Hedging Obligations or other derivative instruments;




     (5) any net after-tax extraordinary gain or loss; and




     (6) the cumulative effect of a change in accounting principles.



          “Continuing Directors” means, as of any date of determination, any member of the Board
of Directors of the Company who: (1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board at the time of such nomination
or election.




-14-









 








          “Corporate Trust Office of the Trustee” shall be the address of the Trustee specified
in Section 12.02 hereof or such other address as to which the Trustee may give notice
to the Holders and the Company.




          “Covered Satellite” means any Satellite or a portion of a Satellite, as applicable,
with respect to which the Company or any of its Restricted Subsidiaries owns or retains risk of
loss.




          “Credit Facility” means, with respect to the Company or any Subsidiary Guarantor or
any Restricted Subsidiary that is a Foreign Subsidiary, one or more debt facilities (including,
without limitation, the Senior Credit Facility) or commercial paper facilities or indentures with
banks or other institutional lenders or trustees providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders or to special
purpose entities formed to borrow from such lenders against such receivables) or letters of credit
or issuances of notes, in each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced (including by means of sales of debt securities to institutional investors) in whole or
in part from time to time (and whether or not with the original administrative agent and lenders or
another administrative agent or agents or other lenders and whether provided under the original
Senior Credit Facility or any other credit or other agreement or indenture).




          “Currency Agreement” means in respect of a Person any foreign exchange contract,
currency swap agreement, futures contract or option contract with respect to foreign exchange rates
or currency values, or other similar agreement as to which such Person is a party or a beneficiary.




          “Custodian” means the Trustee, as custodian with respect to the Notes in global form,
or any successor entity thereto.




          “Default” means any event that is, or after notice or passage of time or both would
be, an Event of Default.




          “Definitive Note” means a certificated Initial Note, Additional Note or Exchange Note
(bearing the Restricted Notes Legend if the transfer of such Note is restricted by applicable law)
that does not bear the Global Notes Legend and does not have the “Schedule of Exchanges of
Interests in the Global Note” attached thereto.




          “Depositary” means, with respect to the Notes issuable or issued in whole or in part
in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the
Notes, and any and all successors thereto appointed as Depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.




          “Designated Noncash Consideration” means the fair market value of noncash
consideration received by the Company or one of its Restricted Subsidiaries in connection with an
Asset Sale that is so designated as Designated Noncash Consideration pursuant to an Officers’
Certificate setting forth the basis of such valuation, less the amount of cash or Cash Equivalents
received in connection with a subsequent sale or other disposition, redemption or payment of, on
or with respect to such Designated Noncash Consideration.




          “Disqualified Stock” means, with respect to any Person, any Capital Stock of such
Person that by its terms (or by the terms of any security into which it is convertible or for which
it is exchangeable, in each case at the option of the holder thereof) or upon the happening of any
event:





     (1) matures or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise;




-15-












 






     (2) is convertible into or exchangeable for Indebtedness or Disqualified Stock
(excluding Capital Stock which is convertible or exchangeable solely at the option of the
Company or a Restricted Subsidiary (it being understood that upon such conversion or
exchange it shall be an Incurrence of such Indebtedness or Disqualified Stock); or




     (3) is redeemable at the option of the holder of the Capital Stock in whole or in part,
in each case on or prior to the date 91 days after the earlier of the final maturity date of
the Notes or the date the Notes are no longer outstanding; provided, however, that only the
portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or
exchangeable or is so redeemable at the option of the holder thereof prior to such date will
be deemed to be Disqualified Stock; provided, further that any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right to require
the Company to repurchase such Capital Stock upon the occurrence of a change of control or
asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock (and
all such securities into which it is convertible or for which it is ratable or exchangeable)
provide that the Company may not repurchase or redeem any such Capital Stock pursuant to
such provision prior to compliance by the Company with the provisions of this Indenture
described under Sections 4.10 and 4.14 unless such repurchase or redemption complies with
Section 4.07.



          “Equity Offering” means a public offering or private placement for cash by the Company
of Capital Stock (other than Disqualified Stock), other than (x) public offerings with respect to
the Company’s Capital Stock, registered on Form S-4 or S-8, (y) an issuance to any Subsidiary of
the Company or (z) any offering of the Company’s Common Stock issued in connection with a
transaction that constitutes a Change of Control.



          “Event of Default” has the meaning set forth under Section 6.01 hereof.



          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.



          “Exchange Notes” means the Exchange Notes issued in exchange for the Notes pursuant to
the Registration Rights Agreement.



          “Exchange Offer” has the meaning set forth in the Registration Rights Agreement.



          “Excluded Satellite” means any (a) Covered Satellite that has a book value of less
than $50.0 million, (b) Covered Satellite with one year or less of in-orbit life remaining (it
being understood and agreed that such Covered Satellite shall be deemed to have “in-orbit life”
only for so long as it is maintained in station kept orbit), (c) Covered Satellite for which the
procurement of In-Orbit Insurance in the amounts and on the terms required herein would not be
available at a premium amount that is, and on other terms and conditions that are, commercially
reasonable despite commercially reasonable efforts to obtain such coverage (including efforts to
minimize the exclusions and insurance deductibles, subject to usual and customary exclusions
consistent with the operating status of the Covered Satellite) and (d) Covered Satellite designated
as an Excluded Satellite by the Company if the Company determines in good faith that (i)(A) such
Covered Satellite’s performance and/or operating status has been adversely affected by anomalies or
component exclusions and the Company and its Restricted Subsidiaries are unlikely to receive
insurance proceeds from a future failure thereof or (B) there are systemic failures or anomalies
applicable to satellites of the same model and (ii) the Company and its Restricted Subsidiaries are
unlikely to obtain usual and customary coverage in the satellite insurance market for the Covered
Satellite at a premium amount that is, and on other terms and conditions that are, commercially
reasonable despite commercially reasonable efforts to obtain such coverage (including efforts to
minimize the exclusions and
insurance deductibles, subject to usual and customary exclusions consistent with the anomalies
and/or operating status of the Covered Satellite).



-16-









 





          “Foreign Subsidiary” means any Restricted Subsidiary that is not organized under the
laws of the United States of America or any state thereof or the District of Columbia and any
Subsidiary of such Restricted Subsidiary.



          “GAAP” means generally accepted accounting principles in the United States of America
as in effect as of the Issue Date, including those set forth in 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 approved by a significant segment of the accounting profession.
All ratios and computations based on GAAP contained in this Indenture will be computed in
conformity with GAAP, except that in the event the Company is acquired in a transaction that is
accounted for using purchase accounting, the effects of the application of purchase accounting
shall be disregarded in the calculation of such ratios and other computations contained in this
Indenture.



          “Global Notes Legend” means the legend set forth in Section 2.01(d)(2).



          “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or
indirect, contingent or otherwise, of such Person:




     (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or
by agreement to keep-well, to purchase assets, properties, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise); or




     (2) entered into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term “Guarantee” will not include
endorsements for collection or deposit in the ordinary course of business. The term
“Guarantee” used as a verb has a corresponding meaning.



          “Guarantor Pari Passu Indebtedness” means Indebtedness that ranks equally in right of
payment to its Subsidiary Guarantee.



          “Guarantor Subordinated Obligation” means, with respect to a Subsidiary Guarantor, any
Indebtedness of such Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter
Incurred) that is expressly subordinated in right of payment to the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee pursuant to a written agreement.



          “Hedging Obligations” of any Person means the obligations of such Person pursuant to
any Interest Rate Agreement, Currency Agreement or Commodity Agreement.



          “Holder” means a Person in whose name a Note is registered on the Registrar’s books.



          “IAI” means an institutional “accredited investor” as described in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.



          “In-Orbit Insurance” means, with respect to any Covered Satellite, insurance or other
contractual arrangement providing for coverage against the risk of loss of or damage to such
Covered Satellite attaching upon the expiration of the launch insurance therefor (or, if launch
insurance is not



-17-









 




procured, upon the initial completion of in-orbit testing) and attaching, during
the commercial in-orbit service of such Covered Satellite, upon the expiration of the immediately
preceding corresponding policy or other contractual arrangement, as the case may be, subject to the
terms and conditions set forth in this Indenture.





     “In-Orbit Spare Capacity” means a satellite or the payload of a satellite that:




     (a) is available in the event of a Covered Satellite loss or failure in order to
restore service on the Covered Satellite;




     (b) meets or exceeds the contractual performance specifications for the payload being
protected; and




     (c) may be provided directly by the Company or a Restricted Subsidiary or by another
satellite operator pursuant to a contractual arrangement.



          “Incur” means issue, create, assume, Guarantee, incur or otherwise become liable for;
provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such
Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise)
will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted
Subsidiary; and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing.



          “Indebtedness” means, with respect to any Person on any date of determination (without
duplication):




     (1) the principal of and premium (if any) in respect of indebtedness of such Person for
borrowed money;




     (2) the principal of and premium (if any) in respect of obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments;




     (3) the principal component of all obligations of such Person in respect of letters of
credit, bankers’ acceptances or other similar instruments (including reimbursement
obligations with respect thereto except to the extent such reimbursement obligation relates
to a trade payable and such obligation is satisfied within 30 days of Incurrence);




     (4) the principal component of all obligations of such Person to pay the deferred and
unpaid purchase price of property, which purchase price is due more than six months after
the date of placing such property in service or taking delivery and title thereto, except
(i) any such balance that constitutes a trade payable or similar obligation to a trade
creditor, in each case accrued in the ordinary course of business and (ii) any earn-out
obligation until the amount of such obligation becomes a liability on the balance sheet of
such Person in accordance with GAAP;




     (5) Capitalized Lease Obligations and all Attributable Indebtedness of such Person
(whether or not such items would appear on the balance sheet of the guarantor or obligor);




     (6) the principal component or liquidation preference of all obligations of such Person
with respect to the redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary that is not a Subsidiary Guarantor, any Preferred Stock (but
excluding, in each case, any accrued dividends);



-18-









 






     (7) the principal component of all Indebtedness of other Persons secured by a Lien on
any asset or property of such Person, whether or not such Indebtedness is assumed by such
Person; provided, however, that the amount of such Indebtedness will be the lesser of (a)
the fair market value of such asset or property at such date of determination and (b) the
amount of such Indebtedness of such other Persons;




     (8) the principal component of Indebtedness of other Persons to the extent Guaranteed
by such Person (whether or not such items would appear on the balance sheet of the guarantor
or obligor);




     (9) to the extent not otherwise included in this definition, net obligations of such
Person under Hedging Obligations (the amount of any such obligations to be equal at any time
to the termination value of such agreement or arrangement giving rise to such Obligation
that would be payable by such Person at such time); and




     (10) to the extent not otherwise included in this definition, the amount of obligations
outstanding under the legal documents entered into as part of a securitization transaction
or series of securitization transactions that would be characterized as principal if such
transaction were structured as a secured lending transaction rather than as a purchase
outstanding relating to a securitization transaction or series of securitization
transactions.




     The amount of Indebtedness of any Person at any date will be the outstanding balance at
such date of all unconditional obligations as described above and the maximum liability,
upon the occurrence of the contingency giving rise to the obligation, of any contingent
obligations at such date. Notwithstanding the foregoing, the following shall not be deemed
to be “Indebtedness,”: (1) money borrowed and set aside at the time of the
Incurrence of any Indebtedness in order to pre-fund the payment of interest on such
Indebtedness; provided that such money is held to secure the payment of such interest; (2)
obligations to make payments to one or more insurers under satellite insurance policies in
respect of premiums or the requirement to remit to such insurer(s) a portion of the future
revenues generated by a satellite which has been declared a constructive total loss, in each
case in accordance with the terms of the insurance policies relating thereto; (3) any
obligations to make progress or incentive payments under any satellite manufacturing
contract or to make payments under satellite launch contracts in respect of launch services
provided thereunder, in each case, to the extent not overdue by more than 90 days; provided,
however, that in the case of clauses (2) and (3), such amounts are not required by GAAP to
be treated as indebtedness on the balance sheet of such Person.




     In addition, “Indebtedness” of any Person shall include Indebtedness described in the
preceding paragraph that would not appear as a liability on the balance sheet of such Person
if:




     (1) such Indebtedness is the obligation of a partnership or joint venture that is not a
Restricted Subsidiary (a “Joint Venture”);




     (2) such Person or a Restricted Subsidiary of such Person is a general partner of the
Joint Venture (a “General Partner”); and




     (3) there is recourse, by contract or operation of law, with respect to the payment of
such Indebtedness to property or assets of such Person or a Restricted Subsidiary of such
Person; and then such Indebtedness shall be included in an amount not to exceed: (a) the
lesser of (i) the net assets of the General Partner and (ii) the amount of such obligations
to the extent that there is recourse, by contract or operation of law, to the property or
assets of such Person or a Restricted Subsidiary of such Person; or (b) if less than the
amount determined pursuant to clause (a)



-19-









 






immediately above, the actual amount of such
Indebtedness that is recourse to such Person or a Restricted Subsidiary of such Person, if
the Indebtedness is evidenced by a writing and is for a determinable amount.



          “Indenture” means this Indenture, as amended or supplemented from time to time.




          “Independent Financial Advisor” means an accounting, appraisal, investment banking
firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that
is, in the good faith judgment of the Company, qualified to perform the task for which it has been
engaged.



          “Initial Notes” has the meaning set forth in the recitals hereto.



          “Interest Payment Date” means March 15 and September 15 of each year to the Stated
Maturity of the Notes.



          “Interest Rate Agreement” means, with respect to any Person any interest rate
protection agreement, interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement as to which such Person is party or a
beneficiary.



          “Investment” means, with respect to any Person, all investments by such Person in
other Persons (including Affiliates) in the form of any direct or indirect advance, loan (other
than advances or extensions of credit to customers in the ordinary course of business) or other
extensions of credit (including by way of Guarantee or similar arrangement, but excluding any debt
or extension of credit represented by a bank deposit other than a time deposit) or capital
contribution to (by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or acquisition of Capital
Stock, Indebtedness or other similar instruments issued by, such Person and all other items that
are or would be classified as investments on a balance sheet prepared in accordance with GAAP;
provided that none of the following will be deemed to be an Investment:




     (1) Hedging Obligations entered into in the ordinary course of business and in
compliance with this Indenture;




     (2) endorsements of negotiable instruments and documents in the ordinary course of
business; and




     (3) an acquisition of property, assets, Capital Stock or other securities by the
Company or a Subsidiary for consideration to the extent such consideration consists of
Common Stock of the Company.




     For purposes of Section 4.07,



     (1) “Investment” will include the portion (proportionate to the Company’s equity
interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the
fair market value of the net assets of such Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon
a redesignation of such Subsidiary as a Restricted Subsidiary, the Company will be deemed to
continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if
positive) equal to (a) the Company’s aggregate “Investment” in such Subsidiary as of the
time of such redesignation less (b) the portion (proportionate to the Company’s equity
interest in such Subsidiary) of the fair market value of the net assets (as determined in
good faith by an Officer of the Company (as



-20-









 






evidenced by an Officers’ Certificate) or if in
excess of $25.0 million by the Board of Directors of the Company) of such Subsidiary at the
time that such Subsidiary is so re-designated a Restricted Subsidiary; and




     (2) any property transferred to or from an Unrestricted Subsidiary will be valued at
its fair market value at the time of such transfer (in each case, as determined in good
faith by an Officer of the Company (as determined in good faith by an Officer of the Company
(as evidenced by an Officers’ Certificate) or if in excess of $25.0 million by the Board of
Directors of the Company).



          “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s Investors Service, Inc. and BBB- (or the equivalent) by Standard & Poor’s
Ratings Group, Inc., in each case, with a stable or better outlook.



          “Issue Date” means October 22, 2009.



          “Lien” means, with respect to any asset or property, any mortgage, lien (statutory or
otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance
of any kind in respect of such asset or property, 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 any asset or property and any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event
shall an operating lease be deemed to constitute a Lien.



          “Merger Agreement” means the Agreement and Plan of Merger among the Company, a wholly
owned subsidiary of the Company and WildBlue Holding, Inc., dated as of September 30, 2009,
pursuant to which the Company has agreed to acquire WildBlue Holding, Inc. and its subsidiaries.



          “Net Available Cash” from an Asset Sale means the aggregate cash payments received
(including any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and net proceeds from the sale or other disposition of any
securities or other assets or property received as consideration, but only as and when received,
but excluding any other consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to the properties or assets that are the subject of such
Asset Sale or received in any other non-cash form) therefrom, in each case net of:



     (1) all legal, accounting, brokerage and investment banking fees and expenses, title
and recording tax expenses, commissions and other fees, expenses and direct costs
(including, without limitation, employee severance and relocation costs and expenses)
Incurred, and all Federal, state, provincial, foreign and local taxes required to be paid or
accrued as a liability under GAAP (after taking into account any available tax credits or
deductions and any tax sharing agreements), as a consequence of such Asset Sale;



     (2) all payments made on any Indebtedness that is secured by any assets or property
subject to such Asset Sale, in accordance with the terms of any Lien upon such assets or
property, or which must by its terms, or in order to obtain a necessary consent to such
Asset Sale, or by applicable law be repaid out of the proceeds from such Asset Sale;



     (3) all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Sale;




     (4) the deduction
of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP,
against



-21-









 






any liabilities associated with the assets or property disposed of in such Asset
Sale and retained by the Company or any Restricted Subsidiary after such Asset Sale; and




     (5) until received by the selling person, any portion of the purchase price from an
Asset Sale placed in escrow or withheld by the purchaser, whether as a reserve for
adjustment of the purchase price, for satisfaction of indemnities in respect of such Asset
Sale or otherwise in connection with such Asset Sale.



          “Net Cash Proceeds,” with respect to any issuance or sale of Capital Stock, means the
cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or
placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other
fees and charges actually Incurred in connection with such issuance or sale and net of taxes paid
or payable as a result of such issuance or sale (after taking into account any available tax credit
or deductions and any tax sharing arrangements).



          “Non-Guarantor Subsidiary” means any Restricted Subsidiary that is not a Subsidiary
Guarantor.



          “Non-Recourse Debt” means Indebtedness of a Person:




     (1) as to which neither the Company nor any Restricted Subsidiary: (a) provides any
Guarantee or credit support of any kind (including any undertaking, Guarantee, indemnity,
agreement or instrument that would constitute Indebtedness); or (b) is directly or
indirectly liable (as a guarantor or otherwise); and




     (2) 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
Restricted Subsidiary to declare a default under such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its Stated Maturity.



          “Notes” means the Initial Notes, the Exchange Notes and more particularly means any
Note authenticated and delivered under this Indenture. For all purposes of this Indenture, the
term “Notes” shall also include any Additional Notes that may be issued. For purposes of this
Indenture, all
references to Notes to be issued or authenticated upon transfer, replacement or exchange shall
be deemed to refer to Notes of the applicable series. The Notes and the Additional Notes, if any,
shall be treated as a single class for all purposes under this Indenture.



          “Obligations” means any principal, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the
rate provided for in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign law), other monetary obligations,
penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect
to letters of credit and banker’s acceptances), damages and other liabilities, and Guarantees of
payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and
other liabilities, payable under the documentation governing any Indebtedness.



          “Offering Memorandum” means the offering memorandum, dated October 14, 2009, relating
to the sale of the Initial Notes.



          “Officer” means the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Operating Officer, Chief Financial Officer, any Executive Vice President, Senior Vice
President



-22-









 




or Vice President, the Controller, the Treasurer or the Secretary of the Company. Officer
of any Subsidiary Guarantor has a correlative meaning.




          “Officers’ Certificate” means a certificate signed by two Officers or by an Officer
and either an Assistant Treasurer or an Assistant Secretary of the Company.



          “Opinion of Counsel” means a written opinion from legal counsel who is acceptable to
the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.



          “Pari Passu Indebtedness” means Indebtedness that ranks equally in right of payment to
the Notes.



          “Permitted Investment” means an Investment by the Company or any Restricted Subsidiary
in:




     (1) the Company or a Restricted Subsidiary;




     (2) any Investment by the Company or any of its Restricted Subsidiaries in a Person
that is engaged in a Similar Business if as a result of such Investment:




     (a) such Person becomes a Restricted Subsidiary; or




     (b) such Person, in one transaction or a series of related transactions, is merged or
consolidated with or into, or transfers or conveys all or substantially all of its assets
to, or is liquidated into, the Company or a Restricted Subsidiary, and, in each case, any
Investment held by such Person; provided that such Investment was not acquired by such
Person in contemplation of such acquisition, merger, consolidation or transfer;




     (3) cash and Cash Equivalents;




     (4) receivables owing to the Company or any Restricted Subsidiary created or acquired
in the ordinary course of business and payable or dischargeable in accordance with customary
trade terms; provided, however, that such trade terms may include such concessionary trade
terms as the Company or any such Restricted Subsidiary deems reasonable under the
circumstances;




     (5) commission, payroll, travel and similar advances to cover matters that are expected
at the time of such advances ultimately to be treated as expenses for accounting purposes
and that are made in the ordinary course of business;




     (6) loans or advances to employees, officers or directors of the Company or any
Restricted Subsidiary in the ordinary course of business consistent with past practices in
an aggregate amount not in excess of $10.0 million at any one time outstanding;




     (7) any Investment acquired by the Company or any of its Restricted Subsidiaries:




     (a) in exchange for any other Investment or accounts receivable held by the Company or
any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other Investment or accounts
receivable;




     (b) in satisfaction of judgments or in compromise, settlement or resolution of any
litigation, arbitration or other dispute; or



-23-









 






     (c) as a result of a foreclosure by the Company or any of its Restricted Subsidiaries
with respect to any secured Investment or other transfer of title with respect to any
secured Investment in default;




     (8) Investments 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 4.10 or any other disposition
of assets or property not constituting an Asset Sale;




     (9) Investments in existence on the Issue Date;




     (10) Currency Agreements, Interest Rate Agreements, Commodity Agreements and related
Hedging Obligations, which transactions or obligations are Incurred in compliance with
Section 4.09;




     (11) Guarantees issued in accordance with Section 4.09;




     (12) Investments made in connection with the funding of contributions under any
non-qualified retirement plan or similar employee compensation plan in an amount not to
exceed the amount of compensation expense recognized by the Company and its Restricted
Subsidiaries in connection with such plans;




     (13) Investments made, following the commencement of operations of the ViaSat-1
satellite, with respect to any Satellite Joint Venture (or any Person which upon the making
of such Investment becomes a Satellite Joint Venture) in an aggregate amount not in excess
of (a) $100.0 million in any fiscal year (with unused amounts in any fiscal year being
carried over to the
next succeeding fiscal year subject to a maximum of $150.0 million in such next
succeeding fiscal year); provided that on the date of such Investment the Consolidated
Leverage Ratio is less than 2.50 to 1.00; or (b) $50.0 million in any fiscal year; in the
event that on the date of such Investment the Consolidated Leverage Ratio is greater than or
equal to 2.50 to 1.00;




     (14) Investments by the Company or any of its Restricted Subsidiaries, when taken
together with all other Investments made pursuant to this clause (14) since the Issue Date
that are at that time outstanding, having an aggregate fair market value (with the fair
market value of each Investment being measured at the time made and without giving effect to
subsequent changes in value) at the time of such Investment not to exceed the greater of
$25.0 million and 2.5% of Total Tangible Assets;




     (15) Investments in TrellisWare made after the Issue Date in an aggregate amount not in
excess of $20.0 million at any one time outstanding;




     (16) Investments to the extent made in exchange for the issuance of Capital Stock
(other than Disqualified Stock) of the Company;




     (17) any repurchase of the Notes; and




     (18) any Asset Swap made in accordance with Section 4.10.




     “Permitted Joint Venture” means: (a) TrellisWare or (b) any Satellite Joint Venture.




     “Permitted Liens” means, with respect to any Person:




     (1) Liens securing Indebtedness and other obligations under a Credit Facility and any
related Hedging Obligations and related banking services or cash management obligations and



-24-









 






Liens securing Guarantees of Indebtedness and other obligations under a Credit Facility
permitted to be Incurred under this Indenture under clause (1) of Section 4.09(b);




     (2) Liens by such Person under workers’ compensation laws, unemployment insurance laws
or similar legislation, in connection with satellite construction agreements (including the
satellite construction agreement in existence on the Issue Date) or in connection with
launch services agreements, or good faith pledges or deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases, or Liens to
secure public or statutory obligations of such Person or deposits of cash or United States
government bonds to secure surety or appeal bonds, or deposits as security for contested
taxes or import or customs duties or for the payment of rent, in each case Incurred in the
ordinary course of business;




     (3) Liens imposed by law, including carriers’, warehousemen’s, mechanics’, suppliers’,
vendors’, materialmen’s and repairmen’s Liens or similar Liens, Incurred in the ordinary
course of business;




     (4) Liens for taxes, assessments or other governmental charges not yet subject to
penalties for non-payment or that are being contested in good faith provided appropriate
reserves to the extent required pursuant to GAAP have been made in respect thereof;




     (5) Liens to secure surety, stay, appeal, indemnification, performance or similar bonds
or letters of credit or bankers’ acceptances or similar obligations; provided, however, that
such letters of credit do not constitute Indebtedness, or Liens with respect to insurance
premium financing;




     (6) survey exceptions, encumbrances, ground leases, easements or reservations of, or
rights of others for, licenses, rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning, building codes or other restrictions
(including, without limitation, minor defects or irregularities in title and similar
encumbrances) as to the use of real properties or Liens incidental to the conduct of the
business of such Person or to the ownership of its properties that do not in the aggregate
materially adversely affect the value of said properties or materially impair their use in
the operation of the business of such Person;




     (7) Liens securing Hedging Obligations so long as any related Indebtedness is permitted
to be Incurred under this Indenture;




     (8) leases, licenses, subleases and sublicenses of assets or property (including,
without limitation, real property and intellectual property rights) that do not materially
interfere with the ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries;




     (9) judgment and attachment Liens and Liens arising by reason of a court order or
decree and notices of lis pendens and associated rights related to litigation being
contested in good faith, in each case not giving rise to an Event of Default;




     (10) Liens securing Indebtedness (including Capitalized Lease Obligations, Attributable
Indebtedness, mortgage financings and purchase money obligations) permitted under clause (8)
of Section 4.09(b), which Liens cover only assets or property acquired, financed, designed,
leased, constructed, repaired, maintained, installed or improved with or by such
Indebtedness (including any proceeds thereof, accessions thereto and any upgrades or
improvements thereto); provided that the aggregate principal amount of Indebtedness secured
by such Liens is otherwise permitted to be Incurred under this Indenture and does not exceed
the cost



-25-









 






of the assets or property so financed, designed, leased, constructed, repaired,
maintained, installed or improved.




     (11) Liens arising solely by virtue of any statutory or common law provisions relating
to banker’s Liens, rights of set-off, revocation, refund or chargeback or similar rights and
remedies as to deposit or securities accounts or other funds or instruments maintained with
a depositary institution; provided that: (a) such deposit or securities account is not a
dedicated cash collateral account and is not subject to restrictions against access by the
Company in excess of those set forth by regulations promulgated by the Federal Reserve
Board; and (b) such deposit or securities account is not intended by the Company or any
Restricted Subsidiary to provide Collateral to the depository institution;




     (12) Liens arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary
course of business;




     (13) Liens existing on the Issue Date (other than Liens permitted under clause (1) of
this definition);




     (14) Liens on property or Capital Stock of a Person at the time such Person becomes a
Restricted Subsidiary or is merged or consolidated with or into the Company or a Restricted
Subsidiary; provided, however, that such Liens were in existence prior to such Person became
a Restricted Subsidiary or merged or consolidated with or into the Company or a Restricted
Subsidiary and were not Incurred in connection with, or in contemplation of, such event;
provided further, however, that any such Lien may not extend to any other property owned by
the Company or any Restricted Subsidiary;




     (15) Liens on property (including Capital Stock) at the time the Company or a
Restricted Subsidiary acquired the property, including any acquisition by means of a merger
or consolidation with or into the Company or any Restricted Subsidiary; provided, however,
that such Liens were in existence prior to such acquisition and were not Incurred in
connection with, or in contemplation of, such acquisition; provided further, however, that
such Liens do not extend to any other property owned by the Company or any Restricted
Subsidiary;




     (16) Liens securing Indebtedness or other obligations of the Company owing to a
Restricted Subsidiary, or of a Restricted Subsidiary owing to the Company or another
Restricted Subsidiary (other than a receivables entity);




     (17) Liens securing the Notes and Subsidiary Guarantees;




     (18) Liens securing Refinancing Indebtedness Incurred to refinance, refund, replace,
defease, amend, extend or modify, as a whole or in part, Indebtedness that was previously so
secured pursuant to clauses (13), (14), (15), (17) and (18) of this definition, provided
that any such Lien is limited to all or part of the same property or assets (plus
improvements, accessions, proceeds or dividends or distributions in respect thereof) that
secured (or, under the written arrangements under which the original Lien arose, could
secure) the Indebtedness being refinanced or is in respect of property that is the security
for a Permitted Lien hereunder;




     (19) any interest or title of a lessor under any Capitalized Lease Obligation or
operating lease;




     (20) Liens in favor of the Company or any Restricted Subsidiary;




-26-












 






     (21) Liens securing Indebtedness (other than Subordinated Obligations and Guarantor
Subordinated Obligations) in an aggregate principal amount outstanding at any one time not
to exceed $10.0 million;




     (22) Liens securing Replacement Satellite Vendor Indebtedness permitted under clause
(13) of Section 4.09(b) or securing Indebtedness permitted under clause (14) of Section
4.09(b), which Liens cover only assets or property acquired with or financed by such
Indebtedness;




     (23) Liens on cash collateral not to exceed $25.0 million in the aggregate at any time
securing letters of credit;




     (24) other non-consensual Liens incurred in the ordinary course of business that do not
materially interfere with the ordinary conduct of the business of the Company and its
Restricted Subsidiaries; and




     (25) Liens that may be deemed to exist by virtue of contractual provisions that
restrict the ability of the Company or any of its Restricted Subsidiaries from incurring or
creating Liens on their assets or property.



          “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 hereof or any other entity.




          “Preferred Stock” as applied to the Capital Stock of any corporation, means Capital
Stock of any class or classes (however designated) that is preferred as to the payment of dividends
upon liquidation, dissolution or winding up.




          “QIB” means any “qualified institutional buyer” as such term is defined in Rule 144A.




          “Rating Agencies” means Standard & Poor’s Ratings Group, Inc. and Moody’s Investors
Service, Inc. or if Standard & Poor’s Ratings Group, Inc. or Moody’s Investors Service, Inc. or
both shall not make a rating on the Notes publicly available, a nationally recognized statistical
Rating Agency or agencies, as the case may be, selected by the Company (as certified by resolution
of the Board of Directors) which shall be substituted for Standard & Poor’s Ratings Group, Inc. or
Moody’s Investors Service, Inc. or both, as the case may be.




          “Receivable” means a right to receive payment arising from a sale or lease of goods or
the performance of services by a Person pursuant to an arrangement with another Person pursuant to
which such other Person is obligated to pay for goods or services under terms that permit the
purchase of such goods and services on credit and shall include, in any event, any items of
property that would be classified as an “account,” “chattel paper,” “payment intangible” or
“instrument” under the Uniform Commercial Code as in effect in the State of New York and any
“supporting obligations” as so defined.




          “Receivables Fees” means any fees or interest paid to purchasers or lenders providing
the financing in connection with a factoring agreement or other similar agreement, including any
such amounts paid by discounting the face amount of Receivables or participations therein
transferred in connection with a factoring agreement or other similar arrangement, regardless of
whether any such transaction is structured as on-balance sheet or off- balance sheet or through a
Restricted Subsidiary or an Unrestricted Subsidiary.




-27-









 








          “Record Date” for the interest or Additional Interest, if any, payable on any
applicable Interest Payment Date means the March 1 or September 1 (whether or not a Business Day)
next preceding such Interest Payment Date.




