Exhibit 10.19


 


 




 





New Skies Satellites B.V.,

as Issuer


 


Floating Rate Senior Notes due
2011


 










 


INDENTURE


 


Dated as of November 2,
2004


 










 


U.S. Bank National Association,

as Trustee




 





 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE 1

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  
	
  Section
  1.01

  	
  Definitions.

  	
   

  
	
  Section 1.02

  	
  Other Definitions

  	
   

  
	
  Section 1.03

  	
  Incorporation by Reference of Trust
  Indenture Act

  	
   

  
	
  Section 1.04

  	
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  
	
  THE
  NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Amount of Notes; Issuable in Series

  	
   

  
	
  Section 2.02

  	
  Form and Dating

  	
   

  
	
  Section 2.03

  	
  Execution and Authentication

  	
   

  
	
  Section 2.04

  	
  Registrar, Paying Agent and Calculation
  Agent

  	
   

  
	
  Section 2.05

  	
  Paying Agent to Hold Money in Trust

  	
   

  
	
  Section 2.06

  	
  Holder Lists

  	
   

  
	
  Section 2.07

  	
  Transfer and Exchange

  	
   

  
	
  Section 2.08

  	
  Replacement Notes

  	
   

  
	
  Section 2.09

  	
  Outstanding Notes

  	
   

  
	
  Section 2.10

  	
  Temporary Notes

  	
   

  
	
  Section 2.11

  	
  Cancellation

  	
   

  
	
  Section 2.12

  	
  Defaulted Interest

  	
   

  
	
  Section 2.13

  	
  CUSIP Numbers, ISINs, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  
	
  REDEMPTION

  
	
   

  	
   

  
	
  Section 3.01

  	
  Optional Redemption

  	
   

  
	
  Section 3.02

  	
  Redemption with Proceeds of Equity
  Offerings

  	
   

  
	
  Section 3.03

  	
  Method and Effect of Redemption

  	
   

  
	
  Section 3.04

  	
  Deposit of Redemption Price

  	
   

  
	
  Section 3.05

  	
  Redemption for Taxation Reasons

  	
   

  
	
  Section 3.06

  	
  Special Mandatory Redemption; Notice to
  Trustee and Escrow Agent

  	
   

  
	
  Section 3.07

  	
  Notice of Special Mandatory Redemption to
  Holders

  	
   

  
	
  Section 3.08

  	
  Effect of Notice of Special Mandatory
  Redemption

  	
   

  
	
  Section 3.09

  	
  Deposit of Special Mandatory Redemption
  Price

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  
	
  COVENANTS

  
	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Notes

  	
   

  
	
  Section 4.02

  	
  Reports and Other Information

  	
   

  
	
  Section 4.03

  	
  Limitation on Incurrence of Indebtedness
  and Issuance of Preferred Stock

  	
   

  
	
  Section 4.04

  	
  Limitation on Restricted Payments

  	
   

  



 


i





















 


	
  Section 4.05

  	
  Dividend and Other Payment Restrictions
  Affecting Subsidiaries

  	
   

  
	
  Section 4.06

  	
  Asset Sales

  	
   

  
	
  Section 4.07

  	
  Transactions with Affiliates

  	
   

  
	
  Section 4.08

  	
  Change of Control

  	
   

  
	
  Section 4.09

  	
  Compliance Certificate

  	
   

  
	
  Section 4.10

  	
  Further Instruments and Acts

  	
   

  
	
  Section 4.11

  	
  Liens

  	
   

  
	
  Section 4.12

  	
  Limitation on Layering

  	
   

  
	
  Section 4.13

  	
  Maintenance of Office or Agency

  	
   

  
	
  Section 4.14

  	
  Business Activities

  	
   

  
	
  Section 4.15

  	
  Maintenance of Insurance

  	
   

  
	
  Section 4.16

  	
  Limitation on Guarantees of Indebtedness by
  Restricted Subsidiaries

  	
   

  
	
  Section 4.17

  	
  Matters Relating to NSS-8

  	
   

  
	
  Section 4.18

  	
  Additional Amounts

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  
	
  MERGER,
  CONSOLIDATION OR SALE OF ASSETS

  
	
   

  
	
  Section 5.01

  	
  Merger, Consolidation or Sale of Assets of
  the Issuer

  	
   

  
	
  Section 5.02

  	
  Merger, Consolidation, or Sale of Assets by
  a Guarantor

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  
	
  DEFAULTS
  AND REMEDIES

  
	
   

  
	
  Section 6.01

  	
  Events of Default

  	
   

  
	
  Section 6.02

  	
  Acceleration

  	
   

  
	
  Section 6.03

  	
  Other Remedies

  	
   

  
	
  Section 6.04

  	
  Waiver of Past Defaults

  	
   

  
	
  Section 6.05

  	
  Control by Majority

  	
   

  
	
  Section 6.06

  	
  Limitation on Suits

  	
   

  
	
  Section 6.07

  	
  Rights of the Holders to Receive Payment

  	
   

  
	
  Section 6.08

  	
  Collection Suit by Trustee

  	
   

  
	
  Section 6.09

  	
  Trustee May File Proofs of Claim

  	
   

  
	
  Section 6.10

  	
  Priorities

  	
   

  
	
  Section 6.11

  	
  Undertaking for Costs

  	
   

  
	
  Section 6.12

  	
  Waiver of Stay or Extension Laws

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties of Trustee

  	
   

  
	
  Section 7.02

  	
  Rights of Trustee

  	
   

  
	
  Section 7.03

  	
  Individual Rights of Trustee

  	
   

  
	
  Section 7.04

  	
  Trustee’s Disclaimer

  	
   

  
	
  Section 7.05

  	
  Notice of Defaults

  	
   

  
	
  Section 7.06

  	
  Reports by Trustee to the Holders

  	
   

  
	
  Section 7.07

  	
  Compensation and Indemnity

  	
   

  
	
  Section 7.08

  	
  Replacement of Trustee

  	
   

  
	
  Section 7.09

  	
  Successor Trustee by Merger

  	
   

  
	
  Section 7.10

  	
  Eligibility; Disqualification

  	
   

  
	
  Section 7.11

  	
  Preferential Collection of Claims Against
  Issuer

  	
   

  



 


ii





















 


	
  ARTICLE
  8

  
	
  DISCHARGE
  OF INDENTURE; DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Discharge of Liability on Notes

  	
   

  
	
  Section 8.02

  	
  Defeasance

  	
   

  
	
  Section 8.03

  	
  Conditions to Defeasance

  	
   

  
	
  Section 8.04

  	
  Application of Trust Money

  	
   

  
	
  Section 8.05

  	
  Repayment to Issuer

  	
   

  
	
  Section 8.06

  	
  Indemnity for Government Obligations

  	
   

  
	
  Section 8.07

  	
  Reinstatement

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9

  
	
  AMENDMENTS
  AND WAIVERS

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without Consent of the Holders

  	
   

  
	
  Section 9.02

  	
  With Consent of the Holders

  	
   

  
	
  Section 9.03

  	
  Compliance with Trust Indenture Act

  	
   

  
	
  Section 9.04

  	
  Revocation and Effect of Consents and
  Waivers

  	
   

  
	
  Section 9.05

  	
  Notation on or Exchange of Notes

  	
   

  
	
  Section 9.06

  	
  Trustee to Sign Amendments

  	
   

  
	
  Section 9.07

  	
  Payment for Consent

  	
   

  
	
  Section 9.08

  	
  Additional Voting Terms

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10

  
	
  [RESERVED]

  
	
   

  
	
  ARTICLE
  11

  
	
  GUARANTEES

  
	
   

  
	
  Section 11.01

  	
  Guarantees of the Notes

  	
   

  
	
  Section 11.02

  	
  Limitation on Liability

  	
   

  
	
  Section 11.03

  	
  Successors and Assigns

  	
   

  
	
  Section 11.04

  	
  No Waiver

  	
   

  
	
  Section 11.05

  	
  Modification

  	
   

  
	
  Section 11.06

  	
  Execution of Supplemental Indenture for
  Future Guarantors

  	
   

  
	
  Section 11.07

  	
  Non-Impairment

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12

  
	
  [RESERVED]

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  13

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Trust Indenture Act Controls

  	
   

  
	
  Section 13.02

  	
  Notices

  	
   

  
	
  Section 13.03

  	
  Communication by the Holders with Other
  Holders

  	
   

  
	
  Section 13.04

  	
  Certificate and Opinion as to Conditions
  Precedent

  	
   

  
	
  Section 13.05

  	
  Statements Required in Certificate or
  Opinion

  	
   

  
	
  Section 13.06

  	
  When Notes Disregarded

  	
   

  
	
  Section 13.07

  	
  Rules by Trustee, Paying Agent and
  Registrar

  	
   

  
	
  Section 13.08

  	
  Legal Holidays

  	
   

  



 


iii





















 


	
  Section 13.09

  	
  Governing Law

  	
   

  
	
  Section 13.10

  	
  Jurisdiction; Consent to Service of Process

  	
   

  
	
  Section 13.11

  	
  No Recourse Against Others

  	
   

  
	
  Section 13.12

  	
  Successors

  	
   

  
	
  Section 13.13

  	
  Multiple Originals

  	
   

  
	
  Section 13.14

  	
  Table of Contents; Headings

  	
   

  
	
  Section 13.15

  	
  Indenture Controls

  	
   

  
	
  Section 13.16

  	
  Severability

  	
   

  
	
  Section 13.17

  	
  Currency of Account; Conversion of
  Currency; Foreign Exchange Restrictions

  	
   

  



 


iv





















 


	
  Appendix A

  	
  –

  	
  Provisions Relating to Initial Notes,
  Additional Notes and Exchange Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT INDEX

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  –

  	
  Initial Note

  	
   

  
	
  Exhibit B

  	
  –

  	
  Exchange Note

  	
   

  
	
  Exhibit C

  	
  –

  	
  Form of Transferee Letter of Representation

  	
   

  
	
  Exhibit D

  	
  –

  	
  Form of Supplemental Indenture

  	
   

  



 


v





















 


CROSS-REFERENCE TABLE


 


	
  TIA

  Section

  	
   

  	
  Indenture

  Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  7.08; 7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.06

  
	
  (b)

  	
   

  	
  13.03

  
	
  (c)

  	
   

  	
  13.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.06

  
	
  (c)

  	
   

  	
  7.06

  
	
  (d)

  	
   

  	
  4.02; 4.09

  
	
  314(a)

  	
   

  	
  4.02; 4.09

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  13.04

  
	
  (c)(2)

  	
   

  	
  13.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  13.05

  
	
  (f)

  	
   

  	
  4.10

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last sentence)

  	
   

  	
  13.06

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.05

  
	
  318(a)

  	
   

  	
  13.01

  
				











N.A. Means Not Applicable.


Note:                   This
Cross-Reference Table shall not, for any purposes, be deemed to be part of this
Indenture.


 


vi





















 


INDENTURE dated as of
November 2, 2004 between NEW SKIES SATELLITES B.V., a company organized
under the laws of The Netherlands and U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as trustee.


 


Each party
agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of (a) $160,000,000 aggregate principal amount
of the Issuer’s Floating Rate Senior Notes due 2011 (the “Original
Notes”) issued on the date hereof, (b) any Additional Notes (as
defined herein) that may be exchanged for Original Notes or otherwise issued
after the date hereof in the form of Exhibit A (the “Initial
Notes”), and (c) if and when issued as provided in the Registration
Rights Agreement (as defined in Appendix A hereto (the “Appendix”))
or otherwise registered under the Securities Act (as defined in the Appendix)
and issued, the Issuer’s Floating Rate Senior Notes due 2011 (the “Exchange Notes” and, together with the Initial Notes, the “Notes”) issued in the Registered Exchange Offer (as defined
in the Appendix) in exchange for any Initial Notes or otherwise registered
under the Securities Act and issued in the form of Exhibit B.


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01                                Definitions.