          “Refinancing Indebtedness” means Indebtedness that is Incurred to refund, refinance,
replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge
mechanism) (collectively, “refinance,” “refinances” and “refinanced” shall each have a correlative
meaning) any Indebtedness existing on the Issue Date or Incurred in compliance with this Indenture
(including Indebtedness of the Company that refinances Indebtedness of any Restricted Subsidiary,
Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another Restricted
Subsidiary or Indebtedness of any Subsidiary Guarantor that refinances Indebtedness of the Company
or any Subsidiary Guarantor) including Indebtedness that refinances Refinancing Indebtedness,
provided, however, that:




     (1) (a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the
Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being refinanced or (b) if the Stated Maturity
of the Indebtedness being refinanced is later than the Stated Maturity of the Notes, the
Refinancing Indebtedness has a Stated Maturity at least 91 days later than the Stated
Maturity of the Notes;




     (2) the Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of the
Indebtedness being refinanced;




     (3) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price) that is equal to or less than
the sum of the aggregate principal amount (or if issued with original issue discount, the
aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus,
without duplication, any additional Indebtedness Incurred to pay interest or premiums
required by the instruments governing such existing Indebtedness and fees Incurred in
connection therewith);




     (4) if the Indebtedness being refinanced is subordinated in right of payment to the
Notes or the Subsidiary Guarantee, such Refinancing Indebtedness is subordinated in right of
payment to the Notes or the Subsidiary Guarantee on terms not materially less favorable,
when taken as a whole, to the holders as those contained in the documentation governing the
Indebtedness being refinanced; and




     (5) Refinancing Indebtedness shall not include Indebtedness of a Non-Guarantor
Subsidiary that refinances Indebtedness of the Company or a Subsidiary Guarantor.




     “Regulation S” means Regulation S under the Securities Act.



          “Replacement Satellite Vendor Indebtedness” means Indebtedness of the Company or a
Restricted Subsidiary provided by a satellite or satellite launch vendor, insurer or insurance
agent or Affiliate thereof for the (i) construction, launch or insurance of all or part of one or
more replacement satellites or satellite launches for such satellites, where “replacement
satellite” means a satellite that is to be used: (x) as a replacement for the ViaSat-1 satellite,
or (y) for continuation or expansion of the Company’s satellite service as a replacement for, or
supplement to, a satellite that is retired or relocated (due to a deterioration in operating useful
life) within the existing service area or reasonably determined by the Company to no longer meet
the requirements for such service or as a supplement to one or more
existing satellites to provide additional capacity or (ii) the replacement of a spare
satellite that has been launched or that is no longer capable of being launched or suitable for
launch. Replacement Satellite Vendor Indebtedness includes any Refinancing Indebtedness thereof.




-28-









 








          “Registration Rights Agreement” means that certain registration rights agreement dated
as of the Issue Date by and among the Company, the Subsidiary Guarantors and the initial purchasers
set forth therein and, with respect to any Additional Notes, one or more substantially similar
registration rights agreements among the Company and the other parties thereto, as such agreements
may be amended from time to time.




          “Restricted Investment” means any Investment other than a Permitted Investment.




          “Restricted Notes Legend” means the legend set forth in Section 2.01(d)(1).




          “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary.




          “Restructuring Charges” means all charges and expenses caused by or attributable to
any restructuring, severance, relocation, consolidation, closing, integration, business
optimization or transition, signing, retention or completion bonus or curtailments or modifications
to pension and post-retirement employee benefit plans.




          “Rule 144A” means Rule 144A under the Securities Act.




          “Sale/Leaseback Transaction” means an arrangement relating to property now owned or
hereafter acquired whereby the Company or a Restricted Subsidiary transfers such property to a
Person (other than the Company or any of its Subsidiaries) and the Company or a Restricted
Subsidiary leases it from such Person.




          “Satellite” means any satellite owned by the Company or any of its Restricted
subsidiaries and any satellite purchased by the Company or any of its Restricted Subsidiaries
pursuant to the terms of a satellite purchase agreement with the prime contractor and manufacturer
of such Satellite relating to the manufacture, testing and delivery of such satellite, whether such
satellite is in the process of manufacture, has been delivered for launch or is in orbit (whether
or not in operational service).




          “Satellite Joint Venture” means (a) a Person in which the Company or any Restricted
Subsidiary has made an Investment, which Person is engaged in a business relating to the financing,
development, construction, launch, operation or improvement of one or more satellites,
satellite-related infrastructure or satellite-related equipment and/or the provision of
satellite-based services, or (b) any Subsidiary of such Person; provided that such Satellite Joint
Venture is not in respect of the development, construction, launch, operation or ownership of the
ViaSat-1 satellite.




          “SEC” means the U.S. Securities and Exchange Commission.




          “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.




          “Senior Credit Facility” means the Fourth Amended and Restated Revolving Loan
Agreement dated as of July 1, 2009, among the Company, Union Bank, N.A., as Administrative Agent,
Bank of America, N.A., as Syndication Agent, JPMorgan Chase Bank, N.A., as Documentation
Agent, Banc of America Securities LLC and Union Bank, N.A., as Joint Lead Arrangers and Joint Book
Runners and Union Bank, N.A., as Collateral Agent, and the lenders parties thereto from time to
time, as amended as of September 30, 2009 and October 6, 2009 and as the same may be further
amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from
time to time (including increasing the amount loaned thereunder, provided that such additional
Indebtedness is Incurred in accordance with Section 4.09); provided that a Senior Credit Facility
shall not relate to Indebtedness that does not consist exclusively of Pari Passu Indebtedness or
Guarantor Pari Passu Indebtedness.



-29-









 







          “Shelf Registration Statement” means the Shelf Registration Statement as defined in
the Registration Rights Agreement.




          “Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the
SEC, as in effect on the Issue Date.




          “Similar Business” means any business conducted or proposed to be conducted by the
Company and its Restricted Subsidiaries on the Issue Date or any business that is similar,
reasonably related, incidental, complementary or ancillary thereto, or that constitutes a
reasonable extension or expansion thereof.




          “Stated Maturity” means, with respect to any security, the date specified in the
agreement governing or certificate relating to such Indebtedness as the fixed date on which the
final payment of principal of such security is due and payable, including pursuant to any mandatory
redemption provision, but shall not include any contingent obligations to repay, redeem or
repurchase any such principal prior to the date originally scheduled for the payment thereof.




          “Subordinated Obligation” means any Indebtedness of the Company (whether outstanding
on the Issue Date or thereafter Incurred) that is subordinated or junior in right of payment to the
Notes pursuant to a written agreement.




          “Subsidiary” of any Person means (a) any corporation, association or other business
entity (other than a partnership, joint venture, limited liability company or similar entity) of
which more than 50% of the total ordinary 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 (or Persons performing similar functions) or (b) any partnership, joint venture
limited liability company or similar entity of which more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited partnership interests,
as applicable, is, in the case of clauses (a) and (b), at the time owned or controlled, directly or
indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of such Person or (3)
one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a
Subsidiary will refer to a Subsidiary of the Company.




          “Subsidiary Guarantee” means, individually, any Guarantee of payment of the Notes and
Exchange Notes issued in a registered Exchange Offer pursuant to the Registration Rights Agreement
by a Subsidiary Guarantor pursuant to the terms of this Indenture and any supplemental indenture
thereto, and, collectively, all such Guarantees. Each such Subsidiary Guarantee will be in the form
prescribed by this Indenture.




          “Subsidiary Guarantor” means each Restricted Subsidiary in existence on the Issue Date
that provides a Subsidiary Guarantee on the Issue Date (and any other Restricted Subsidiary
that provides a Subsidiary Guarantee in accordance with this Indenture); provided that upon release
or discharge of such Restricted Subsidiary from its Subsidiary Guarantee in accordance with this
Indenture, such Restricted Subsidiary ceases to be a Subsidiary Guarantor.




          “Total Tangible Assets” means total assets of the Company determined on a consolidated
basis as of the end of the most recent fiscal quarter for which financial statements of the Company
are available, after deducting accumulated depreciation and amortization, allowances for doubtful
accounts, other applicable reserves and other similar items of the Company and its Restricted
Subsidiaries and after deducting, to the extent otherwise included therein, the amounts of (without
duplication):



-30-









 








     (1) the excess of cost over the fair market value of assets or business acquired (as
determined in good faith by an Officer of the Company (as evidenced by an Officers’
Certificate) or if in excess of $25.0 million by the Board of Directors of the Company);




     (2) any revaluation or other write-up in book value of assets subsequent to the last
day of the fiscal quarter of the Company immediately preceding the Issue Date to the extent
resulting from a change in the method of valuation required by GAAP;




     (3) unamortized debt discount and expenses and other unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names, copyrights, licenses,
organization or developmental expenses and other intangible items;




     (4) minority interest in consolidated Subsidiaries held by Persons other than the
Company or any Restricted Subsidiary;




     (5) treasury stock;




     (6) cash or securities set aside and held in a sinking or other analogous fund
established for the purpose of redemption or other retirement of Capital Stock; and




     (7) Investments in and assets of Unrestricted Subsidiaries.



          “Transfer Restricted Notes” means Definitive Notes and any other Notes that bear or
are required to bear the Restricted Notes Legend.




          “Treasury Rate” means the yield to maturity at the time of computation of United
States Treasury securities with a constant maturity (as compiled and published in the most recent
Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two
Business Days prior to the redemption date (or, if such Statistical Release is no longer published,
any publicly available source or similar market data)) most nearly equal to the period from the
redemption date to September 15, 2012; provided, however, that if the period from the redemption
date to September 15, 2012 is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of
United States Treasury securities for which such yields are given, except that if the period from
the redemption date to September 15, 2012 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant maturity of one year will
be used.




          “TrellisWare” means TrellisWare Technologies, Inc., a Delaware corporation.




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§
77aaa-777bbbb).




          “Trust Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee having direct responsibility for the administration of
this Indenture, or any other officer to whom any corporate trust matter is referred because of such
officer’s knowledge of and familiarity with the particular subject.




          “Trustee” means Wilmington Trust FSB, as trustee, until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.



-31-









 







     “Unrestricted Subsidiary” means:





     (1) any Subsidiary of the Company that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors of the Company in the manner provided
below; and




     (2) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the Company
may designate any Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary or a Person becoming a Subsidiary through merger or consolidation or Investment
therein) to be an Unrestricted Subsidiary only if:




     (1) such Subsidiary or any of its Subsidiaries has not Guaranteed any Capital Stock or
Indebtedness of or have any Investment in, the Company or any Restricted Subsidiary and does
not hold any Liens on any property or assets of the Company or any Restricted Subsidiary;




     (2) all the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date of
designation, and will for so long as it is an Unrestricted Subsidiary, consist of
Non-Recourse Debt;




     (3) the aggregate fair market value of all outstanding Investments of the Company and
its Restricted Subsidiaries in such Subsidiary complies with Section 4.07 or constitutes a
Permitted Investment;




     (4) such Subsidiary is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation to maintain or preserve
such Person’s financial condition or to cause such Person to achieve any specified levels of
operating results; and




     (5) except as permitted by the covenant above under Section 4.11, on the date such
Subsidiary is designated an Unrestricted Subsidiary, such Subsidiary is not a party to any
agreement, contract, arrangement or understanding with the Company or any Restricted
Subsidiary with terms substantially less favorable to the Company or such Restricted
Subsidiary, when taken as a whole, than those that would have been obtained from Persons who
are not Affiliates of the Company.




     Any such designation by the Board of Directors of the Company after the Issue Date
shall be evidenced to the Trustee by filing with the Trustee a resolution of the Board of
Directors of the Company giving effect to such designation and an Officers’ Certificate
certifying that such designation complies with the foregoing conditions. If, at any time,
any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary shall be deemed to be Incurred as of such
date. The Board of Directors of the Company may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary; provided that immediately after giving effect to such designation,
no Event of Default shall have occurred and be continuing or would occur as a consequence
thereof and the Company could Incur at least $1.00 of additional Indebtedness pursuant to
Section 4.09(a) on a pro forma basis taking into account such designation.




     “U.S. Government Obligations” means securities that are:




     (a) direct obligations of the United States of America for the timely payment of which
its full faith and credit is pledged; or



-32-









 






     (b) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of that is
unconditionally guaranteed as a full faith and credit obligation of the United States of
America, which, in either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government
Obligations or a specific payment of principal of or interest on any such U.S. Government
Obligations held by such custodian for the account of the holder of such depositary receipt;
provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligations or the specific
payment of principal of or interest on the U.S. Government Obligations evidenced by such
depositary receipt.



          “Voting Stock” of a Person means all classes of Capital Stock of such Person then
outstanding and normally entitled to vote in the election of directors, managers or trustees, as
applicable, of such Person.




          “Wholly Owned Subsidiary” means a Restricted Subsidiary, all of the Capital Stock of
which (other than directors’ qualifying shares) is owned by the Company or another Wholly Owned
Subsidiary.




          Section 1.02 Other Definitions.




	 	 	 	 	 
	Term	 	Defined in 
Section
	“Acceptable Commitment”

	 	 	4.10	 
	“Additional Restricted Securities”.
	 	 	2.01	(b)
	“Agent Members”
	 	2.01(e)(iii)

	“Affiliate Transaction”

	 	 	4.11	 
	“Asset Sale Offer”

	 	 	4.10	 
	“Asset Sale Offer Amount”

	 	 	4.10	 
	“Asset Sale Offer Period”

	 	 	4.10	 
	“Asset Sale Purchase Date”

	 	 	4.10	 
	“Authentication Order”

	 	 	2.02	 
	“Authenticating Agent”

	 	 	2.02	 
	“Automatic Exchange”

	 	 	2.06	(e)
	“Automatic Exchange Date”

	 	 	2.06	(e)
	“Automatic Exchange Notice”

	 	 	2.06	(e)
	“Automatic Exchange Notice Date”

	 	 	2.06	(e)
	“Change of Control Offer”

	 	 	4.14	 
	“Change of Control Payment”

	 	 	4.14	(b)
	“Change of Control Payment Date”

	 	 	4.14	(b)
	“Clearstream”

	 	 	2.01	(b)
	“Covenant Defeasance”

	 	 	8.03	 
	“DTC”

	 	 	2.03	 
	“Euroclear”

	 	 	2.01	(b)
	“Event of Default”

	 	 	6.01	 
	“Excess Proceeds”

	 	 	4.10	(b)
	“Exchange Global Note”

	 	 	2.01	 
	“Global Notes”

	 	 	2.01	 
	“Institutional Accredited Investor Notes”

	 	 	2.01	 






-33-









 






	 	 	 	 	 
	Term	 	Defined in
 Section
	“Institutional Accredited Investor Global Note”

	 	 	2.01	 
	“Legal Defeasance”

	 	 	8.02	 
	“Note Register”

	 	 	2.03	 
	“Offer Amount”

	 	 	3.09	(b)
	“Offer Period”

	 	 	3.09	(b)
	“Pari Passu Indebtedness”

	 	 	4.10	 
	“Paying Agent”

	 	 	2.03	 
	“Registrar”

	 	 	2.03	 
	“Regulation S Global Note”

	 	 	2.01	(b)
	“Regulation S Notes”

	 	 	2.01	(b)
	“Resale Restriction Termination Date”

	 	 	2.06	(b)
	“Restricted Global Note”

	 	 	2.06	(e)
	“Restricted Payment”

	 	 	4.07	 
	“Restricted Period”

	 	 	2.01	 
	“Rule 144A Global Note”

	 	 	2.01	(b)
	“Rule 144A Notes”

	 	 	2.01	(b)
	“Successor Company”

	 	 	5.01	 
	“Unrestricted Global Note”

	 	 	2.06	(e)






          Section 1.03 Incorporation by Reference of Trust Indenture Act.




          Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture.




          The following Trust Indenture Act terms used in this Indenture have the following meanings:




          “Commission” means the SEC;




          “indenture securities” means the Notes;




          “indenture security Holder” means a Holder of a Note;




          “indenture to be qualified” means this Indenture;




          “indenture trustee” or “institutional trustee” means the Trustee; and




          “obligor” on the Notes and the Subsidiary Guarantees means the Company and the Subsidiary
Guarantors, respectively, and any successor obligor upon the Notes and the Subsidiary Guarantees,
respectively.




          All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by
Trust Indenture Act reference to another statute or defined by SEC rule under the Trust Indenture
Act have the meanings so assigned to them.




          Section 1.04 Rules of Construction.




          Unless the context otherwise requires:




          (a) a term has the meaning assigned to it;



-34-









 







          (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with
GAAP;




          (c) “or” is not exclusive;




          (d) words in the singular include the plural, and in the plural include the singular;




          (e) “will” shall be interpreted to express a command;




          (f) provisions apply to successive events and transactions;




          (g) references to sections of, or rules under, the Securities Act shall be deemed to include
substitute, replacement or successor sections or rules adopted by the SEC from time to time;




          (h) unless the context otherwise requires, any reference to an “Article,” “Section” or
“clause” refers to an Article, Section or clause, as the case may be, of this Indenture; and




          (i) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not any particular Article, Section, clause or other subdivision.




          Section 1.05 Acts of Holders.




          (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 instruments of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Proof of execution of any such instrument
or of a writing appointing any such agent, or the holding by any Person of a Note, shall be
sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section 1.05.




          (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by the certificate of any 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 or on behalf of any legal entity other than an individual, such certificate or affidavit
shall also constitute proof of the authority of the Person executing the same. 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 that 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 action by
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 any action taken, suffered or omitted 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, in the circumstances permitted by the Trust Indenture Act, set a record
date for purposes of determining the identity of Holders entitled to give any request, demand,



-35-









 






authorization, direction, notice, consent, waiver or take any other act, or to vote on or consent
to any action by vote or consent authorized or permitted to be given or taken by Holders. If a
record date is fixed, then only those Persons who were Holders at such record date (or their duly
designated proxies), and only such Persons, shall be entitled to give any such request, demand,
authorization, direction, notice, consent, waiver or take any such other act or vote on or consent
to any such action by vote or consent, whether or not such Holders remain Holders after such record
date. Unless otherwise specified, if not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or in the case of any such vote, prior to
such vote, any such record date shall be the later of 30 days prior to the first solicitation of
such consent or the date of the most recent list of Holders furnished to the Trustee prior to such
solicitation.




          (f) Without limiting the foregoing, a Holder entitled 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. Any notice given or action taken by a
Holder or its agents with regard to different parts of such principal amount pursuant to this
Section 1.05(f) shall have the same effect as if given or taken by separate Holders of each such
different part.




          (g) Without limiting the generality of the foregoing, a Holder, including DTC that is the
Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and DTC that is the Holder of a Global Note
may provide its proxy or proxies to the beneficial owners of interests in any such Global Note
through such depositary’s standing instructions and customary practices.




          (h) The Company may fix a record date for the purpose of determining the Persons who are
beneficial owners of interests in any Global Note held by DTC entitled under the procedures of such
depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other action provided in this
Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on
such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction, notice, consent, waiver or
other action, whether or not such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other action shall be valid or
effective if made, given or taken more than 120 days after such record date.




ARTICLE  2




THE NOTES




          Section 2.01 Form and Dating; Terms.




          (a) The aggregate principal amount of Notes that may be authenticated and delivered under this
Indenture is unlimited. The Initial Notes issued on the date hereof will be in an aggregate
principal amount of $275,000,000. In addition, the Company may issue, from time to time in
accordance with the provisions of this Indenture, Additional Notes (as provided herein) and
Exchange Notes. Furthermore, Notes may be authenticated and delivered upon registration of
transfer, exchange or in lieu of, other Notes pursuant to Section 2.02, 2.06, 2.10, 3.06 or 9.05,
in connection with a Asset Sale Offer pursuant to Section 4.10 or in connection with a Change of
Control Offer pursuant to Section 4.14.




          Notwithstanding anything to the contrary contained herein, the Company may not issue



-36-









 






any Additional Notes, unless at the time of such issuance, the Company would be in compliance with
Section 4.09.




          The Notes shall be known and designated as “8.875% Senior Notes due 2016” of the
Company.




          With respect to any Additional Notes, the Company shall set forth in (x) a Board Resolution
and (y) (i) an Officers’ Certificate or (ii) one or more indentures supplemental hereto, the
following information:




          (1) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture; and



          (2) the issue price and the issue date of such Additional Notes, including the date
from which interest shall accrue.



          In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive
and shall be fully protected in relying upon, in addition to the Opinion of Counsel and Officers’
Certificate required by Section 12.04, an Opinion of Counsel as to the due authorization,
execution, delivery, validity and enforceability of such Additional Notes.




          The Initial Notes, the Additional Notes and the Exchange Notes shall be considered
collectively as a single class for all purposes of this Indenture. Holders of the Initial Notes,
the Additional Notes and the Exchange Notes will vote and consent together on all matters to which
such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial
Notes, the Additional Notes or the Exchange Notes shall have the right to vote or consent as a
separate class on any matter to which such Holders are entitled to vote or consent.




          A copy of the Board Resolutions of the Company establishing the terms of any Additional Notes,
certified by the Secretary or any Assistant Secretary of the Company, shall be delivered to the
Trustee at or prior to the delivery of the Officers’ Certificate or the indenture supplemental
hereto setting forth the terms of the Additional Notes.




          (b) The Initial Notes are being offered and sold by the Company pursuant to a Purchase
Agreement, dated October 19, 2009, among the Company, the Subsidiary Guarantors, J.P. Morgan Notes
Inc. and the other initial purchasers named therein. The Initial Notes and any Additional Notes
(if issued as Transfer Restricted Notes) (the “Additional Restricted Notes”) will be resold
initially only to (A) QIBs in reliance on Rule 144A and (B) Non-U.S. Persons in reliance on
Regulation S. Such Initial Notes and Additional Restricted Notes may thereafter be transferred to,
among others, QIBs, purchasers in reliance on Regulation S and IAIs in accordance with Rule 501 of
the Securities Act, in each case, in accordance with the procedure described herein. Additional
Notes offered after the date hereof may be offered and sold by the Company from time to time
pursuant to one or more purchase agreements in accordance with applicable law.




          Initial Notes and Additional Restricted Notes offered and sold to QIBs in the United States of
America in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a
permanent global Note substantially in the form of Exhibit A, which is hereby incorporated
by reference and made a part of this Indenture, including appropriate legends as set forth in
Section 2.01(d) (the “Rule 144A Global Note”), deposited with the Trustee, as custodian for
DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The
Rule 144A Global Note may be represented by more than one certificate, if so required by DTC’s
rules regarding the maximum principal amount to be represented by a single certificate. The
aggregate principal amount of the Rule 144A Global





-37-












 




Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee,
as hereinafter provided.




          Initial Notes and any Additional Restricted Notes offered and sold outside the United States
of America (the “Regulation S Notes”) in reliance on Regulation S shall be issued in the
form of a permanent global Note, without interest coupons, substantially in the form of Exhibit
A including appropriate legends as set forth in Section 2.01(d) (the “Regulation S Global
Note”). Each Regulation S Global Note will be deposited upon issuance with, or on behalf of,
the Trustee as custodian for DTC in the manner described in this Article 2 for credit to the
respective accounts of the purchasers (or to such other accounts as they may direct), including,
but not limited to, accounts at Euroclear Bank S.A./N.V. (“Euroclear”) or Clearstream
Banking, société anonyme (“Clearstream”). Prior to the 40th day after the later of the
commencement of the offering of the Initial Notes and the Issue Date (such period through and
including such 40th day, the “Restricted Period”), interests in the Regulation S Global
Note may only be transferred to non-U.S. persons pursuant to Regulation S, unless exchanged for
interests in a Global Note in accordance with the transfer and certification requirements described
herein.



          Investors may hold their interests in the Regulation S Global Note through organizations other
than Euroclear or Clearstream that are participants in DTC’s system or directly through Euroclear
or Clearstream, if they are participants in such systems, or indirectly through organizations which
are participants in such systems. If such interests are held through Euroclear or Clearstream,
Euroclear and Clearstream will hold such interests in the applicable Regulation S Global Note on
behalf of their participants through customers’ securities accounts in their respective names on
the books of their respective depositaries. Such depositaries, in turn, will hold such interests
in the applicable Regulation S Global Note in customers’ securities accounts in the depositaries’
names on the books of DTC.



          The Regulation S Global Note may be represented by more than one certificate, if so required
by DTC’s rules regarding the maximum principal amount to be represented by a single certificate.
The aggregate principal amount of the Regulation S Global Note may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.



          Initial Notes and Additional Restricted Notes resold to IAIs (the “Institutional
Accredited Investor Notes”) in the United States of America shall be issued in the form of a
permanent global Note substantially in the form of Exhibit A including appropriate legends
as set forth in Section 2.01(d) (the “Institutional Accredited Investor Global Note”)
deposited with the Trustee, as custodian for DTC, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The Institutional Accredited Investor Global Note may be
represented by more than one certificate, if so required by DTC’s rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate principal amount of the
Institutional Accredited Investor Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC
or its nominee, as hereinafter provided.



          Exchange Notes exchanged for interests in the Rule 144A Notes, the Regulation S Notes and the
Institutional Accredited Investor Notes will be issued in the form of a permanent global Note,
substantially in the form of Exhibit B, which is hereby incorporated by reference and made
a part of this Indenture, deposited with the Trustee as hereinafter provided, including the
appropriate legend set forth in Section 2.01(d) (the “Exchange Global Note”). The Exchange
Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for
DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The
Exchange Global Note may be represented by more than one certificate, if so required by DTC’s rules
regarding the maximum principal amount to be represented by a single certificate.



-38-









 





               The Rule 144A Global Note, the Regulation S Global Note, the Institutional Accredited Investor
Global Note and the Exchange Global Note are sometimes collectively herein referred to as the
“Global Notes.”



               The principal of (and premium, if any) and interest on the Notes shall be payable at the
office or agency of the Company maintained for such purpose or at such other office or agency of
the Company as may be maintained for such purpose pursuant to Section 2.03; provided, however,
that, at the option of the Company, each installment of interest may be paid by (i) check mailed to
addresses of the Persons entitled thereto as such addresses shall appear on the Note Register or
(ii) wire transfer to an account located in the United States maintained by the payee, subject to
the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note
(including principal, premium, if any, and interest) will be made by wire transfer of immediately
available funds to the accounts specified by DTC. Payments in respect of Notes represented by
Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least
$1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent
to such effect designating such account no later than 15 days immediately preceding the relevant
due date for payment (or such other date as the Trustee may accept in its discretion).



               The Notes may have notations, legends or endorsements required by law, stock exchange rule or
usage, in addition to those set forth on Exhibit A and Exhibit B and in Section
2.01(d). The Company shall approve any notation, endorsement or legend on the Notes. Each Note
shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit
A and Exhibit B are part of the terms of this Indenture and, to the extent applicable,
the Company, the Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to be bound by such terms.



               (c) Denominations. The Notes shall be issuable only in fully registered form, without
coupons, and only in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.



               (d) Restrictive Legends. Unless and until (i) an Initial Note or an Additional Note
issued as a Transfer Restricted Note is sold under an effective registration statement, (ii) an
Initial Note or an Additional Note issued as a Transfer Restricted Note is exchanged for an
Exchange Note in connection with an effective registration statement, in each case pursuant to the
Registration Rights Agreement or a
similar agreement or (iii) an Initial Note or Additional Note is exchanged for a Note that
does not bear the Restricted Notes Legend in accordance with Section 2.06(e):




     (1) the Rule 144A Global Note, the Regulation S Global Note and the
Institutional Accredited Investor Global Note shall bear the following legend on the
face thereof:




THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER
THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS NOTE, BY
ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH
IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER



-39-









 






SUCH SECURITY, PRIOR TO THE
DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A
NOTES: ONE YEAR] [IN THE CASE OR REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (1) PURSUANT TO
CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
[IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT
IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT.]




     (2) Each Global Note, whether or not an Initial Note, shall bear the following
legend on the face thereof:




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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.



-40-









 






TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



          (e) Book-Entry Provisions. (i) This Section 2.01(e) shall apply only to Global Notes
deposited with the Trustee, as custodian for DTC.



          (ii) Each Global Note initially shall (x) be registered in the name of DTC or the nominee of
DTC, (y) be delivered to the Trustee as custodian for DTC and (z) bear legends as set forth in
Section 2.01(d). Transfers of a Global Note (but not a beneficial interest therein) will be limited
to transfers thereof in whole, but not in part, to the Depositary, its successors or their
respective nominees, except as set forth in Section 2.01(e)(v) and 2.01(f). If a beneficial
interest in a Global Note is transferred or exchanged for a beneficial interest in another Global
Note, the Trustee will (x) record a decrease in the principal amount of the Global Note being
transferred or exchanged equal to the principal amount of such transfer or exchange and (y) record
a like increase in the principal amount of the other Global Note. Any beneficial interest in one
Global Note that is transferred to a Person who takes delivery in the form of an interest in
another Global Note, or exchanged for an interest in another Global Note, will, upon transfer or
exchange, cease to be an interest in such Global Note and become an interest in the other Global
Note and, accordingly, will thereafter be subject to all transfer and exchange restrictions, if
any, and other procedures applicable to beneficial interests in such other Global Note for as long
as it remains such an interest.



          (iii) Members of, or participants in, DTC (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Note held on their behalf by DTC or by the Trustee as the
custodian of DTC or under such Global Note, and DTC 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 by DTC or impair, as between DTC and its Agent Members, the operation
of customary practices of DTC governing the exercise of the rights of a Holder of a beneficial
interest in any Global Note.



          (iv) In connection with any transfer of a portion of the beneficial interest in a Global Note
pursuant to Section 2.01(f) to beneficial owners who are required to hold Definitive Notes, the
Custodian shall reflect on its books and records the date and a decrease in the principal amount of
such Global Note in an amount equal to the principal amount of the beneficial interest in the
Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate
and make available for delivery, one or more Definitive Notes of like tenor and amount.



          (v) In connection with the transfer of an entire Global Note to beneficial owners pursuant to
Section 2.01(f), such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate and make available
for delivery, to each beneficial owner identified by DTC in exchange for its beneficial interest in
such Global Note, an equal aggregate principal amount of Definitive Notes of authorized
denominations.



          (vi) The Holder of a Global Note may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the Notes.



-41-









 





          (vii) Any Holder of a Global Note shall, by acceptance of such Global Note, agree that
transfers of beneficial interests in such Global Note may be effected only through a book-entry
system maintained by (a) the Holder of such Global Note (or its agent) or (b) any Holder of a
beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global
Note shall be required to be reflected in a book entry.



          (f) Definitive Notes. (i) Except as provided below, owners of beneficial interests
in Global Notes will not be entitled to receive Definitive Notes. If required to do so pursuant to
any applicable law or regulation, beneficial owners may obtain Definitive Notes in exchange for
their beneficial interests in a Global Note upon written request in accordance with DTC’s and the
Registrar’s procedures. In addition, Definitive Notes shall be transferred to all beneficial
owners in exchange for their beneficial interests in a Global Note if (A) DTC notifies the Company
that it is unwilling or unable to continue as depositary for such Global Note or DTC ceases to be a
clearing agency registered under the Exchange Act, at a time when DTC is required to be so
registered in order to act as depositary, and in each case a successor depositary is not appointed
by the Company within 90 days of such notice or, (B) the Company in its sole discretion executes
and delivers to the Trustee and Registrar an Officers’ Certificate stating that such Global Note
shall be so exchangeable or (C) an Event of Default has occurred and is continuing and the
Registrar has received a request from DTC. In the event of the occurrence of any of the events
specified in the preceding sentence or in clause (A), (B) or (C) of the second preceding sentence,
the Company shall promptly make available to the Trustee a reasonable supply of Definitive Notes.



          (ii) Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to
Section 2.01(e)(iii) or (iv) shall, except as otherwise provided by Section 2.06(d), bear the
applicable legend regarding transfer restrictions applicable to the Definitive Note set forth in
Section 2.01(d).



          (iii) If a Definitive Note is transferred or exchanged for a beneficial interest in a Global
Note, the Trustee will (x) cancel such Definitive Note, (y) record an increase in the principal
amount of such Global Note equal to the principal amount of such transfer or exchange and (z) in
the event that such transfer or exchange involves less than the entire principal amount of the
canceled Certificated Note, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, to the transferring Holder a new Definitive Note representing the principal
amount not so transferred.



          (iv) If a Definitive Note is transferred or exchanged for another Definitive Note, (x) the
Trustee will cancel the Definitive Note being transferred or exchanged, (y) the Company shall
execute, and the Trustee shall authenticate and make available for delivery, one or more new
Definitive Notes in authorized denominations having an aggregate principal amount equal to the
principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the
Holder of the canceled Definitive Note (in the case of an exchange), registered in the name of such
transferee or Holder, as applicable, and (z) if such transfer or exchange involves less than the
entire principal amount of the canceled Definitive Note, the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder thereof, one or more Definitive
Notes in authorized denominations having an aggregate principal amount equal to the untransferred
or unexchanged portion of the canceled Definitive Notes, registered in the name of the Holder
thereof.



          (v) Notwithstanding anything to the contrary in this Indenture, in no event shall a
Definitive Note be delivered upon exchange or transfer of a beneficial interest in the Temporary
Regulation S Global Note prior to the end of the Restricted Period.



-42-









 






          Section 2.02 Execution and Authentication. On the Issue Date, the Trustee shall, upon
receipt of a Company Order (an “Authentication Order”), authenticate and deliver the Initial Notes.
In addition, at any time, from time to time, the Trustee shall upon receipt of an Authentication
Order authenticate and deliver any Additional Notes and Exchange Notes for an aggregate principal
amount specified in such Authentication Order for such Additional Notes or Exchange Notes issued
hereunder. At least one Officer shall sign the Notes for the Company by manual or facsimile
signature. If the Officer whose signature is on a Note no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.



          A Note shall not be valid until an authorized officer of the Trustee manually authenticates
the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has
been duly and validly authenticated and issued under this Indenture. A Note shall be dated the
date of its authentication.



          At any time and from time to time after the execution and delivery of this Indenture, the
Trustee shall authenticate and make available for delivery: (1) Initial Notes for original issue
on the Issue Date in an aggregate principal amount of $275,000,000, (2) subject to the terms of
this Indenture, Additional Notes for original issue in an unlimited principal amount, (3) Exchange
Notes for issue only in an Exchange Offer pursuant to the Registration Rights Agreement or upon
resale under an effective Shelf Registration Statement, and only in exchange for Initial Notes or
Additional Notes of an equal principal amount and (4) under the circumstances set forth in Section
2.06(e), Initial Notes or Additional Notes in the form of an Unrestricted Global Note, in each case
upon a Company Order. Such Company Order shall specify whether the Notes will be in the form of
Definitive Notes or Global Notes, the amount of the
Notes to be authenticated and the date on which the original issue of Notes is to be
authenticated and whether the Notes are to be Initial Notes, Additional Notes or Exchange Notes.



          The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to
the Company to authenticate the Notes. Any such instrument shall be evidenced by an instrument
signed by a Trust Officer, a copy of which shall be furnished to the Company. Unless limited by
the terms of such appointment, any such Authenticating Agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by the Authenticating Agent. An Authenticating Agent has the same rights as any
Registrar, Paying Agent or agent for service of notices and demands.



          In case the Company or any Subsidiary Guarantor, pursuant to Article 5 or Section 10.02, as
applicable, shall be consolidated or merged with or into or wind up
into any other Person or shall sell, assign,
convey, transfer or otherwise dispose of all or substantially all of
the  properties and assets of the Company and its Restricted
Subsidiaries, taken as a whole, and the successor Person resulting from such consolidation, or surviving
such merger, or into which the Company or any Subsidiary Guarantor
shall have been merged or wound up into, or the
Person which shall have received a sale, assignment, conveyance, transfer, or other
disposition as aforesaid, shall have executed an indenture supplemental hereto with the Trustee
pursuant to Article 5 or Section 10.02, as applicable, any of the Notes authenticated or delivered
prior to such consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposition may, from time to time, at the request of the successor Person, be exchanged for other
Notes executed in the name of the successor Person with such changes in phraseology and form as may
be appropriate, but otherwise in substance of like tenor as the Notes surrendered for such exchange
and of like principal amount; and the Trustee, upon Company Order of the successor Person, shall
authenticate and make available for delivery Notes as specified in such order for the purpose of
such exchange. If Notes shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 2.02 in exchange or substitution for or upon registration
of transfer of any Notes, such successor Person, at the option of the Holders but without expense
to them,



-43-









 




shall provide for the exchange of all Notes at the time outstanding for Notes
authenticated and delivered in such new name.




          Section 2.03 Registrar and Paying Agent. The Company shall maintain an office or
agency where Notes may be presented for registration of transfer or for exchange (the
“Registrar”) and an office or agency where Notes may be presented for payment (the
“Paying Agent”). The Registrar shall keep a register of the Notes and of their transfer
and exchange (the “Note Register”). The Company may have one or more co-registrars and one
or more additional paying agents. The term “Paying Agent” includes any additional paying agent and
the term “Registrar” includes any co-registrar.



          The Company shall enter into an appropriate agency agreement with any Registrar or Paying
Agent not a party to this Indenture, which shall incorporate the terms of the Trust Indenture Act
to the extent required thereunder. The agreement shall implement the provisions of this Indenture
that relate to such agent. The Company shall notify the Trustee of the name and address of each
such agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its Restricted Subsidiaries organized in the United States may act as Paying
Agent, Registrar or transfer agent.



          The Company initially appoints the Trustee as Registrar and Paying Agent for the Notes. The
Company may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying
Agent and to the Trustee; provided, however, that no such removal shall become effective until (i)
acceptance of any appointment by a successor as evidenced by an appropriate agreement entered
into by the Company and such successor Registrar or Paying Agent, as the case may be, and delivered
to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or
Paying Agent until the appointment of a successor in accordance with clause (i) above. The
Registrar or Paying Agent may resign at any time upon written notice to the Company and the
Trustee.



          The Company initially appoints The Depository Trust Company (“DTC”) to act as
Depositary with respect to the Global Notes.



          Section 2.04 Paying Agent to Hold Money in Trust. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in
trust for the benefit of Holders of the Notes or the Trustee all money held by such Paying Agent
for the payment of principal of, premium, if any, or interest on the Notes (whether such assets
have been distributed to it by the Company or other obligors on the Notes), shall notify the
Trustee in writing of any default by the Company or any Subsidiary Guarantor in making any such
payment and shall during the continuance of any default by the Company (or any other obligor upon
the Notes) in the making of any payment in respect of the Notes, upon the written request of the
Trustee, forthwith deliver to the Trustee all sums held in trust by such Paying Agent for payment
in respect of the Notes together with a full accounting thereof. If the Company or a Subsidiary of
the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any funds or assets
disbursed by such Paying Agent. Upon payment to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary of the Company) shall have no further liability for the money delivered to
the Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect to the
Company, the Trustee shall serve as Paying Agent for the Notes.



          Section 2.05 Holder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of Holders
of the Notes and shall otherwise comply with Trust Indenture Act Section 312(a). If the Trustee is
not the Registrar, or to the extent otherwise required under the Trust Indenture Act, the Company,
on its own



-44-









 




behalf and on behalf of each of the Subsidiary Guarantors, shall furnish or cause the
Registrar to furnish to the Trustee, in writing at least five Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses of Holders of the
Notes and the Company shall otherwise comply with Trust Indenture Act Section 312(a).




          Section 2.06 Transfer and Exchange.



          (a) General. A Holder may transfer a Note (or a beneficial interest therein) to
another Person or exchange a Note (or a beneficial interest therein) for another Note or Notes of
any authorized denomination by presenting to the Trustee a written request therefor stating the
name of the proposed transferee or requesting such an exchange, accompanied by any certification,
opinion or other document required by this Section 2.06. The Trustee will promptly register any
transfer or exchange that meets the requirements of this Section 2.06 by noting the same in the
register maintained by the Trustee for the purpose, and no transfer or exchange will be effective
until it is registered in such register. The transfer or exchange of any Note (or a beneficial
interest therein) may only be made in accordance with this Section 2.06 and Section 2.01(e) and
2.01(f), as applicable, and, in the case of a Global Note (or a beneficial interest therein), the
applicable rules and procedures of DTC, Euroclear and Clearstream. The
Trustee shall refuse to register any requested transfer or exchange that does not comply with
this Section 2.06(a).



          (b) Transfers of Rule 144A Notes and Institutional Accredited Investor Notes. The
following provisions shall apply with respect to any proposed registration of transfer of a Rule
144A Note or an Institutional Accredited Investor Note or a beneficial interest therein prior to
the date which is one year after the later of the date of its original issue and the last date on
which the Company or any Affiliate of the Company was the owner of such Notes (or any predecessor
thereto) (the “Resale Restriction Termination Date”):




          (i) a registration of transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a QIB shall be made upon the
representation of the transferee in the form as set forth on the reverse of the Note that it
is purchasing for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided by Rule 144A;
provided that no such written representation or other written certification shall be
required in connection with the transfer of a beneficial interest in the Rule 144A Global
Note to a transferee in the form of a beneficial interest in that Rule 144A Global Note in
accordance with this Indenture and the applicable procedures of DTC.




          (ii) a registration of transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to an IAI shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set forth in Section 2.07
from the proposed transferee and, if requested by the Company, the delivery of an opinion of
counsel, certification and/or other information satisfactory to it; and




          (iii) a registration of transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a Non-U.S. Person shall be made upon
receipt by the Trustee or its agent of a certificate substantially in the form set forth in
Section 2.08



-45-









 






from the proposed transferee and, if requested by the Company, the delivery of
an opinion of counsel, certification and/or other information satisfactory to it.



          (c) Transfers of Regulations S Notes. The following provisions shall apply with
respect to any proposed transfer of a Regulation S Note or a beneficial interest therein prior to
the expiration of the Restricted Period:




          (i) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall
be made upon the representation of the transferee, in the form of assignment on the reverse
of the certificate, that it is purchasing the Note for its own account or an account with
respect to which it exercises sole investment discretion and that it and any such account is
a “qualified institutional buyer” within the meaning of Rule 144A, is aware that the sale to
it is being made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to
request such information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration provided by Rule
144A;




          (ii) a transfer of a Regulation S Note or a beneficial interest therein to an IAI shall
be made upon receipt by the Trustee or its agent of a certificate substantially in the form
set forth in Section 2.07 from the proposed transferee and, if requested by the Company or
the Trustee, the delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them; and




          (iii) a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S.
Person shall be made upon receipt by the Trustee or its agent of a certificate substantially
in the form set forth in Section 2.08 hereof from the proposed transferee and, if requested
by the Company, receipt by the Trustee or its agent of an opinion of counsel, certification
and/or other information satisfactory to the Company.



          After the expiration of the Restricted Period, interests in the Regulation S Note may be
transferred in accordance with applicable law without requiring the certification set forth in
Section 2.07, Section 2.08 or any additional certification.



          (d) Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes not
bearing a Restricted Notes Legend, the Registrar shall deliver Notes that do not bear a Restricted
Notes Legend. Upon the transfer, exchange or replacement of Notes bearing a Restricted Notes
Legend, the Registrar shall deliver only Notes that bear a Restricted Notes Legend unless (i)
Initial Notes or Additional Notes are being exchanged for Exchange Notes in an Exchange Offer
pursuant to the Registration Rights Agreement, in which case the Exchange Notes shall not bear a
Restricted Notes Legend, (ii) an Initial Note or Additional Note is being transferred pursuant to
the Shelf Registration Statement or other effective registration statement, (iii) Initial Notes or
Additional Notes are being exchanged for Notes that do not bear the Restricted Notes Legend in
accordance with Section 2.06(e) or (iv) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor
the related restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act. Any Additional Notes sold in a registered offering shall not be
required to bear the Restricted Notes Legend.



          (e) Automatic Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note. Upon the Company’s satisfaction that the Restricted
Notes Legend shall no longer be required in order to maintain compliance with the Securities Act,
beneficial interests in a Restricted Global Note may be automatically exchanged into beneficial
interests



-46-









 




in an Unrestricted Global Note without any action required by or on behalf of the Holder
(the “Automatic Exchange”) at any time on or after the date that is the 366th calendar day
after (A) with respect to the Notes issued on the Issue Date, the Issue Date or (B) with respect to
Additional Notes, if any, the issue date of such Additional Notes, or, in each case, if such day is
not a Business Day, on the next succeeding Business Day (the “Automatic Exchange Date”).
Upon the Company’s satisfaction that the Restricted Notes Legend shall no longer be required in
order to maintain compliance with the Securities Act, the Company may pursuant to the Applicable
Procedures (i) provide written notice to DTC at least fifteen (15) calendar days prior to the
Automatic Exchange Date, instructing DTC to direct the Depositary to exchange all of the
outstanding beneficial interests in a particular Restricted Global Note to the Unrestricted Global
Note, which the Company shall have previously otherwise made eligible for exchange with the DTC,
(ii) provide prior written notice (the “Automatic Exchange Notice”) to each
Holder at such Holder’s address appearing in the register of Holders at least 15 calendar days
prior to the Automatic Exchange Date (the “Automatic Exchange Notice Date”), which notice
must include (w) the Automatic Exchange Date, (x) the section of the Indenture pursuant to which
the Automatic Exchange shall occur, (y) the “CUSIP” number of the Restricted Global Note from which
such Holder’s beneficial interests will be transferred and the (z) “CUSIP” number of the
Unrestricted Global Note into which such Holder’s beneficial interests will be transferred, and
(iii) on or prior to the Automatic Exchange Date, deliver to the Trustee for authentication one or
more Unrestricted Global Notes, duly executed by the Company, in an aggregate principal amount
equal to the aggregate principal amount of Restricted Global Notes to be exchanged. At the
Company’s request on no less than five (5) calendar days’ notice prior to the Automatic Exchange
Notice Date, the Trustee shall deliver, in the Company’s name and at its expense, the Automatic
Exchange Notice to each Holder at such Holder’s address appearing in the register of Holders.
Notwithstanding anything to the contrary in this Section 2.06(e), during the fifteen (15) day
period prior to the Automatic Exchange Date, no transfers or exchanges other than pursuant to this
Section 2.06(e) shall be permitted without the prior written consent of the Company. As a
condition to any Automatic Exchange, the Company shall provide, and the Trustee shall be entitled
to rely upon, an Officers’ Certificate in form reasonably acceptable to the Trustee to the effect
that the Automatic Exchange shall be effected in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Restricted Notes Legend shall no longer be
required in order to maintain compliance with the Securities Act and that the aggregate principal
amount of the particular Restricted Global Note is to be transferred to the particular Unrestricted
Global Note by adjustment made on the records of the Trustee, as custodian for the Depositary to
reflect the Automatic Exchange. Upon such exchange of beneficial interests pursuant to this Section
2.06(e), the aggregate principal amount of the Global Notes shall be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary, to reflect the
relevant increase or decrease in the principal amount of such Global Note resulting from the
applicable exchange. The Restricted Global Note from which beneficial interests are transferred
pursuant to an Automatic Exchange shall be canceled following the Automatic Exchange.




          (f) Retention of Written Communications. The Registrar shall retain copies of all
letters, notices and other written communications received pursuant to Section 2.01 or this Section
2.06. The Company shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of reasonable prior written
notice to the Registrar.



          (g) Obligations with Respect to Transfers and Exchanges of Notes.




          (i) To permit registrations of transfers and exchanges, the Company shall, subject to
the other terms and conditions of this Article II, execute and the Trustee shall
authenticate Definitive Notes and Global Notes at the Registrar’s request.



-47-









 






          (ii) No service charge shall be made to a Holder for any registration of transfer or
exchange, but Holders shall be required to pay a sum sufficient to cover any transfer tax
assessments or similar governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charges payable upon exchange or
transfer pursuant to Sections 2.02, 2.06, 2.10, 3.06, 4.10, 4.14, or 9.05).




          (iii) The Company (and the Registrar) shall not be required to register the transfer of
or exchange of any Note (A) for a period beginning (1) 15 days before the mailing of a
notice of an offer to repurchase or redeem Notes and ending at the close of business on the
day of
such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest
Payment Date or (B) called for redemption, except the unredeemed portion of any Note being
redeemed in part.




          (iv) Prior to the due presentation for registration of transfer of any Note, the
Company, the Trustee, the Paying Agent or the Registrar may deem and treat the person in
whose name a Note is registered as the owner of such Note for the purpose of receiving
payment of principal of, premium, if any, and (subject to paragraph 2 of the forms of Note
attached hereto as Exhibit A) interest on such Note and for all other purposes
whatsoever, including without limitation the transfer or exchange of such Note, whether or
not such Note is overdue, and none of the Company, the Trustee, the Paying Agent or the
Registrar shall be affected by notice to the contrary.




          (v) Any Definitive Note delivered in exchange for an interest in a Global Note pursuant
to Section 2.01(f) shall, except as otherwise provided by Section 2.06(d), bear the
applicable legend regarding transfer restrictions applicable to the Definitive Note set
forth in Section 2.01(d).




          (vi) All Notes issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the same benefits under this
Indenture as the Notes surrendered upon such transfer or exchange.



          (h) No Obligation of the Trustee. (i) The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Note, a member of, or a participant in, DTC or other
Person with respect to the accuracy of the records of DTC or its nominee or of any participant or
member thereof, with respect to any ownership interest in the Notes or with respect to the delivery
to any participant, member, beneficial owner or other Person (other than DTC) of any notice
(including any notice of redemption or purchase) or the payment of any amount or delivery of any
Notes (or other security or property) under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to Holders in respect of the
Notes shall be given or made only to or upon the order of the Holders (which shall be DTC or its
nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be
exercised only through DTC subject to the applicable rules and procedures of DTC. The Trustee may
rely and shall be fully protected in relying upon information furnished by DTC with respect to its
members, participants and any beneficial owners.



          (ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including any transfers between or among
DTC participants, members or beneficial owners in any Global Note) other than to require delivery
of such certificates and other documentation or evidence as are expressly required by, and to do so
if and when expressly required by, the terms of this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements hereof.




-48-












 





          (iii) Affiliate Holders. By accepting a beneficial interest in a Global Note, any
Person that is an Affiliate of the Company agrees to give notice to the Company, the Trustee and
the Registrar of the acquisition and its Affiliate status.




          Section 2.07 Form of Certificate to be Delivered in Connection with Transfers to
Institutional Accredited Investors.




[Date]

ViaSat, Inc.

c/o Wilmington Trust FSB

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402-1544

Attention: Corporate Capital Markets




Ladies and Gentlemen:




          This certificate is delivered to request a transfer of $[_________] principal amount of the
8.875% Senior Notes due 2016 (the “Notes”) of ViaSat, Inc. (the “Company”).




          Upon transfer, the Notes would be registered in the name of the new beneficial owner as
follows:




	 	 	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Taxpayer ID Number:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	The undersigned represents and warrants to you that:






          1. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended (the “Securities Act”)) purchasing for our
own account or for the account of such an institutional “accredited investor” at least $250,000
principal amount of the Notes, and we are acquiring the Notes not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act. We have such
knowledge and experience in financial and business matters as to be capable of evaluating the
merits and risk of our investment in the Notes and we invest in or purchase securities similar to
the Notes in the normal course of our business. We and any accounts for which we are acting are
each able to bear the economic risk of our or its investment.




          2. We understand that the Notes have not been registered under the Securities Act and, unless
so registered, may not be sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date that is one year after the later of the date of
original issue and the last date on which the Company or any affiliate of the Company was the owner
of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”) only
(a) to the Company or any Subsidiary thereof, (b) pursuant to an effective registration statement
under the Securities Act, (c) in a transaction complying with the requirements of Rule 144A under
the Securities Act, to a person we reasonably believe is a “qualified institutional buyer” under
Rule 144A of the Securities Act (a “QIB”) that is purchasing for its own account or for the
account of a QIB and to whom notice is given that the transfer is being made in reliance on Rule
144A, (d) pursuant to offers and sales to non-U.S. persons that




-49-









 








occur outside the United States within the meaning of Regulation S under the Securities Act, (e) to an
institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act that is purchasing for its own account or for the account of such an
institutional “accredited investor,” in each case in a minimum principal amount of Notes of
$250,000 for investment purposes and not with a view to or for offer or sale in connection with any
distribution in violation of the Securities Act or (f) pursuant to any other available exemption
from the registration requirements of the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not apply subsequent
to the Resale Restriction Termination Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (e) above prior to the Resale Restriction Termination Date,
the transferor shall deliver a letter from the transferee substantially in the form of this letter
to the Company and the Trustee, which shall provide, among other things, that the transferee is an
institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act) and that it is acquiring such Notes for investment purposes and not for
distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and
the Trustee reserve the right prior to any offer, sale or other transfer prior to the Resale
Termination Date of the Notes pursuant to clauses (d), (e) or (f) above to require the delivery of
an opinion of counsel, certifications and/or other information satisfactory to the Company and the
Trustee.




          3. We [are][are not] an Affiliate of the Company.




	 	 	 	 	 	 	 
	 	 	TRANSFEREE:	 	 
	 

	 	 	 	 	 	 
	 

	 	BY:	 	 	 	 
	 	 	 	 	 





          Section 2.08 Form of Certificate to be Delivered in Connection with Transfers Pursuant to
Regulation S.




[Date]

ViaSat, Inc.

c/o Wilmington Trust FSB

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402-1544

Attention: Corporate Capital Markets




	 	 	 	 	 
	 

	 	Re:
	 	ViaSat, Inc. (the “Company”)
	 

	 	 	 	8.875% Senior Notes due 2016 (the “Notes”)





Ladies and Gentlemen:




          In connection with our proposed sale of $[_________] aggregate principal amount of the Notes,
we confirm that such sale has been effected pursuant to and in accordance with Regulation S under
the United States Securities Act of 1933, as amended (the “Securities Act”), and,
accordingly, we represent that:




          (a) the offer of the Notes was not made to a person in the United States;




          (b) either (i) at the time the buy order was originated, the transferee was outside the United
States or we and any person acting on our behalf reasonably believed that the transferee was
outside the United States or (ii) the transaction was executed in, on or through the facilities of
a designated off-shore securities market and neither we nor any person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United States;




-50-









 









          (c) no directed selling efforts have been made in the United States in contravention of the
requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and




          (d) the transaction is not part of a plan or scheme to evade the registration requirements of
the Securities Act.




          In addition, if the sale is made during a restricted period and the provisions of Rule
903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that
such sale has been made in accordance with the applicable provisions of Rule 903(b)(2), Rule
903(b)(3) or Rule 904(b)(1), as the case may be.




          We also hereby certify that we [are][are not] an Affiliate of the Company and, to our
knowledge, the transferee of the Notes [is][is not] an Affiliate of the Company.




          You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.




          Very truly yours,




          [Name of Transferor]




	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Authorized Signature	 	 






          Section 2.09
Replacement Notes.




          If any mutilated Note is surrendered to the Trustee, the Registrar or the Company and the
Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of
any Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, 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 the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company
and the Trustee may charge for their expenses in replacing a Note.




          Every replacement Note is a contractual 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.




          Section 2.10 Outstanding Notes.




          The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it 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 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.




-51-









 








          If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.




          If the principal amount of any Note is considered paid under Section 4.01 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 redemption date or 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 2.11 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 Affiliate of 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 Trust Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned which
have been pledged in good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent
with respect to the Notes and that the pledgee is not the Company or any obligor upon the Notes or
any Affiliate of the Company or of such other obligor.




          Section 2.12 Temporary Notes.




          Until certificates representing Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of certificated 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.




          Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to
all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this
Indenture.




          Section 2.13 Cancellation.




          The Company at any time may deliver Notes to the Trustee 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, at the direction of the Trustee, the Registrar or
the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy cancelled Notes in accordance with
its customary procedures (subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all cancelled Notes shall be delivered to the Company. The Company may not
issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.




          Section 2.14 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




-52-









 







Notes and in Section 4.01 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, and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such defaulted interest as provided in this Section 2.14. 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. The Company shall promptly notify the Trustee of such special record date. 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,
first-class postage prepaid, to each Holder a notice at his or her address as it appears in the
Note Register that states the special record date, the related payment date and the amount of such
interest to be paid.




          Subject to the foregoing provisions of this Section 2.14 and for greater certainty, each Note
delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.




          Section 2.15 CUSIP Numbers.




          The Company in issuing the Notes may use CUSIP numbers (if then generally in use) and, if so,
the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided,
that any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of redemption and that reliance may be
placed only on the other identification numbers printed on the Notes, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will as promptly as
practicable notify the Trustee in writing of any change in the CUSIP numbers.




ARTICLE  3




REDEMPTION




          Section 3.01 Notices to Trustee.




          If the Company elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish to the
Trustee, at least 5 Business Days before notice of redemption is required to be mailed or caused to
be mailed to Holders pursuant to Section 3.03 hereof but not more than 60 days before a redemption
date, an Officers’ Certificate setting forth (i) the paragraph or subparagraph of such Note and/or
Section of this Indenture pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of the Notes to be redeemed and (iv) the redemption price.




          Section 3.02 Selection of Notes to Be Redeemed or Purchased.




          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 (a) if the Notes are listed on
any national securities exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed or (b) on a pro rata basis or, to the extent that
selection on a pro rata basis is not practicable, by lot or by such other method the Trustee shall
deem fair and appropriate in accordance with the procedures of DTC. In the event of partial
redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be selected,
unless otherwise provided herein, not less




-53-









 







than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for redemption or purchase.




          The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
or purchase and, in the case of any Note selected for partial redemption or purchase, the principal
amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in
amounts of $2,000 or whole multiples of $1,000 on excess thereof; no Notes of $2,000 or less can be
redeemed in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the
entire outstanding amount of Notes held by such Holder, even if not $2,000 or a multiple of $1,000
in excess thereof, shall be redeemed or purchased. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption or purchase also apply to
portions of Notes called for redemption or purchase.




          Section 3.03 Notice of Redemption.




          (a) Subject to Section 3.09 hereof, the Company shall mail or cause to be mailed by
first-class mail, postage prepaid, notices of redemption at least 30 days but not more than 60 days
before the redemption date to each Holder of Notes to be redeemed at such Holder’s registered
address or otherwise in accordance with the procedures of DTC, except that redemption notices may
be mailed more than 60 days prior to a redemption date if the notice is issued in connection with
Article 8 or Article 11 hereof. Except as set forth in Section 4.14 hereof, notices of redemption
may not be conditional.




          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 to be redeemed in part only, the portion of the principal amount of that
Note that is 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 of the original Note representing
the same indebtedness to the extent not redeemed will be issued in the name of the Holder of the
Notes upon cancellation of the original Note;




          (iv) the name and address of the Paying Agent;




          (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
called for redemption ceases to accrue on and after the redemption date;




          (vii) the paragraph or subparagraph 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.



          (b) At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at the Company’s expense; provided that the Company shall have delivered to the Trustee,
at least 5 Business Days before notice of redemption is required to be mailed or caused to be
mailed to Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the
Trustee),



-54-









 






an Officers’ Certificate requesting that the Trustee give such notice and setting forth
the information to be stated in such notice as provided in Section 3.03(a).




          Section 3.04 Effect of Notice of Redemption.




          Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price
(except in connection with a conditional redemption pursuant to Section 4.14 hereof). The notice,
if mailed in a manner herein provided, shall be conclusively presumed to have been given, whether
or not the Holder receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the Holder of any Note designated for redemption in whole or in part shall
not affect the validity of the proceedings for the redemption of any other Note. Subject to
Section 3.05 hereof, on and after the redemption date, interest ceases to accrue on Notes or
portions of Notes called for redemption.




          Section 3.05 Deposit of Redemption or Purchase Price.




          (a) Prior to 10:00 a.m. (New York City time) on the redemption or purchase date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of and accrued and unpaid interest (including Additional Interest, if any) on all
Notes to be redeemed or purchased 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 and unpaid interest on,
all Notes to be redeemed or purchased.




          (b) If the Company complies with the provisions of Section 3.05(a), on and after the
redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes
called for redemption or purchase. If the optional redemption date is on or after a Record Date
and on or before the related Interest Payment Date, the accrued and unpaid interest, if any, shall
be paid to the Person in whose name the Note is registered at the close of business, on such Record
Date, and no Additional Interest shall be payable to Holders whose Notes shall be subject to
redemption by the Company. If any Note called for redemption or purchase shall not be so paid upon
surrender for redemption or purchase because of the failure of the Company to comply with Section
3.05(a), interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on
any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.




          Section 3.06 Notes Redeemed or Purchased in Part.




          Upon surrender of a Note that is redeemed or purchased in part, the Company shall issue and
the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the
same indebtedness to the extent not redeemed or purchased; provided that each new Note will be in a
principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. It is understood
that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and
not an Opinion of Counsel or Officers’ Certificate is required for the Trustee to authenticate such
new Note.




          Section 3.07 Optional Redemption.




          (a) At any time prior to September 15, 2012, upon not less than 30 nor more than 60 days’
prior notice mailed by first-class mail to each Holder’s registered address, the Company may redeem
all or part of the Notes at a redemption price equal to 100% of the principal amount thereof plus




-55-









 







the Applicable Premium as of, plus accrued and unpaid interest, if any, to, the redemption date
(subject to the right of Holders on the relevant Record Date to receive interest due on the
relevant Interest Payment Date).




          (b) At any time prior to September 15, 2012, the Company may, at its option, redeem up to 35%
of the aggregate principal amount of Notes issued by it (calculated after giving effect to any
issuance of Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings at a
redemption price of 108.875% of the principal amount thereof, plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders on the relevant Record Date to receive
interest due on the relevant Interest Payment Date); provided that:





(1) at least 65% of the aggregate original principal amount of Notes issued under
this Indenture (calculated after giving effect to any issuance of Additional Notes)
remains outstanding immediately after each such redemption; and




(2) the redemption occurs within 60 days after the closing of such Equity Offering.



          (c) Except pursuant to clause (a) or (b) of this Section 3.07, the Notes will not be
redeemable at the Company’s option prior to September 15, 2012.




          (d) On and after September 15, 2012, the Company may, at its option, redeem all or, from time
to time, a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the following
redemption prices (expressed as a percentage of principal amount of the Notes to be redeemed) plus
accrued and unpaid interest and Additional Interest on the Notes, if any, to the applicable
redemption date (subject to the right of Holders on the relevant Record Date to receive interest
due on the relevant Interest Payment Date), if redeemed during the twelve-month period beginning on
September 15 of the years indicated below:




	 	 	 	 	 
	Year	 	Percentage	 
	2012
	 	 	106.656	%
	2013
	 	 	104.438	%
	2014
	 	 	102.219	%
	2015 and thereafter
	 	 	100.000	%






          (e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.




          (f) If the optional redemption date is on or after a Record Date and on or before the related
Interest Payment Date, the accrued and unpaid interest, if any, will be paid to the Person in whose
name the Note is registered at the close of business, on such Record Date, and no Additional
Interest will be payable to Holders whose Notes will be subject to redemption by the Company.




          Section 3.08 Mandatory Redemption.




          The Company shall not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.




          Section 3.09 Offers to Repurchase by Application of Excess Proceeds.




          (a) In the event that, pursuant to Section 4.10 hereof, the Company shall be required to
commence an Asset Sale Offer, they shall follow the procedures specified below.