 


“Acceptable Exclusions” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 





















 


(7)                                  willful
or intentional acts of the directors or officers of the named insured, acting
within the scope of their duties, designed to cause loss or failure of the
Satellite;


 


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


 


(9)                                  any
unlawful seizure or wrongful exercise of control of the Satellite made by any
individual or individuals acting for political or terrorist purposes;


 


(10)                            loss
of revenue, incidental damages or consequential loss;


 


(11)                            extra
expenses, other than the expenses insured under this policy;


 


(12)                            third
party liability;


 


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


 


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


 


“Acquired Debt” means, with respect to any specified Person:


 


(1)                                  Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Restricted Subsidiary of such specified Person, and


 


(2)                                  Indebtedness
secured by an existing Lien encumbering any asset acquired by such specified Person,


 


but excluding
in any event Indebtedness incurred in connection with, or in contemplation of,
such other Person merging with or into, or becoming a Restricted Subsidiary of,
such specified Person.


 


“Acquisition” means the acquisition of substantially all of
the assets of New Skies Satellites N.V. by Neptune One Holdings Ltd. and
the Issuer pursuant to the transaction agreement relating to such acquisition
dated as of June 5, 2004, as amended or otherwise modified from time to
time.


 


“Acquisition Documents” means the transaction agreement
dated as of June 5, 2004 among Neptune One Holdings Ltd., the Issuer
and New Skies Satellites N.V., and any other document entered into in
connection therewith from time to time, in each case, as amended, modified or
supplemented from time to time.


 


“Additional Notes” means Floating Rate Senior Notes due 2011
issued under the terms of this Indenture subsequent to the Issue Date.


 


“Adjusted EBITDA” means, with
respect to any Person for any period, the Consolidated Net Income of such
Person for such period (A) plus, without duplication, and in each case to
the extent deducted in calculating Consolidated Net Income for such period:


 


(1)                                  provision
for taxes based on income, profits or capital of such Person for such period,
including, without limitation, state, franchise and similar taxes (such as the
Texas franchise tax and Michigan single business tax) (including any Tax
Distribution taken into account in calculating Consolidated Net Income), plus


 


2





















 


(2)                                  Consolidated
Interest Expense of such Person for such period, plus


 


(3)                                  Consolidated
Depreciation and Amortization Expense of such Person for such period, plus


 


(4)                                  any
reasonable expenses or charges related to any Equity Offering, Permitted
Investment, acquisition, recapitalization or Indebtedness permitted to be
incurred under this Indenture or to the Transactions (including any refinancing
thereof as permitted under this Indenture), plus


 


(5)                                  the
amount of any restructuring charges (which, for the avoidance of doubt, shall
include retention, severance, systems establishment cost or excess pension
charges), plus


 


(6)                                  the
minority interest expense consisting of subsidiary income attributable to
minority equity interests of third parties in any non-Wholly Owned Subsidiary
in such period or any prior period, except to the extent of dividends declared
or paid on Equity Interests held by third parties, plus


 


(7)                                  the
amount of any expense to the extent a corresponding amount is received in cash
by the Issuer and its Restricted Subsidiaries from a Person other than the
Issuer or any Subsidiary of the Issuer under any agreement providing for
reimbursement of any such expense, provided such
reimbursement payment has not been included in determining Consolidated Net
Income or Adjusted EBITDA (it being understood that if the amounts received in
cash under any such agreement in any period exceed the amount of expense in
respect of such period, such excess amounts received may be carried forward and
applied against expense in future periods), plus


 


(8)                                  the
amount of management, consulting, monitoring and advisory fees and related
expenses paid to Blackstone or any other Permitted Holder (or any accruals
related to such fees and related expenses) during such period, provided that such amount shall not exceed in any four
quarter period the greater of (x) $2.5 million and (y) 2.0% of
Adjusted EBITDA of the Issuer and its Restricted Subsidiaries for each period
(assuming for purposes of this clause (y) that the amount to be added to
Consolidated Net Income under this clause (8) solely for the purpose of
determining the amount of Cumulative Credit is $2.5 million), plus


 


(9)                                  without
duplication, any other non-cash charges (including any impairment charges and
the impact of purchase accounting excluding any such charge that represents an
accrual or reserve for a cash expenditure for a future period), plus


 


(10)                            any
net losses resulting from Hedging Obligations entered into in the ordinary
course of business relating to intercompany loans, to the extent that the
notional amount of the related Hedging Obligation does not exceed the principal
amount of the related intercompany loan,


 


and
(B) less the sum of, without duplication, (1) non-cash items
increasing Consolidated Net Income for such period (excluding any items which
represent the reversal of any accrual of, or cash reserve for, anticipated cash
charges or asset valuation adjustments made in any prior period); (2) the
minority interest income consisting of subsidiary losses attributable to the
minority equity interests of third parties in any non-Wholly Owned Subsidiary,
and (3) any net gains resulting from Hedging Obligations entered into in
the ordinary course of business relating to intercompany loans, to the extent
that the notional amount of the related Hedging Obligation does not exceed the
principal amount of the related intercompany loan.


 


3





















 


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


 


“Applicable Premium” means, on the applicable redemption
date, the greater of:


 


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


 


(2)                                  the
excess of:


 


(a)                                  the present value at such redemption date of
(i) the redemption price of the Notes at November 1, 2006 (such
redemption price being set forth in the table appearing under Section 3.01)
plus (ii) all required interest payments due on the Notes through November 1,
2006 (excluding accrued but unpaid interest), computed using a discount rate
equal to the Treasury Rate as of such redemption date plus 50 basis points;
over


 


(b)                                 the then outstanding principal amount of the Notes.


 


“Asset Sale” means:


 


(1)                                  the
sale, conveyance, transfer or other disposition (whether in a single
transaction or a series of related transactions) of property or assets of the
Issuer or any Restricted Subsidiary (each referred to in this definition as a “disposition”);
or


 


(2)                                  the
issuance or sale of Equity Interests of any Restricted Subsidiary (whether in a
single transaction or a series of related transactions);


 


in each case
other than:


 


(a)                                      a
disposition of Cash Equivalents or obsolete or worn out property or equipment
in the ordinary course of business or inventory (including the sale or leasing
(including by way of sales-type lease) of transponder capacity and the leasing
or licensing of teleports) held for sale in the ordinary course of business;


 


(b)                                     the
disposition of all or substantially all of the assets of the Issuer in a manner
permitted pursuant to Article 5 hereof or any disposition that constitutes a
Change of Control;


 


(c)                                      the
making of any Restricted Payment or Permitted Investment that is permitted to
be made, and is made, pursuant to Section 4.04;


 


(d)                                     any
disposition of assets or issuance or sale of Equity Interests of any Restricted
Subsidiary in any transaction or series of transactions with an aggregate fair
market value of less than $5.0 million;


 


(e)                                      any
disposition of property or assets or issuance of securities by a Restricted
Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to another
Restricted Subsidiary;


 


4





















 


(f)                                        the
lease, assignment or sublease of any real or personal property in the ordinary
course of business;


 


(g)                                     any
sale of Equity Interests in, or Indebtedness or other securities of, an
Unrestricted Subsidiary (with the exception of Investments in Unrestricted
Subsidiaries acquired pursuant to clause (1) of the definition of “Permitted
Investments”);


 


(h)                                     sales
of assets received by the Issuer or any Restricted Subsidiary upon foreclosure
on a Lien;


 


(i)                                         sales
of Securitization Assets and related assets of the type specified in the
definition of “Securitization Financing” to a Securitization Subsidiary in
connection with any Qualified Securitization Financing;


 


(j)                                         a
transfer of Securitization Assets and related assets of the type specified in
the definition of “Securitization Financing” (or a fractional undivided interest
therein) by a Securitization Subsidiary in a Qualified Securitization
Financing;


 


(k)                                      any
exchange of assets for assets related to a Permitted Business of comparable
market value, as determined in good faith by the Issuer, which in the event of
an exchange of assets with a fair market value in excess of (1) $5.0 million
shall be evidenced by a certificate of a Responsible Officer of the Issuer, and
(2) $10.0 million shall be set forth in a resolution approved in good faith by
at least a majority of the Management Board of the Issuer;


 


(l)                                         any
Event of Loss; and


 


(m)                                   prior
to the entry into commercial service of NSS-8, an NSS-8 Asset Sale (as defined
in Section 4.17), but only to the extent that the proceeds of any such NSS-8
Asset Sale are applied in accordance with Section 4.17(2).


 


“beneficial owner” has the meaning assigned to such term in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular “person” (as that term is used in
Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have
beneficial ownership of all securities that such “person” has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only upon the occurrence of a
subsequent condition.  The terms “beneficially owns” and “beneficially owned”
have a corresponding meaning.


 


“Business Day” means a day other than a Saturday, Sunday or
other day on which banking institutions are authorized or required by law to
close in New York City.


 


“Capitalized Lease Obligation” means, at the time any
determination thereof is to be made, the amount of the liability in respect of
a capital lease that would at such time be required to be capitalized and reflected
as a liability on a balance sheet (excluding the footnotes thereto) in
accordance with GAAP.


 


“Capital Stock” means:


 


(1)                                  in
the case of a corporation, corporate stock;


 


(2)                                  in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;


 


5





















 


(3)                                  in
the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and


 


(4)                                  any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.


 


“Cash Contribution Amount” means the aggregate amount of cash
contributions made to the capital of the Issuer described in the definition of “Contribution
Indebtedness.”


 


“Cash Equivalents” means:


 


(1)                                  U.S.
Dollars, pounds sterling, Euros or, in the case of any foreign subsidiary, such
local currencies held by it from time to time in the ordinary course of
business;


 


(2)                                  direct
obligations of the United States of America or any member of the European Union
or any agency thereof or obligations guaranteed by the United States of America
or any member of the European Union or any agency thereof, in each case with
maturities not exceeding two years;


 


(3)                                  certificates
of deposit, time deposits and eurodollar time deposits with maturities of 12
months or less from the date of acquisition, bankers’ acceptances with maturities
not exceeding 12 months and overnight bank deposits, in each case, with any
lender party to the Credit Agreement or with any commercial bank having capital
and surplus in excess of $500.0 million;


 


(4)                                  repurchase
obligations for underlying securities of the types described in clauses (2) and
(3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;


 


(5)                                  commercial
paper maturing within 12 months after the date of acquisition and having a
rating of at least A-1 from Moody’s or P-1 from S&P;


 


(6)                                  securities
with maturities of two years or less from the date of acquisition issued or
fully guaranteed by any State, commonwealth or territory of the United States
of America, or by any political subdivision or taxing authority thereof, and
rated at least A by S&P or A-2 by Moody’s;


 


(7)                                  investment
funds at least 95% of the assets of which constitute Cash Equivalents of the
kinds described in clauses (1) through (6) of this definition; and


 


(8)                                  money
market funds that (i) comply with the criteria set forth in Rule 2a-7 under the
Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s
and (iii) have portfolio assets of at least $500.0 million.


 


“Change of Control” means the occurrence of any of the
following:


 


(1)                                  the
sale, lease, transfer or other conveyance, in one or a series of related
transactions, of all or substantially all of the assets of the Issuer and its
Subsidiaries, taken as a whole, to any Person other than a Permitted Holder;


 


(2)                                  the
Issuer becomes aware of (by way of a report or any other filing pursuant to
Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise)
the acquisition by


 


6





















 


any Person or group (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act, or any successor provision), including any group
acting for the purpose of acquiring, holding or disposing of securities (within
the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the
Permitted Holders, in a single transaction or in a related series of
transactions, by way of merger, consolidation or other business combination or
purchase of beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act, or any successor provision), of 50% or more of the total voting
power of the Voting Stock of the Issuer or Parent; or


 


(3)                                  (A)
prior to the first public offering of common stock of either Parent or the
Issuer, the first day on which the Management Board of Parent shall cease to
consist of a majority of directors who (i) were members of the Management Board
of Parent on the Issue Date or (ii) were either (x) nominated for election
by the Management Board of Parent, a majority of whom were directors on the
Issue Date or whose election or nomination for election was previously approved
by a majority of such directors, or (y) designated or appointed by a Permitted
Holder (each of the directors selected pursuant to clauses (A)(i) and (A)(ii), “Continuing Directors”) and (B) after the first public
offering of common stock of either Parent or the Issuer, (i) if such
public offering is of common stock of Parent the first day on which a majority
of the members of the Management Board of Parent are not Continuing Directors
or (ii) if such public offering is of the Issuer’s common stock, the first
day on which a majority of the members of the Management Board of the Issuer
are not Continuing Directors.


 


“Code” means the United States Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.  Section references to
the Code are to the Code as in effect on the Issue Date, and any subsequent
provisions of the Code, amendatory thereof, supplemental thereto or substituted
therefor.