-56-












 





          (b) Upon the commencement of an Asset Sale Offer, the Company shall send, by first-class mail,
a notice to each of the Holders, 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. The Asset Sale Offer shall be made to all Holders and, to the extent required by the
terms of other Pari Passu Indebtedness, holders of Pari Passu Indebtedness. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:





     (i) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;




     (ii) the Asset Sale Offer Amount, the purchase price and the Asset Sale
Purchase Date;




     (iii) that any Note not tendered or accepted for payment shall continue
to accrue interest;




     (iv) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest after the Asset Sale Purchase Date;




     (v) that Holders electing to have a Note purchased pursuant to an Asset
Sale Offer may elect to have Notes purchased in amounts of $2,000 or in
integral multiples of $1,000 in excess thereof only;




     (vi) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
entitled “Option of Holder to Elect Purchase” attached to the Note
completed, or transfer by book-entry transfer, to the Company, the
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Asset Sale Purchase
Date;




     (vii) that Holders shall be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Asset Sale Offer Period, a telegram,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;




     (viii) that, if the aggregate principal amount of Notes and Pari Passu
Indebtedness surrendered by the holders or lenders thereof exceeds the Asset
Sale Offer Amount, the Trustee shall select the Notes, and the trustee or
agent for the Pari Passu Indebtedness shall select the Pari Passu
Indebtedness, to be purchased on a pro rata basis based on the accreted
value or principal amount of the Notes or such Pari Passu Indebtedness
tendered (with such adjustments as may be deemed appropriate by the Trustee
so that only Notes in denominations of $2,000 or in integral multiples of
$1,000 in excess thereof, shall be purchased); and




     (ix) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the



-57-









 






Notes surrendered (or transferred by book-entry transfer) representing the
same indebtedness to the extent not repurchased.



          Other than as specifically provided in this Section 3.09 or Section 4.10 hereof, any purchase
pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01
through 3.06 hereof.




ARTICLE  4




COVENANTS




          Section 4.01 Payment of Notes.




          The Company shall pay or cause to be paid the principal of, premium, if any, Additional
Interest, if any, and interest on the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, Additional Interest, if any, and interest shall be considered paid on
the date due if the Paying Agent, if other than the Company or a Subsidiary, holds as of noon
Eastern Time on the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, Additional Interest, if any,
and interest then due.




          The Company shall pay all Additional Interest, if any, in the same manner on the dates and in
the amounts set forth in the Registration Rights Agreement.




          The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest
(without regard to any applicable grace period) at the same rate to the extent lawful.




          Section 4.02 Maintenance of Office or Agency.




          The Company shall maintain an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the 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 Corporate Trust Office of the Trustee.




          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. The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.




          The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03 hereof.




          Section 4.03 Reports and Other Information.




     Notwithstanding that the Company is subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided
for such



-58-









 




annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC,
the Company shall (a) file with the SEC (unless the SEC will not accept such filing), and (b) make
available to the Trustee and, upon written request, a Holder of the Notes, without cost to any
Holder, from and after the Issue Date:




     (1) within the time periods specified by the Exchange Act (including all applicable extension
periods), an annual report on Form 10-K (or any successor or comparable form) containing the
information required to be contained therein (or required in such successor or comparable form);



     (2) within the time periods specified by the Exchange Act (including all applicable extension
periods), a quarterly report on Form 10-Q (or any successor or comparable form); and



     (3) all current reports that would be required to be filed with the SEC on Form 8-K (or any
successor or comparable form).



     In the event that the Company is not permitted to file such reports with the SEC pursuant to
the Exchange Act, the Company will nevertheless make available such Exchange Act reports to the
Trustee and the Holders of the Notes as if the Company were subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act within the time periods specified by the Exchange Act
(including all applicable extension periods), which requirement may be satisfied by posting such
reports on its website within the time periods specified by this Section 4.03. Notwithstanding the
foregoing, the availability of the reports referred to in paragraphs (1) through (3) above on the
SEC’s Electronic Data Gathering, Analysis and Retrieval system (or any successor system, including
the SEC’s Interactive Data Electronic Application system) and the Company’s website within the time
periods specified above will be deemed to satisfy this delivery obligation.



     If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such
Unrestricted Subsidiaries, either individually or collectively, would otherwise have been a
Significant Subsidiary, then the quarterly and annual financial information required by this
Section 4.03 shall include a reasonably detailed presentation, either on the face of the financial
statements or in the footnotes to the financial statements, and in management’s discussion and
analysis of financial condition and results of operations, of the financial condition and results
of operations of the Company and its Restricted Subsidiaries separate from the financial condition
and results of operations of the Unrestricted Subsidiaries.



     In addition, the Company and the Subsidiary Guarantors have agreed that they will make
available to the Holders and to prospective investors, upon the request of such Holders, the
information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long
as the Notes are not freely transferable under the Securities Act. For purposes of this Section
4.03, the Company and the Subsidiary Guarantors will be deemed to have furnished the reports to the
Trustee and the Holders of Notes as required by this covenant if it has filed such reports with the
SEC via the EDGAR filing system and such reports are publicly available.



          Section 4.04 Compliance Certificate.




          (a) The Company and each Subsidiary Guarantor (to the extent that such Subsidiary Guarantor is
so required under the Trust Indenture Act) shall deliver to the Trustee, within 90 days after the
end of each fiscal year ending after the Issue Date, a certificate from the principal executive
officer, principal financial officer or principal accounting officer stating that a review of the
activities of the Company and its Restricted Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officer with a view to determining whether the Company
has kept, observed,





-59-









 







performed and fulfilled its obligations under this Indenture, and further
stating, as to such Officer signing such certificate, that to the best of his or her knowledge, the
Company has kept, observed, performed and fulfilled each and every condition and covenant contained
in this Indenture and is not in default in the performance or observance of any of the terms,
provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred,
describing all such Defaults of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto).




          (b) If any Default has occurred and is continuing under this Indenture, the Company shall
promptly (which shall be no more than five (5) Business Days upon becoming aware of such Default)
deliver to the Trustee by registered or certified mail or by facsimile transmission an Officers’
Certificate specifying such event and what action the Company proposes to take with respect
thereto.




          Section 4.05 Taxes.




          The Company shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to
delinquency, all material taxes, assessments and governmental levies except such as are contested
in good faith and by appropriate negotiations or proceedings or where the failure to
effect such payment is not adverse in any material respect to the Holders of the Notes.




          Section 4.06 Stay, Extension and Usury Laws.




          The Company and each of the Subsidiary Guarantors covenant (to the extent that they may
lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Company and each of the Subsidiary Guarantors (to the extent that they may
lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that
they shall not, by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.




          Section 4.07 Limitation on Restricted Payments.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries, directly
or indirectly, to:





     (1) declare or pay any dividend or make any distribution (whether made in cash,
securities or other assets or property) on or in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving the Company or any of its
Restricted Subsidiaries) other than:




     (a) dividends or distributions payable solely in Capital Stock of the Company
(other than Disqualified Stock); and




     (b) dividends or distributions by a Restricted Subsidiary payable to the
Company or another Restricted Subsidiary (and if such Restricted Subsidiary is not a
Wholly Owned Subsidiary, to its other holders of common Capital Stock on a pro rata
basis);




     (2) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the
Company or any direct or indirect parent of the Company held by Persons other than the
Company or a Restricted Subsidiary (other than in exchange for Capital Stock of the Company
(other than Disqualified Stock));



-60-









 






     (3) make any principal payment on, or purchase, repurchase, redeem, defease or
otherwise acquire or retire for value, prior to any scheduled maturity, scheduled repayment
or scheduled sinking fund payment, any Subordinated Obligations or Guarantor Subordinated
Obligations, other than:




     (a) Indebtedness of the Company owing to and held by any Subsidiary Guarantor
or Indebtedness of a Subsidiary Guarantor owing to and held by the Company or any other Subsidiary Guarantor permitted under clause (5) of Section
4.09(b); or




     (b) the purchase, repurchase, redemption, defeasance or other acquisition or
retirement of Subordinated Obligations or Guarantor Subordinated Obligations
purchased in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
purchase, repurchase, redemption, defeasance or other acquisition or retirement; or




     (4) make any Restricted Investment;




(all such payments and other actions referred to in clauses (1) through (4) (other
than any exception thereto) shall be referred to as a “Restricted Payment”),
unless, at the time of and after giving effect to such Restricted Payment:




     (a) no Default shall have occurred and be continuing (or would result
therefrom);




     (b) immediately after giving effect to such Restricted Payment on a pro forma
basis, the Company is able to Incur $1.00 of additional Indebtedness under the
provisions of Section 4.09(a); and




     (c) the aggregate amount of such Restricted Payment and all other Restricted
Payments declared or made subsequent to the Issue Date (excluding Restricted
Payments made pursuant to clauses (1), (2), (3), (7), (8), (9), (10) and (13) of
Section 4.07(b)) would not exceed the sum of (without duplication):




     (i) 50% of the Company’s Consolidated Net Income for the period
(treated as one accounting period) from October 3, 2009 to the end of the
Company’s most recent fiscal quarter ending prior to the date of such
Restricted Payment for which financial statements prepared on a consolidated
basis in accordance with GAAP are available;




     (ii) 100% of the aggregate Net Cash Proceeds and the fair market value,
as determined in good faith by an Officer of the Company (as evidenced by an
Officers’ Certificate) or if in excess of $25.0 million by the Board of
Directors of the Company, of marketable securities or other property
received by the Company since the Issue Date from the issue or sale of its
Capital Stock (other than Disqualified Stock) or as a capital contribution,
other than:




	 	(A)	 	Net Cash Proceeds received from
an issuance or sale of such Capital Stock to a Subsidiary of the
Company or to an employee stock ownership plan, option plan or
similar trust (to the extent such sale to an employee stock ownership plan
or similar trust is financed by loans from or Guaranteed by
the Company or any




-61-









 












Restricted Subsidiary unless such loans
have been repaid with cash on or prior to the date of
determination); and




	 	(B)	 	Net Cash Proceeds received by the
Company from the issue and sale of its Capital Stock or capital
contributions to the extent applied to redeem Notes in
compliance with the provisions set forth under Section 3.07(b);






     (iii) 100% of any cash dividends or cash distributions received
directly or indirectly by the Company or a Subsidiary Guarantor after the
Issue Date from an Unrestricted Subsidiary, to the extent that such
dividends or distributions were not otherwise included in Consolidated Net
Income;




     (iv) the amount by which Indebtedness of the Company or its Restricted
Subsidiaries is reduced on the Company’s consolidated balance sheet upon the
conversion or exchange subsequent to the Issue Date of any Indebtedness of
the Company or its Restricted Subsidiaries (other than debt owing to and
held by a Subsidiary of the Company) convertible or exchangeable for Capital
Stock (other than Disqualified Stock) of the Company (less the amount of any
cash, or the fair market value of any other property, distributed by the
Company upon such conversion or exchange); and




     (v) the amount equal to the net reduction in Restricted Investments
made by the Company or any of its Restricted Subsidiaries in any Person
resulting from:




	 	(A)	 	repurchases or redemptions of
such Restricted Investments by such Person, proceeds realized
upon the sale of such Restricted Investment to an unaffiliated
purchaser, or repayments of loans or advances or other transfers
of property or assets (including by way of dividend or
distribution) by such Person to the Company or any Restricted
Subsidiary (other than for reimbursement of tax payments);
	 
	 	(B)	 	the release of any Guarantee
(except to the extent any amounts are paid under such
Guarantee); or
	 
	 	(C)	 	the redesignation of Unrestricted
Subsidiaries as Restricted Subsidiaries or the merger or
consolidation of an Unrestricted Subsidiary with and into the Company or any of
its Restricted Subsidiaries (valued in each case as provided
in the definition of “Investment”) not to exceed the amount
of Investments previously made by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary,






which amount in each case under this clause (v) was included in the
calculation of the amount of Restricted Payments; provided, however, that no
amount shall be included under this clause (v) to the extent it is already
included in Consolidated Net Income.



          (b) Section 4.07(a) shall not prohibit:




-62-









 









     (1) a Restricted Payment made by exchange for, or out of the proceeds of, a
substantially concurrent sale of, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary or an
employee stock ownership plan or similar trust to the extent such sale to an
employee stock ownership plan or similar trust is financed by loans from or
Guaranteed by the Company or any Restricted Subsidiary unless such loans have been
repaid with cash on or prior to the date of determination) or any cash capital
contribution to the Company; provided, however, that the amount of Net Cash Proceeds
from such sale of Capital Stock that is utilized for such Restricted Payment shall
be excluded from clause (c)(ii) of Section 4.07(a);




     (2) any purchase, repurchase, redemption, defeasance or other acquisition or
retirement of Subordinated Obligations of the Company or Guarantor Subordinated
Obligations of any Subsidiary Guarantor made by exchange for, or out of the proceeds
of, the substantially concurrent sale of, Subordinated Obligations of the Company or
any purchase, repurchase, redemption, defeasance or other acquisition or retirement
of Guarantor Subordinated Obligations made by exchange for, or out of the proceeds
of, the substantially concurrent sale of Guarantor Subordinated Obligations so long
as such refinancing Subordinated Obligations or Guarantor Subordinated Obligations
are permitted to be Incurred pursuant to Section 4.09 and constitute Refinancing
Indebtedness;




     (3) any purchase, repurchase, redemption, defeasance or other acquisition or
retirement of Disqualified Stock of the Company or a Restricted Subsidiary made by
exchange for, or out of the proceeds of, the substantially concurrent sale of
Disqualified Stock of the Company or such Restricted Subsidiary, as the case may be,
so long as such refinancing Disqualified Stock is permitted to be Incurred pursuant
to Section 4.09 and constitutes Refinancing Indebtedness;




     (4) the purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Obligation (a) at a purchase price not
greater than 101% of the principal amount of such Subordinated Obligation in the
event of a Change of Control in accordance with provisions similar to Section 4.14
or (b) at a purchase price not greater than 100% of the principal amount thereof in
accordance with provisions similar to Section 4.10; provided that, prior to or
simultaneously with such purchase, repurchase, redemption, defeasance or other
acquisition or retirement, the Company has made the Change of Control Offer or Asset
Sale Offer, as applicable, as provided in such covenant with respect to the Notes
and has completed the repurchase or redemption of all Notes validly tendered for
payment in connection with such Change of Control Offer or Asset Sale Offer;




     (5) any purchase or redemption of Subordinated Obligations or Guarantor
Subordinated Obligations of a Subsidiary Guarantor from Net Available Cash to the
extent permitted under Section 4.10 below;




     (6) the payment of any dividend or distribution, or the consummation of any
irrevocable redemption, within 60 days after the date of declaration of the dividend
or distribution or giving of the redemption notice, as the case may be, if at such
date of declaration or redemption notice such dividend, distribution or redemption,
as the case may be, would have complied with this provision;



-63-









 






     (7) the purchase, redemption or other acquisition, cancellation or retirement
for value of Capital Stock of the Company or any direct or indirect parent of the
Company held by any existing or former employees, officers, directors, management or
consultants of the Company or any Subsidiary of the Company or their assigns,
estates or heirs, in each case in connection with the repurchase provisions under
employee stock option or stock purchase agreements or other agreements to compensate
employees, officers, directors, management or consultants entered into in the
ordinary course of business or approved by the Board of Directors of the Company;
provided that such Capital Stock was received for services related to, or for the
benefit of, the Company and its Restricted Subsidiaries; and provided further that
such redemptions or repurchases pursuant to this clause shall not exceed $10.0
million in the aggregate during any fiscal year (with unused amounts in any fiscal
year being carried over to the next succeeding fiscal year), subject to a maximum
payment in any fiscal year of $25.0 million, although such amount in any fiscal year
may be increased by an amount not to exceed:




	 	(a)	 	the Net Cash Proceeds from the sale of Capital
Stock (other than Disqualified Stock) of the Company and, to the extent
contributed to the Company, Capital Stock of any of the Company’s
direct or indirect parent companies, in each case to existing or former
employees, officers, directors, management or consultants of the
Company, any Subsidiary of the Company or any of its direct or
indirect parent companies that occurs after the Issue Date, to the
extent the cash proceeds from the sale of such Capital Stock have not
otherwise been applied to the payment of Restricted Payments
(provided that the amount of Net Cash Proceeds from such sales or
contributions that is utilized for redemptions or repurchases
pursuant to this clause (7) shall be excluded from clause (c)(ii) of
Section 4.07(a)); plus
	 
	 	(b)	 	the cash proceeds of key man life insurance
policies received by the Company or its Restricted Subsidiaries after
the Issue Date; less
	 
	 	(c)	 	the amount of any Restricted Payments
previously made with the cash proceeds described in the clauses (a) and
(b) of this clause (7);






provided, further, that the aggregate amount of Restricted Payments made pursuant to
this clause (7) shall not exceed $50.0 million in the aggregate;




    (8) the declaration and payment of dividends or distributions to holders of any
class or series of Disqualified Stock of the Company or any of its Restricted
Subsidiaries Incurred in accordance with Section 4.09;




    (9) the purchase, redemption or other acquisition, cancellation or retirement
of Capital Stock: (a) deemed to occur upon the exercise or exchange of options,
warrants, other rights to purchase or acquire Capital Stock or other securities
convertible into or exchangeable for Capital Stock if such Capital Stock represents
a portion of the exercise or exchange price thereof, or (b) made in lieu of
withholding taxes resulting from the exercise or exchange of options, warrants,
other rights to purchase or acquire Capital Stock or other securities convertible
into or exchangeable for Capital Stock;




     (10) in the event the Acquisition is consummated, any payments made in
connection with the Acquisition pursuant to the Merger Agreement and any other



-64-









 






agreements or documents related to the Acquisition (without giving effect to
subsequent amendments, waivers or other modifications to such agreements or
documents) as described in the Offering Memorandum;




     (11) the distribution, by dividend or otherwise, of shares of Capital Stock of
Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the primary assets
of which are cash and/or cash equivalents);




     (12) other Restricted Payments in an aggregate amount, which, when taken
together with all other Restricted Payments made pursuant to this
clause (12) (as reduced by the amount of capital repaid or otherwise returned from any
such Restricted Payments that constituted Restricted Investments in the form of cash
and Cash Equivalents (exclusive of items reflected in Consolidated Net Income)) not
to exceed $50.0 million;




     (13) payments in lieu of the issuance of fractional shares in connection with
the exercise or exchange of options, warrants, other rights to purchase or acquire
Capital Stock or other securities convertible into or exchangeable for Capital
Stock; and




     (14) the purchase, redemption, acquisition, cancellation or other retirement of
any Capital Stock of the Company or a Restricted Subsidiary to the extent necessary,
in the good faith judgment of the Company, to prevent the loss or secure the renewal
or reinstatement of any license, permit or other authorization held by the Company
or any of its Subsidiaries issued by any governmental or regulatory authority or to
comply with government contracting regulations;


provided, however, that at the time of and after giving effect to, any Restricted Payment permitted
under clauses (5), (7), (8), (11) and (12), no Default shall have occurred and be continuing or
would occur as a consequence thereof.




          (c) The amount of all Restricted Payments (other than cash) shall be the fair market value on
the date such Restricted Payment is made of the assets, securities or other property proposed to be
declared, paid, made, purchased, redeemed, retired, defeased or acquired pursuant to such
Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount.
With respect to any non-cash Restricted Payment, such fair market value shall be determined, if the
fair market value of such non-cash Restricted Payment (a) exceeds $15.0 million by an Officer of
the Company (as evidenced by an Officers’ Certificate) or (b) exceeds $25.0 million by the Board of
Directors of the Company, in each case acting in good faith. Not later than the date of making any
Restricted Payment under Section 4.07(a) or clause (12) of Section 4.07(b) above, the Company shall
deliver to the Trustee an Officers’ Certificate stating that such Restricted Payment is permitted
and setting forth the basis upon which the calculations required by Section 4.07 were computed.




          As of the Issue Date, all of the Company’s Subsidiaries other than TrellisWare will be
Restricted Subsidiaries. The Company will not permit any Unrestricted Subsidiary to become a
Restricted Subsidiary except pursuant to the last sentence of the definition of “Unrestricted
Subsidiary.” For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary,
all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent
repaid) in the Subsidiary so designated will be deemed to be Restricted Payments and/or Permitted
Investments in an amount determined as set forth in the definition of “Investment.” Such
designation will be permitted only if a Restricted Payment and/or Permitted Investment in such
amount would be permitted at such time and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Unrestricted
Subsidiaries will not be subject to any of the restrictive covenants set forth in this Indenture.





-65-









 








          Section 4.08 Limitation on restrictions on distributions from Restricted Subsidiaries.




          (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create or otherwise cause or permit to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:





     (1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness or other obligations
owed to the Company or any Restricted Subsidiary (it being understood that the priority of
any Preferred Stock in receiving dividends or liquidating distributions prior to dividends
or liquidating distributions being paid on Common Stock shall not be deemed a restriction on
the ability to make distributions on Capital Stock);




     (2) make any loans or advances to the Company or any Restricted Subsidiary (it being
understood that the subordination of loans or advances made to the Company or any Restricted
Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall
not be deemed a restriction on the ability to make loans or advances); or




     (3) sell, lease or transfer any of its property or assets to the Company or any
Restricted Subsidiary (it being understood that such transfers shall not include any type of
transfer described in clause (1) or (2) above).



          (b) Section 4.08(a) shall not prohibit encumbrances or restrictions existing under or by
reason of:





     (1) the Senior Credit Facility or any other agreement or instrument in effect
at or entered into on the Issue Date;




     (2) this Indenture, the Notes, the Exchange Notes and the Subsidiary
Guarantees;




     (3) any agreement or other instrument of a Person acquired by or merged or
consolidated with or into the Company or any of its Restricted Subsidiaries in
existence at the time of such acquisition, merger or consolidation (but not created
in contemplation thereof), which encumbrance or restriction is not applicable to any
Person, or the property or assets of any Person, other than the Person and its
Subsidiaries, or the property or assets of the Person and its Subsidiaries, so
acquired (including after-acquired property and assets);




     (4) any amendment, restatement, modification, renewal, supplement, extension,
refunding, replacement or refinancing of an agreement referred to in clauses (1),
(2), (3) or this clause (4) of this Section 4.08(b); provided, however, that the
encumbrances or restrictions contained in such amendment, restatement, modification,
renewal, supplement, extension, refunding, replacement or refinancing is, in the
good faith judgment of the Company, not materially more restrictive, when taken as a
whole, than the encumbrances and restrictions contained in any of the agreements or
instruments referred to in clauses (1), (2) or (3) of this Section 4.08(b) on the
Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or
was merged or consolidated with or into the Company or a Restricted Subsidiary,
whichever is applicable;



-66-









 






     (5) in the case of clause (3) of Section 4.08(a), Permitted Liens or Liens
otherwise permitted to be Incurred under Section 4.12 that limit the right of the
debtor to dispose of property or assets subject to such Liens;




     (6) purchase money obligations, mortgage financings, Capitalized Lease
Obligations and similar obligations or agreements permitted under this Indenture, in
each case, that impose encumbrances or restrictions of the nature described in
clause (3) of Section 4.08(a) with respect to the property or assets acquired,
financed, designed, leased, constructed, repaired, maintained, installed or improved
in connection therewith or thereby (including any proceeds thereof, accessions
thereto and any upgrades or improvements thereto);




     (7) agreements for the sale, transfer or other disposition of property or
assets, including without limitation customary restrictions with respect to a
Subsidiary of the Company pursuant to an agreement that has been entered into for
the sale, transfer or other disposition of all or a portion of the Capital Stock,
property or assets of such Subsidiary;




     (8) restrictions on cash, Cash Equivalents or other deposits or net worth
imposed by customers, suppliers or landlords under contracts entered into in the
ordinary course of business or as required by insurance surety or bonding companies;




     (9) any provisions in joint venture agreements, partnership agreements, LLC
agreements and other similar agreements, which (x) are customary or (y) as
determined in good faith by an Officer of the Company (as evidenced by an Officers’
Certificate) or if the aggregate Investments or other payments that the Company and
its Restricted Subsidiaries are required to make thereunder is in excess of $25.0
million by the Board of Directors of the Company, do not adversely affect the
Company’s ability to make payments of principal or interest payments on the Notes
when due;




     (10) any provisions in leases, subleases, licenses, asset sale agreements,
sale/leaseback agreements or stock sale agreements and other agreements entered into
by the Company or any Restricted Subsidiary that (x) are customary and entered into
in the ordinary course of business or (y) do not adversely affect the Company’s
ability to make payments of principal or interest payments on the Notes when due, as
determined in good faith by an Officer of the Company (as evidenced by an Officers’
Certificate) or if the consideration thereunder is in excess of $25.0 million by the
Board of Directors of the Company;




     (11) applicable law or any applicable rule, regulation or order, or any
license, permit or other authorization issued by any governmental or regulatory
authority; or




     (12) Credit Facilities or other debt arrangements Incurred by the Company or
any Restricted Subsidiary, or Preferred Stock issued by any Restricted Subsidiary,
in accordance with Section 4.09, that are not materially more restrictive, when
taken as a whole, than those applicable in either this Indenture or the Senior
Credit Facility on the Issue Date, which, as determined in good faith by an Officer
of the Company (as evidenced by an Officers’ Certificate) or if the principal amount
of such facility or debt arrangement is in excess of $25.0 million by the Board of
Directors of the Company, do not adversely affect the Company’s ability to make
payments of principal or interest payments on the Notes when due.



-67-









 





          Section 4.09 Limitation on Indebtedness.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness); provided,
however, that the Company and any Restricted Subsidiary may Incur Indebtedness (including Acquired
Indebtedness) if on the date of such Incurrence and after giving effect thereto on a pro forma
basis the Consolidated Coverage Ratio for the Company and its Restricted Subsidiaries is at least
2.00 to 1.00; provided that the aggregate principal amount of Indebtedness that may be Incurred
pursuant to the foregoing by Non-Guarantor Subsidiaries shall not exceed $25.0 million at any one
time outstanding.




          (b) Section 4.09(a) shall not prohibit the Incurrence of the following Indebtedness:





     (1) Indebtedness of the Company or any Restricted Subsidiary Incurred under a Credit
Facility and the issuance and creation of letters of credit and bankers’ acceptances
thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal
amount equal to the face amount thereof), in an aggregate amount at any time outstanding up
to the greater of (x) $300 million and (y) 200% of the Consolidated EBITDA of the Company
for the most recently ended four consecutive fiscal quarters for which financial statements
prepared on a consolidated basis in accordance with GAAP are available after giving pro forma effect to any transaction described in clauses (1)
through (4) of the definition of “Consolidated Coverage Ratio” as specified in such
definition, in each case less the aggregate principal amount of all principal repayments of
Indebtedness under Credit Facilities with Net Available Cash from Asset Sales made pursuant
to clause (4)(a) of Section 4.10(a) in satisfaction of the requirements of such covenant;
provided that the maximum amount permitted to be outstanding under this clause (1) shall not
be deemed to limit additional Indebtedness under Credit Facilities to the extent that the
Incurrence of such additional Indebtedness is permitted pursuant to Section 4.09(a) or any
of the other provisions of this Section 4.09;




     (2) Indebtedness represented by the Notes (including any Subsidiary Guarantee) (other
than any Additional Notes) and any Exchange Notes (including any Subsidiary Guarantee
thereof);




     (3) Indebtedness of the Company and its Restricted Subsidiaries in existence on the
Issue Date (other than Indebtedness described in clauses (1), (2), (4), (5), (7), (9), (10)
and (15));




     (4) Guarantees by the Company or its Restricted Subsidiaries of Indebtedness permitted
to be Incurred by the Company or a Restricted Subsidiary in accordance with the provisions
of this Indenture; provided that in the event such Indebtedness that is being Guaranteed is
a Subordinated Obligation or a Guarantor Subordinated Obligation, then the related Guarantee
shall be subordinated in right of payment to the Notes or the Subsidiary Guarantee, as the
case may be;




     (5) Indebtedness of the Company owing to and held by any Restricted Subsidiary or
Indebtedness of a Restricted Subsidiary owing to and held by the Company or any other
Restricted Subsidiary; provided, however,




     (a) if the Company is the obligor on Indebtedness owing to a Non-Guarantor
Subsidiary, such Indebtedness is expressly subordinated to the prior payment in full
in cash of all obligations with respect to the Notes;



-68-









 






     (b) if a Subsidiary Guarantor is the obligor on Indebtedness owing to a
Non-Guarantor Subsidiary, such Indebtedness is subordinated in right of payment to
the Subsidiary Guarantees of such Subsidiary Guarantor; and




	 	(c)	 	(i)     any subsequent issuance or transfer of
Capital Stock or other event which results in any such Indebtedness
being beneficially held by a Person other than the Company or a
Restricted Subsidiary of the Company; and






(ii)      any sale or other transfer of any
such Indebtedness to a Person other than the Company or a
Restricted Subsidiary of the Company,




shall be deemed, in each case, to constitute an Incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the
case may be.




     (6) Indebtedness of Persons Incurred and outstanding on the date on which such Person
became a Restricted Subsidiary or was acquired by, or merged into, the Company or any
Restricted Subsidiary (other than Indebtedness Incurred (a) to provide all or any portion of
the funds utilized to consummate the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired
by the Company or (b) otherwise either in connection with, or in contemplation of, such
acquisition); provided, however, that at the time such Person is acquired, either:




     (a) the Company would have been able to Incur $1.00 of additional Indebtedness
pursuant to Section 4.09(a) after giving effect to such acquisition and the
Incurrence of such Indebtedness pursuant to this clause (6); or




     (b) the Consolidated Coverage Ratio of the Company and its Restricted
Subsidiaries is higher than immediately prior to such acquisition or merger;




     (7) Indebtedness under Hedging Obligations that are Incurred in the ordinary course of
business (and not for speculative purposes);




     (8) Indebtedness (including Capitalized Lease Obligations, Attributable Indebtedness,
mortgage financings or purchase money obligations), including without limitation the
Incurrence of Indebtedness representing the financing of installments of construction costs
for satellites or satellite-related ground infrastructure, launch or in-orbit insurance
premiums or launch services, of the Company or a Restricted Subsidiary Incurred to finance
any part of the purchase price for, or the cost of design, lease, construction, repair,
maintenance, installation or improvement of, any property (real or personal), plant or
equipment used or to be used in the business of the Company or a Restricted Subsidiary (or
the Capital Stock of any Person owning any such property, plant or equipment (but no other
material assets)), and any Indebtedness of the Company or a Restricted Subsidiary which
serves to refund, refinance, replace, exchange, renew, repay or extend any Indebtedness
Incurred pursuant to this clause (8), in principal amount not to exceed the greater of (x)
$50.0 million and (y) 7.5% of Total Tangible Assets in the aggregate at any one time
outstanding together with all other Indebtedness issued under this clause (8) then
outstanding;




     (9) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in
respect of workers’ compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance, self-insurance obligations, performance, bid,
surety, appeal and similar bonds and completion or performance Guarantees (not for borrowed money) provided in



-69-









 






the ordinary course of business, and any letters of credit functioning as or supporting any of the foregoing;




     (10) Indebtedness arising from agreements of the Company or a Restricted Subsidiary
providing for indemnification Incurred or assumed in connection with the acquisition or
disposition of, or adjustment of purchase price or similar obligations, in each case,
Incurred or assumed in connection with the disposition of, any business, property or assets
of the Company or any business, property, assets or Capital Stock of a Restricted
Subsidiary, other than Guarantees of Indebtedness Incurred by any Person acquiring all or
any portion of such business, property, assets or a Subsidiary for the purpose of financing
such acquisition;




     (11) (a) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against insufficient funds in the
ordinary course of business, provided, however, that such Indebtedness is extinguished,
refinanced or otherwise covered within five Business Days of Incurrence or (b) Indebtedness
owed on a short-term basis of no longer than 30 days to banks or financial institutions
Incurred in the ordinary course of business that arises in connection with ordinary banking
arrangements to manage cash balances of the Company and its Subsidiaries;




     (12) the Incurrence or issuance by the Company or any Restricted Subsidiary of
Refinancing Indebtedness that serves to refund, refinance, replace, exchange, renew, repay
or extend any Indebtedness Incurred as permitted under Section 4.09(a) and clauses (2), (3),
(6) and this clause (12) or any Indebtedness issued to so refund, refinance, replace,
exchange, renew, repay or extend such Indebtedness, including additional Indebtedness
Incurred to pay premiums (including reasonable, as determined in good faith by the Company,
tender premiums), defeasance costs, accrued interest and fees and expenses in connection
therewith prior to its respective maturity;




     (13) Replacement Satellite Vendor Indebtedness in an aggregate principal amount
outstanding at any one time not to exceed the greater of (x) $25.0 million and (y) 2.5% of
Total Tangible Assets;




     (14) Indebtedness not exceeding the amount incurred to finance the purchase of real
property constituting certain portions of the Company’s headquarters in Carlsbad, California
acquired by the Company or any of its Restricted Subsidiaries for use in the business of the
Company or any of its Restricted Subsidiaries in an aggregate principal amount outstanding
at any one time not to exceed $50.0 million;




     (15) in addition to the items referred to in clauses (1) through (14) above,
Indebtedness of the Company and its Restricted Subsidiaries in an aggregate outstanding
principal amount which, when taken together with the principal amount of all other
Indebtedness Incurred pursuant to this clause (15) and then outstanding, shall not exceed
the greater of (x) $50.0 million and (y) 5% of Total Tangible Assets;




     (16) Indebtedness consisting of the financing of (a) insurance premiums or (b)
take-or-pay obligations contained in supply arrangements, in each case Incurred in the
ordinary course of business; and




     (17) Indebtedness to the extent that the net proceeds thereof are promptly deposited to
defease or to satisfy and discharge the Notes.