 


“Commission” means the Securities and Exchange Commission.


 


“consolidated” means, with respect to any Person, such Person
consolidated with its Restricted Subsidiaries, and shall not include any
Unrestricted Subsidiary, but the interest of such Person in an Unrestricted
Subsidiary shall be accounted for as an Investment.


 


“Consolidated Depreciation and Amortization Expense” means
with respect to any Person for any period, the total amount of depreciation and
amortization expense, including the amortization of deferred financing fees and
other related non-cash charges, of such Person and its Restricted Subsidiaries
for such period on a consolidated basis and otherwise determined in accordance
with GAAP.


 


“Consolidated Interest Expense” means, with respect to any
Person for any period, (1) the sum, without duplication, of consolidated
interest expense of such Person and its Restricted Subsidiaries for such period
(including amortization of original issue discount, the interest component of
Capitalized Lease Obligations and net payments (if any) pursuant to interest
rate Hedging Obligations, but excluding non-cash interest on the Subordinated
Shareholder PIK Loan and amortization of deferred financing fees, expensing of
any bridge or other financing fees and expenses less (2) interest income of
such Person and its Restricted Subsidiaries for such period.


 


“Consolidated Net Income” means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, and otherwise in
accordance with GAAP; provided, however, that:


 


(1)                                  any
net after-tax extraordinary, unusual or nonrecurring gains or losses (less all
fees and expenses relating thereto) or income or expense or charge (including,
without limitation,


 


7





















 


severance, relocation and other restructuring costs) including, without
limitation, any severance expense, and fees, expenses or charges related to any
offering of Equity Interests of such Person, any Investment, acquisition or
Indebtedness permitted to be incurred hereunder (in each case, whether or not
successful), including all fees, expenses, charges and change in control
payments related to the Transactions, in each case shall be excluded;


 


(2)                                  the
Net Income for such period shall not include the cumulative effect of a change
in accounting principles during such period;


 


(3)                                  any
net after-tax income or loss from discontinued operations and any net after-tax
gain or loss on disposal of discontinued operations shall be excluded;


 


(4)                                  any
net after-tax gains or losses (less all fees and expenses or charges relating
thereto) attributable to business dispositions or asset dispositions other than
in the ordinary course of business (as determined in good faith by the Management
Board of the Issuer) shall be excluded;


 


(5)                                  any
net after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness shall be
excluded;


 


(6)                                  an
amount equal to the amount of Tax Distributions actually made to the holders of
capital stock of the Parent in respect of the net taxable income allocated by
such Person to such holders for such period to the extent funded by the Issuer
shall be included as though such amounts had been paid as income taxes directly
by such Person;


 


(7)                                  (a)
the Net Income for such period of any Person that is not a Subsidiary, or that
is an Unrestricted Subsidiary, or that is accounted for by the equity method of
accounting, shall be included only to the extent of the amount of dividends or
distributions or other payments in respect of equity that are actually paid in
cash (or to the extent converted into cash) by the referent Person to the
Issuer or a Restricted Subsidiary thereof in respect of such period and (b) the
Net Income for such period shall include any dividend, distribution or other
payments in respect of equity paid in cash by such Person to the Issuer or a
Restricted Subsidiary thereof in excess of the amounts included in clause (a);


 


(8)                                  any
increase in amortization or depreciation or any one-time non-cash charges
resulting from purchase accounting in connection with the Transactions or any
acquisition that is consummated prior to or after the Issue Date shall be
excluded;


 


(9)                                  accruals
and reserves that are established within twelve months after the Issue Date and
that are so required to be established as a result of the Transactions in
accordance with GAAP shall be excluded;


 


(10)                            any
non-cash impairment charges resulting from the application of Statements of
Financial Accounting Standards No. 142 and No. 144 and the amortization of
intangibles pursuant to Statement of Financial Accounting Standards No. 141
shall be excluded;


 


(11)                            any
non-cash compensation expense realized from grants of stock appreciation or
similar rights, stock options or other rights to officers, directors and
employees of such Person or any of its Restricted Subsidiaries shall be
excluded;


 


8





















 


(12)                            solely
for the purpose of determining the amount of Cumulative Credit, the Net Income
for such period of any Restricted Subsidiary (other than a Guarantor) shall be
excluded if the declaration or payment of dividends or similar distributions by
that Restricted Subsidiary of its Net Income is not at the date of
determination permitted without any prior governmental approval (which has not
been obtained) or, directly or indirectly, by the operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule,
or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, unless such restriction with respect to the payment of dividends
or in similar distributions has been legally waived; provided
that Consolidated Net Income of such Person shall be increased by the amount of
dividends or distributions or other payments that are actually paid in cash (or
to the extent converted into cash) by such Person to the Issuer or another
Restricted Subsidiary thereof in respect of such period, to the extent not
already included therein; and


 


(13)                            the
impact of non-cash interest on the Subordinated Shareholder PIK Loan shall be
excluded from the consolidated net income of such Person.


 


Notwithstanding the
foregoing, for the purpose of Section 4.04 only, there shall be excluded from Cumulative
Credit any income arising from any sale or other disposition of Restricted
Investments made by the Issuer and the Restricted Subsidiaries, any repurchases
and redemptions of Restricted Investments by the Issuer and the Restricted
Subsidiaries, any repayments of loans and advances which constitute Restricted
Investments by the Issuer and any Restricted Subsidiary, any sale of the stock of
an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted
Subsidiary, in each case only to the extent such amounts increase the amount of
Restricted Payments permitted under Section 4.04 pursuant to the definition of
Cumulative Credit.


 


“Consolidated Secured Debt Ratio” as of any date of
determination means, the ratio of (a) Consolidated Total Indebtedness of
the Issuer and its Restricted Subsidiaries that is secured by Liens as of the
end of the most recent fiscal period for which financial reports have been
filed with the Commission or provided to the Trustee, to (b) the aggregate
amount of Adjusted EBITDA for the then most recent four fiscal quarters for
which reports have been filed with the Commission or provided to the Trustee,
in each case with such pro forma adjustments to Consolidated Total Indebtedness
and Adjusted EBITDA as are appropriate and consistent with the pro forma
adjustment provisions set forth in the definition of Debt to Adjusted EBITDA
Ratio.


 


“Consolidated Total Indebtedness”
means, as at any date of determination, an amount equal to the sum of
(1) the aggregate amount of all outstanding Indebtedness of the Issuer and
the Restricted Subsidiaries and (2) the aggregate amount of all
outstanding Disqualified Stock of the Issuer and all Preferred Stock of the
Restricted Subsidiaries, with the amount of such Disqualified Stock and Preferred
Stock equal to the greater of their respective voluntary or involuntary
liquidation preferences and maximum fixed repurchase prices, in each case determined
on a consolidated basis in accordance with GAAP.


 


For purposes hereof, the “maximum
fixed repurchase price” of any Disqualified Stock or Preferred Stock that does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Disqualified Stock or Preferred Stock as if such Disqualified
Stock or Preferred Stock were purchased on any date on which Consolidated Total
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Stock or Preferred Stock, such fair market value shall be
determined reasonably and in good faith by the Management Board of the Issuer.


 


“Contingent Obligations” means, with respect to any Person,
any obligation of such Person guaranteeing any leases, dividends or other
obligations that do not constitute Indebtedness (“primary


 


9





















 


obligations”) of any other
Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation, any obligation
of such Person, whether or not contingent:


 


(1)                                  to
purchase any such primary obligation or any property constituting direct or
indirect security therefor,


 


(2)                                  to
advance or supply funds:


 


(a)                                  for the purchase or payment of any such primary
obligation; or


 


(b)                                 to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor; or


 


(3)                                  to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation against loss in respect thereof.


 


“Contribution Indebtedness” means Indebtedness of the Issuer
or any Guarantor in an aggregate principal amount not greater than twice the
aggregate amount of cash contributions (other than Excluded Contributions) made
to the capital of the Issuer after the Issue Date; provided that


 


(1)                                  if
the aggregate principal amount of such Contribution Indebtedness is greater
than the aggregate amount of such cash contributions to the capital of the
Issuer, the amount in excess shall be (a) Indebtedness (other than Secured
Indebtedness) ranking subordinate to the Senior Subordinated Notes or
(b) Indebtedness (other than Secured Indebtedness) that ranks pari passu with the Senior Subordinated Notes with a Stated
Maturity later than the Stated Maturity of the Senior Subordinated Notes, and


 


(2)                                  such
Contribution Indebtedness (a) is incurred within 180 days after the
making of such cash contribution and (b) is so designated as Contribution
Indebtedness pursuant to an Officers’ Certificate on the incurrence date
thereof.


 


“Credit Agreement” means that certain Credit Agreement to be
entered into as of the closing date of the Acquisition among Parent, the
Issuer, certain other subsidiaries of the Issuer from time to time party
thereto, the Lenders party thereto, Deutsche Bank AG, New York Branch, as
Administrative Agent, ABN AMRO Bank N.V., as Syndication Agent and the other
agents and lenders party thereto from time to time, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, restated, supplemented,
modified, renewed, refunded, replaced or refinanced from time to time in one or
more agreements or indentures (in each case with the same or new lenders or
institutional investors), including any agreement or indenture extending the
maturity thereof or otherwise restructuring all or any portion of the
Indebtedness thereunder or increasing the amount loaned or issued thereunder or
altering the maturity thereof.


 


“Cumulative Credit” means the sum
of (without duplication):


 


(a)                                  Adjusted
EBITDA of the Issuer for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing after the Issue Date, to the
end of the Issuer’s most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment (or,
in the case such Adjusted EBITDA for such period is a negative, minus the
amount by which cumulative Adjusted EBITDA is less than zero), plus


 


10





















 


(b)                                 100%
of the aggregate net cash proceeds and the fair market value, as determined in
good faith by the Management Board of the Issuer, of property and marketable
securities received by the Issuer since immediately after the date of this
Indenture from the issue or sale of (x) Equity Interests of the Issuer
(including Retired Capital Stock) (other than (i) Excluded Contributions,
(ii) Designated Preferred Stock and (iii) cash proceeds and
marketable securities received from the sale of Equity Interests to members of
management, directors or consultants of the Issuer, any direct or indirect
parent corporation of the Issuer and the Subsidiaries to the extent such
amounts have been applied to Restricted Payments made in accordance with
Section 4.04(b)(iv)) and, to the extent actually contributed to the Issuer,
Equity Interests of the Issuer’s direct or indirect parent entities and
(y) debt securities of the Issuer that have been converted into such
Equity Interests of the Issuer (other than, in the case of each of clauses
(x) and (y), Refunding Capital Stock or Equity Interests or convertible
debt securities of the Issuer sold to a Restricted Subsidiary or the Issuer, as
the case may be, and other than Disqualified Stock or debt securities that have
been converted into Disqualified Stock), plus


 


(c)                                  100%
of the aggregate amount of cash and the fair market value, as determined in
good faith by the Management Board of the Issuer, of property and marketable
securities contributed to the capital of the Issuer following the Issue Date
(other than (i) Excluded Contributions, (ii) the Cash Contribution
Amount and (iii) contributions by a Restricted Subsidiary), plus


 


(d)                                 100%
of the aggregate amount received in cash and the fair market value, as
determined in good faith by the Management Board of the Issuer, of property and
marketable securities received by means of (A) the sale or other
disposition (other than to the Issuer or a Restricted Subsidiary) of Restricted
Investments made by the Issuer or its Restricted Subsidiaries and repurchases
and redemptions of such Restricted Investments from the Issuer or its
Restricted Subsidiaries and repayments of loans or advances which constitute
Restricted Investments by the Issuer or its Restricted Subsidiaries or
(B) the sale (other than to the Issuer or a Restricted Subsidiary) of the
Capital Stock of an Unrestricted Subsidiary or a distribution from an
Unrestricted Subsidiary (other than in each case to the extent the Investment
in such Unrestricted Subsidiary was made by a Restricted Subsidiary pursuant to
Section 4.04(b)(xii) or to the extent such Investment constituted a Permitted
Investment) or a dividend from an Unrestricted Subsidiary, plus


 


(e)                                  in
the case of the redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into
the Issuer or a Restricted Subsidiary or the transfer of assets of an
Unrestricted Subsidiary to the Issuer or a Restricted Subsidiary, the fair market
value of the Investment in such Unrestricted Subsidiary, as determined by the
Management Board of the Issuer in good faith at the time of the redesignation
of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of
such merger, consolidation or transfer of assets (other than an Unrestricted
Subsidiary to the extent the Investment in such Unrestricted Subsidiary was
made by a Restricted Subsidiary pursuant to Section 4.04(b)(xii) or to the
extent such Investment constituted a Permitted Investment).