          The Company shall not Incur any Indebtedness under Section 4.09(b) if the proceeds





-70-












 




thereof are used, directly or indirectly, to refinance any Subordinated Obligations of the
Company unless such Indebtedness shall be subordinated to the Notes to at least the same extent as
such Subordinated Obligations. No Subsidiary Guarantor shall Incur any Indebtedness under Section
4.09(b) if the proceeds thereof are used, directly or indirectly, to refinance any Guarantor
Subordinated Obligations of such Subsidiary Guarantor unless such Indebtedness shall be
subordinated to the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee to at
least the same extent as such Guarantor Subordinated Obligations. No Non-Guarantor Subsidiary may
Incur any Indebtedness if the proceeds are used to refinance Indebtedness of the Company or a
Subsidiary Guarantor.




          (c) For purposes of determining compliance with, and the outstanding principal amount of any
particular Indebtedness Incurred pursuant to and in compliance with, this Section 4.09:





     (1) in the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described in Sections 4.09(a) and 4.09(b), the Company, in its
sole discretion, shall divide and classify such item of Indebtedness on the date of
Incurrence and may later divide and reclassify such item of Indebtedness in any manner that
complies with this Section 4.09 and only be required to include the amount and type of such
Indebtedness in one of such clauses; provided that all Indebtedness outstanding on the Issue
Date under the Senior Credit Facility shall be deemed Incurred on the Issue Date under
clause (1) of Section 4.09(b) and not Section 4.09(a) or clause (3) of Section 4.09(b) and
may not later be reclassified;




     (2) Guarantees of, or obligations in respect of letters of credit relating to,
Indebtedness that is otherwise included in the determination of a particular amount of
Indebtedness shall not be included;




     (3) if obligations in respect of letters of credit are Incurred pursuant to a Credit
Facility and are being treated as Incurred pursuant to clause (1) of Section 4.09(b) above
and the letters of credit relate to other Indebtedness, then such other Indebtedness shall
not be included;




     (4) the principal amount of any Disqualified Stock of the Company or a Restricted
Subsidiary, or Preferred Stock of a Restricted Subsidiary that is not a Subsidiary
Guarantor, shall be deemed to be equal to the greater of the maximum mandatory redemption or
repurchase price (not including, in either case, any redemption or repurchase premium) or
the liquidation preference thereof, exclusive of any accrued dividends;




     (5) Indebtedness permitted by this Section 4.09 need not be permitted solely by
reference to one provision permitting such Indebtedness but may be permitted in part by one
such provision and in part by one or more other provisions of this Section 4.09 permitting
such Indebtedness;




     (6) the principal amount of any Indebtedness outstanding in connection with a
securitization transaction or series of securitization transactions is the amount of
obligations outstanding under the legal documents entered into as part of such transaction
that would be characterized as principal if such transaction were structured as a secured
lending transaction rather than as a purchase relating to such transaction; and




     (7) the amount of Indebtedness issued at a price that is less than the principal amount
thereof shall be equal to the amount of the liability in respect thereof determined in
accordance with GAAP.



          Accrual of interest, accrual of dividends, the accretion of accreted value or original issue
discount, the amortization of debt discount, the payment of interest in the form of additional
Indebtedness





-71-











 




and the payment of dividends in the form of additional shares of Preferred Stock or
Disqualified Stock shall not be deemed to be an Incurrence of Indebtedness for purposes of this
Section 4.09. The amount of any Indebtedness outstanding as of any date shall be (i) the accreted
value thereof in the case of any Indebtedness issued with original issue discount or the aggregate
principal amount outstanding in the case of Indebtedness issued with interest payable in kind and
(ii) the principal amount or liquidation preference thereof in the case of any other Indebtedness.




          If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of
such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date (and, if
such Indebtedness is not permitted to be Incurred as of such date under this Section 4.09, the
Company shall be in Default of this Section 4.09).




          For purposes of determining compliance with any U.S. dollar-denominated restriction on the
Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in
the case of revolving credit Indebtedness; provided that if such Indebtedness is Incurred to
refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause
the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal amount of such
Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being
refinanced. Notwithstanding any other provision of this Section 4.09, the maximum amount of
Indebtedness that the Company may Incur pursuant to this Section 4.09 shall not be deemed to be
exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal
amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different
currency from the Indebtedness being refinanced, shall be calculated based on the currency
exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated
that is in effect on the date of such refinancing.




          Section 4.10 Sales of assets and subsidiary stock.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate any Asset Sale unless:





	 	(1)	 	the Company or such Restricted Subsidiary, as the case may be,
receives consideration at least equal to the fair market value (such fair
market value to be determined as of the date of contractually agreeing to such
Asset Sale) of the Capital Stock, property or assets subject to such Asset
Sale;
	 
	 	(2)	 	such fair market value (including the fair market value of all
such non-cash consideration) shall be determined, in the case of an Asset Sale
involving consideration which (a) exceeds $15.0 million by an Officer of the
Company (as evidenced by an Officers’ Certificate) or (b) exceeds $25.0 million
by the Board of Directors of the Company, in each case acting in good faith;
	 
	 	(3)	 	at least 75% of the consideration from such Asset Sale received
by the Company or such Restricted Subsidiary, as the case may be, is in the
form of cash or Cash Equivalents; and
	 
	 	(4)	 	an amount equal to 100% of the Net Available Cash from such
Asset Sale is applied by the Company or a Restricted Subsidiary within 365 days
from the




-72-









 












	 	 	 	later of the date of consummation of such Asset Sale or the receipt of such
Net Available Cash, as follows:






	 	(a)	 	to repay, prepay, defease, redeem, purchase or
otherwise retire (and to permanently reduce commitments with respect
thereto in the case of revolving borrowings): (x) Indebtedness or other
obligations under the Senior Credit Facility; (y) Indebtedness of the
Company (other than any Disqualified Stock or Subordinated Obligations)
that is secured by a Lien (other than Indebtedness owed to an Affiliate
of the Company); or (z) Indebtedness of a Restricted Subsidiary (other
than any Disqualified Stock or Guarantor Subordinated Obligations) that
is secured by a Lien (other than Indebtedness owed to the Company or an
Affiliate of the Company);
	 
	 	(b)	 	in the case of an Asset Sale by a Restricted
Subsidiary that is not a Subsidiary Guarantor, to repay, prepay,
defease, redeem, purchase or otherwise retire (and to permanently
reduce commitments with respect thereto in the case of revolving
borrowings) Indebtedness of such Restricted Subsidiary or any other
Restricted Subsidiary that is not a Subsidiary Guarantor;
	 
	 	(c)	 	to permanently reduce obligations under any
other Indebtedness of the Company (other than any Disqualified Stock or
Subordinated Obligations) or Indebtedness of a Restricted Subsidiary
(other than any Disqualified Stock or Guarantor Subordinated
Obligations) (in each case other than Indebtedness owed to the Company
or an Affiliate of the Company); provided that the Company shall
equally and ratably reduce obligations, under the Notes as provided
under Section 3.07, through open market purchases (to the extent such
purchases are at or above 100% of the principal amount thereof) or by
making an offer (in accordance with the procedures set forth below for
an Asset Sale Offer) to all Holders to purchase their Notes at 100% of
the principal amount thereof, plus the amount of accrued but unpaid
interest, if any, on the amount of Notes that would otherwise be
prepaid; or
	 
	 	(d)	 	to invest in, purchase or otherwise acquire
Additional Assets, or to make payments (including without limitation
prepayments and progress payments) in connection with such investment,
purchase or other acquisition;




provided that pending the final application of any such Net Available Cash in accordance with
clause (a), (b), (c) or (d) above, the Company and its Restricted Subsidiaries may temporarily
reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by
this Indenture; provided further that in the case of clause (d), a binding commitment shall be
treated as a permitted application of the Net Available Cash from the date of such commitment so
long as the Company or such other Restricted Subsidiary enters into such commitment with the good
faith expectation that such Net Available Cash shall be applied to satisfy such commitment within
360 days of such commitment (an “Acceptable Commitment”), it being understood that if an
Acceptable Commitment is later cancelled or terminated for any reason before such Net Available
Cash is applied, then all such Net Available Cash not so applied shall constitute Excess Proceeds.




-73-









 








          (b) For the purposes of clause (3) of Section 4.10(a) and for no other purpose, the following
shall be deemed to be cash:





	 	(1)	 	any liabilities (as shown on the Company’s or such Restricted
Subsidiary’s most recent balance sheet) of the Company or any Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the
Notes or the Subsidiary Guarantees) that are assumed by the transferee of any
such Capital Stock, property or assets and from which the Company and all
Restricted Subsidiaries have been validly released from further liability
therefor;
	 
	 	(2)	 	any securities, notes or other obligations received by the
Company or any Restricted Subsidiary from the transferee that are converted by
the Company or such Restricted Subsidiary into cash (to the extent of the cash
received in such conversion) within 180 days following the closing of such
Asset Sale; and
	 
	 	(3)	 	any Designated Noncash Consideration received by the Company or
any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair
market value (as determined in good faith by an Officer of the Company (as
evidenced by an Officers’ Certificate) or if in excess of $25.0 million by the
Board of Directors of the Company), taken together with all other Designated
Noncash Consideration received pursuant to this clause (3) that is at that time
outstanding, not to exceed the greater of (x) $25.0 million and (y) 2.5% of
Total Tangible Assets at the time of the receipt of such Designated Noncash
Consideration (with the fair market value of each item of Designated Noncash
Consideration being measured at the time received without giving effect to
subsequent changes in value).





          Notwithstanding the foregoing, the 75% limitation referred to in clause (3) of Section 4.10(a)
shall be deemed satisfied with respect to any Asset Sale in which the cash or Cash Equivalents
portion of the consideration received therefrom, determined in accordance with the foregoing
provision on an after-tax basis, if the proceeds before tax would have complied with the
aforementioned 75% limitation.




          (c) The Company shall not, and shall not permit any Restricted Subsidiary to, consummate any
Asset Swaps, unless:





	 	(1)	 	the terms of such Asset Swap have been approved in good faith
by an Officer of the Company (as evidenced by an Officers’ Certificate) or, in
the event such Asset Swap involves the transfer by the Company or any
Restricted Subsidiary of assets having an aggregate fair market value in excess
of $25.0 million, by the Board of Directors of the Company; and
	 
	 	(2)	 	in the event such Asset Swap involves the transfer by the
Company or any Restricted Subsidiary of assets having an aggregate fair market
value, as determined by the Board of Directors of the Company in good faith, in
excess of $35.0 million, the Company has received a written opinion from an
independent investment banking firm of nationally recognized standing that such
Asset Swap is fair to the Company or such Restricted Subsidiary, as the case
may be, from a financial point of view.





          (d) Any Net Available Cash from Asset Sales that is not applied or invested as provided in
clause (4) of Section 4.10(a) shall be deemed to constitute “Excess Proceeds.” On the 366th day
after the later of the date of consummation of the applicable Asset Sale and the receipt of Net



-74-









 






Available Cash with respect thereto, if the aggregate amount of Excess Proceeds exceeds $20.0
million, the Company shall be required to make an offer (“Asset Sale Offer”) to all Holders
of Notes and to the extent required by the terms of other Pari Passu Indebtedness, to all holders
of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make
an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Sale, to
purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness to which the
Asset Sale Offer applies that may be purchased out of the Excess Proceeds, at an offer price in
cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness
plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set
forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, in
each case in denominations of $2,000 and larger integral multiples of $1,000 in excess thereof. To
the extent that the aggregate amount of Notes and Pari Passu Indebtedness so properly tendered and
not withdrawn pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use
any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate
principal amount of Notes surrendered by Holders thereof and other Pari Passu Indebtedness
surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes, and the trustee or agent for the Pari Passu Indebtedness shall select the
Pari Passu Indebtedness, to be purchased on a pro rata basis on the basis of the aggregate
principal amount of tendered Notes and Pari Passu Indebtedness. Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.




          The Asset Sale Offer shall remain open for a period of 20 Business Days following its
commencement, except to the extent that a longer period is required by applicable law (the
“Asset Sale Offer Period”). No later than five Business Days after the termination of the
Asset Sale Offer Period (the “Asset Sale Purchase Date”), the Company shall purchase the
principal amount of Notes and Pari Passu Indebtedness required to be purchased pursuant to this
Section 4.10 (the “Asset Sale Offer Amount”) or, if less than the Asset Sale Offer Amount
has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to
the Asset Sale Offer.




          If the Asset Sale 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.




          Pending the final application of any Net Available Cash pursuant to this Section 4.10, the
Company and its Restricted Subsidiaries may apply such Net Available Cash temporarily to reduce
Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this
Indenture.




          (e) On or before the Asset Sale Purchase Date, the Company shall, to the extent lawful, accept
for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Notes and
Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness so validly tendered and
not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer
Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness
so validly tendered and not properly withdrawn, in each case in denominations of $2,000 and larger
integral multiples of $1,000 in excess thereof. The Company shall deliver to the Trustee an
Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 4.10 and, in addition, the Company shall
deliver all certificates and notes required, if any, by the agreements governing the Pari Passu
Indebtedness. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five Business Days after termination of the Asset Sale Offer
Period) mail or deliver to each tendering Holder of Notes an amount equal to the purchase price of
the Notes so validly tendered and not properly withdrawn by such Holder and accepted by the Company
for purchase, and the Company shall promptly issue a new Note,




-75-









 







and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or
deliver (or cause to be transferred by book-entry) such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered representing the same indebtedness
to the extent not repurchased; provided that each such new Note shall be in a principal amount of
$2,000 or an integral multiple of $1,000 in excess thereof. In addition, the Company shall take any
and all other actions required by the agreements governing the Pari Passu Indebtedness. Any Note
not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable
after the Asset Sale Purchase Date.




          The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws or regulations in connection with the repurchase of
Notes pursuant to the Asset Sale Offer. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.10, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have breached its obligations
under this Indenture by virtue of such compliance.




          Section 4.11 Transactions with Affiliates.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, enter into or conduct any transaction (including the purchase, sale, lease
or exchange of any property or the rendering of any service) with any Affiliate of the Company (an
“Affiliate Transaction”) unless:





	 	(1)	 	the terms of such Affiliate Transaction are not materially less
favorable to the Company or such Restricted Subsidiary, as the case may be,
when taken as a whole, than those that would have been obtained in a comparable
transaction at the time of such transaction on an arm’s-length basis with a
Person who is not an Affiliate;
	 
	 	(2)	 	in the event such Affiliate Transaction involves an aggregate
consideration in excess of $25.0 million, the terms of such transaction have
been approved by a majority of the disinterested members of the Board of
Directors of the Company and the Board of the Directors of the Company shall
have determined in good faith that such Affiliate Transaction satisfies the
criteria in clause (1) above; and
	 
	 	(3)	 	in the event such Affiliate Transaction involves an aggregate
consideration in excess of $35.0 million, the Company has received a written
opinion from an Independent Financial Advisor (a) that such Affiliate
Transaction is not materially less favorable, when taken as a whole, than those
that might reasonably have been obtained in a comparable transaction at the
time of such transaction on an arm’s-length basis with a Person who is not an
Affiliate, or (b) as to the fairness to the Company or such Restricted
Subsidiary of such Affiliate Transaction from a financial point of view.





          (b) Section 4.11(a) shall not apply to:





	 	(1)	 	any transaction between or among the Company and one or more
Restricted Subsidiaries or between or among any Restricted Subsidiaries and any
Guarantees issued by the Company or a Restricted Subsidiary for the benefit of




-76-









 












	 	 	 	the Company or a Restricted Subsidiary, as the case may be, in accordance
with Section 4.09;
	 
	 	(2)	 	any Restricted Payment permitted to be made pursuant to Section
4.07 and the definition of “Permitted Investments” (other than pursuant to
clause (2) thereof);
	 
	 	(3)	 	any employment, consulting, service or termination agreement,
or indemnification arrangement, entered into by the Company or a Restricted
Subsidiary with a current or former director, officer or employee of the
Company or a Restricted Subsidiary; the payment of compensation or expense
reimbursement to any current or former director, officer or employee of the
Company or a Restricted Subsidiary (including amounts paid pursuant to employee
benefit, employee stock option or similar plans); or any issuance of
securities, or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment agreements and other
compensation arrangements, options to purchase Capital Stock of the Company,
restricted stock plans, restricted stock unit plans, long-term incentive plans,
stock appreciation rights plans, participation plans or similar employee
benefits plans and/or indemnity provided on behalf of directors, officers and
employees of the Company or a Restricted Subsidiary approved by the Board of
Directors of the Company;
	 
	 	(4)	 	the payment of reasonable fees and expense reimbursements to
current or former directors of the Company or any Restricted Subsidiary;
	 
	 	(5)	 	loans or advances to employees, officers or directors of the
Company or any Restricted Subsidiary in the ordinary course of business
consistent with past practices, in an aggregate amount not in excess of $10.0
million outstanding at any time;
	 
	 	(6)	 	any agreement as in effect as of the Issue Date, as such
agreement may be amended, modified, supplemented, extended or renewed from time
to time, so long as any such amendment, modification, supplement, extension or
renewal, when taken as a whole, is not materially more disadvantageous to the
Holders in the reasonable determination of an Officer of the Company (as
evidenced by an Officers’ Certificate) or if such agreement involves aggregate
consideration in excess of $25.0 million by the Board of Directors of the
Company than the terms of any such agreements in effect on the Issue Date;
	 
	 	(7)	 	any agreement between any Person and an Affiliate of such
Person existing at the time such Person is acquired by or merged or
consolidated with or into the Company or a Restricted Subsidiary, as such
agreement may be amended, modified, supplemented, extended or renewed from time
to time; provided that such agreement was not entered into contemplation of
such acquisition, merger or consolidation, and so long as any such amendment,
modification, supplement, extension or renewal, when taken as a whole, is not
materially more disadvantageous to the Holders, in the reasonable determination
of an Officer of the Company (as evidenced by an Officers’ Certificate) or if
such agreement involves aggregate consideration in excess of $25.0 million the
Board of Directors of the Company, than the applicable agreement as in effect
on the date of such acquisition, merger or consolidation;




-77-









 












	 	(8)	 	transactions with customers, clients, suppliers, joint venture
partners or purchasers or sellers of goods or services, in each case in the
ordinary course of the business of the Company and its Restricted Subsidiaries
and otherwise in compliance with the terms of this Indenture; provided that in
the reasonable determination of an Officer of the Company (as evidenced by an
Officers’ Certificate) or if such transaction involves aggregate consideration
in excess of $25.0 million the Board of Directors of the Company, such
transactions are on terms that are not materially less favorable, when taken as
a whole, to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person;
	 
	 	(9)	 	transactions with a Permitted Joint Venture pursuant to which
the Company or any of its Restricted Subsidiaries provides, leases or receives
any of the following: managerial, operational, technical, administrative or
other services; property, plant, equipment or other goods (including without
limitation gateways, hubs and ground equipment); satellite capacity;
intellectual property or other tangible or intangible assets, property or
rights; provided that (as determined in good faith by an Officer of the Company
(as evidenced by an Officers’ Certificate) or if such transaction involves
aggregate consideration in excess of $25.0 million by the Board of Directors of
the Company) such transaction (i) is in the best interests of the Company and
its Restricted Subsidiaries and (ii) does not affect the Company’s ability to
make payments of principal or interest payments on the Notes when due;
	 
	 	(10)	 	any issuance or sale of Capital Stock (other than Disqualified
Stock) to Affiliates of the Company and the granting of registration and other
customary rights with respect thereto;
	 
	 	(11)	 	transactions in which the Company or any Restricted Subsidiary
delivers to the Trustee a letter or opinion from an Independent Financial
Advisor stating that such transaction is fair to the Company or such Restricted
Subsidiary from a financial point of view or stating that the terms are not
materially less favorable, when taken as a whole, than those that might
reasonably have been obtained by the Company or such Restricted Subsidiary in a
comparable transaction at such time on an arms-length basis from a Person that
is not an Affiliate; and
	 
	 	(12)	 	the Acquisition and the payment of all fees and expenses
related to the Acquisition, in each case as disclosed in the Offering
Memorandum.





          Section 4.12 Limitation on Liens.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or incur any Lien securing Indebtedness (other than Permitted Liens)
upon any of its property or assets (including Capital Stock of Subsidiaries), or income or profits
therefrom, or assign or convey any right to receive income therefrom, whether owned on the Issue
Date or acquired after that date, which Lien is securing any Indebtedness, unless contemporaneously
with the Incurrence of such Liens:





	 	(1)	 	in the case of Liens securing Subordinated Obligations or
Guarantor Subordinated Obligations, the Notes and related Subsidiary Guarantees
are





-78-









 











	 	 	 	secured by a Lien on such property, assets or proceeds that is senior to
such Liens; or
	 
	 	(2)	 	in all other cases, the Notes and related Subsidiary Guarantees
are equally and ratably secured or are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Liens.





          (b) Any Lien created for the benefit of Holders of the Notes pursuant to this Section 4.12
shall be automatically and unconditionally released and discharged upon the release and discharge
of each of the Liens described in clauses (1) and (2) above.




          Section 4.13 Corporate Existence.




          Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate existence and the corporate,
partnership, limited liability company or other existence of each of its Restricted Subsidiaries,
in accordance with the respective organizational documents (as the same may be amended from time to
time) of the Company or any such Restricted Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Company and its Restricted Subsidiaries; provided that the Company
shall not be required to preserve any such right, license or franchise, or the corporate,
partnership, limited liability company or other existence of any of its Restricted Subsidiaries, if
the Company in good faith shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole.




          Section 4.14 Offer to Repurchase Upon Change of Control.




          (a) If a Change of Control occurs, unless the Company has exercised its right to redeem all of
the Notes as described under Section 3.07, each Holder shall have the right to require the Company
to repurchase all or any part (equal to $2,000 or larger integral multiples of $1,000) of such
Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the
Notes repurchased plus accrued and unpaid interest, if any, to the date of purchase (subject to the
right of Holders on the relevant Record Date to receive interest due on the relevant Interest
Payment Date).




          (b) Within 30 days following any Change of Control, unless the Company has exercised its right
to redeem all of the Notes as described under Section 3.07, the Company shall mail a notice (the
“Change of Control Offer”) to each Holder, with a copy to the Trustee, stating:





	 	(1)	 	that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder’s Notes at a purchase
price in cash equal to 101% of the principal amount of such Notes plus accrued
and unpaid interest, if any, to the date of purchase (subject to the right of
Holders on a Record Date to receive interest on the relevant Interest Payment
Date) (the “Change of Control Payment”);
	 
	 	(2)	 	the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed) (the “Change of
Control Payment Date”); and
	 
	 	(3)	 	the procedures determined by the Company, consistent with this
Indenture, that a Holder must follow in order to have its Notes repurchased.





          On the Change of Control Payment Date, the Company shall, to the extent lawful:




-79-









 









	 	(1)	 	accept for payment all Notes or portions of Notes (of $2,000 or
larger integral multiples of $1,000) properly tendered and not withdrawn
pursuant to the Change of Control Offer;
	 
	 	(2)	 	deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions of Notes properly tendered
and not withdrawn; and
	 
	 	(3)	 	deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers’ Certificate stating the aggregate principal
amount of Notes or portions of Notes being purchased by the Company.





          The Paying Agent shall promptly mail to each Holder of Notes properly tendered and not
withdrawn 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 Notes surrendered, if any; provided that each such new
Note shall be in a principal amount of $2,000 or larger integral multiples of $1,000.




          The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been
given, whether or not the Holder receives such notice. If (a) the notice is mailed in a manner
herein provided and (b) any Holder fails to receive such notice or a Holder receives such notice
but it is defective, such Holder’s failure to receive such notice or such defect shall not affect
the validity of the proceedings for the purchase of the Notes as to all other Holders that properly
received such notice without defect.




          (c) Prior to making a Change of Control Payment, and as a condition to such payment (a) the
requisite holders of each issue of Indebtedness issued under an indenture or other agreement that
may be violated by such payment shall have consented to such Change of Control Payment being made
and waived the event of default, if any, caused by the Change of Control or (b) the Company will
repay all outstanding Indebtedness issued under an indenture or other agreement that may be
violated by a Change of Control Payment or the Company must offer to repay all such Indebtedness,
and make payment to the holders of such Indebtedness that accept such offer and obtain waivers of
any event of default from the remaining holders of such Indebtedness. The Company covenants to
effect such repayment or obtain such consent prior to making a Change of Control Payment.




          (d) If the Change of Control Payment Date is on or after a Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest, if any, shall be paid on the
relevant Interest Payment Date 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
pursuant to the Change of Control Offer.




          The Company shall not be required to make a Change of Control Offer upon a Change of Control
if a third party makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Notes properly tendered and not withdrawn under such
Change of Control Offer. A Change of Control Offer may be made in advance of a Change of Control,
conditional upon such Change of Control, if a definitive agreement is in place for the Change of
Control at the time of the making of the Change of Control Offer.




          (e) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws or regulations in connection with the
repurchase of Notes pursuant to the Change of Control Offer. To the extent that the provisions of
any




-80-









 







securities laws or regulations conflict with provisions of this Indenture, the Company shall
comply with the applicable securities laws and regulations and shall not be deemed to have breached
its obligations described in this Indenture by virtue of such compliance.




          Section 4.15 Future Subsidiary Guarantors.




          (a) The Company shall cause any domestic Restricted Subsidiary that borrows under or
guarantees the Senior Credit Facility after the Issue Date to execute and deliver to the Trustee a
supplemental indenture, the form of which is attached as
Exhibit D hereto, pursuant to
which such Restricted Subsidiary will unconditionally Guarantee, on a joint and several basis, the
full and prompt payment of the principal of, premium, if any, and interest (including Additional
Interest, if any) in respect of the Notes on a senior basis and all other obligations under this
Indenture.




          (b) Notwithstanding the foregoing, each Subsidiary Guarantee shall provide by its terms that
it shall be automatically and unconditionally released and discharged under the circumstances
described in Section 10.06.




          Section 4.16 Maintenance of Insurance.




          (a) The Company shall deliver an Officers’ Certificate to the Trustee within 120 days after
the end of each fiscal year certifying that, subject to Section 4.16(c), the Company and each of
its Restricted Subsidiaries has obtained and has in full force and effect:





	 	(1)	 	with respect to each Covered Satellite for which the risk of
loss passes to the Company or such Restricted Subsidiary at or before launch,
launch insurance with respect to each such Covered Satellite covering the
launch of such Covered Satellite and a period of time thereafter in an amount
not less than the aggregate of the purchase price of such Covered Satellite,
the purchase price of launch services therefor (other than for risks borne by
the relevant satellite manufacturer or by the relevant launch services provider
pursuant to any launch risk guarantee) and the premium payable for such
insurance; provided that such launch insurance is available for a price, in the
amount and on other terms and conditions that are commercially reasonable; and
	 
	 	(2)	 	at all times subsequent to the later of (x) initial completion
of in-orbit testing and (y) the coverage period of launch insurance described
in clause (1) above, In-Orbit Insurance with respect to Covered Satellites
other than Excluded Satellites in an amount not less than the Aggregate
In-Orbit Insurance Amount (with the allocation of such insurance among such
Covered Satellites being in the Company’s discretion).





          (b) Insurance policies required by Section 4.16(a), shall:





	 	(1)	 	contain no exclusions other than:






(A) Acceptable Exclusions, and




(B) such specific exclusions applicable to the performance of the
Covered Satellite being insured as are reasonably acceptable to the
Company in order to obtain insurance for a price that is, and on
other terms and conditions that are, commercially reasonable; and



-81-









 






	 	(2)	 	provide coverage for all risks of loss of and damage to the
Covered Satellite.





          The insurance required by this Section 4.16 shall name the Company or the applicable
Restricted Subsidiary as the named insured.




          (c) For any Covered Satellite, in lieu of In-Orbit Insurance, the Company may, at its option,
maintain In-Orbit Spare Capacity in which event such Covered Satellite (or portion, as applicable)
shall be deemed to be insured for the percentage of the Covered Satellite’s (or applicable
portion’s) net book value for which In-Orbit Spare Capacity is available. In the event of any loss,
damage or failure affecting a Covered Satellite or the expiration and non-renewal of an insurance
policy for a Covered Satellite resulting from a claim of loss under such policy that causes a
failure to comply with clause (2) of Section 4.16(a), the Company and its Restricted Subsidiaries
shall be deemed to be in compliance with clause (2) of Section 4.16(a) for the 120 days immediately
following such loss, damage or failure or policy expiration or non-renewal, provided that the
Company or a Restricted Subsidiary, as the case may be, procures such In-Orbit Insurance or
provides such In-Orbit Spare Capacity as necessary to comply with clause (2) within such 120 day
period.




          Section 4.17 Suspension of covenants.




          (a) Following the first day (the “Suspension Date”) that:





	 	(1)	 	the Notes have an Investment Grade Rating from both of the
Ratings Agencies; and
	 
	 	(2)	 	no Default has occurred and is continuing under this Indenture;




the Company and its Restricted Subsidiaries shall not be subject to Sections 4.07, 4.08, 4.09,
4.10, 4.11, 4.16 and clause (4) of Section 5.01(a) (collectively, the “Suspended
Covenants”). If at any time following a Suspension Date the Notes’ credit rating is downgraded
from an Investment Grade Rating by any Rating Agency or if a Default or Event of Default occurs and
is continuing (such date, the “Reinstatement Date”), then the Suspended Covenants shall
thereafter be reinstated as if such covenants had never been suspended and be applicable pursuant
to the terms of this Indenture (including in connection with performing any calculation or
assessment to determine compliance with the terms of this Indenture), unless and until a subsequent
Suspension Date occurs (in which event the Suspended Covenants shall no longer be in effect until a
subsequent Reinstatement Date occurs).




          (b) Notwithstanding the reinstatement of the Suspended Covenants upon a Reinstatement Date, no
Default, Event of Default or breach of any kind shall be deemed to exist under this Indenture, the
Notes or the Subsidiary Guarantees with respect to the Suspended Covenants based on, and none of
the Company or any of its Subsidiaries shall bear any liability for, any actions taken or events
occurring during the Suspension Period (as defined below), or any actions taken at any time
pursuant to any contractual obligation arising prior to the Reinstatement Date, regardless of
whether such actions or events would have been permitted if the applicable Suspended Covenants
remained in effect during such period. The period of time between Suspension Date and the
Reinstatement Date is referred to as the “Suspension Period.”