 


“Cumulative Interest Expense”
means, in respect of any Restricted Payment, the sum of the aggregate amount of
Consolidated Interest Expense of the Issuer and the Restricted Subsidiaries for
the period from the beginning of the first fiscal quarter commencing after the
Issue Date, to the end of the Issuer’s most recently ended fiscal quarter for
which internal financial statements are available and immediately preceding the
proposed Restricted Payment.


 


“Deadline” means January 31, 2005, or such earlier date as
the Issuer determines that it will not pursue the consummation of the
Acquisition.


 


11





















 


“Debt to Adjusted EBITDA Ratio”
means, with respect to any Person for any period consisting of such Person and
its Restricted Subsidiaries’ most recently ended four fiscal quarters for which
internal financial statements are available, the ratio of (1) Consolidated
Total Indebtedness as of the date of calculation (the “Calculation Date”) to (2) Adjusted EBITDA of such
Person for such period.  In the event
that the Issuer or any Restricted Subsidiary incurs, assumes, guarantees or
redeems any Indebtedness or issues or repays Disqualified Stock or Preferred
Stock subsequent to the commencement of the period for which the Debt to
Adjusted EBITDA Ratio is being calculated but prior to the Calculation Date,
then the Debt to Adjusted EBITDA Ratio shall be calculated giving pro forma
effect to such incurrence, assumption, guarantee or repayment of Indebtedness,
or such issuance or redemption of Disqualified Stock or Preferred Stock, as if
the same had occurred at the beginning of the applicable four-quarter
period.  For purposes of making the
computation referred to above, Investments, acquisitions, dispositions, mergers,
consolidations and disposed operations (as determined in accordance with GAAP)
that have been made by the Issuer or any Restricted Subsidiary during the
four-quarter reference period or subsequent to such reference period and on or
prior to or simultaneously with the Calculation Date shall be calculated on a
pro forma basis assuming that all such Investments, acquisitions, dispositions,
mergers, consolidations and disposed operations (and the change in any
associated fixed charge obligations and the change in Adjusted EBITDA resulting
therefrom) had occurred on the first day of the four-quarter reference
period.  If since the beginning of such
period any Person (that subsequently became a Restricted Subsidiary or was
merged with or into the Issuer or any Restricted Subsidiary since the beginning
of such period) shall have made any Investment, acquisition (including the
Transactions), disposition, merger, consolidation or disposed operation that
would have required adjustment pursuant to this definition, then the Debt to
Adjusted EBITDA Ratio shall be calculated giving pro forma effect thereto for
such period as if such Investment, acquisition (including the Transactions),
disposition, merger, consolidation or disposed operation had occurred at the
beginning of the applicable four-quarter period.  For purposes of this definition, whenever pro
forma effect is to be given to an acquisition (including the Transactions) or
other Investment and the amount of income or earnings relating thereto, the pro
forma calculations shall be determined in good faith by a responsible financial
or accounting Officer of the Issuer and such pro forma calculations may include
operating expense reductions for such period resulting from the acquisition (including
the Transactions) which is being given pro forma effect that have been realized
or for which the steps necessary for realization have been taken or are
reasonably expected to be taken within six months following any such
acquisition, including, but not limited to, the execution or termination of any
contracts, the termination of any personnel or the closing (or approval by the
Management Board of the Issuer of any closing) of any facility, as applicable; provided that, in either case, such
adjustments are set forth in an Officers’ Certificate signed by the Issuer’s
chief financial officer and another Officer which states (i) the amount of
such adjustment or adjustments, (ii) that such adjustment or adjustments
are based on the reasonable good faith beliefs of the Officers executing such
Officers’ Certificate at the time of such execution and (iii) that any
related incurrence of Indebtedness is permitted pursuant to this Indenture.  If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest on such Indebtedness
shall be calculated as if the rate in effect on the Calculation Date had been
the applicable rate for the entire period (taking into account any Hedging
Obligations applicable to such Indebtedness). 
Interest on a Capitalized Lease Obligation shall be deemed to accrue at
an interest rate reasonably determined by a responsible financial or accounting
officer of the Issuer to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP. 
For purposes of making the computation referred to above, interest on
any Indebtedness under a revolving credit facility computed on a pro forma
basis shall be computed based upon the average daily balance of such Indebtedness
during the applicable period.  Interest
on Indebtedness that may optionally be determined at an interest rate based
upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rate, shall be deemed to have been based upon the rate actually
chosen, or, if none, then based upon such optional rate chosen as the Issuer
may designate.


 


12





















 


“Default” means any event which is, or with the passage of
time or the giving of notice or both would be, an Event of Default.


 


“Designated Non-cash Consideration” means the fair market
value of non-cash consideration received by the Issuer or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officers’ Certificate setting
forth the basis of such valuation, less the amount of cash or Cash Equivalents
received in connection with a subsequent sale of such Designated Non-cash
Consideration.


 


“Designated Preferred Stock” means Preferred Stock of the
Issuer or any direct or indirect parent company of the Issuer (other than
Disqualified Stock), that is issued for cash (other than to the Issuer or any
of its Subsidiaries or an employee stock ownership plan or trust established by
the Issuer or any of its Subsidiaries) and is so designated as Designated
Preferred Stock, pursuant to an Officers’ Certificate, on the issuance date
thereof, the cash proceeds of which are excluded from the calculation set forth
in the definition of “Cumulative Credit”.


 


“Disqualified Stock” means, with respect to any Person, any
Capital Stock of such Person which, by its terms (or by the terms of any
security into which it is convertible or for which it is putable or
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable (other than as a result of a change of control or asset sale),
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof (other than as a result of a change of control or
asset sale), in whole or in part, in each case prior to the date 91 days after
the earlier of the Final Maturity Date of the Notes or the date the Notes are
no longer outstanding; provided, however, that if such Capital Stock is issued to any plan
for the benefit of employees of the Parent or its Subsidiaries or by any such
plan to such employees, such Capital Stock shall not constitute Disqualified
Stock solely because it may be required to be repurchased by the Parent or its
Subsidiaries in order to satisfy applicable statutory or regulatory
obligations.


 


“Equity Interests” means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt security
that is convertible into, or exchangeable for, Capital Stock).


 


“Equity Offering” means any public or private sale of common
stock or Preferred Stock of the Issuer or any successor thereto or any of its
direct or indirect parent corporations or any successor thereto (excluding
Disqualified Stock), other than (i) public offerings with respect to common
stock of the Issuer or of any direct or indirect parent corporation of the
Issuer registered on Form S-8 and (ii) any such public or private sale that
constitutes an Excluded Contribution.


 


“Escrow Agent” has the meaning set forth in the Escrow and
Pledge Agreement.


 


“Escrow and Pledge Agreement” means the escrow and pledge
agreement dated the Issue Date among the Escrow Agent, the Trustee and the
Company relating to the Notes.


 


“Escrowed Property” means the funds to be held in escrow
pursuant to the Escrow and Pledge Agreement.


 


“Event of Loss” means any event
that results in the Issuer or its Restricted Subsidiaries receiving proceeds
from any insurance covering any Satellite owned by the Issuer or any of its
Restricted Subsidiaries, or in the event that the Issuer or any of its Restricted
Subsidiaries receives proceeds from any insurance maintained for it by any
Satellite Manufacturer or any launch provider covering any of such Satellites.


 


13





















 


“Event of Loss Proceeds” means,
with respect to any Event of Loss, all Satellite insurance proceeds received by
the Issuer or any of the Restricted Subsidiaries in connection with such Event
of Loss, after


 


(1)                                  provision
for all income or other taxes measured by or resulting from such Event of Loss,


 


(2)                                  payment
of all reasonable legal, accounting and other reasonable fees and expenses
related to such Event of Loss,


 


(3)                                  payment
of amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the Satellite that is the subject of such Event of Loss,


 


(4)                                  provision
for payments to Persons who own an interest in the Satellite (including any
transponder thereon) in accordance with terms of the agreement(s) governing the
ownership of such interest by such Person (other than payments to insurance
carriers required to be made based on the future revenues generated from such
Satellite), and


 


(5)                                  deduction
of appropriate amounts to be provided by the Issuer or such Restricted
Subsidiary as a reserve, in accordance with GAAP, against any liabilities
associated with the Satellite that was the subject of the Event of Loss.


 


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


 


“Exchange Offer Registration Statement” means the
registration statement filed with the Commission in connection with the Registered
Exchange Offer.


 


“Excluded Contribution” means net cash proceeds, marketable
securities or Qualified Proceeds, in each case received by the Issuer and its
Restricted Subsidiaries from:


 


(1)                                  contributions
to its common equity capital, and


 


(2)                                  the
sale (other than to a Subsidiary or to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement of
the Issuer or any Subsidiary) of Capital Stock (other than Disqualified Stock),


 


in each case
designated as Excluded Contributions pursuant to an Officers’ Certificate on
the date such capital contributions are made or the date such Equity Interests
are sold, as the case may be, which are excluded from the calculation set forth
in the definition of “Cumulative Credit”.


 


“Excluded Satellite” means any
Satellite (i) that is not expected or intended, in the good faith determination
of the Management Board of the Issuer and evidenced by a resolution of the
Management Board delivered to the Trustee, to earn revenues from the operation
of such Satellite in excess of $20.0 million for the immediately
succeeding 12-month period or (ii) that has a net book value not in excess
of $50.0 million or (iii) that due to failures or anomalies affecting
the Satellite or affecting other Satellites of the same model or series or that
employ the same or similar systems or components (1) the procurement of
In-Orbit Insurance therefor in the amount and on the terms required by this
Indenture would not be available for a price that is, and on other terms and
conditions that are, commercially reasonable or (2) such In-Orbit
Insurance would be subject to exclusions or limitations of coverage that would
make the terms of the insurance commercially unreasonable, in either case, as
determined in good faith by the Management Board of the Issuer


 


14





















 


and evidenced by a
resolution of the Management Board delivered to the Trustee or (iv) for
which In-Orbit Spare Capacity is available or (v) whose primary purpose is
to provide In-Orbit Spare Capacity for the Issuer’s other Satellites and
otherwise that is not expected or intended, in the good faith determination of
the Management Board of the Issuer and evidenced by a resolution of the
Management Board delivered to the Trustee, to earn revenues from the operation
of such Satellite in excess of $20.0 million for the immediately
succeeding 12-month period.


 


“Flow Through Entity” means an entity that is treated as a
partnership not taxable as a corporation, a grantor trust or a disregarded
entity for United States federal income tax purposes or subject to treatment on
a comparable basis for purposes of state, local or foreign tax law.


 


“FSS Operators” means each of
(i) PanAmSat Corporation, (ii) Intelsat, Ltd., (iii) SES
Global, (iv) Eutelsat S.A. and (v) any successor entities of each of
the foregoing; provided, however, that at the time of such
acquisition of all of the capital stock or all or substantially all of the
assets of the Issuer, such FSS Operator generates annual revenues at least
equal to two times the revenues of the Issuer and its Restricted Subsidiaries
for the most recently ended four fiscal quarters for which internal financial
statements are available.


 


“GAAP” means generally accepted accounting principles in the
United States in effect on the Issue Date. 
For purposes of this Indenture, the term “consolidated”
with respect to any Person means such Person consolidated with its Restricted
Subsidiaries and does not include any Unrestricted Subsidiary.


 


“Government Securities” means securities that are:


 


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


 


(2)                                  obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America,


 


which, in
either case, are not callable or redeemable at the option of the issuers
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act), as custodian with respect to
any such Government Securities or a specific payment of principal of or
interest on any such Government Securities held by such custodian for the
account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Securities or
the specific payment of principal of or interest on the Government Securities
evidenced by such depository receipt.


 


“guarantee” means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation, through
letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness or other obligations.


 


“Guarantee” means any guarantee of the obligations of the
Issuer under this Indenture and the Notes by a Guarantor in accordance with the
provisions of this Indenture.  When used
as a verb, “Guarantee” shall have a
corresponding meaning.