          (c) On each Reinstatement Date, all Indebtedness Incurred during the applicable Suspension
Period shall be classified to have been Incurred pursuant to Section 4.09(a) or one of the clauses
set forth in Section 4.09(b) (to the extent such Indebtedness would be permitted to be Incurred
thereunder as of such Reinstatement Date and after giving effect to Indebtedness Incurred prior to
the Suspension Period and outstanding on the Reinstatement Date). To the extent such Indebtedness
would not be so permitted to be Incurred pursuant Section 4.09(a) or Section 4.09(b), such
Indebtedness shall be




-82-









 







deemed to have been outstanding on the Issue Date, so that it is classified as permitted under
clause (3) of Section 4.09(b). Calculations made after each Reinstatement Date of the amount
available to be made as Restricted Payments under Section 4.07 shall be made as though Section 4.07
had been in effect since the Issue Date and throughout any and all Suspension Periods. Accordingly,
Restricted Payments made during a Suspension Period shall reduce the amount available to be made as
Restricted Payments under Section 4.07(a) to the extent required by such Section 4.07. For purposes
of determining compliance with Section 4.10, on the Reinstatement Date, the Net Available Cash from
all Asset Sales not applied in accordance with such section shall be deemed reset at zero. The
Company shall provide written notice to the Trustee of the occurrence of any Suspension Date or
Reinstatement Date.




          (d) During any period when the Suspended Covenants are suspended, the Board of Directors of
the Company shall not designate any of the Company’s Subsidiaries as Unrestricted Subsidiaries
pursuant to this Indenture.




ARTICLE  5




SUCCESSORS




          Section 5.01 Merger and Consolidation.




          (a) The Company shall not consolidate with or merge with or into or wind up into (whether or
not the Company is the surviving corporation), or sell, assign, convey, transfer or otherwise
dispose of all or substantially all of the properties and assets of the Company and its Restricted
Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:





	 	(1)	 	the resulting, surviving or transferee Person (the “Successor Company”) is
the Company or will be a corporation, limited liability company or partnership
organized and existing under the laws of the United States of America, any State of
the United States, the District of Columbia or any territory of the United States;
provided that if such Person is not a corporation, such Person shall immediately
cause a Subsidiary that is a corporation to be added as a co-issuer of the Notes
under this Indenture;
	 
	 	(2)	 	the Successor Company (if other than the Company) assumes all of the
obligations of the Company under the Notes and this Indenture pursuant to a
supplemental indenture or other documentation or instruments in forms reasonably
satisfactory to the Trustee and assumes by written agreement all of the obligations
of the Company, if applicable, under the Registration Rights Agreement;
	 
	 	(3)	 	immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing;
	 
	 	(4)	 	immediately after giving pro forma effect to such transaction and any
related financing transactions, as if such transactions had occurred at the beginning
of the applicable four-fiscal-quarter period,






	 	(i)	 	the Successor Company would be able to Incur at least $1.00
of additional Indebtedness pursuant to Section 4.09(a), or
	 
	 	(ii)	 	the Consolidated Coverage Ratio for the Successor Company
would be equal to or greater than such ratio for the Company immediately
prior to such transaction; and




-83-









 












	 	(5)	 	each Subsidiary Guarantor (unless it is the other party to the transactions
above, in which case clause (1) shall apply) shall have confirmed in writing to the
Trustee that its Subsidiary Guarantee shall apply to such Person’s obligations in
respect of this Indenture and the Notes and, if applicable, that its obligations under
the Registration Rights Agreement shall continue to be in effect.
	 
	 	 	 	Notwithstanding the preceding clauses (3) and (4),
	 
	 	(1)	 	any Restricted Subsidiary may consolidate with, merge with or into or
transfer all or part of its properties and assets to the Company so long as no
Capital Stock of the Restricted Subsidiary is distributed to any Person other than
the Company, and
	 
	 	(2)	 	the Company may merge with an Affiliate of the Company solely for the
purpose of reincorporating the Company in another jurisdiction.





          (b) Company shall not permit any Subsidiary Guarantor to, consolidate with or merge with or
into or wind up into (whether or not the Subsidiary Guarantor is the surviving corporation), or
sell, assign, convey, transfer or otherwise dispose of all or substantially all of its properties
and assets to any Person (other than to the Company or another Subsidiary Guarantor) unless:





	 	(1)	 	if such entity remains a Subsidiary Guarantor, (a) the resulting, surviving
or transferee Person (the “Successor Guarantor”) will be a corporation,
partnership, trust or limited liability company organized and existing under the laws
of the United States of America, any State of the United States, the District of
Columbia or any other territory thereof and, if applicable, shall assume by written
agreement all the obligations of the Subsidiary Guarantor under the Registration
Rights Agreement; (b) the Successor Guarantor, if other than such Subsidiary
Guarantor, expressly assumes all the obligations of such Subsidiary Guarantor under
the Notes and this Indenture pursuant to a supplemental indenture or other documents
or instruments; (c) immediately after giving effect to such transaction, no Default
of Event of Default shall have occurred and be continuing; and (d) the Company shall
have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
indenture (if any) comply with this Indenture; and
	 
	 	(2)	 	the transaction is made in compliance with Section 4.10 (it being
understood that only such portion of the Net Available Cash as is required to be
applied on the date of such transaction in accordance with the terms of this
Indenture needs to be applied in accordance therewith at such time) and this Section
5.01.





          (c) In addition, the Company shall not, directly or indirectly, lease, or permit any
Subsidiary Guarantor to lease, all or substantially all of the properties of it and its Restricted
Subsidiaries, taken as a whole, in one or more related transactions, to any other Person.




          (d) Subject to certain limitations described in this Indenture, the Successor Guarantor shall
succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the
Subsidiary Guarantee of such Subsidiary Guarantor. Notwithstanding the foregoing, any Subsidiary
Guarantor may (x) merge with or into or transfer all or part of its properties and assets to
another Subsidiary Guarantor or the Company, or (y) merge with a Restricted Subsidiary of the
Company solely for the purpose of reincorporating the Subsidiary Guarantor in a State of the United
States or the District




-84-









 







of Columbia, as long as the amount of Indebtedness of such Subsidiary Guarantor and its
Restricted Subsidiaries is not increased thereby.




          (e) For purposes of this Section 5.01, the sale, lease, assignment, conveyance, transfer or
other disposition of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and assets of the Company
on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.




          (f) Upon any consolidation or merger, or any sale, assignment, transfer, conveyance or
other disposition of all or substantially all of the assets of a Subsidiary Guarantor in accordance
with Section 5.01 hereof, such Subsidiary Guarantor shall be released from its obligations under
this Indenture and the Subsidiary Guarantee and the Successor Guarantor shall succeed to, and be
substituted for, and may exercise every right and power of, the Subsidiary Guarantor under this
Indenture and the Subsidiary Guarantee, but, in the case of a lease of all or substantially all its
properties and assets, such Subsidiary Guarantor shall not be released from its obligations under
its Subsidiary Guarantee.




          Section 5.02 Successor Entity Substituted.




          Upon any consolidation or merger, or any sale, assignment, transfer, conveyance or
other disposition of all or substantially all of the assets of the Company in accordance with
Section 5.01 hereof, the Company shall be released from its obligations under this Indenture and
the Successor Company formed by such consolidation or into or with which the Company is merged or
to which such sale, assignment, transfer, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such consolidation, merger,
sale, conveyance or other disposition, the provisions of this Indenture referring to the
Company shall refer instead to the Successor Company and not to the Company), and may exercise
every right and power of the Company under this Indenture with the same effect as if such Successor
Company had been named as the Company herein; provided that the predecessor Company shall not be
relieved from the obligation to pay the principal of and interest and Additional Interest, if any,
on the Notes except in the case of a sale, assignment, transfer, conveyance or other disposition of
all of the Company’s assets that meets the requirements of Section 5.01 hereof.




ARTICLE  6




DEFAULTS AND REMEDIES




          Section 6.01 Events of Default.




          (a) An “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):





     (1) default in any payment of interest or Additional Interest (as required by
the Registration Rights Agreement) on any Note when due, continued for 30 days;




     (2) default in the payment of principal of or premium, if any, on any Note when
due at its Stated Maturity, upon optional redemption, upon required repurchase, upon
declaration of acceleration or otherwise;



-85-









 






     (3) failure by the Company to comply with its obligations under Section 5.01
(other than its obligations under clause (5) of Section 5.01(a)) or the failure by
any Subsidiary Guarantor to comply with its obligations under clauses (1)(b),
(1)(c), (1)(d) and (2) of Section 5.01(b), in each case continued for 30 days;




     (4) failure by the Company or any Subsidiary Guarantor to comply for 30 days
after notice as provided below with any of its obligations under Sections 4.07,
4.08, 4.09, 4.11, 4.12, 4.14, 4.15, 4.16 and 4.17 (in each case, other than a
failure to purchase Notes which constitutes an Event of Default under clause (2)
above);




     (5) subject to Section 6.01(c) and Section 6.01(d) below, failure by the
Company to comply for 60 days after notice as provided below with Section 4.03;




     (6) failure by the Company or any Subsidiary Guarantor to comply for 60 days
after notice as provided below with its other covenants and agreements contained in
this Indenture;




     (7) default by the Company or any Restricted Subsidiary under any mortgage,
indenture or instrument 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 the Company or
any of its Restricted Subsidiaries), other than Indebtedness owed to the Company or
a Restricted Subsidiary, whether such Indebtedness or Guarantee exists on the Issue
Date or is created after the Issue Date, which default:




(i) is caused by a failure, after the expiration of the grace period
provided in such Indebtedness, to pay principal of, or interest or premium,
if any, on such Indebtedness (“payment default”); or




(ii) results in the acceleration of such Indebtedness prior to its maturity
(the “cross acceleration provision”);




and, in each case, 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, aggregates $50.0 million
or more;




     (8) the Company or a Significant Subsidiary or group of Restricted Subsidiaries
that, taken together (as of the latest audited consolidated financial statements for
the Company and its Restricted Subsidiaries), would constitute a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:




     (i) commences a voluntary case or proceeding with respect to itself;




     (ii) consents to the entry of an order for relief against it in an involuntary
case or proceeding;




     (iii) consents to the appointment of a Bankruptcy Custodian of it or for
substantially all of its property; or




     (iv) makes a general assignment for the benefit of its creditors; or takes any
comparable action under any foreign laws relating to insolvency;



-86-









 






     (9) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:




     (i) is for relief against the Company or any Significant Subsidiary or a group
of Restricted Subsidiaries that, taken together (as of the latest audited financial
statements for the Company and its Restricted Subsidiaries), would constitute a
Significant Subsidiary, in an involuntary case;




     (ii) appoints a Bankruptcy Custodian of the Company, any Significant Subsidiary
or a group of Restricted Subsidiaries that, taken together (as of the latest audited
financial statements for the Company and its Restricted Subsidiaries), would
constitute a Significant Subsidiary, for substantially all of its property; or




     (iii) orders the winding up or liquidation of the Company, any Significant
Subsidiary or a group of Restricted Subsidiaries that, taken together (as of the
latest audited financial statements for the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary;




or any similar relief is granted under any foreign laws and the order, decree or
relief remains unstayed and in effect for 60 consecutive days;




     (10) failure by the Company or any Restricted Subsidiary or group of Restricted
Subsidiaries that, taken together (as of the latest audited consolidated financial
statements for the Company and its Restricted Subsidiaries), would constitute a
Significant Subsidiary to pay final judgments aggregating in excess of $50.0 million
(net of any amounts that are covered by insurance provided by a reputable and
creditworthy insurance company), which judgments are not paid, discharged or stayed
for a period of 60 consecutive days (the “judgment default provision”); or




     (11) any Subsidiary Guarantee of a Significant Subsidiary or group of
Restricted Subsidiaries that taken together as of the latest audited consolidated
financial statements for the Company and its Restricted Subsidiaries would
constitute a Significant Subsidiary ceases to be in full force and effect (except as
contemplated by the terms of this Indenture) or is declared null and void in a
judicial proceeding or any Subsidiary Guarantor that is a Significant Subsidiary or
group of Subsidiary Guarantors that taken together as of the latest audited
consolidated financial statements of the Company and its Restricted Subsidiaries
would constitute a Significant Subsidiary denies or disaffirms its obligations under
this Indenture or its Subsidiary Guarantee.



          (b) However, a default under clauses (4), (5) and (6) of Section 6.01(a) shall not constitute
an Event of Default until the Trustee or the Holders of 25% in aggregate principal amount of the
then outstanding Notes provide written notice to the Company of the default and the Company does
not cure such default within the time specified in clauses (4), (5) and (6) of Section 6.01(a)
after receipt of such notice.




          (c) Notwithstanding the foregoing, at the election of the Company, the sole remedy for an
Event of Default relating to the failure to comply with Section 4.03, shall, for the first 120 days
after the occurrence of such an Event of Default, consist exclusively of the right to receive
additional interest on the Notes at an annual rate equal to 0.25% of the principal amount of the
Notes. If the Company so elects, such additional interest shall accrue on all outstanding Notes
from and including the date on which the Event of Default relating to the failure to comply with
the reporting obligations in this





-87-












 





Indenture first occurs to but not including the earlier of (a) the 120th day thereafter or (b) date
on which such Event of Default is cured or waived by the Holders of a majority in principal amount
of the outstanding Notes. On such 120th day (or earlier, if the Event of Default relating to the
reporting obligations under this Indenture is cured or waived by the Holders of a majority in
principal amount of the outstanding Notes prior to such 120th day), such additional interest shall
cease to accrue and, if the Event of Default relating to reporting obligations has not been cured
or waived prior to such 120th day, the Notes shall be subject to acceleration as provided above.
The provisions of this Indenture described in this Section 6.01(c) shall not affect the rights of
Holders of Notes in the event of the occurrence of any other Event of Default. In the event the
Company does not elect to pay the additional interest upon an Event of Default in accordance with
this Section 6.01(c), the Notes shall be subject to acceleration as provided above.



          (d) In order to elect to pay the additional interest on the Notes as the sole remedy during the
first 120 days after the occurrence of an Event of Default relating to the failure to comply with
Section 4.03 in accordance with Section 6.01(c), the Company shall notify all Holders of Notes and
the Trustee and Paying Agent of such election on or before the close of business on the date on
which such Event of Default first occurs. The Company may make such an election with respect to the
Notes.




          Section 6.02  Acceleration.




          (a) If an Event of Default (other than an Event of Default described in Section 6.01(a)(8) or
(9)) occurs and is continuing, the Trustee by notice in writing specifying the Event of Default and
that it is a “notice” to the Company, or the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes by notice to the Company and the Trustee, may declare the principal
of, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be due and
payable. Upon such a declaration, such principal, premium and accrued and unpaid interest shall be
due and payable immediately.




          (b) In the event of a declaration of acceleration of the Notes because an Event of Default
described in clause (7) under Section 6.01(a) has occurred and is continuing, the declaration of
acceleration of the Notes shall be automatically annulled if the default triggering such Event of
Default pursuant to clause (7) of Section 6.01(a) shall be remedied or cured by the Company or a
Restricted Subsidiary or waived by the Holders of the relevant Indebtedness within 20 days after
the declaration of acceleration with respect thereto and if (1) the annulment of the acceleration
of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction
and (2) all existing Events of Default, except nonpayment of principal, premium or interest on the
Notes that became due solely because of the acceleration of the Notes, have been cured or waived.




          (c) If an Event of Default described in Section 6.01(a)(8) or (9) occurs and is continuing,
the principal of, premium, if any, and accrued and unpaid interest on all the Notes shall become
and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holders.




          Section 6.03 Other Remedies.




          Subject to Section 6.01(c), if an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if any, Additional
Interest, if any, and interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.




-88-









 








          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
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. All remedies are
cumulative to the extent permitted by law.




          Section 6.04 Waiver of Past Defaults.




          The Holders of a majority in aggregate principal amount of the then outstanding Notes may
waive all past defaults (except with respect to a continuing Default or Event of Default with
respect to nonpayment of principal, premium or interest on the Notes) and rescind any such
acceleration with respect to the Notes and its consequences if (1) rescission would not conflict
with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of
Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes
that have become due solely by such declaration of acceleration, have been cured or waived.




          Upon any such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon.




          Section 6.05 Control by Majority.




          Subject to Sections 7.02(f), 7.02(k) and 7.07, the Holders of a majority in aggregate
principal amount of the then outstanding Notes are given the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of exercising any
trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction
that conflicts with law or this Indenture or that the Trustee determines is unduly prejudicial to
the rights of any other Holder or that would involve the Trustee in personal liability; provided,
however that the Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction. Prior to taking any action under this Indenture, the Trustee
shall be entitled to indemnification from the Holders satisfactory to it in its sole discretion
against all losses and expenses caused by taking or not taking such action.




          Section 6.06 Limitation on Suits.




          Subject to Section 6.07 hereof, no Holder of a Note may pursue any remedy with respect to this
Indenture or the Notes unless:





     (1) such Holder has previously given the Trustee written notice that an Event
of Default is continuing;




     (2) Holders of at least 25% in aggregate principal amount of the then
outstanding Notes have requested the Trustee, by notice in writing, to pursue the
remedy;




     (3) such Holders have offered the Trustee reasonably satisfactory security or
indemnity against any loss, liability or expense;




     (4) the Trustee has not complied with such request within 60 days after the
receipt of the request and the offer of security or indemnity; and




     (5) the Holders of a majority in aggregate principal amount of the then
outstanding Notes have not given the Trustee a direction that, in the opinion of the
Trustee, is inconsistent with such request within such 60-day period.



-89-









 





          A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note.




          Section 6.07 Rights of Holders of Notes to Receive Payment.




          Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal of, premium, if any, and Additional Interest, if any, and interest on
the Note, on or after the respective due dates expressed in the Note (including in connection with
an Asset Sale Offer or a Change of Control Offer), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected without the consent of
such Holder.




          Section 6.08 Collection Suit by Trustee.




          If an Event of Default specified in Section 6.01(a)(1) or (2) hereof 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 for the whole amount of principal of, premium, if any, and Additional Interest,
if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, 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.




          Section 6.09 Restoration of Rights and Remedies.




          If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceedings, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding has been
instituted.




          Section 6.10 Rights and Remedies Cumulative.




          Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.07 hereof, and except as set forth in Section 6.01(c),
no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment
of any other appropriate right or remedy.




          Section 6.11 Delay or Omission Not Waiver.




          No delay or omission of the Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may be.




          Section 6.12 Trustee May File Proofs of Claim.




          The Trustee is authorized to file such proofs of claim and other papers or documents as




-90-









 








may be necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes including the Subsidiary Guarantors), their creditors or their
property and shall be entitled and empowered to participate as a member in any official committee
of creditors appointed in such matter and to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the Holders may be entitled
to receive in such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. 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, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.



          Section 6.13 Priorities.




          If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in
the following order:





     (i) to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expenses and liabilities incurred, and all advances
made, by the Trustee and the costs and expenses of collection;




     (ii) to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and Additional Interest, 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, if any, and Additional Interest, if any, and interest, respectively; and




     (iii) to the Company or to such party as a court of competent jurisdiction shall
direct, including a Subsidiary Guarantor, if applicable.



          The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.13.



          Section 6.14 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 a 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 6.14 does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.





-91-












 





ARTICLE  7




TRUSTEE




          Section 7.01 Duties of Trustee.



          (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
its exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs.



          (b) Except during the continuance of an Event of Default:




     (i) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and




     (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall examine
the certificates and opinions to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).



          (c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:




     (i) this Section 7.01(c) does not limit the effect of Section 7.01(b);




     (ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer, unless it is proved in a court of competent jurisdiction that the Trustee was
negligent in ascertaining the pertinent facts; and




     (iii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05
hereof.



          (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to clauses (a), (b) and (c) of this Section 7.01.



          (e) The Trustee shall be under no obligation to exercise any of its rights or powers under
this Indenture at the request or direction of any of the Holders of the Notes unless the Holders
have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or
expense.



          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.



-92-









 





          Section 7.02 Rights of Trustee.



          (a) The Trustee may conclusively rely 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, 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 and during normal business hours, to examine the books, records and premises of the
Company, personally or by agent or attorney and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation. Any permissive right or authority granted to
the Trustee shall not be construed as a mandatory duty.



          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both subject to the other provisions of this Indenture. 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. The Trustee may consult with counsel of its selection
and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection from liability in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.



          (c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care.



          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this
Indenture.



          (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company shall be sufficient if signed by an Officer of the Company. The Trustee
shall have no duty to inquire as to the performance of the Company’s or any Subsidiary Guarantor’s
covenants herein.



          (f) None of the provisions of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise to incur any liability, financial or otherwise, 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 indemnity satisfactory to it against such
risk or liability is not assured to it.



          (g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the existence of a Default or Event of Default, the Notes and
this Indenture.



          (h) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.



          (i) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the



-93-









 




Trustee in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder.




          (j) In the event the Company is required to pay Additional Interest, the Company will provide
written notice to the Trustee of the Company’s obligation to pay Additional Interest no later than
15 days prior to the next Interest Payment Date, which notice shall set forth the amount of the
Additional Interest to be paid by the Company. The Trustee shall not at any time be under any duty
or responsibility to any Holders to determine whether the Additional Interest is payable and the
amount thereof.



          (k) The Trustee shall not be required to give any bond or surety in respect of the performance
of its powers or duties.



          (l) The Trustee may request that the Company deliver an Officers’ Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any Person specified as so authorized in any
such certificate previously delivered and not superseded.



          (m) The permissive rights of the Trustee enumerated herein shall not be construed as duties.



          Section 7.03 Individual Rights of Trustee.



          The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee
is also subject to Sections 7.10 and 7.11 hereof.



          Section 7.04 Trustee’s Disclaimer.



          The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.



          Section 7.05 Notice of Defaults.



          If a Default occurs and is continuing and is known to the Trustee, the Trustee shall mail to
each Holder notice of the Default within 90 days after it occurs. Except in the case of a Default
in the payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold
notice if and so long as a committee of Trust Officers of the Trustee in good faith determines that
withholding notice is in the interests of the Holders. In addition, the Company shall deliver to
the Trustee, within 120 days after the end of each fiscal year, a certificate indicating whether
the signers thereof know of any Default that occurred during the previous year.



          Section 7.06 Reports by Trustee to Holders of the Notes.



-94-









 





          Within 60 days after each October 15, beginning with the October 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of
the Notes a brief report dated as of such reporting date that complies with Trust Indenture Act
Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has occurred within
the twelve months preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with Trust Indenture Act Section 313(b)(2). The Trustee shall also transmit by mail
all reports as required by Trust Indenture Act Section 313(c).



          A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to
the Company and filed with the SEC and each stock exchange on which the Notes are listed in
accordance with Trust Indenture Act Section 313(d). The Company shall promptly notify the Trustee
when the Notes are listed on any stock exchange.



          Section 7.07 Compensation and Indemnity.



          The Company and the Subsidiary Guarantors, jointly and severally, shall pay to the Trustee
from time to time such compensation for its acceptance of this Indenture and services hereunder as
the parties shall agree in writing from time to time. The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.



          The Company and the Subsidiary Guarantors, jointly and severally, shall indemnify the Trustee
for, and hold the Trustee harmless against, any and all loss, damage, claims, liability or expense
(including the fees and expenses of its agents and counsel) incurred by it in connection with the
acceptance or administration of this trust and the performance of its duties hereunder (including
the costs and expenses of enforcing this Indenture against the Company or any of the Subsidiary
Guarantors (including this Section 7.07) or defending itself against any claim whether asserted by
any Holder, the Company or any Subsidiary Guarantor, or liability in connective with the
acceptance, exercise or performance of any of its powers or duties hereunder). The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. Notwithstanding the foregoing, neither the Company
nor any Subsidiary Guarantor shall be required to reimburse any expense or indemnify against any
loss, damage, claim, liability or expense incurred by the Trustee through the Trustee’s own willful
misconduct, negligence or bad faith. Neither the Company nor any Subsidiary Guarantor shall be
required to indemnify the Trustee with respect to any settlement made without the consent of the
Company, which consent will not be unreasonably withheld.



          The obligations of the Company under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee.



          To secure the payment obligations of the Company and the Subsidiary Guarantors in this Section
7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such
Lien shall survive the satisfaction and discharge of this Indenture.



          When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(a)(8) hereof occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.



-95-









 





          The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to the
extent applicable.



          Section 7.08 Replacement of Trustee.



          A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.08. The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:



          (a) the Trustee fails to comply with Section 7.10 hereof;



          (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;



          (c) a custodian or public officer takes charge of the Trustee or its property; or



          (d) the Trustee becomes incapable of acting.



          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.



          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee (at the Company’s expense), the Company or the Holders of at
least 10% in principal amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.



          If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.



          Section 7.09 Successor Trustee by Merger, etc.



          If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act shall be the successor Trustee.



          Section 7.10 Eligibility; Disqualification.



-96-









 





          There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition.



          This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture
Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture Act Section 310(b).



          Section 7.11 Preferential Collection of Claims Against the Company.



          The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor
relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been
removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.



ARTICLE  8




LEGAL DEFEASANCE AND COVENANT DEFEASANCE




          Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.



          The Company may, at its option and at any time, elect to have either Section 8.02 or 8.03
hereof applied to all outstanding Notes upon compliance with the conditions set forth below in this
Article 8.



          Section 8.02 Legal Defeasance and Discharge.



          Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company and the Subsidiary Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their
obligations with respect to all outstanding Notes and Subsidiary Guarantees on the date the
conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all of its other obligations under such
Notes, the Subsidiary Guarantees and this Indenture including that of the Subsidiary Guarantors
(and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder:



          (a) the rights of Holders of outstanding Notes to receive payments in respect of the principal
of, or interest or premium, if any, and Additional Interest, if any, on such Notes when such
payments are due from the trust referred to in Section 8.04 hereof;



          (b) the Company’s obligations with respect to the Notes concerning issuing temporary Notes,
registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office
or agency for payment and money for security payments held in trust;



          (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and the
Company’s obligations in connection therewith; and



-97-









 





          (d) this Section 8.02.



          If the Company exercises the Legal Defeasance option, the Subsidiary Guarantees in effect at
such time shall terminate.



          Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof. If the
Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because
of an Event of Default with respect to the Notes.



          Section 8.03 Covenant Defeasance.



          Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company and the Subsidiary Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be released from their obligations under the covenants
contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16 and
4.17 hereof and clause (4) of Section 5.01(a) and, clause (1)(b), (1)(c), (1)(d) and (2) of Section
5.01(b) hereof with respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 hereof are satisfied (“Covenant Defeasance”), and the Notes shall
thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder. For
this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company
and the Subsidiary Guarantors 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 and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, Sections 6.01(4), 6.01(5), 6.01(6), 6.01(7), 6.01(8), (with respect only to Significant
Subsidiaries or any group of Restricted Subsidiaries that taken together would constitute a
Significant Subsidiary), 6.01(9) (with respect only to Significant Subsidiaries or any group of
Restricted Subsidiaries that taken together would constitute a Significant Subsidiary), 6.01(10)
(with respect only to Significant Subsidiaries or any group of Restricted Subsidiaries that taken
together would constitute a Significant Subsidiary), 6.01(11) or because of the failure to comply
with Section 5.01(a)(4) hereof shall not constitute Events of Default.



          Section 8.04 Conditions to Legal or Covenant Defeasance.



          The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof
to the outstanding Notes:



          In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:




	 	(1)	 	the Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holders of the Notes, cash in U.S. dollars, non-callable U.S.
Government Obligations, or a combination of cash in U.S. dollars and non-callable
U.S. Government Obligations, in amounts as shall be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the principal
of, or interest and premium and Additional Interest, if any, on the outstanding Notes
on the Stated Maturity or on the




-98-









 







	 	 	 	applicable redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;
	 
	 	(2)	 	in the case of Legal Defeasance, the Company has delivered to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (b) since the date of this Indenture, there has been a change in
the applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the respective
outstanding Notes shall not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and shall be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
	 
	 	(3)	 	in the case of Covenant Defeasance, the Company has delivered to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that
the Holders of the respective outstanding Notes shall not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance and
shall 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;
	 
	 	(4)	 	such Legal Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under any material agreement or instrument
(other than this Indenture) to which the Company or any of its Restricted
Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries
is bound;
	 
	 	(5)	 	no Default or Event of Default has occurred and is continuing on the date
of such deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit and the grant of any Lien securing
such borrowings) or insofar as Events of Default resulting from the borrowing of
funds or insolvency events are concerned, at any time in the period ending on the
91st day after the date of deposit;
	 
	 	(6)	 	the Company must deliver to the Trustee an Opinion of Counsel to the effect
that, assuming, among other things, no intervening bankruptcy of the Company between
the date of deposit and the 91st day following the deposit and assuming that no
Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st
day following the deposit, the trust funds shall not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization of similar laws affecting
creditors’ rights generally;
	 
	 	(7)	 	the Company must deliver to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
	 
	 	(8)	 	the Company must deliver to the Trustee an Officers’ Certificate and an
Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions
and exclusions), each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.





          Section 8.05 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.



-99-









 





          Subject to Section 8.06 hereof, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company or a Subsidiary Guarantor acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due thereon in respect of
principal, premium and Additional Interest, if any, and interest, but such money 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 cash or U.S. Government Obligations deposited pursuant to Section 8.04
hereof 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 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon the request of the Company any money or U.S. Government
Obligations held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in
excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.



          Section 8.06 Repayment to the Company.



          Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium and Additional Interest, if any, or interest on
any Note and remaining unclaimed for two years after such principal, and premium and Additional
Interest, if any, or interest has become due and payable shall be paid to the Company on its
request or (if then held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease.



          Section 8.07 Reinstatement.



          If the Trustee or Paying Agent is unable to apply any United States dollars or U.S. Government
Obligations in accordance with Section 8.02 or 8.03 hereof, as the case may be, 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 Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided that, if the Company
makes any payment of principal of, premium and Additional Interest, if any, or interest 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 Paying
Agent.



ARTICLE  9




AMENDMENT, SUPPLEMENT AND WAIVER




          Section 9.01 Without Consent of Holders of Notes.



-100-









 





          Notwithstanding Section 9.02 hereof, the Company, any Subsidiary Guarantor (with respect to
its Subsidiary Guarantee or this Indenture) and the Trustee may amend or supplement this Indenture,
any Subsidiary Guarantee or the Notes without the consent of any Holder to:




	 	(1)	 	cure any ambiguity, omission, defect or inconsistency;
	 
	 	(2)	 	provide for the assumption by a successor entity (or co-issuer) of the
obligations of the Company or any Subsidiary Guarantor under this Indenture (whether
through merger, consolidation, sale of all or substantially all of assets, properties
or otherwise);
	 
	 	(3)	 	provide for uncertificated Notes in addition to or in place of certificated
Notes (provided that the uncertificated Notes are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such that the uncertificated
Notes are described in Section 163(f)(2)(B) of the Code);
	 
	 	(4)	 	add Subsidiary Guarantees with respect to the Notes or release a Subsidiary
Guarantor from its obligations under its Subsidiary Guarantee or this Indenture in
accordance with the applicable provisions of this Indenture;
	 
	 	(5)	 	secure the Notes;
	 
	 	(6)	 	add to the covenants of the Company for the benefit of the Holders or
surrender any right or power conferred upon the Company;
	 
	 	(7)	 	make any change that does not materially adversely affect the rights of any
Holder under this Indenture;
	 
	 	(8)	 	comply with any requirement of the SEC in connection with the qualification
of this Indenture under the Trust Indenture Act;
	 
	 	(9)	 	provide for the appointment of a successor trustee; provided that the
successor trustee is otherwise qualified and eligible to act as such under the terms
of this Indenture;
	 
	 	(10)	 	provide for the issuance of Additional Notes under this Indenture;
	 
	 	(11)	 	comply with the provisions described under Article 10 or Section 4.15;
	 
	 	(12)	 	provide for the issuance of exchange securities which shall have terms
substantially identical in all respects to the Notes (except that the transfer
restrictions contained in the Notes shall be modified or eliminated as appropriate)
and which shall be treated, together with any outstanding Notes, as a single class of
securities; or
	 
	 	(13)	 	conform the text of this Indenture, the Notes or the Subsidiary Guarantees
to any provision of the “Description of notes” section of the Offering Memorandum to
the extent that such provision in such “Description of notes” section was intended to
be a verbatim recitation of a provision of this Indenture, the Notes or the
Subsidiary Guarantees (as certified in an Officers’ Certificate delivered to the
Trustee).