 


15





















 


“Guarantor” means any Person that incurs a Guarantee of the
Notes; provided that upon the release and
discharge of such Person from its Guarantee in accordance with this Indenture,
such Person shall cease to be a Guarantor.


 


“Hedging Obligations” means, with respect to any Person, the
obligations of such Person under:


 


(1)                                  currency
exchange, interest rate or commodity swap agreements, currency exchange,
interest rate or commodity cap agreements and currency exchange, interest rate
or commodity collar agreements; and


 


(2)                                  other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange, interest rates or commodity prices.


 


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


 


“Indebtedness” means, with respect to any Person,


 


(a)                                  any
indebtedness (including principal and premium) of such Person, whether or not
contingent,


 


(i)                                     in respect of borrowed money,


 


(ii)                                  evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or, without double counting, reimbursement
agreements in respect thereof),


 


(iii)                               representing the balance deferred and unpaid of the
purchase price of any property (including Capitalized Lease Obligations),
except (A) any such balance that constitutes a trade payable or similar
obligation to a trade creditor, in each case accrued in the ordinary course of
business and (B) reimbursement obligations in respect of trade letters of
credit obtained in the ordinary course of business with expiration dates not in
excess of 365 days from the date of issuance (x) to the extent
undrawn or (y) if drawn, to the extent repaid in full within 20 business
days of any such drawing, or


 


(iv)                              representing any Hedging Obligations, if and to the
extent that any of the foregoing Indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with
GAAP,


 


(b)                                 Disqualified
Stock of such Person,


 


(c)                                  to
the extent not otherwise included, any obligation by such Person to be liable
for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of
another Person (other than by endorsement of negotiable instruments for
collection in the ordinary course of business),


 


(d)                                 to
the extent not otherwise included, Indebtedness of another Person secured by a
Lien on any asset owned by such Person (whether or not such Indebtedness is
assumed by such Person), and


 


(e)                                  to
the extent not otherwise included, the amount then outstanding (i.e., advanced,
and received by, and available for use by, the Issuer or any of its Restricted


 


16





















 


Subsidiaries) under any Securitization Financing (as set forth in the
books and records of the Issuer or any Restricted Subsidiary and confirmed by
the agent, trustee or other representative of the institution or group
providing such Securitization Financing),


 


provided, however,
that Indebtedness shall be deemed not to include (1) Contingent
Obligations incurred in the ordinary course of business and not in respect of
borrowed money; (2) obligations to make payments to one or more insurers
under satellite insurance policies in respect of premiums or the requirement to
remit to such insurer(s) a portion of the future revenues generated by a
satellite which has been declared a constructive total loss, in each case in
accordance with the terms of the insurance policies relating thereto;
(3) any obligations to make progress or incentive payments under any satellite
manufacturing contract or to make payments under satellite launch contracts in
respect of launch services provided thereunder, in each case, to the extent not
overdue by more than 90 days; or (4) for purposes of calculating the Debt
to Adjusted EBITDA Ratio only, the Subordinated Shareholder PIK Loan.


 


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


 


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


 


“In-Orbit Insurance” means, with
respect to any Satellite, insurance or other contractual arrangement providing
for coverage against the risk of loss of or damage to such Satellite attaching
upon the expiration of the launch insurance therefor and renewing, during the
commercial in-orbit service of such Satellite, prior to the expiration of the immediately
preceding corresponding In-Orbit Insurance policy, subject to the terms and
conditions set forth in this Indenture.


 


“In-Orbit Spare Capacity” means
transponder capacity that in the good faith judgment of the Management Board
and evidenced by a resolution of the Management Board as set forth in an
Officers’ Certificate:


 


(1)                                  is
available at all times in the event of a Satellite loss or failure to restore
service for at least 25% of the revenue-generating capacity on the Satellite;


 


(2)                                  meets
or exceeds the contractual performance specifications for the transponders
being protected; and


 


(3)                                  may
be provided directly by the Issuer or by another FSS Operator or another
Satellite operator pursuant to a contractual arrangement;


 


provided that if such “In-Orbit Spare Capacity”
is available with respect to less than 100% of the revenue-generating
transponder capacity on a Satellite, the Satellite shall be deemed to be
insured for a percentage of the Satellite’s net book value for which In-Orbit
Spare Capacity is available.


 


“Intercreditor
Agreement” means that certain intercreditor agreement dated as of
the Issue Date, or the date of the closing of the Acquisition, as applicable,
by and among Deutsche Bank AG, New York Branch, as administrative agent under
the Credit Agreement, the Issuer and the Trustee.


 


“Investment
Grade Securities” means:


 


(1)                                  securities
issued by the U.S. government or by any agency or instrumentality thereof and
directly and fully guaranteed or insured by the U.S. Government (other than
Cash


 


17





















 


Equivalents) and in each case with maturities not exceeding two years
from the date of acquisition,


 


(2)                                  investments
in any fund that invests exclusively in investments of the type described in clause
(1) which fund may also hold immaterial amounts of cash pending investment
and/or distribution, and


 


(3)                                  corresponding
instruments in countries other than the United States customarily utilized for
high quality investments and in each case with maturities not exceeding two
years from the date of acquisition.


 


“Investments”
means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
guarantees or other obligations), advances or capital contributions (excluding
accounts receivable, endorsements for collection or deposit, deposits, prepaid
expenses, trade credit, advances to customers or suppliers, commission, travel
and similar advances to officers and employees, in each case made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities issued by any other
Person and investments that are required by GAAP to be classified on the
balance sheet (excluding the footnotes) of such Person in the same manner as
the other investments included in this definition to the extent such
transactions involve the transfer of cash or other property.  If the Issuer or any Subsidiary of the Issuer
sells or otherwise disposes of any Equity Interests of any direct or indirect
Subsidiary of the Issuer such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Issuer, the Issuer
will be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Subsidiary not sold or disposed of in an amount determined as provided in
Section 4.04(d).  For purposes of the
definition of “Unrestricted Subsidiary” and Section 4.04:


 


(1)                                  “Investments”
shall include the portion (proportionate to the Issuer’s equity interest in
such Subsidiary) of the fair market value of the net assets of a Subsidiary of
the Issuer at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the
Issuer shall be deemed to continue to have a permanent “Investment” in an
Unrestricted Subsidiary in an amount (if positive) equal to:


 


(a)                                  the Issuer’s “Investment” in such Subsidiary at the
time of such redesignation, less


 


(b)                                 the portion (proportionate to the Issuer’s equity
interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation;


 


(2)                                  any
property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case as determined
in good faith by the Issuer; and


 


(3)                                  any
transfer of Capital Stock that results in an entity which became a Restricted
Subsidiary after the Issue Date and not in connection with the Transactions
ceasing to be a Restricted Subsidiary shall be deemed to be an Investment in an
amount equal to the fair market value (as determined by the Management Board of
the Issuer in good faith as of the date of initial acquisition) of the Capital
Stock of such entity owned by the Issuer and the Restricted Subsidiaries
immediately after such transfer.


 


18


















 


“Issue Date” means November 2, 2004.


 


“Issuer” means New Skies Satellites B.V.


 


“Lien” means, with respect to any asset, (a) any mortgage,
deed of trust, lien, hypothecation, pledge, encumbrance, charge or security
interest in or on such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities (other than
securities representing an interest in a joint venture that is not a
Subsidiary), any purchase option, call or similar right of a third party with
respect to such securities.


 


“Management Board” means:


 


(1)                                  with
respect to a corporation, the board of directors of the corporation;


 


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


 


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


 


“Moody’s” means Moody’s Investors Service, Inc. and any
successor to its rating agency business.


 


“Net Income” means, with respect to any Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of Preferred Stock dividends or accretion of any Preferred
Stock.


 


“Net Proceeds” means the aggregate cash proceeds received by
the Issuer or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received in respect of or upon the
sale or other disposition of any Designated Non-cash Consideration received in
any Asset Sale and any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only
as and when received, but excluding the assumption by the acquiring Person of
Indebtedness relating to the disposed assets or other consideration received in
any other non-cash form), net of the direct costs relating to such Asset Sale
and the sale or disposition of such Designated Non-cash Consideration
(including, without limitation, legal, accounting and investment banking fees,
and brokerage and sales commissions), and any relocation expenses incurred as a
result thereof, taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements related thereto), amounts required to be applied to the repayment
of principal, premium (if any) and interest on Indebtedness required (other
than pursuant to Section 4.06(b)) to be paid as a result of such transaction,
and any deduction of appropriate amounts to be provided by the Issuer as a
reserve in accordance with GAAP against any liabilities associated with the
asset disposed of in such transaction and retained by the Issuer after such
sale or other disposition thereof, including, without limitation, pension and
other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated
with such transaction.


 


“Net Transponder Capacity” means
the aggregate transponder transmission capacity for all in-orbit transponders
then owned by the Issuer and the Restricted Subsidiaries, less the amount of
capacity relating to transponders that are not at such time available for use,
whether due to legal, regulatory, technical or contractual restrictions or
otherwise.


 


19





















 


“Obligations” means any principal, interest, penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit), damages and other liabilities,
and guarantees of payment of such principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities, payable under
the documentation governing any Indebtedness.


 


“Offering Memorandum” means the offering memorandum relating
to the offering of the Notes dated October 22, 2004.


 


“Officer” means one of the managing directors of the Issuer.


 


“Officers’ Certificate” means a certificate signed on behalf
of the Issuer by two Officers of the Issuer, one of whom is the principal financial
officer, the treasurer or the principal accounting officer of the Issuer that meets
the requirements set forth in this Indenture.


 


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


 


“Parent” means, with respect to any Person, any direct or
indirect parent company of such Person.


 


“Pari
Passu Indebtedness” means:


 


(1)                                  with respect to the
Issuer, the Notes and any Indebtedness which ranks pari passu
in right of payment to the Notes; and


 


(2)                                  with respect to any
Guarantor, its Guarantee and any Indebtedness which ranks pari passu
in right of payment to such Guarantor’s Guarantee.


 


“Permitted Business” means any business conducted or proposed
to be conducted by the Issuer on the Issue Date or any business activity that
is a reasonable extension, development or expansion thereof or ancillary
thereto.


 


“Permitted Debt” has the meaning assigned to it in Section
4.03(c).


 


“Permitted Holders” means, at any time, each of (i) the
Sponsors and their Affiliates (not including, however, any portfolio companies
of any of the Sponsors) and (ii) any FSS Operator; provided that a Rating Decline shall not
have occurred in connection with the transaction (including any incurrence of indebtedness
used to finance the acquisition thereof) involving such FSS Operator that
causes a Change of Control to occur.  Any
person or group whose acquisition of beneficial ownership constitutes a Change
of Control in respect of which a Change of Control Offer is made in accordance
with the requirements of this Indenture will thereafter, together with its
Affiliates, constitute an additional Permitted Holder.


 


“Permitted
Investments” means:


 


(1)                                  any
Investment by the Issuer in any Restricted Subsidiary or by a Restricted
Subsidiary in another Restricted Subsidiary;


 


(2)                                  any
Investment in cash and Cash Equivalents or Investment Grade Securities;


 


(3)                                  any
Investment by the Issuer or any Restricted Subsidiary of the Issuer in a Person
that is engaged in a Permitted Business if as a result of such Investment (A) such
Person becomes a


 


20





















 


Restricted Subsidiary or (B) such
Person, in one transaction or a series of related transactions, is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Issuer or a Restricted
Subsidiary;


 


(4)                                  any
Investment in securities or other assets not constituting cash or Cash
Equivalents and received in connection with an Asset Sale made pursuant to the
provisions described under Section 4.06 or any other disposition of assets not
constituting an Asset Sale;


 


(5)                                  any
Investment existing on the Issue Date and Investments made pursuant to binding
commitments in effect on the Issue Date;


 


(6)                                  (A)
loans and advances to officers, directors and employees, not in excess of
$5.0 million in the aggregate outstanding at any one time and
(B) loans and advances of payroll payments and expenses to officers,
directors and employees in each case incurred in the ordinary course of
business;


 


(7)                                  any
Investment acquired by the Issuer or any Restricted Subsidiary (A) in
exchange for any other Investment or accounts receivable held by the Issuer or
any such Restricted Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (B) in satisfaction of a judgment or
as a result of a foreclosure by the Issuer or any Restricted Subsidiary with
respect to any secured Investment or other transfer of title with respect to
any secured Investment in default;


 


(8)                                  Hedging
Obligations permitted under clause (ix) of the definition of “Permitted
Debt”;


 


(9)                                  Investments
resulting from the receipt of non-cash consideration in an Asset Sale received
in compliance with Section 4.06;


 


(10)                            Investments
the payment for which consists of Equity Interests of the Issuer or any of its
parent companies (exclusive of Disqualified Stock);


 


(11)                            guarantees
(including Guarantees) of Indebtedness permitted under Section 4.03 and
performance guarantees consistent with past practice;


 


(12)                            any
transaction to the extent it constitutes an Investment that is permitted and
made in accordance with the provisions of Section 4.07 (except transactions
described in clauses (ii), (vi), (vii) and (xi) of Section 4.07(b));


 


(13)                            Investments
of a Restricted Subsidiary acquired after the Issue Date or of an entity merged
into the Issuer or merged into or consolidated with a Restricted Subsidiary in
accordance with Article 5 after the Issue Date to the extent that such
Investments were not made in contemplation of or in connection with such
acquisition, merger or consolidation and were in existence on the date of such
acquisition, merger or consolidation;


 


(14)                            guarantees
by the Issuer or any Restricted Subsidiary of operating leases (other than
Capitalized Lease Obligations) or of other obligations that do not constitute
Indebtedness, in each case entered into by any Restricted Subsidiary in the
ordinary course of business;


 


(15)                            Investments
consisting of licensing or contribution of intellectual property pursuant to
joint marketing arrangements with other Persons;


 


21





















 


(16)                            Investments
consisting of purchases and acquisitions of inventory, supplies, materials and
equipment or purchases of contract rights or licenses or leases of intellectual
property, in each case in the ordinary course of business;


 


(17)                            any
Investment in a Securitization Subsidiary or any Investment by a Securitization
Subsidiary in any other Person in connection with a Qualified Securitization
Financing, including Investments of funds held in accounts permitted or
required by the arrangements governing such Qualified Securitization Financing
or any related Indebtedness; provided,
however, that any Investment in a
Securitization Subsidiary is in the form of a Purchase Money Note, contribution
of additional Securitization Assets or an equity interest;


 


(18)                            additional
Investments by the Issuer or any of its Restricted Subsidiaries having an
aggregate fair market value, taken together with all other Investments made
pursuant to this clause (18), not to exceed the greater of
(x) $20.0 million and (y) 2.0% of Total Assets at the time of
such Investment (with the fair market value of each Investment being measured
at the time made and without giving effect to subsequent changes in value);


 


(19)                            Investments
in Subsidiaries or joint ventures formed for the purpose of selling or leasing
transponder capacity to third party customers in the ordinary course of
business of the Issuer and its Restricted Subsidiaries which Investments are in
the form of transfers to such Subsidiaries or joint ventures for fair market
value of transponders or transponder capacity sold or to be sold or leased or
to be leased by such Subsidiaries or joint ventures; provided that all such Investments in Subsidiaries and joint
ventures do not exceed 10% of Net Transponder Capacity; and


 


(20)                            Investments
made after the Issue Date in any joint venture; provided that all such Investments made pursuant to this
clause (20) in all such joint ventures do not exceed $10.0 million.


 


“Permitted Liens” means the following types of Liens:


 


(1)                                  deposits of cash or
government bonds made in the ordinary course of business to secure surety or
appeal bonds to which such Person is a party;


 


(2)                                  Liens in favor of
issuers of performance, surety bid, indemnity, warranty, release, appeal or
similar bonds or with respect to other regulatory requirements or letters of
credit or bankers’ acceptances issued, and completion guarantees provided for,
in each case pursuant to the request of and for the account of such Person in
the ordinary course of its business or consistent with past practice;


 


(3)                                  Liens on property or
shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, that
such Liens are not created or incurred in connection with, or in contemplation
of, such other Person becoming such a Subsidiary; provided,
further, however,
that such Liens may not extend to any other property owned by the Issuer or any
Restricted Subsidiary;


 


(4)                                  Liens on property at
the time the Issuer or a Restricted Subsidiary acquired the property, including
any acquisition by means of a merger or consolidation with or into the Issuer
or any Restricted Subsidiary; provided, however,
that such Liens are not created or incurred in connection with, or in
contemplation of, such acquisition; provided, further,
however, that such Liens may not extend
to any other property owned by the Issuer or any Restricted Subsidiary;


 


22





















 


(5)                                  Liens securing
Indebtedness or other obligations of a Restricted Subsidiary owing to the
Issuer or another Restricted Subsidiary permitted to be incurred pursuant to Section
4.03 hereof;


 


(6)                                  Liens securing
Hedging Obligations so long as the related Indebtedness is permitted to be
incurred under this Indenture and is secured by a Lien on the same property
securing such Hedging Obligation;


 


(7)                                  Liens on specific
items of inventory or other goods and proceeds of any Person securing such
Person’s obligations in respect of bankers’ acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of
such inventory or other goods;


 


(8)                                  Liens in favor of the
Issuer or any Restricted Subsidiary;


 


(9)                                  Liens to secure any
refinancing, refunding, extension, renewal or replacement (or successive
refinancings, refundings, extensions, renewals or replacements) as a whole, or
in part, of any Indebtedness secured by any Liens referred to in clauses (3),
(4), (24) and (25) of this definition; provided, however, that (A) such new Lien shall be limited to all or
part of the same property that secured the original Liens (plus improvements on
such property), and (B) the Indebtedness secured by such Lien at such time is
not increased to any amount greater than the sum of (1) the outstanding
principal amount or, if greater, committed amount of the Indebtedness described
under clauses (3), (4), (24) and (25) at the time the original Lien became a
Permitted Lien under this Indenture and (2) an amount necessary to pay any fees
and expenses, including premiums, related to such refinancing, refunding,
extension, renewal or replacement;


 


(10)                            Liens on Securitization
Assets and related assets of the type specified in the definition of “Securitization
Financing” incurred in connection with any Qualified Securitization Financing;


 


(11)                            Liens for taxes,
assessments or other governmental charges or levies not yet delinquent, or
which are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted or for property taxes on property that the
Issuer or one of its Subsidiaries has determined to abandon if the sole
recourse for such tax, assessment, charge, levy or claim is to such property;


 


(12)                            judgment Liens not giving
rise to an Event of Default so long as any appropriate legal proceedings that
may have been duly initiated for the review of such judgment shall not have
been finally terminated or the period within which such legal proceedings may
be initiated shall not have expired;


 


(13)                            (A) pledges and deposits
made in the ordinary course of business in compliance with the Federal
Employers Liability Act or any other workers’ compensation, unemployment
insurance and other social security laws or regulations and deposits securing
liability to insurance carriers under insurance or self-insurance arrangements
in respect of such obligations and (B) pledges and deposits securing liability
for reimbursement or indemnification obligations of (including obligations in
respect of letters of credit or bank guarantees for the benefit of) insurance
carriers providing property, casualty or liability insurance to the Parent, the
Issuer or any Restricted Subsidiary;


 


23





















 


(14)                            landlord’s, carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other
like Liens arising in the ordinary course of business and securing obligations
that are not overdue by more than 30 days or that are being contested in good
faith by appropriate proceedings and in respect of which, if applicable, the
Issuer or any Restricted Subsidiary shall have set aside on its books reserves
in accordance with GAAP;


 


(15)                            zoning restrictions,
easements, trackage rights, leases (other than Capitalized Lease Obligations),
licenses, special assessments, rights-of-way, restrictions on use of real
property and other similar encumbrances incurred in the ordinary course of
business that, in the aggregate, do not interfere in any material respect with
the ordinary conduct of the business of the Issuer or any Restricted Subsidiary;


 


(16)                            Liens that are contractual
rights of set-off (A) relating to the establishment of depository relations
with banks not given in connection with the issuance of Indebtedness, (B)
relating to pooled deposit or sweep accounts of the Issuer or any Restricted
Subsidiary to permit satisfaction of overdraft or similar obligations incurred
in the ordinary course of business of the Issuer and the Restricted
Subsidiaries or (C) relating to purchase orders and other agreements entered
into with customers of the Issuer or any Restricted Subsidiary in the ordinary
course of business;


 


(17)                            Liens arising solely by
virtue of any statutory or common law provision relating to banker’s liens,
rights of set-off or similar rights;


 


(18)                            Liens securing obligations
in respect of trade-related letters of credit permitted pursuant to Section 4.03
hereof and covering the goods (or the documents of title in respect of such
goods) financed by such letters of credit and the proceeds and products
thereof;


 


(19)                            any interest or title of a
lessor under any lease or sublease entered into by the Issuer or any Restricted
Subsidiary in the ordinary course of business;


 


(20)                            licenses of intellectual
property granted in a manner consistent with past practice;


 


(21)                            Liens in favor of customs
and revenue authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods;


 


(22)                            Liens solely on any cash
earnest money deposits made by the Issuer or any of the Restricted Subsidiaries
in connection with any letter of intent or purchase agreement permitted
hereunder;


 


(23)                            other Liens securing
Indebtedness for borrowed money with respect to property or assets of the
Issuer or a Restricted Subsidiary with an aggregate fair market value (valued
at the time of creation thereof) of not more than $10.0 million at any time;


 


(24)                            Liens securing Capitalized
Lease Obligations permitted to be incurred pursuant to Section 4.03 and
Indebtedness permitted to be incurred pursuant to Section 4.03(c)(iv); provided, however, that such Liens securing Capitalized
Lease Obligations or Indebtedness incurred under Section 4.03(c)(iv)
hereof may not extend to property owned by the Issuer or any Restricted
Subsidiary other than the property being leased or acquired pursuant to Section
4.03(c)(iv) hereof;


 


(25)                            Liens existing on the Issue
Date to the extent and in the manner such Liens are in effect on the Issue
Date; and


 


24





















 


(26)                            deposits or pledges in
conjunction with bids, tenders, leases and contracts (other than contracts for
the payment of money) entered into in the ordinary course of business.


 


“Person” means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other entity.


 


“Preferred Stock” means any Equity Interest with preferential
rights of payment of dividends or upon liquidation, dissolution or winding up.


 


“Presumed Tax Rate” means the highest effective marginal
statutory combined U.S. federal, state and local income tax rate prescribed for
an individual residing in New York City (taking into account (i) the
deductibility of state and local income taxes for U.S. federal income tax
purposes, assuming the limitation of Section 68(a)(2) of the Code applies and
taking into account any impact of the Code, and (ii) the character (long-term
or short-term capital gain, dividend income or other ordinary income) of the
applicable income).


 


“Purchase Money Note” means a promissory note of a
Securitization Subsidiary evidencing a line of credit, which may be
irrevocable, from the Issuer or any Subsidiary of the Issuer to a
Securitization Subsidiary in connection with a Qualified Securitization
Financing, which note is intended to finance that portion of the purchase price
that is not paid in cash or a contribution of equity and which (a) shall be
repaid from cash available to the Securitization Subsidiary, other than (i)
amounts required to be established as reserves, (ii) amounts paid to investors
in respect of interest, (iii) principal and other amounts owing to such
investors and (iv) amounts paid in connection with the purchase of newly
generated receivables and (b) may be subordinated to the payments described in
clause (a).


 


“Qualified Proceeds” means assets that are used or useful in,
or Capital Stock of any Person engaged in, a Permitted Business; provided that the fair market value of any such assets or
Capital Stock shall be determined by the Management Board in good faith, except
that in the event the value of any such assets or Capital Stock exceeds $25.0
million or more, the fair market value shall be determined by an Independent
Financial Advisor.


 


“Qualified
Securitization Financing” means any Securitization Financing of a
Securitization Subsidiary that meets the following conditions:


 


(i)                  the Management Board shall have
determined in good faith that such Qualified Securitization Financing
(including financing terms, covenants, termination events and other provisions)
is in the aggregate economically fair and reasonable to the Issuer and the
Securitization Subsidiary;


 


(ii)               all sales of Securitization Assets and
related assets to the Securitization Subsidiary are made at fair market value
(as determined in good faith by the Issuer); and


 


(iii)            the financing terms, covenants, termination
events and other provisions thereof shall be market terms (as determined in
good faith by the Issuer) and may include Standard Securitization Undertakings.