          After an amendment or supplement under this Indenture becomes effective, the Company is
required to mail to the Holders a notice briefly describing such amendment or supplement. However,
the failure to give such notice to all the Holders, or any defect in the notice, shall not impair
or affect the validity of the amendment or supplement.



-101-









 





          Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 12.04 hereof, the Trustee shall join with the Company
and the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.



          Section 9.02 With Consent of Holders of Notes.



          Except as provided below in this Section 9.02, the Company, the Subsidiary Guarantors (as
applicable) and the Trustee may amend or supplement this Indenture, any Subsidiary Guarantee and
the Notes with the consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes (including Additional Notes, if any) voting as a single class (including, without
limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any past Default or Event of Default
(other than a Default or Event of Default in the payment of the principal of, premium, if any, and
Additional Interest, if any, or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this Indenture, the
Subsidiary Guarantees or the Notes may be waived with the consent of the Holders of a majority in
principal aggregate amount of the then outstanding Notes (including Additional Notes, if any)
voting as a single class (including consents obtained in connection with the purchase of, or tender
offer or exchange offer for, Notes). Section 2.10 hereof and Section 2.11 hereof shall determine
which Notes are considered to be “outstanding” for the purposes of this Section 9.02.



          Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 12.04 hereof, the
Trustee shall join with the Company in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture directly 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 of Notes under this Section 9.02 to
approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof. A consent to any amendment, supplement or waiver under this
Indenture by any Holder of Notes given in connection with a tender of such Holder’s Notes shall not
be rendered invalid by such tender.



          After an amendment or supplement under this Section 9.02 becomes effective, the Company shall
mail to the Holders a notice briefly describing such amendment or supplement; provided that the
failure to give such notice to all the Holders, or any defect in the notice will not impair or
affect the validity of the amendment or supplement.



          Without the consent of each affected Holder of Notes, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):




	 	(1)	 	reduce the amount of Notes whose Holders must consent to an amendment;
	 
	 	(2)	 	reduce the stated rate of interest or extend the stated time for payment of
interest on any Note;




-102-









 






	 	(3)	 	reduce the principal of or extend the Stated Maturity of any Note;
	 
	 	(4)	 	waive a Default or Event of Default in the payment of principal of, or
interest or premium, if any, or Additional Interest, if any, 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 then outstanding Notes with respect to a nonpayment
default and a waiver of the payment default that resulted from such acceleration);
	 
	 	(5)	 	reduce the premium payable upon the redemption or repurchase of any Note or
change the time at which any Note may be redeemed or repurchased as described above
under Section 3.07, Section 4.10 or Section 4.14 whether through an amendment or
waiver of provisions in the covenants, definitions or otherwise (except amendments to
the definition of “Change of Control”);
	 
	 	(6)	 	make any Note payable in money other than that stated in the Note;
	 
	 	(7)	 	otherwise impair the right of any Holder to receive payment of principal
of, premium, if any, and interest on such Holder’s Notes on or after the due dates
therefor or to institute suit for the enforcement of any payment on or with respect
to such Holder’s Notes;
	 
	 	(8)	 	make any change in the amendment provisions which require each Holder’s
consent or in the waiver provisions; or
	 
	 	(9)	 	modify the Subsidiary Guarantees in any manner materially adverse to the
Holders of the Notes.





          Section 9.03 Compliance with Trust Indenture Act.



          Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended
or supplemental indenture that complies with the Trust Indenture Act as then in effect.



          Section 9.04 Revocation and Effect of Consents.



          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note 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. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.



          Section 9.05 Notation on or Exchange of Notes.



          The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.



          Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.



-103-









 





          Section 9.06 Trustee to Sign Amendments, etc.



          The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article
9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Company may not sign an amendment, supplement or waiver until its
Board of Directors approves it. In executing any amendment, supplement or waiver, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected in
relying upon, in addition to the documents required by Section 12.04 hereof, an Officers’
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture and that such amendment, supplement or
waiver is the legal, valid and binding obligation of the Company and any Subsidiary Guarantors
party thereto, enforceable against them in accordance with its terms, subject to customary
exceptions, and complies with the provisions hereof (including Section 9.03).



          Section 9.07 Payment for Consent.



          The Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of
this Indenture or the Notes unless such consideration is offered to be paid and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.



ARTICLE  10




SUBSIDIARY GUARANTEES




          Section 10.01 Subsidiary Guarantee.



          Subject to this Article 10, each of the Subsidiary Guarantors shall, jointly and severally,
unconditionally guarantee, on a senior unsecured basis, to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that: (a) the principal of, premium, if any, or interest on or Additional
Interest, if any, on the Notes shall be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful, and all other Obligations of the Company to the Holders or the Trustee
hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally
obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee
of payment and not a guarantee of collection.



          The Subsidiary Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of
the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against
the Company, any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event
of insolvency or bankruptcy of the



-104-









 




Company, any right to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that this Subsidiary Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and this Indenture.




          If any Holder or the Trustee is required by any court or otherwise to return to the Company,
the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to the Company or the Subsidiary Guarantors, any amount paid either to the Trustee or such
Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.



          Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y)
in the event of any declaration of acceleration of such obligations as provided in Article 6
hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by
the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors
shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantees.



          Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation, reorganization, should the
Company become insolvent or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any significant part of the Company’s assets, and shall, to the
fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if
at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or
Subsidiary Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all
as though such payment or performance had not been made. In the event that any payment or any part
thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent
permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.



          In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.



          Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall
be made without set-off, counterclaim, reduction or diminution of any kind or nature.



          Section 10.02 Limitation on Subsidiary Guarantor Liability.



          Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it is the intention of all such parties that the Subsidiary Guarantee of such Subsidiary Guarantor
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law
to the extent applicable to any Subsidiary Guarantee.



          To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors
hereby irrevocably agree that the obligations of each Subsidiary Guarantor under its



-105-









 




Subsidiary Guarantee will be limited to the maximum amount as will, after giving effect to
such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor
(including, without limitation, any Guarantees under the Senior Credit Facility) that are relevant
under such laws and after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the
obligations of such other Subsidiary Guarantor under this Article 10, result in the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a fraudulent conveyance
or fraudulent transfer under applicable law. Any Subsidiary Guarantor that makes a payment under
its Subsidiary Guarantee will be entitled upon payment in full of all Guaranteed Obligations under
this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such
other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of
all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.




          Section 10.03 Execution and Delivery.



          To evidence its Subsidiary Guarantee set forth in Section 10.01 hereof, each Subsidiary
Guarantor hereby agrees that this Indenture shall be executed on behalf of such Subsidiary
Guarantor by an Officer of such Subsidiary Guarantor.



          Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section
10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement
of any notation of such Subsidiary Guarantee on the Notes.



          If an Officer whose signature is on this Indenture no longer holds that office at the time the
Trustee authenticates the Note, the Subsidiary Guarantee shall be valid nevertheless.



          The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the
Subsidiary Guarantors.



          To the extent required by Section 4.15 hereof, the Company shall cause any newly created or
acquired Restricted Subsidiary to comply with the provisions of Section 4.15 hereof and this
Article 10, to the extent applicable.



          Section 10.04 Subrogation.



          Each Subsidiary Guarantor shall be subrogated to all rights of Holders of Notes against the
Company in respect of any amounts paid by any Subsidiary Guarantor pursuant to the provisions of
Section 10.01 hereof; provided that, if an Event of Default has occurred and is continuing, no
Subsidiary Guarantor shall be entitled to enforce or receive any payments arising out of, or based
upon, such right of subrogation until all amounts then due and payable by the Company under this
Indenture or the Notes shall have been paid in full.



          Section 10.05 Benefits Acknowledged.



          Each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that the guarantee and waivers made
by it pursuant to its Subsidiary Guarantee are knowingly made in contemplation of such benefits.



          Section 10.06 Release of Subsidiary Guarantees.



          A Subsidiary Guarantee by a Subsidiary Guarantor shall be automatically and



-106-









 




unconditionally released and discharged, and no further action by such Subsidiary Guarantor,
the Company or the Trustee is required for the release of such Subsidiary Guarantor’s Subsidiary
Guarantee, upon:





     (1) (a) the occurrence of (i) any sale, exchange, transfer or other disposition (by
merger, consolidation or otherwise) of the Capital Stock of such Subsidiary Guarantor
(including any sale, exchange, transfer or other disposition after which the applicable
Subsidiary Guarantor is no longer a Restricted Subsidiary) or of all or substantially all of
the assets and property of such Subsidiary Guarantor (other than by lease), which sale,
exchange, transfer or other disposition is made in compliance with the applicable provisions
of this Indenture, including Section 4.10 (it being understood that only such portion of the
Net Available Cash as is required to be applied on or before the date of such release in
accordance with the terms of this Indenture needs to be applied in accordance therewith at
such time) and Section 5.01; and (ii) the termination of all the obligations of such
Subsidiary Guarantor under all Indebtedness of the Company or its Restricted Subsidiaries
upon or within 30 days following the consummation of such transaction;




     (b) the release or discharge of such Subsidiary Guarantor from its Guarantee of
Indebtedness of the Company and the Subsidiary Guarantors under the Senior Credit Facility
(including by reason of the termination of the Senior Credit Facility), if such Subsidiary
Guarantor would not then otherwise be required to guarantee the Notes pursuant to this
Indenture, except a discharge or release by or as a result of payment under such Guarantee;
provided that if such Subsidiary Guarantor has Incurred any Indebtedness or issued any
Preferred Stock or Disqualified Stock in reliance on its status as a Subsidiary Guarantor
under Section 4.09, such Subsidiary Guarantor’s obligations under such Indebtedness,
Disqualified Stock or Preferred Stock, as the case may be, so Incurred are satisfied in full
or discharged or are otherwise permitted to be Incurred by a Restricted Subsidiary (other
than a Subsidiary Guarantor) under Section 4.09;




     (c) the designation of any Restricted Subsidiary that is a Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with the provisions described in Section 4.07 and the
definition of Unrestricted Subsidiary; or




     (d) the Company exercising its Legal Defeasance option as described under Article 8 or
the Company’s obligations under this Indenture being discharged in accordance with the terms
of this Indenture; and




     (2) such Subsidiary Guarantor delivering to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for in this
Indenture relating to such transaction have been complied with.



ARTICLE  11




SATISFACTION AND DISCHARGE




          Section 11.01 Satisfaction and Discharge.




This Indenture shall be discharged and shall cease to be of further effect as to all Notes,
when:




	(1)	 	either:






	 	(a)	 	all Notes that have been authenticated, except lost, stolen or
destroyed Notes that have been replaced pursuant to Section 2.09 or paid and
Notes for whose




-107-









 






	 	 	 	payment money has been deposited in trust and thereafter repaid to the
Company, have been delivered to the Trustee for cancellation; or
	 
	 	(b)	 	all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable by reason of the making of a notice of
redemption or otherwise or will become due and payable within one year or may
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company, and the Company or any Subsidiary Guarantor has
irrevocably deposited or caused to be deposited with the Trustee, as trust
funds in trust solely for the benefit of the Holders of the Notes, cash in U.S.
dollars, U.S. Government Obligations, or a combination thereof, in such amounts
as shall be sufficient without consideration of any reinvestment of interest to
pay and discharge the entire Indebtedness on the Notes not theretofore
delivered to the Trustee for cancellation for principal, premium, if any, and
accrued interest to the date of maturity or redemption;






	(2)	 	the deposit shall not result in a breach or violation of, or constitute a
default under, any other material instrument to which the Company is a party or by
which the Company is bound;
	 
	(3)	 	the Company has paid or caused to be paid all sums payable by it under this
Indenture; and
	 
	(4)	 	the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or
the redemption date, as the case may be, then the Trustee shall acknowledge
satisfaction and discharge of this Indenture with respect to the Notes on demand of the
Company (accompanied by an Officers’ Certificate and an Opinion of Counsel stating that
all conditions precedent specified herein relating to the satisfaction and discharge of
this Indenture have been complied with) and at the cost and expense of the Company.
	 
	(5)	 	If U.S. Government Obligations shall have been deposited in connection with
such satisfaction and discharge, then as a further condition to such satisfaction and
discharge, the Trustee shall have received a certificate from a nationally recognized
firm of independent accountants to the effect set forth in Section 8.04(1).





               Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been
deposited with the Trustee pursuant to clause (1)(b) of this Section 11.01, the provisions of
Section 11.02 and Section 8.06 shall survive.



               Section 11.02 Application of Trust Money.



               Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium and Additional Interest, if any) and
interest for whose payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.



-108-









 





          If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s and any Subsidiary Guarantor’s obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section
11.01 hereof; provided that if the Company has made any payment of principal of, premium, if any,
and Additional Interest, if any, or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.



ARTICLE  12




MISCELLANEOUS




          Section 12.01 Trust Indenture Act Controls.



          If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
Trust Indenture Act Section 318(c), the imposed duties shall control.



          Section 12.02 Notices.



          Any notice or communication by the Company, any Subsidiary Guarantor or the Trustee to the
others is duly given if in writing and delivered in person or mailed by first-class mail
(registered or certified, return receipt requested), fax or overnight air courier guaranteeing next
day delivery, to the others’ addresses:


If to the Company and/or any Subsidiary Guarantor:



c/o ViaSat, Inc.

6155 El Camino Real

Carlsbad, CA 92009

Fax No.: (760) 929-3926

Attention: General Counsel



With a copy to (which shall not itself constitute proper notice):



Latham & Watkins LLP

12636 High Bluff Drive, Suite 400

San Diego, CA 92130

Fax No.: (858) 523-5450

Attention: Craig M. Garner, Esq.



If to the Trustee:



Wilmington Trust FSB

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402-1544

Fax No.: (612) 217-5651

Attention: Corporate Capital Markets




          The Company, any Subsidiary Guarantor or the Trustee, by notice to the others, may



-109-









 




designate additional or different addresses for subsequent notices or communications.




          All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: by publication, on the first date on which publication is made, at the time delivered
by hand, if personally delivered; three Business Days after being deposited in the mail, postage
prepaid, if mailed by first-class mail; when receipt acknowledged, if faxed; and the next Business
Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery.



          Any notice or communication to a Holder shall be mailed by first-class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar or by other electronic means or such other
delivery system as the Trustee agrees to accept. Any notice or communication shall also be so
mailed to any Person described in Trust Indenture Act Section 313(c), to the extent required by the
Trust Indenture Act. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.



          If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



          If the Company mails a notice or communication to Holders, they shall mail a copy to the
Trustee and each Agent at the same time.



          Section 12.03 Communication by Holders of Notes with Other Holders of Notes.



          Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar
and anyone else shall have the protection of Trust Indenture Act Section 312(c).



          Section 12.04 Certificate and Opinion as to Conditions Precedent.



          (a) Upon any request or application by the Company or any of the Subsidiary Guarantors to the
Trustee to take any action under this Indenture, the Company or such Subsidiary Guarantor, as the
case may be, shall furnish to the Trustee:



          (i) An Officers’ Certificate in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and



          (ii) An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been satisfied.



          Section 12.05 Statements Required in Certificate or Opinion.



          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to Section 4.04 hereof or Trust
Indenture Act Section 314(a)(4)) shall comply with the provisions of Trust Indenture Act Section
314(e) and shall include:




     (a) a statement that the Person making such certificate or opinion has read such
covenant or condition;



-110-









 






     (b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (c) a statement that, in the opinion of such Person, he or she 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, in the case of an
Opinion of Counsel, may be limited to reliance on an Officers’ Certificate as to matters of
fact); and




     (d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.



          Section 12.06 Rules by Trustee and Agents.



          The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.



          Section 12.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.



          No director, officer, employee, incorporator or stockholder of the Company or the Subsidiary
Guarantors, as such, shall have any liability for any obligations of the Company or the Subsidiary
Guarantors under the Notes, this Indenture or the Subsidiary Guarantees or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for
issuance of the Notes. The waiver may not be effective to waive liabilities under the federal
securities law.



          Section 12.08 Governing Law.



          THIS INDENTURE, THE NOTES AND ANY SUBSIDIARY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.



          Section 12.09 Waiver of Jury Trial.



          EACH OF THE COMPANY, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR ANY SUBSIDIARY GUARANTEE, OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.



          Section 12.10 Force Majeure.



          In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused by, directly or
indirectly, forces beyond its reasonable control, including without limitation strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software or hardware) services.



          Section 12.11 No Adverse Interpretation of Other Agreements.



-111-









 





          This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Restricted Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.



          Section 12.12 Successors.



          All 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. All agreements of each
Subsidiary Guarantor in this Indenture shall bind its successors, except as otherwise provided in
Section 10.06 hereof.



          Section 12.13 Severability.



          In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



          Section 12.14 Counterpart Originals.



          The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.



          Section 12.15 Table of Contents, Headings, etc.



          The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.



          Section 12.16 Qualification of Indenture.



          The Company and the Subsidiary Guarantors shall qualify this Indenture under the Trust
Indenture Act in accordance with the terms and conditions of the Registration Rights Agreement and
shall pay all reasonable costs and expenses (including attorneys’ fees and expenses for the
Company, the Subsidiary Guarantors and the Trustee) incurred in connection therewith, including,
but not limited to, costs and expenses of qualification of this Indenture and the Notes and
printing this Indenture and the Notes. The Trustee shall be entitled to receive from the Company
and the Subsidiary Guarantors any such Officers’ Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such qualification of this
Indenture under the Trust Indenture Act.



[Signatures on following page]





-112-












 





	 	 	 	 	 
	 	VIASAT, INC.

 	 
	 	By:  	/s/ Ronald G. Wangerin 
 	 
	 	 	Name:  	Ronald G. Wangerin 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 
	 
	 	VIASAT SATELLITE VENTURES, LLC


VIASAT SATELLITE VENTURES U.S. I, LLC


VIASAT SATELLITE VENTURES U.S. II, LLC 


VIASAT CREDIT CORP.


VSV I HOLDINGS, LLC


VSV II HOLDINGS, LLC




ENERDYNE TECHNOLOGIES, INC.

 	 
	 	By:  	/s/ Ronald G. Wangerin 
 	 
	 	 	Name:  	Ronald G. Wangerin 	 
	 	 	Title:  	Vice President 	 
	 





 









 










	 	 	 	 	 
	 	WILMINGTON TRUST FSB, as Trustee

 	 
	 	By:  	/s/ Timothy P. Mowdy	 
	 	 	Name: 	Timothy P. Mowdy 	 
	 	 	Title: 	Vice President 	 






 












 





EXHIBIT A




[FORM OF FACE OF INITIAL NOTE]




[Global Notes Legend]




     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



[Restricted Notes Legend]




     THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE
HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR] [IN THE CASE OR
REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE
DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE



 









 




SECURITIES ACT THAT
IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF
THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (1) PURSUANT TO CLAUSES
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF,
THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION
S UNDER THE SECURITIES ACT.]




A-3









 





CUSIP: [           ]

ISIN: [            ]1




[RULE 144A][REGULATION S][IAI][GLOBAL] NOTE




8.875% Senior Notes due 2016




No.      




VIASAT, INC.



promises to pay to CEDE & CO. or registered assigns, the principal sum [set forth on the Schedule
of Exchanges of Interests in the Global Note attached hereto] [of                                          United
States Dollars] on September 15, 2016.




Interest Payment Dates: March 15 and September 15




Record Dates: March 1 and September 1






 




			
	1	 	Rule 144A Note CUSIP: 92552VAA8

Rule 144A Note ISIN: US92552VAA89

Regulation S Note CUSIP: U92222AA3

Regulation S Note ISIN: USU92222AA34

IAI Note CUSIP: 92552VAB6

IAI Note ISIN: US92552VAB62




A-4









 










     IN WITNESS HEREOF, the Company has caused this instrument to be duly executed.



Dated:




	 	 	 	 	 
	 	VIASAT, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-5









 






	 	 	 	 	 


This is one of the Notes referred to in the within-mentioned Indenture:




	 	 	 	 	 
	 	WILMINGTON TRUST FSB, as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




A-6












 





[Back of Note]




8.875% Senior Notes due 2016




          Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.



          1. INTEREST. ViaSat, Inc., a Delaware corporation, promises to pay interest on the principal
amount of this Note at 8.875% per annum from October 22, 2009 until maturity and shall pay the
Additional Interest, if any, payable pursuant to the Registration Rights Agreement referred to
below. The Company will pay interest and Additional Interest, if any, semi-annually in arrears on
March 15 and September 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided that the first Interest Payment Date shall be March 15, 2010.
The Company will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the
interest rate on the Notes; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest,
if any, (without regard to any applicable grace periods) from time to time on demand at the
interest rate on the Notes. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.



          2. METHOD OF PAYMENT. The Company will pay interest on the Notes and Additional Interest, if
any, to the Persons who are Holders at the close of business on March 1 and September 1 (whether or
not a Business Day), as the case may be, next preceding the Interest Payment Date, even if such
Notes are canceled after such Record Date and on or before such Interest Payment Date, except as
provided in Section 2.14 of the Indenture with respect to defaulted interest. Principal of,
premium, if any, and interest on the Notes will be payable at the office or agency of the Company
maintained for such purpose or, at the option of the Company, payment of interest and Additional
Interest, if any, may be made by check mailed to the Holders at their respective addresses set
forth in the register of Holders; provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium and Additional Interest,
if any, on, all Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts.



          3. PAYING AGENT AND REGISTRAR. Initially, Wilmington Trust FSB, the Trustee under the
Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to the Holders. The Company or any of its Restricted Subsidiaries may act
in any such capacity.



          4. INDENTURE. The Company issued the Notes under an Indenture, dated as of October 22, 2009
(the “Indenture”), among ViaSat, Inc., the Subsidiary Guarantors named therein and the
Trustee. This Note is one of a duly authorized issue of notes of the Company designated as its
8.875% Senior Notes due 2016. The Company shall be entitled to issue Additional Notes pursuant to
Section 2.01 and 4.09 of the Indenture. 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, as
amended (the “Trust Indenture Act”). The Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for



A-7









 







a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling.



          The Notes are senior unsecured obligations of the Company. The aggregate principal amount of
Notes that may be authenticated and delivered under the Indenture is unlimited. This Note is one
of the 8.875% Senior Notes due 2016 referred to in the Indenture. The Notes include (i)
$275,000,000 aggregate principal amount of the Company’s 8.875% Senior Notes due 2016 issued under
the Indenture on October 22, 2009 (herein called “Initial Notes”), (ii) if and when issued,
additional 8.875% Senior Notes due 2016 of the Company that may be issued from time to time under
the Indenture subsequent to October 22, 2009 (herein called “Additional Notes”) as provided
in Section 2.01(a) of the Indenture and (iii) if and when issued, the Company’s 8.875% Senior Notes
due 2016 that may be issued from time to time under the Indenture in exchange for Initial Notes or
Additional Notes in an offer registered under the Securities Act as provided in the Registration
Rights Agreement (herein called “Exchange Notes”). The Initial Notes, Additional Notes and
Exchange Notes are treated as a single class of securities under the Indenture. The Indenture
imposes certain covenants as specified in Article 4 thereof. The Indenture also imposes
requirements with respect to the provision of financial information and the provision of guarantees
of the Notes by certain subsidiaries.



          To guarantee the due and punctual payment of the principal, premium, if any, and interest on
the Notes and all other amounts payable by the Company under the Indenture, the Notes and the
Registration Rights Agreement when and as the same shall be due and payable, whether at maturity,
by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Subsidiary
Guarantors have unconditionally guaranteed (and future guarantors, together with the Subsidiary
Guarantors, will unconditionally Guarantee), jointly and severally, such obligations on a senior
unsecured basis pursuant to the terms of the Indenture.



          5. OPTIONAL REDEMPTION.



          (a) Except as described below under clauses 5(b) and 5(c) hereof, the Notes will not be
redeemable at the Company’s option before September 15, 2012.



          (b) At any time prior to September 15, 2012, upon not less than 30 nor more than 60 days’
prior notice mailed by first-class mail to each Holder’s registered address, the Company may redeem
all or part of the Notes at a redemption price equal to 100% of the principal amount thereof plus
the Applicable Premium as of, plus accrued and unpaid interest, if any, to, the redemption date
(subject to the right of Holders on the relevant Record Date to receive interest due on the
relevant Interest Payment Date).



          (c) At any time prior to September 15, 2012, the Company may, at its option, redeem up to 35%
of the aggregate principal amount of Notes issued by it (calculated after giving effect to any
issuance of Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings at a
redemption price of 108.875% of the principal amount thereof, plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders on the relevant Record Date to receive
interest due on the relevant Interest Payment Date); provided that:




	 	(1)	 	at least 65% of the aggregate original principal amount of Notes issued under
the Indenture (calculated after giving effect to any issuance of Additional Notes)
remains outstanding immediately after each such redemption; and




A-8









 






	 	(2)	 	the redemption occurs within 60 days after the closing of such Equity Offering.





          (d) On and after September 15, 2012, the Company may, at its option, redeem all or, from time
to time, a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the following
redemption prices (expressed as a percentage of principal amount of the Notes to be redeemed) plus
accrued and unpaid interest and Additional Interest on the Notes, if any, to the applicable
redemption date (subject to the right of Holders on the relevant Record Date to receive interest
due on the relevant Interest Payment Date), if redeemed during the twelve-month period beginning on
September 15 of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	106.656	%
	2013
	 	 	104.438	%
	2014
	 	 	102.219	%
	2015 and thereafter
	 	 	100.000	%






          (e) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 of the Indenture.



          6. MANDATORY REDEMPTION. The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.



          7. NOTICE OF REDEMPTION. Subject to Section 3.09 of the Indenture, the Company shall mail or
cause to be mailed by first-class mail, postage prepaid, notices of redemption at least 30 days but
not more than 60 days before the redemption date to each Holder of Notes to be redeemed at such
Holder’s registered address or otherwise in accordance with the procedures of DTC, except that
redemption notices may be mailed more than 60 days prior to a redemption date if the notice is
issued in connection with Article 8 or Article 11 of the Indenture. Except as set forth in Section
4.14 of the Indenture, notices of redemption may not be conditional. Notes and portions of Notes
selected shall be in amounts of $2,000 or whole multiples of $1,000 on excess thereof; no Notes of
$2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not
$2,000 or a multiple of $1,000 in excess thereof, shall be redeemed or purchased. Subject to
Section 3.05 of the Indenture, on and after the redemption date, interest ceases to accrue on Notes
or portions of Notes called for redemption.



          8. OFFERS TO REPURCHASE.



          (a) If a Change of Control occurs, unless the Company has exercised its right to redeem all of
the Notes as described under Section 3.07 of the Indenture, each Holder shall have the right to
require the Company to repurchase all or any part (equal to $2,000 or larger integral multiples of
$1,000) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal
amount of the Notes repurchased plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders on the relevant Record Date to receive interest due on the
relevant Interest Payment Date).



          (b) On the 366th day after the later of the date of consummation of an Asset Sale and the
receipt of Net Available Cash with respect thereto, if the aggregate amount of Excess Proceeds
exceeds $20.0 million, the Company shall be required to make an offer (“Asset Sale Offer”)
to all
Holders



A-9









 







of Notes and to the extent required by the terms of other Pari Passu Indebtedness,
to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the
Company to make an offer to
purchase such Pari Passu Indebtedness with the proceeds from any Asset Sale, to purchase the
maximum principal amount of Notes and any such Pari Passu Indebtedness to which the Asset Sale
Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an
amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness plus accrued
and unpaid interest to the date of purchase, in accordance with the procedures set forth in the
Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, in each case in
denominations of $2,000 and larger integral multiples of $1,000 in excess thereof. To the extent
that the aggregate amount of Notes and Pari Passu Indebtedness so properly tendered and not
withdrawn pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for any purpose not prohibited by the Indenture. If the aggregate
principal amount of Notes surrendered by Holders thereof and other Pari Passu Indebtedness
surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes, and the trustee or agent for the Pari Passu Indebtedness shall select the
Pari Passu Indebtedness, to be purchased on a pro rata basis on the basis of the aggregate
principal amount of tendered Notes and Pari Passu Indebtedness. Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.



          Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required
to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the
Note completed, or transfer by book-entry transfer, to the Company, the Depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice at least three days before
the Asset Sale Purchase Date.



          9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $2,000 and integral multiples of $1,000 in excess thereof. 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 Holders shall be required 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, the Company need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed.



          10. PERSONS DEEMED OWNERS. A Holder may be treated as its owner for all purposes.



          11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Subsidiary Guarantees or the Notes
may be amended or supplemented as provided in the Indenture.



          12. DEFAULTS AND REMEDIES.



          (a) If an Event of Default (other than an Event of Default arising from certain events of
bankruptcy or insolvency) occurs and is continuing, the Trustee by notice in writing specifying the
Event of Default and that it is a “notice” to the Company, or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes by notice to the Company and the Trustee,
may declare the principal of, premium, if any, and accrued and unpaid interest, if any, on all the
Notes to be due and payable. Upon such a declaration, such principal, premium and accrued and
unpaid interest shall be due and payable immediately.



A-10









 





          (b) In the event of a declaration of acceleration of the Notes because an Event of Default
arising from certain defaults under any mortgage, indenture or instrument 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 the Company
or any of its Restricted Subsidiaries), other than Indebtedness owed to the Company or a Restricted
Subsidiary, whether such Indebtedness or Guarantee exists as of the Issue Date or is created after
the Issue Date, has occurred and is continuing, the declaration of acceleration of the Notes shall
be automatically annulled if the default triggering such Event of Default pursuant to such Event of
Default shall be remedied or cured by the Company or a Restricted Subsidiary or waived by the
holders of the relevant Indebtedness within 20 days after the declaration of acceleration with
respect thereto and if (1) the annulment of the acceleration of the Notes would not conflict with
any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default,
except nonpayment of principal, premium or interest on the Notes that became due solely because of
the acceleration of the Notes, have been cured or waived.



          (c) If an Event of Default arising from certain events of bankruptcy or insolvency occurs and
is continuing occurs and is continuing, the principal of, premium, if any, and accrued and unpaid
interest on all the Notes shall become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holders.



          (d) The Holders of a majority in aggregate principal amount of the then outstanding Notes may
waive all past defaults (except with respect to a continuing Default or Event of Default with
respect to nonpayment of principal, premium or interest on the Notes) and rescind any such
acceleration with respect to the Notes and its consequences if (1) rescission would not conflict
with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of
Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes
that have become due solely by such declaration of acceleration, have been cured or waived.



          (d) If a Default occurs and is continuing and is known to the Trustee, the Trustee shall mail
to each Holder notice of the Default within 90 days after it occurs. Except in the case of a
Default in the payment of principal of, premium, if any, or interest on any Note, the Trustee may
withhold notice if and so long as a committee of Trust Officers of the Trustee in good faith
determines that withholding notice is in the interests of the Holders. In addition, the Company
shall deliver to the Trustee, within 120 days after the end of each fiscal year, a certificate
indicating whether the signers thereof know of any Default that occurred during the previous year.



          13. AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.



          14. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED NOTES. In addition to the rights
provided to Holders of Notes under the Indenture, Holders of Transfer Restricted Notes shall have
all the rights set forth in the Registration Rights Agreement, dated as of October 22, 2009, among
ViaSat, Inc., the Subsidiary Guarantors named therein and the other parties named on the signature
pages thereof (the “Registration Rights Agreement”), including the right to receive
Additional Interest (as defined in the Registration Rights Agreement).