 


The grant of a security
interest in any Securitization Assets of the Issuer or any of its Restricted
Subsidiaries (other than a Securitization Subsidiary) to secure Indebtedness
under the Credit Agreement and any Refinancing Indebtedness with respect
thereto shall not be deemed a Qualified Securitization Financing.


 


25





















 


“Rating Agency” means
(1) each of Moody’s and S&P and (2) if Moody’s or S&P ceases
to rate the notes for reasons outside of our control, a “nationally recognized
statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F)
under the Exchange Act selected by us as a replacement agency for Moody’s or
S&P, as the case may be.


 


“Rating Decline” means the
occurrence on any date from and after the date of the public notice by the
Issuer or another Person seeking to effect a Change in Control of an
arrangement that, in our good faith judgment, is expected to result in a Change
of Control until the end of the 30-day period following public notice of the
occurrence of a Change of Control or abandonment of the expected Change in
Control transaction (which period shall be extended so long as the rating of
the Notes is under publicly announced consideration for possible downgrade by
any Rating Agency) of: (1) a decline in the rating of either of the Notes
by such Rating Agency by at least one notch in the gradation of the rating
scale (e.g., + or  for S&P or 1, 2 and 3 for Moody’s)
from such Rating Agency’s rating of the applicable Notes; or
(2) withdrawal by such Rating Agency of such Rating Agency’s rating of
either of the Notes.


 


“Registration Rights Agreement”
means each registration rights agreement dated as of November 2, 2004
between the Issuer and the initial purchasers named therein relating to the
Notes and any other similar registration rights agreement relating to any
Additional Notes.


 


“Release” means the release of the Escrowed Property pursuant
to the Escrow and Pledge Agreement.


 


“Responsible Officer” of any Person means any executive
officer or financial officer of such Person and any other officer or similar
official thereof responsible for the administration of the obligations of such
Person in respect of this Indenture.


 


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


 


“Restricted Subsidiary” means, at any time, any direct or
indirect Subsidiary of the Issuer that is not then an Unrestricted Subsidiary; provided, however, that
upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted
Subsidiary, such Subsidiary shall be included in the definition of Restricted
Subsidiary.


 


“S&P” means Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc. and any successor to its rating
agency business.


 


“Satellite” means any satellite
owned by, or leased to, the Issuer or any of its Restricted Subsidiaries and
any satellite purchased pursuant to the terms of a Satellite Purchase
Agreement, whether such satellite is in the process of manufacture, has been
delivered for launch or is in orbit (whether or not in operational service).


 


“Satellite Manufacturer” means,
with respect to any Satellite, the prime contractor and manufacturer of such
Satellite.


 


“Satellite Purchase Agreement”
means, with respect to any Satellite, the agreement between the applicable
Satellite Purchaser and the applicable Satellite Manufacturer relating to the
manufacture, testing and delivery of such Satellite.


 


“Satellite Purchaser” means the
Issuer or Restricted Subsidiary that is a party to a Satellite Purchase
Agreement.


 


26





















 


“Secured Indebtedness” means any Indebtedness secured by a
Lien.


 


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


 


“Securitization Assets” means any accounts receivable,
inventory, royalty or revenue streams from sales of inventory subject to a Qualified
Securitization Financing.


 


“Securitization Fees” means reasonable distributions or
payments made directly or by means of discounts with respect to any
participation interest issued or sold in connection with, and other fees paid
to a Person that is not a Securitization Subsidiary in connection with any
Qualified Securitization Financing.


 


“Securitization Financing” means any transaction or series of
transactions that may be entered into by the Issuer or any of its Subsidiaries
pursuant to which the Issuer or any of its Subsidiaries may sell, convey or
otherwise transfer to (a) a Securitization Subsidiary (in the case of a
transfer by the Issuer or any of its Subsidiaries) and (b) any other Person (in
the case of a transfer by a Securitization Subsidiary), or may grant a security
interest in, any Securitization Assets (whether now existing or arising in the
future) of the Issuer or any of its Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing such Securitization
Assets, all contracts and all guarantees or other obligations in respect of
such Securitization Assets, proceeds of such Securitization Assets and other
assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving Securitization Assets and any Hedging Obligations
entered into by the Issuer or any such Subsidiary in connection with such
Securitization Assets.


 


“Securitization Repurchase Obligation” means any obligation
of a seller of Securitization Assets in a Qualified Securitization Financing to
repurchase Securitization Assets arising as a result of a breach of a
representation, warranty or covenant or otherwise, including as a result of a
receivable or portion thereof becoming subject to any asserted defense,
dispute, off-set or counterclaim of any kind as a result of any action taken
by, any failure to take action by or any other event relating to the seller.


 


“Securitization Subsidiary” means a Wholly Owned Subsidiary
of the Issuer (or another Person formed for the purposes of engaging in a
Qualified Securitization Financing in which the Issuer or any Subsidiary of the
Issuer makes an Investment and to which the Issuer or any Subsidiary of the
Issuer transfers Securitization Assets and related assets) which engages in no
activities other than in connection with the financing of Securitization Assets
of the Issuer or its Subsidiaries, all proceeds thereof and all rights (contractual
and other), collateral and other assets relating thereto, and any business or
activities incidental or related to such business, and which is designated by
the Management Board of the Issuer or such other Person (as provided below) as
a Securitization Subsidiary and (a) no portion of the Indebtedness or any
other obligations (contingent or otherwise) of which (i) is guaranteed by
the Issuer or any other Subsidiary of the Issuer (excluding guarantees of
obligations (other than the principal of, and interest on, Indebtedness) pursuant
to Standard Securitization Undertakings), (ii) is recourse to or obligates
the Issuer or any other Subsidiary of the Issuer in any way other than pursuant
to Standard Securitization Undertakings or (iii) subjects any property or
asset of the Issuer or any other Subsidiary of the Issuer, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings, (b) with which neither
the Issuer nor any other Subsidiary of the Issuer has any material contract,
agreement, arrangement or understanding other than on terms which the Issuer reasonably
believes to be no less favorable to the Issuer or such Subsidiary than those
that might be obtained at the time from Persons that are not Affiliates of the
Issuer and (c) to which neither the Issuer nor any other Subsidiary of the
Issuer has any obligation to maintain or preserve such entity’s financial
condition or cause such entity to achieve certain levels of operating
results.  Any such designation by the
Management Board of the Issuer or such other Person shall


 


27





















 


be evidenced to the Trustee
by filing with the Trustee a certified copy of the resolution of the Management
Board of the Issuer or such other Person giving effect to such designation and
an Officers’ Certificate certifying that such designation complied with the
foregoing conditions.


 


“Senior Subordinated Notes” means the Issuer’s 91/8%
Senior Subordinated Notes due 2012.


 


“Shareholders’ Agreement” means the Shareholders’ Agreement
among the Sponsors and/or their Affiliates and any of the Restricted
Subsidiaries and the shareholders party thereto.


 


“Significant Subsidiary” means any Restricted Subsidiary that
would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date hereof.


 


“Special Mandatory Redemption Price” means a price equal to
101% of the principal amount of the Notes, plus accrued and unpaid interest on
the Notes from the Issue Date to the Special Mandatory Redemption Date.


 


“Sponsors” means Blackstone Group Holdings L.P. and its
Affiliates.


 


“Standard Securitization Undertakings” means representations,
warranties, covenants and indemnities entered into by the Purchaser or any
Subsidiary of the Purchaser which the Purchaser has determined in good faith to
be customary in a Securitization Financing, including, without limitation,
those relating to the servicing of the assets of a Securitization Subsidiary,
it being understood that any Securitization Repurchase Obligation shall be
deemed to be a Standard Securitization Undertaking.


 


“Stated Maturity” means, with respect to any installment of
interest or principal on any series of Indebtedness, the day on which the
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.


 


“Subordinated Indebtedness” means (a) with respect to
the Issuer, any Indebtedness of the Issuer that is by its terms subordinated in
right of payment to the Notes and (b) if applicable, with respect to any
Guarantor of the Notes, any Indebtedness of such Guarantor that is by its terms
subordinated in right of payment to its Guarantee of the Notes.


 


“Subordinated Shareholder PIK Loan”
means the subordinated intercompany loan issued by Parent of Issuer to Issuer pursuant
to that certain intercompany loan agreement as in effect on the closing date of
the Acquisition Issue Date and any amendments, modifications or supplements to
such agreement that are not, in the good faith judgment of the Issuer’s
Management Board, more disadvantageous to the holders of the Notes than those
in effect on the Issue Date.


 


“Subsidiary” means, with respect to any specified Person:


 


(1)                                  any
corporation, association or other business entity, of which more than 50% of
the total voting power of shares of Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of such Person
(or a combination thereof); and


 


28





















 


(2)                                  any
partnership, joint venture, limited liability company or similar entity of which
(x) more than 50% of the capital accounts, distribution rights, total equity
and voting interests or general or limited partnership interests, as
applicable, are owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of such Person or a combination thereof
whether in the form of membership, general, special or limited partnership or
otherwise and (y) such Person or any Restricted Subsidiary of such Person is a
controlling general partner or otherwise controls such entity.


 


“Tax Distribution” means any distribution described in
Section 4.04(c)(viii).


 


“TIA” means the Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa 77bbbb) as in effect on the Issue Date.


 


“Total Assets” means the total consolidated assets of the
Issuer and its Restricted Subsidiaries, as shown on the most recent balance
sheet of the Issuer.


 


“Transactions” means the transactions contemplated by
(i) the acquisition of substantially all of the assets of New Skies
Satellites N.V., (ii) the Credit Agreement and (iii) the issuance of
the Notes and the Senior Subordinated Notes on the Issue Date.


 


“Treasury Rate” means, as of the applicable redemption date,
the yield to maturity as of such redemption date of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15 (519) that has become publicly
available at least two business days prior to such redemption date (or, if such
Statistical Release is no longer published, any publicly available source of
market data)) most nearly equal to the period from such redemption date to November
1, 2006 ; provided, however,
that if the period from such redemption date to November 1, 2006 is less than
one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used.


 


“Trust
Officer” means any officer within the corporate trust department of
the Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person’s knowledge of and
familiarity with the particular subject, and who shall have direct
responsibility for the administration of this Indenture.


 


“Trustee” means, initially, U.S. Bank National Association, a
national banking association, in its capacity as Trustee hereunder, and its
successors in such capacity.


 


“Uniform Commercial Code” means the New York Uniform Commercial
Code as in effect from time to time.


 


“Unrestricted Subsidiary” means (i) any Subsidiary of
the Issuer that at the time of determination is an Unrestricted Subsidiary (as
designated by the Management Board of the Issuer, as provided below) and
(ii) any Subsidiary of an Unrestricted Subsidiary.  The Management Board of the Issuer may designate
any Subsidiary of the Issuer (including any existing Subsidiary and any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary or any of its Subsidiaries owns any Equity Interests or
Indebtedness of, or owns or holds any Lien on, any property of, the Issuer or
any Subsidiary of the Issuer (other than any Subsidiary of the Subsidiary to be
so designated); provided that
(a) any Unrestricted Subsidiary must be an entity of which shares of the
Capital Stock or other equity interests (including partnership interests)
entitled to cast at least a majority of the votes that


 


29





















 


may be cast by all shares or
equity interests having ordinary voting power for the election of directors or
other governing body are owned, directly or indirectly, by the Issuer,
(b) such designation complies with Section 4.04 and (c) each of
(I) the Subsidiary to be so designated and (II) its Subsidiaries has
not at the time of designation, and does not thereafter, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable with
respect to any Indebtedness pursuant to which the lender has recourse to any of
the assets of the Issuer or any Restricted Subsidiary.  The Management Board may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving
effect to such designation, no Default or Event of Default shall have occurred
and be continuing and either (A) the Debt to Adjusted EBITDA Ratio would
be at least 6.75 to 1.00 or (B) the Debt to Adjusted EBITDA Ratio would be
less than immediately prior to such designation, in each case on a pro forma
basis taking into account such designation. 
Any such designation by the Management Board shall be notified by the
Issuer to the Trustee by promptly filing with the Trustee a copy of the board
resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing provisions.


 


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


 


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


 


(2)                                  obligations
of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America,


 


which, in each
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such U.S.
Government Obligations or a specific payment of principal of or interest on any
such U.S. Government Obligations held by such custodian for the account of the
holder of such depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the U.S.
Government Obligations evidenced by such depositary receipt.


 


“Voting Stock” of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of
the Management Board of such Person.