A-11









 





          15. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THE NOTES AND THE GUARANTEES.



          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 and reliance may be placed only on the other identification
numbers placed thereon.



          The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to the Company at the
following address:



c/o ViaSat, Inc.

6155 El Camino Real

Carlsbad, CA 92009

Fax No.: (760) 929-3926

Attention: General Counsel





A-12












 






ASSIGNMENT FORM




     To assign this Security, fill in the form below:



     I or we assign and transfer this Security to:



(Print or type assignee’s name, address and zip code)

(Insert assignee’s social security or tax I.D. No.)



and irrevocably appoint                                          agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.



 





			
	 	 	 
	Date:                                        
	 	Your Signature:                                        






	 	 	 
	Signature Guarantee:
	 	 
	 

	 	 
	 

	 	(Signature must be guaranteed)





 

Sign exactly as your name appears on the other side of this Security.



The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.



The undersigned hereby certifies that it  ̈ is /  ̈ is not an Affiliate of the Company and that, to
its knowledge, the proposed transferee  ̈ is /  ̈ is not an Affiliate of the Company.




     In connection with any transfer or exchange of any of the Notes evidenced by this certificate
occurring prior to the date that is one year after the later of the date of original issuance of
such Notes and the last date, if any, on which such Notes were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Notes are being:



CHECK ONE BOX BELOW:




	 	 	 	 	 	 	 	 	 
	 

	 	 	(1	)	 	 ̈
	 	acquired for the undersigned’s own account, without transfer; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(2	)	 	 ̈
	 	transferred to the Company; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(3	)	 	 ̈
	 	transferred pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended (the “Securities Act”); or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(4	)	 	 ̈
	 	transferred pursuant to an effective registration statement under the
Securities Act; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(5	)	 	 ̈
	 	transferred pursuant to and in compliance with Regulation S under the
Securities Act; or






A-13 









 






	 	 	 	 	 	 	 	 	 
	 

	 	 	(6	)	 	 ̈
	 	transferred to an institutional “accredited investor” (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act), that has furnished to the
Trustee a signed letter containing certain representations and agreements
(the form of which letter appears as Section 2.8 of the Indenture); or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(7	)	 	 ̈
	 	transferred pursuant to another available exemption from the
registration
requirements of the Securities Act of 1933, as amended.





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, however,
that if box (5), (6) or (7) is checked, the Company may require, prior to registering any such
transfer of the Notes, in its sole discretion, such legal opinions, certifications and other
information as 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 of 1933, as amended, such as the exemption provided by Rule 144 under such Act.




	 	 	 	 	 	 	 
	 

	 	 	 	 

Signature
	 	 
	 
	 	 	 	 	 	 
	Signature Guarantee:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	(Signature must be guaranteed)

	 	 	 	Signature	 	 





 




The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.



TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED.




     The undersigned represents and warrants that it is purchasing this Security for its own
account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned’s foregoing
representations in order to claim the exemption from registration provided by Rule 144A.



	 	 	 	 	 	 	 
	 

	 	 	 	 

Dated:
	 	 






A-14 









 





OPTION OF HOLDER TO ELECT PURCHASE




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.14 of the Indenture, check the appropriate box below:



o Section 4.10           o Section 4.14




     If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:



$                                        




Date:                                         




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as your name appears on
the face of this Note)






	 				
	 

	 	Tax Identification No.:
	 

	 	 	 	 





Signature Guarantee*:                                                             






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-15 









 










SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*




     The initial outstanding principal amount of this Global Note is $___. The following
exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive
Note, or exchanges of a part of another Global or Definitive Note for an interest in this Global
Note, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount	 	 
	 	 	 	 	 	 	of	 	 
	 	 	Amount of	 	Amount of increase	 	this Global Note	 	Signature of
	 	 	decrease	 	in Principal	 	following such	 	authorized officer
	Date of	 	in Principal	 	Amount of this	 	decrease or	 	of Trustee or
	Exchange	 	Amount	 	Global Note	 	increase	 	Custodian
	 
	 	 	 	 	 	 	 	 







 




			
	*	 	This schedule should be included only if the Note is issued in global form.






A-16 









 








EXHIBIT B




[FORM OF FACE OF EXCHANGE NOTE]




[Global Notes Legend]




     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.




B-1









 








CUSIP: [                ]

ISIN:
[           ]2     




[GLOBAL] NOTE




8.875% Senior Notes due 2016




No. ___




VIASAT, INC.



promises to pay to CEDE & CO. or registered assigns, the principal sum [set forth on the Schedule
of Exchanges of Interests in the Global Note attached hereto] [of                                          United
States Dollars] on September 15, 2016.




Interest Payment Dates: March 15 and September 15




Record Dates: March 1 and September 1






 




			
	2	 	CUSIP: 92552VAC4

ISIN: US92552VAC46




B-2









 










     IN WITNESS HEREOF, the Company has caused this instrument to be duly executed.
Dated:            , 20___



	 	 	 	 	 
	 	VIASAT, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



B-3









 






	 	 	 	 	 


This is one of the Notes referred to in the within-mentioned Indenture:




	 	 	 	 	 
	 	WILMINGTON TRUST FSB, as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




B-4











 





[Back of Note]




8.875% Senior Notes due 2016




          Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.




          1. INTEREST. ViaSat, Inc., a Delaware corporation, promises to pay interest on the principal
amount of this Note at 8.875% per annum from October 22, 2009 until maturity. The Company will pay
interest semi-annually in arrears on March 15 and September 15 of each year, or if any such day is
not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”).
Interest on the Notes will accrue from the most recent date to which interest has been paid or, if
no interest has been paid, from the date of issuance; provided that the first Interest Payment Date
shall be March 15, 2010. The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at the interest rate on the Notes; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to
any applicable grace periods) from time to time on demand at the interest rate on the Notes.
Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.




          2. METHOD OF PAYMENT. The Company will pay interest on the Notes to the Persons who are
Holders at the close of business on March 1 and September 1 (whether or not a Business Day), as the
case may be, next preceding the Interest Payment Date, even if such Notes are canceled after such
Record Date and on or before such Interest Payment Date, except as provided in Section 2.14 of the
Indenture with respect to defaulted interest. Principal of, premium, if any, and interest on the
Notes will be payable at the office or agency of the Company maintained for such purpose or, at the
option of the Company, payment of interest may be made by check mailed to the Holders at their
respective addresses set forth in the register of Holders; provided that payment by wire transfer
of immediately available funds will be required with respect to principal of and interest and
premium on, all Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts.




          3. PAYING AGENT AND REGISTRAR. Initially, Wilmington Trust FSB, the Trustee under the
Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to the Holders. The Company or any of its Restricted Subsidiaries may act
in any such capacity.




          4. INDENTURE. The Company issued the Notes under an Indenture, dated as of October 22, 2009
(the “Indenture”), among ViaSat, Inc., the Subsidiary Guarantors named therein and the
Trustee. This Note is one of a duly authorized issue of notes of the Company designated as its
8.875% Senior Notes due 2016. The Company shall be entitled to issue Additional Notes pursuant to
Section 2.01 and 4.09 of the Indenture. 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, as
amended (the “Trust Indenture Act”). The Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling.




B-5









 








          The Notes are senior unsecured obligations of the Company. The aggregate principal amount of
Notes that may be authenticated and delivered under the Indenture is unlimited. This Note is one
of the 8.875% Senior Notes due 2016 referred to in the Indenture. The Notes include (i)
$275,000,000 aggregate principal amount of the Company’s 8.875% Senior Notes due 2016 issued under
the Indenture on October 22, 2009 (herein called “Initial Notes”), (ii) if and when issued,
additional 8.875% Senior Notes due 2016 of the Company that may be issued from time to time under
the Indenture subsequent to October 22, 2009 (herein called “Additional Notes”) as provided
in Section 2.01(a) of the Indenture and (iii) if and when issued, the Company’s 8.875% Senior Notes
due 2016 that may be issued from time to time under the Indenture in exchange for Initial Notes or
Additional Notes in an offer registered under the Securities Act as provided in the Registration
Rights Agreement (herein called “Exchange Notes”). The Initial Notes, Additional Notes and
Exchange Notes are treated as a single class of securities under the Indenture. The Indenture
imposes certain covenants as specified in Article 4 thereof. The Indenture also imposes
requirements with respect to the provision of financial information and the provision of guarantees
of the Notes by certain subsidiaries.




          To guarantee the due and punctual payment of the principal, premium, if any, and interest on
the Notes and all other amounts payable by the Company under the Indenture, the Notes and the
Registration Rights Agreement when and as the same shall be due and payable, whether at maturity,
by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Subsidiary
Guarantors have unconditionally guaranteed (and future guarantors, together with the Subsidiary
Guarantors, will unconditionally Guarantee), jointly and severally, such obligations on a senior
unsecured basis pursuant to the terms of the Indenture.




          5. OPTIONAL REDEMPTION.




          (a) Except as described below under clauses 5(b) and 5(c) hereof, the Notes will not be
redeemable at the Company’s option before September 15, 2012.




          (b) At any time prior to September 15, 2012, upon not less than 30 nor more than 60 days’
prior notice mailed by first-class mail to each Holder’s registered address, the Company may redeem
all or part of the Notes at a redemption price equal to 100% of the principal amount thereof plus
the Applicable Premium as of, plus accrued and unpaid interest, if any, to, the redemption date
(subject to the right of Holders on the relevant Record Date to receive interest due on the
relevant Interest Payment Date).




          (c) At any time prior to September 15, 2012, the Company may, at its option, redeem up to 35%
of the aggregate principal amount of Notes issued by it (calculated after giving effect to any
issuance of Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings at a
redemption price of 108.875% of the principal amount thereof, plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders on the relevant Record Date to receive
interest due on the relevant Interest Payment Date); provided that:





	 	(3)	 	at least 65% of the aggregate original principal amount of Notes issued under
the Indenture (calculated after giving effect to any issuance of Additional Notes)
remains outstanding immediately after each such redemption; and
	 
	 	(4)	 	the redemption occurs within 60 days after the closing of such Equity Offering.




B-6









 











          (d) On and after September 15, 2012, the Company may, at its option, redeem all or, from time
to time, a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the following
redemption prices (expressed as a percentage of principal amount of the Notes to be redeemed) plus
accrued and unpaid interest on the Notes, if any, to the applicable redemption date (subject to the
right of Holders on the relevant Record Date to receive interest due on the relevant Interest
Payment Date), if redeemed during the twelve-month period beginning on September 15 of the years
indicated below:




	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	106.656	%
	2013
	 	 	104.438	%
	2014
	 	 	102.219	%
	2015 and thereafter
	 	 	100.000	%






          (e) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 of the Indenture.




          6. MANDATORY REDEMPTION. The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.




          7. NOTICE OF REDEMPTION. Subject to Section 3.09 of the Indenture, the Company shall mail or
cause to be mailed by first-class mail, postage prepaid, notices of redemption at least 30 days but
not more than 60 days before the redemption date to each Holder of Notes to be redeemed at such
Holder’s registered address or otherwise in accordance with the procedures of DTC, except that
redemption notices may be mailed more than 60 days prior to a redemption date if the notice is
issued in connection with Article 8 or Article 11 of the Indenture. Except as set forth in Section
4.14 of the Indenture, notices of redemption may not be conditional. Notes and portions of Notes
selected shall be in amounts of $2,000 or whole multiples of $1,000 on excess thereof; no Notes of
$2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not
$2,000 or a multiple of $1,000 in excess thereof, shall be redeemed or purchased. Subject to
Section 3.05 of the Indenture, on and after the redemption date, interest ceases to accrue on Notes
or portions of Notes called for redemption.




          8. OFFERS TO REPURCHASE.




          (a) If a Change of Control occurs, unless the Company has exercised its right to redeem all of
the Notes as described under Section 3.07 of the Indenture, each Holder shall have the right to
require the Company to repurchase all or any part (equal to $2,000 or larger integral multiples of
$1,000) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal
amount of the Notes repurchased plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders on the relevant Record Date to receive interest due on the
relevant Interest Payment Date).




          (b) On the 366th day after the later of the date of consummation of an Asset Sale and the
receipt of Net Available Cash with respect thereto, if the aggregate amount of Excess Proceeds
exceeds $20.0 million, the Company shall be required to make an offer (“Asset Sale Offer”)
to all Holders of Notes and to the extent required by the terms of other Pari Passu Indebtedness,
to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the
Company to make an offer to



B-7









 






purchase such Pari Passu Indebtedness with the proceeds from any Asset Sale, to purchase the
maximum principal amount of Notes and any such Pari Passu Indebtedness to which the Asset Sale
Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an
amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness plus accrued
and unpaid interest to the date of purchase, in accordance with the procedures set forth in the
Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, in each case in
denominations of $2,000 and larger integral multiples of $1,000 in excess thereof. To the extent
that the aggregate amount of Notes and Pari Passu Indebtedness so properly tendered and not
withdrawn pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for any purpose not prohibited by the Indenture. If the aggregate
principal amount of Notes surrendered by Holders thereof and other Pari Passu Indebtedness
surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes, and the trustee or agent for the Pari Passu Indebtedness shall select the
Pari Passu Indebtedness, to be purchased on a pro rata basis on the basis of the aggregate
principal amount of tendered Notes and Pari Passu Indebtedness. Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.




          Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required
to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the
Note completed, or transfer by book-entry transfer, to the Company, the Depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice at least three days before
the Asset Sale Purchase Date.




          9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $2,000 and integral multiples of $1,000 in excess thereof. 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 Holders shall be required 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, the Company need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed.




          10. PERSONS DEEMED OWNERS. A Holder may be treated as its owner for all purposes.




          11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Subsidiary Guarantees or the Notes
may be amended or supplemented as provided in the Indenture.




          12. DEFAULTS AND REMEDIES.




          (a) If an Event of Default (other than an Event of Default arising from certain events of
bankruptcy or insolvency) occurs and is continuing, the Trustee by notice in writing specifying the
Event of Default and that it is a “notice” to the Company, or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes by notice to the Company and the Trustee,
may declare the principal of, premium, if any, and accrued and unpaid interest, if any, on all the
Notes to be due and payable. Upon such a declaration, such principal, premium and accrued and
unpaid interest shall be due and payable immediately.




B-8









 








          (b) In the event of a declaration of acceleration of the Notes because an Event of Default
arising from certain defaults under any mortgage, indenture or instrument 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 the Company
or any of its Restricted Subsidiaries), other than Indebtedness owed to the Company or a Restricted
Subsidiary, whether such Indebtedness or Guarantee exists as of the Issue Date or is created after
the Issue Date, has occurred and is continuing, the declaration of acceleration of the Notes shall
be automatically annulled if the default triggering such Event of Default pursuant to such Event of
Default shall be remedied or cured by the Company or a Restricted Subsidiary or waived by the
holders of the relevant Indebtedness within 20 days after the declaration of acceleration with
respect thereto and if (1) the annulment of the acceleration of the Notes would not conflict with
any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default,
except nonpayment of principal, premium or interest on the Notes that became due solely because of
the acceleration of the Notes, have been cured or waived.




          (c) If an Event of Default arising from certain events of bankruptcy or insolvency occurs and
is continuing occurs and is continuing, the principal of, premium, if any, and accrued and unpaid
interest on all the Notes shall become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holders.




          (d) The Holders of a majority in aggregate principal amount of the then outstanding Notes may
waive all past defaults (except with respect to a continuing Default or Event of Default with
respect to nonpayment of principal, premium or interest on the Notes) and rescind any such
acceleration with respect to the Notes and its consequences if (1) rescission would not conflict
with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of
Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes
that have become due solely by such declaration of acceleration, have been cured or waived.




          (d) If a Default occurs and is continuing and is known to the Trustee, the Trustee shall mail
to each Holder notice of the Default within 90 days after it occurs. Except in the case of a
Default in the payment of principal of, premium, if any, or interest on any Note, the Trustee may
withhold notice if and so long as a committee of Trust Officers of the Trustee in good faith
determines that withholding notice is in the interests of the Holders. In addition, the Company
shall deliver to the Trustee, within 120 days after the end of each fiscal year, a certificate
indicating whether the signers thereof know of any Default that occurred during the previous year.




          13. AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.




          14. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THE NOTES AND THE GUARANTEES.




          17. 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



B-9









 






on the Notes or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.




          The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to the Company at the following address:




c/o ViaSat, Inc.

6155 El Camino Real

Carlsbad, CA 92009

Fax No.: (760) 929-3926

Attention: General Counsel





B-10












 





ASSIGNMENT FORM




          To assign this Security, fill in the form below:




          I or we assign and transfer this Security to:




(Print or type assignee’s name, address and zip code)

(Insert assignee’s social security or tax I.D. No.)




     and irrevocably appoint                      agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.



 





	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Your Signature:	 	 
	 

	 	 
	 	 	 	 	 	 





	 	 	 
	Signature Guarantee:
	 	 
	 

	 	 
	(Signature must be guaranteed)





Sign exactly as your name appears on the other side of this Security.




The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.



The undersigned hereby certifies that it o is / o is not an Affiliate of the Company and that, to
its knowledge, the proposed transferee o is / o is not an Affiliate of the Company.




     In connection with any transfer or exchange of any of the Notes evidenced by this certificate
occurring prior to the date that is one year after the later of the date of original issuance of
such Notes and the last date, if any, on which such Notes were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Notes are being:



CHECK ONE BOX BELOW:




	 	 	 	 	 
	(1)

	 	o
	 	acquired for the undersigned’s own account, without transfer; or
	 
	 	 	 	 
	(2)

	 	o
	 	transferred to the Company; or
	 
	 	 	 	 
	(3)

	 	o
	 	transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or
	 
	 	 	 	 
	(4)

	 	o
	 	transferred pursuant to an effective registration statement under the Securities Act; or
	 
	 	 	 	 
	(5)

	 	o
	 	transferred pursuant to and in compliance with Regulation S under the Securities Act; or






B-11









 






	 	 	 	 	 
	(6)

	 	o
	 	transferred to an institutional “accredited investor” (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act), that has furnished to the
Trustee a signed letter containing certain representations and agreements
(the form of which letter appears as Section 2.8 of the Indenture); or
	 
	 	 	 	 
	(7)

	 	o
	 	transferred pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.





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, however,
that if box (5), (6) or (7) is checked, the Company may require, prior to registering any such
transfer of the Notes, in its sole discretion, such legal opinions, certifications and other
information as 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 of 1933, as amended, such as the exemption provided by Rule 144 under such Act.




	 	 	 
	 

	 	 
	 

	 	Signature
	Signature Guarantee:
	 	 
	 
	 	 
	 

	 	 
	(Signature must be guaranteed)

	 	Signature
	 
	 	 




 




The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.




TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED.




     The undersigned represents and warrants that it is purchasing this Security for its own
account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned’s foregoing
representations in order to claim the exemption from registration provided by Rule 144A.



	 	 	 
	 

	 	 
	 

	 	Dated:






B-12









 






OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.14 of the Indenture, check the appropriate box below:




o  Section 4.10           o  Section 4.14




          If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:




$                    




Date:                                         




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as your name appears on the face of this Note)
	 

	 	Tax Identification No.:	 	 
	 

	 	 	 	 





Signature Guarantee*:                                                             






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




B-13









 










SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*




          The initial outstanding principal amount of this Global Note is $                    . The following
exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive
Note, or exchanges of a part of another Global or Definitive Note for an interest in this Global
Note, have been made:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount	 	 
	 	 	 	 	 	 	of	 	 
	 	 	Amount of	 	Amount of increase	 	this Global Note	 	Signature of
	 	 	decrease	 	in Principal	 	following such	 	authorized officer
	Date of	 	in Principal	 	Amount of this	 	decrease or	 	of Trustee or
	Exchange	 	Amount	 	Global Note	 	increase	 	Custodian
	 
	 	 	 	 	 	 	 	 







 




			
	*	 	This schedule should be included only if the Note is issued in global form.





B-14









 









EXHIBIT C




FORM OF

TRANSFEREE LETTER OF REPRESENTATION




ViaSat, Inc.

6155 El Camino Real

Carlsbad, CA 92009

Fax No.: (760) 929-3926

Attention: General Counsel




In care of

Wilmington Trust FSB

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402-1544

Fax No.: (612) 217-5651

Attention: Corporate Capital Markets




Ladies and Gentlemen:




     This certificate is delivered to request a transfer of $[     ] principal amount of the
8.875% Senior Notes due 2016 (the “Notes”) of ViaSat, Inc. (the “Company”).



     Upon transfer, the Notes would be registered in the name of the new beneficial owner as
follows:


Name:                                        



Address:                                        



Taxpayer ID Number:                    




     The undersigned represents and warrants to you that:



     1. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended (the “Securities Act”)), purchasing for
our own account or for the account of such an institutional “accredited investor” at least $250,000
principal amount of the Notes, and we are acquiring the Notes not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act. We have such
knowledge and experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we invest in or purchase securities similar to
the Notes in the normal course of our business. We, and any accounts for which we are acting, are
each able to bear the economic risk of our or its investment.



     2. We understand that the Notes have not been registered under the Securities Act and, unless
so registered, may not be sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date that is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of the Company was the owner
of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”) only
(a) to the Company, (b) pursuant to a registration statement that has been declared effective under
the Securities Act, (c) in a transaction



 









 







complying with the requirements of Rule 144A under the
Securities Act (“Rule 144A”), to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a “QIB”) that
is purchasing for its own account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and sales that occur
outside the United States within the meaning of Regulation S under the Securities Act, (e) to an
institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is purchasing for its own account or for the account of such an institutional
“accredited investor,” in each case in a minimum principal amount of Notes of $250,000, or (f)
pursuant to any other available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the disposition of our
property or the property of such investor account or accounts be at all times within our or their
control and in compliance with any applicable state securities laws. The foregoing restrictions on
resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Notes is proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Company and the Trustee, which shall provide, among
other things, that the transferee is an institutional “accredited investor” within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring such Notes for
investment purposes and not for distribution in violation of the Securities Act. Each purchaser
acknowledges that the Company and the Trustee reserve the right prior to the offer, sale or other
transfer prior to the Resale Restriction Termination Date of the Notes pursuant to clause (d), (e)
or (f) above to require the delivery of an opinion of counsel, certifications or other information
satisfactory to the Company and the Trustee.



TRANSFEREE:                                        ,          




by:                                        





C-3











 





EXHIBIT D




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS




          Supplemental Indenture (this “Supplemental Indenture”), dated as of                     , among
                     (the “Subsidiary Guarantor”), a subsidiary of ViaSat, Inc., a Delaware
corporation (the “Company”), and Wilmington Trust FSB, as trustee (the “Trustee”).



W I T N E S S E T H




          WHEREAS, each of the Company and the Subsidiary Guarantors (as defined in the Indenture
referred to below) has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of October 22, 2009, providing for the issuance of an unlimited
aggregate principal amount of 8.875% Senior Notes due 2016 (the “Notes”);



          WHEREAS, the Indenture provides that under certain circumstances the Subsidiary Guarantor
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Subsidiary
Guarantor shall unconditionally guarantee all of the Company’s Obligations under the Notes and the
Indenture on the terms and conditions set forth herein and under the Indenture (the “Subsidiary
Guarantee”); and



          WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.



          NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree
for the equal and ratable benefit of the Holders of the Notes as follows:



          (1) Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.



          (2) Agreement to Subsidiary Guarantee. The Subsidiary Guarantor hereby agrees as
follows:




     (a) Along with all Subsidiary Guarantors named in the Indenture, subject to Article 10
of the Indenture, to jointly and severally unconditionally guarantee, on a senior unsecured
basis, to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and enforceability of
the Indenture, the Notes or the obligations of the Company hereunder, that:




     (i) the principal of, premium, if any, or interest on or Additional Interest,
if any, on the Notes shall be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee thereunder shall be promptly paid in full or
performed, all in accordance with the terms thereof; and




     (ii) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Subsidiary



D-1









 







Guarantor and the other Subsidiary Guarantors named in the Indenture shall be
jointly and severally obligated to pay the same immediately. This is a guarantee of
payment and not a guarantee of collection.




     (b) The obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.




     (c) The following is hereby waived: diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands whatsoever.




     (d) This Subsidiary Guarantee shall not be discharged except by complete performance of
the obligations contained in the Notes, the Indenture and this Supplemental Indenture, and
the Subsidiary Guarantor accepts all obligations of a Subsidiary Guarantor under the
Indenture.




     (e) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Subsidiary Guarantors (including the Subsidiary Guarantor), or any custodian,
trustee, liquidator or other similar official acting in relation to either the Company or
the Subsidiary Guarantors, any amount paid either to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.




     (f) The Subsidiary Guarantor shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby.




     (g) As between the Subsidiary Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the purposes of this Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article 6 of the Indenture,
such obligations (whether or not due and payable) shall forthwith become due and payable by
the Subsidiary Guarantor for the purpose of this Subsidiary Guarantee.




     (h) If the Subsidiary Guarantor makes a payment under its Subsidiary Guarantee, the
Subsidiary Guarantor will be entitled upon payment in full of all Guaranteed Obligations
under the Indenture to a contribution from each other Subsidiary Guarantor in an amount
equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the
respective net assets of all the Subsidiary Guarantors at the time of such payment
determined in accordance with GAAP.




     (i) Pursuant to Section 10.02 of the Indenture, the obligations of the Subsidiary
Guarantor under this Subsidiary Guarantee shall be limited to the maximum amount as will,
after giving effect to such maximum amount and all other contingent and fixed liabilities of
such



D-2









 







Subsidiary Guarantor that are relevant under any applicable Bankruptcy Law or
fraudulent conveyance laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor
in respect of the obligations of such other Subsidiary Guarantor under Article 10 of the
Indenture, result in the obligations of such Subsidiary Guarantor under this Subsidiary
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable
law.




     (j) This Subsidiary Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation,
reorganization, should the Company become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any significant part of
the Company’s assets, and shall, to the fullest extent permitted by law, continue to be
effective or be reinstated, as the case may be, if at any time payment and performance of
the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee on the Notes and Subsidiary Guarantee, whether as a
“voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or
performance had not been made. In the event that any payment or any part thereof, is
rescinded, reduced, restored or returned, the Note shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.




     (k) In case any provision of this Subsidiary Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.




     (m) Each payment to be made by the Subsidiary Guarantor in respect of this Subsidiary
Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind
or nature.



          (3) Execution and Delivery. The Subsidiary Guarantor agrees that the Subsidiary
Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of
any notation of such Subsidiary Guarantee on the Notes.



          (4) Merger, Consolidation or Sale of All or Substantially All Assets.



          (a) Except as otherwise provided in Section 5.01(b) of the Indenture, the Subsidiary Guarantor
may not consolidate or merge with or into or wind up into (whether or not the Company or Subsidiary
Guarantor is the surviving corporation), or sell, assign, convey, transfer or otherwise dispose of
all or substantially all of its properties or assets, in one or more related transactions, to any
Person (other than to the Company or another Subsidiary Guarantor) unless:




     (i) if such entity remains a Subsidiary Guarantor, the resulting, surviving or
transferee Person (the “Successor Guarantor”) will be a corporation, partnership,
trust or limited liability company organized and existing under the laws of the United
States of America, any State of the United States, the District of Columbia or any other
territory thereof;




     (ii) the Successor Guarantor, if other than such Subsidiary Guarantor, expressly
assumes all the obligations of such Subsidiary Guarantor under the Notes and the Indenture
pursuant to a supplemental indenture or other documents or instruments in form reasonably
satisfactory to the Trustee;



D-3









 






     (iii) immediately after giving effect to such transaction, no Default of Event of
Default shall have occurred and be continuing; and




     (iv) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with the Indenture; and




     (v) the transaction is made in compliance with Section 4.10 and Section 5.01 of the
Indenture.



          (b) Subject to certain limitations described in the Indenture, the Successor Guarantor will
succeed to, and be substituted for, the Subsidiary Guarantor under the Indenture and the Subsidiary
Guarantor’s Guarantee. Notwithstanding the foregoing, the Subsidiary Guarantor may merge into or
transfer all or part of its properties and assets to another Subsidiary Guarantor or the Company or
merge with a Restricted Subsidiary of the Company solely for the purpose of reincorporating the
Subsidiary Guarantor in a State of the United States, the District of Columbia or any territory of
the United States, as long as the amount of Indebtedness of such Subsidiary Guarantor is not
increased thereby.



          (5) Releases.



          (a) The Subsidiary Guarantee of the Subsidiary Guarantor shall be automatically and
unconditionally released and discharged, and no further action by the Subsidiary Guarantor, the
Company or the Trustee is required for the release of the Subsidiary Guarantor’s Subsidiary
Guarantee, upon:



          (i) the occurrence of any sale, exchange, transfer or other disposition (by merger,
consolidation or otherwise) of the Capital Stock of the Subsidiary Guarantor (including any sale,
exchange, transfer or other disposition after which the Subsidiary Guarantor is no longer a
Restricted Subsidiary) or of all or substantially all the assets and property of the Subsidiary
Guarantor, which sale, exchange, transfer or other disposition is made in compliance with the
applicable provisions of the Indenture;



          (ii) the release or discharge of the Subsidiary Guarantor from its Guarantee of Indebtedness
of the Company and the Subsidiary Guarantors under the Senior Credit Facility (including by reason
of the termination of the Senior Credit Facility), if such Subsidiary Guarantor would not then
otherwise be required to guarantee the Notes pursuant to the Indenture, except a discharge or
release by or as a result of payment under such Guarantee; provided, that if such Subsidiary
Guarantor has Incurred any Indebtedness or issued any Preferred Stock or Disqualified Stock in
reliance on its status as a Subsidiary Guarantor under Section 4.09 of the Indenture, such
Subsidiary Guarantor’s obligations under such Indebtedness, Disqualified Stock or Preferred Stock,
as the case may be, so Incurred are satisfied in full or discharged or are otherwise permitted to
be incurred under Section 4.09 of the Indenture.



          (iii) the designation of any Restricted Subsidiary that is a Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with the Indenture; or



          (iv) the Company exercising its Legal Defeasance option or Covenant Defeasance option in
accordance with Article 8 of the Indenture or the Company’s obligations under the Indenture being
discharged in accordance with the terms of the Indenture; and



D-4









 





          (v) the Company delivering to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for in the Indenture relating to such
transaction have been complied with.



          (6) No Recourse Against Others. No director, officer, employee, incorporator or
stockholder of the Subsidiary Guarantor shall have any liability for any obligations of the Company
or the Subsidiary Guarantors (including the Subsidiary Guarantor) under the Notes, the Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the consideration for issuance of
the Notes.



          (7) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.



          (8) Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



          (9) Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.



          (10) The Trustee. The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Subsidiary Guarantor.



          (11) Subrogation. The Subsidiary Guarantor shall be subrogated to all rights of
Holders of Notes against the Company in respect of any amounts paid by the Subsidiary Guarantor
pursuant to the provisions of Section 2 hereof and Section 11.01 of the Indenture; provided that,
if an Event of Default has occurred and is continuing, the Subsidiary Guarantor shall not be
entitled to enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Company under the Indenture or the Notes
shall have been paid in full.



          (12) Benefits Acknowledged. The Subsidiary Guarantor’s Subsidiary Guarantee is
subject to the terms and conditions set forth in the Indenture. The Subsidiary Guarantor
acknowledges that it will receive direct and indirect benefits from the financing arrangements
contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers
made by it pursuant to this Subsidiary Guarantee are knowingly made in contemplation of such
benefits.



          (13) Successors. All agreements of the Subsidiary Guarantor in this Supplemental
Indenture shall bind its successors, except as otherwise provided in this Supplemental Indenture.
All agreements of the Trustee in this Supplemental Indenture shall bind its successors.



D-5









 





          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first above written.



	 	 	 	 	 
	 	VIASAT, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[GUARANTEEING SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	WILMINGTON TRUST FSB, as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




D-6