 


“Weighted Average Life to Maturity” means, when applied to
any Indebtedness at any date, the number of years obtained by dividing:


 


(1)                                  the
sum of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness,
by (b) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment; by


 


(2)                                  the
then outstanding principal amount of such Indebtedness.


 


“Wholly Owned Restricted Subsidiary” is any Wholly Owned
Subsidiary that is a Restricted Subsidiary.


 


30





















 


“Wholly Owned Subsidiary” of any Person means a Subsidiary of
such Person, 100% of the outstanding Capital Stock or other ownership interests
of which (other than directors’ qualifying shares or nominee or other similar
shares required pursuant to applicable law) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person
and one or more Wholly Owned Subsidiaries of such Person.


 


Section 1.02                                Other Definitions.


 


	
  Term

  	
   

  	
   

  	
  Defined in

  Section

  
	
  “Acceptable Commitment”

  	
   

  	
  4.06

  
	
  “Additional Amounts”

  	
   

  	
  4.18

  
	
  “Affiliate Transaction”

  	
   

  	
  4.07

  
	
  “Appendix”

  	
   

  	
  Preamble

  
	
  “Asset Sale Offer”

  	
   

  	
  4.06(b)

  
	
  “Bankruptcy Law”

  	
   

  	
  6.01

  
	
  “Base Currency”

  	
   

  	
  13.17

  
	
  “Calculation Agent”

  	
   

  	
  Exhibit A

  
	
  “Change of Control Offer”

  	
   

  	
  4.08(a)

  
	
  “Change of Control
  Payment”

  	
   

  	
  4.08(b)

  
	
  “Clearstream”

  	
   

  	
  Appendix A

  
	
  “Custodian”

  	
   

  	
  6.01

  
	
  “Definitive Notes”

  	
   

  	
  Appendix A

  
	
  “Depository”

  	
   

  	
  Appendix A

  
	
  “Euroclear”

  	
   

  	
  2.04

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4.06(b)

  
	
  “Exchange Notes”

  	
   

  	
  Preamble

  
	
  “Exchange Offer
  Registration Statement”

  	
   

  	
  Appendix A

  
	
  “Global Securities Legend”

  	
   

  	
  Appendix A

  
	
  “Guaranteed Obligations”

  	
   

  	
  11.01(d)

  
	
  “IAI”

  	
   

  	
  Appendix A

  
	
  “incorporated provision”

  	
   

  	
  13.01

  
	
  “Initial Notes”

  	
   

  	
  Appendix A

  
	
  “Initial Purchasers”

  	
   

  	
  Preamble

  
	
  “Judgment Currency”

  	
   

  	
  13.17

  
	
  “NSS-8 Asset Sale”

  	
   

  	
  4.17

  
	
  “Offer Period”

  	
   

  	
  4.06(d)

  
	
  “Original Notes”

  	
   

  	
  Preamble

  
	
  “Paying Agent”

  	
   

  	
  2.04

  
	
  “protected purchaser”

  	
   

  	
  2.08

  
	
  “Purchase Agreement”

  	
   

  	
  Appendix A

  
	
  “QIB”

  	
   

  	
  Appendix A

  
	
  “Refinancing Indebtedness”

  	
   

  	
  4.03(c)

  
	
  “Refunding Capital Stock”

  	
   

  	
  4.04(c)

  
	
  “Registration Exchange
  Offer”

  	
   

  	
  Appendix A

  
	
  “Registrar”

  	
   

  	
  Appendix A

  
	
  “Registration Rights
  Agreement”

  	
   

  	
  2.04

  
	
  “Regulation S”

  	
   

  	
  Appendix A

  
	
  “Regulation S
  Securities”

  	
   

  	
  Appendix A

  
	
  “Relevant Taxing
  Jurisdiction”

  	
   

  	
  4.18

  



 


31





















 


	
  Term

  	
   

  	
   

  	
  Defined in

  Section

  
	
  “Restricted Payment”

  	
   

  	
  4.04(a)

  
	
  “Restricted Period”

  	
   

  	
  Appendix A

  
	
  “Restricted Securities
  Legend”

  	
   

  	
  Appendix A

  
	
  “Retired Capital Stock”

  	
   

  	
  4.04(c)

  
	
  “Rule 144A”

  	
   

  	
  Appendix A

  
	
  “Rule 144A Notes”

  	
   

  	
  Appendix A

  
	
  “Rule 501”

  	
   

  	
  Appendix A

  
	
  “Securities Custodian”

  	
   

  	
  Appendix A

  
	
  “Shelf Registration
  Statement”

  	
   

  	
  Appendix A

  
	
  “Successor Company”

  	
   

  	
  5.01(a)

  
	
  “Successor Guarantor”

  	
   

  	
  5.02

  
	
  “Taxes”

  	
   

  	
  4.18

  
	
  “Transfer Restricted
  Notes”

  	
   

  	
  Appendix A

  
	
  “Unrestricted Definitive
  Note”

  	
   

  	
  Appendix A

  



 


Section 1.03                                Incorporation by Reference of Trust Indenture Act.  This Indenture incorporates by reference
certain provisions of the TIA.  The
following TIA terms have the following meanings:


 


“Commission” means the Securities and Exchange Commission.


 


“indenture securities” means the Notes and the Guarantees.


 


“obligor” on the indenture securities means the Issuer, the
Guarantors and any other obligor on the Notes.


 


All other TIA terms used in
this Indenture that are defined by the TIA, defined by TIA reference to another
statute or defined by the Commission have the meanings assigned to them by such
definitions.


 


Section 1.04                                Rules of Construction.  Unless the context otherwise
requires:


 


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


 


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


 


(c)                                  “or”
is not exclusive;


 


(d)                                 “including”
means including without limitation;


 


(e)                                  words in the singular
include the plural and words in the plural include the singular;


 


(f)                                    unsecured
Indebtedness shall not be deemed to be subordinate or junior to Secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness;


 


(g)                                 the principal amount
of any non-interest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP;


 


32





















 


(h)                                 the principal amount
of any Preferred Stock shall be (i) the maximum liquidation value of such
Preferred Stock or (ii) the maximum mandatory redemption or mandatory
repurchase price with respect to such Preferred Stock, whichever is greater;


 


(i)                                     unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP;


 


(j)                                     “$” and “U.S. Dollars”
each refer to United States dollars, or such other money of the United States
of America that at the time of payment is legal tender for payment of public
and private debts; and


 


(k)                                  whenever in this Indenture
there is mentioned, in any context, principal, interest or any other amount
payable under or with respect to any Notes, such mention shall be deemed to
include mention of the payment of additional interest, to the extent that, in
such context, additional interest is, was or would be payable in respect
thereof.


 


ARTICLE 2

THE NOTES


 


Section 2.01                                Amount of Notes; Issuable in Series.  The aggregate principal amount of Original
Notes which may be authenticated and delivered under this Indenture on the Issue
Date is $160,000,000 aggregate principal amount of Notes.  The Notes may be issued in one or more
series.  All Notes of any one series
shall be substantially identical except as to denomination.


 


The Issuer may from time to
time after the Issue Date issue Additional Notes under this Indenture in an
unlimited principal amount, so long as (i) the Incurrence of the Indebtedness
represented by such Additional Notes is at such time permitted by Section 4.03
and (ii) such Additional Notes are issued in compliance with the other
applicable provisions of this Indenture. 
With respect to any Additional Notes issued after the Issue Date (except
for Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09,
2.10, 3.03(c), 4.06(g) or 4.08(c) or the Appendix), there shall be (a)
established in or pursuant to a resolution of the Management Board and (b) (i)
set forth or determined in the manner provided in an Officers’ Certificate or
(ii) established in one or more indentures supplemental hereto, prior to the
issuance of such Additional Notes:


 


(1)                                  whether such
Additional Notes shall be issued as part of a new or existing series of Notes
and the title of such Additional Notes (which shall distinguish the Additional
Notes of the series from Notes of any other series);


 


(2)                                  the aggregate
principal amount of such Additional Notes which may be authenticated and
delivered under this Indenture,


 


(3)                                  the issue price and
issuance date of such Additional Notes, including the date from which interest
on such Additional Notes shall accrue;


 


(4)                                  if applicable, that
such Additional Notes shall be issuable in whole or in part in the form of one
or more Global Notes and, in such case, the respective depositaries for such
Global Notes, the form of any legend or legends which shall be borne by such
Global Notes in addition to or in lieu of those set forth in Exhibit A hereto
and any circumstances in addition to or in lieu of those set forth in Section
2.2 of the Appendix in which any such Global Notes may be exchanged in whole or
in part for Additional Notes registered, or any transfer of such Global


 


33





















 


Notes in whole or in part may be registered,
in the name or names of Persons other than the depositary for such Global Notes
or a nominee thereof; and


 


(5)                                  if applicable, that
such Additional Notes that are not Transfer Restricted Notes shall not be
issued in the form of Initial Notes as set forth in Exhibit A, but shall be
issued in the form of Exchange Notes as set forth in Exhibit B.


 


If any of the terms of any
Additional Notes are established by action taken pursuant to a resolution of
the Management Board, a copy of an appropriate record of such action shall be
certified by the Secretary or any Assistant Secretary of the Issuer and
delivered to the Trustee at or prior to the delivery of the Officers’
Certificate or the indenture supplemental hereto setting forth the terms of the
Additional Notes.


 


Section 2.02                                Form and Dating. 
Provisions relating to the Initial Notes and the Exchange Notes are set
forth in the Appendix, which is hereby incorporated in and expressly made a
part of this Indenture.  (i) The Initial
Notes and the Trustee’s certificate of authentication and (ii) any Additional
Notes (if issued as Transfer Restricted Notes) and the Trustee’s certificate of
authentication shall each be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this
Indenture.  (i)  The Exchange Notes and the Trustee’s
certificate of authentication and (ii) any Additional Notes issued other than
as Transfer Restricted Notes and the Trustee’s certificate of authentication
shall each be substantially in the form of Exhibit B hereto, which is hereby
incorporated in and expressly made a part of this Indenture.  The Notes may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Issuer or any Guarantor, if applicable, is subject, if any, or usage (provided
that any such notation, legend or endorsement is in a form acceptable to the
Issuer).  Each Note shall be dated the
date of its authentication.  The Notes
shall be issuable only in registered form without interest coupons and only in
denominations of $5,000 and integral multiples of $1,000 in excess thereof.


 


Section 2.03                                Execution and Authentication.  The Trustee shall authenticate and make
available for delivery upon a written order of the Issuer signed by two Officers
or an authorized representative (a) Original Notes for original issue on the
date hereof in an aggregate principal amount of $160,000,000, (b) subject to
the terms of this Indenture, Additional Notes in an aggregate principal amount
to be determined at the time of issuance and specified therein and (c) the
Exchange Notes for issue in a Registered Exchange Offer pursuant to the
Registration Rights Agreement for a like principal amount of Initial Notes
exchanged pursuant thereto or otherwise pursuant to an effective registration
statement under the Securities Act.  Such
order shall specify the amount of the Notes to be authenticated, the date on
which the original issue of Notes is to be authenticated and whether the Notes
are to be Initial Notes or Exchange Notes. 
Notwithstanding anything to the contrary in this Indenture or the
Appendix, any issuance of Additional Notes after the Issue Date shall be in a
principal amount of at least $5,000 and integral multiples of $1,000 in excess
thereof, whether such Additional Notes are of the same or a different series
than the Original Notes.


 


Two Officers or an
authorized representative shall sign the Notes for the Issuer by manual or
facsimile signature.


 


If an Officer whose
signature is on a Note no longer holds that office at the time the Trustee authenticates
the Note, the Note shall be valid nevertheless.


 


A Note shall not be valid
until an authorized signatory of the Trustee manually signs the certificate of
authentication on the Note.  The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.


 


34





















 


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


 


The Trustee is hereby authorized
to enter into a letter of representations with the Depository in the form
provided by the Issuer and to act in accordance with such letter.


 


Section 2.04                                Registrar, Paying Agent and Calculation Agent.  (a) 
The Issuer shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange (the “Registrar”) and (ii) an office or agency in the Borough
of Manhattan, the City of New York, the State of New York where Notes may be
presented for payment (the “Paying Agent”).  The Registrar shall keep a register of the
Notes and of their transfer and exchange. 
The Issuer may have one or more co-registrars and one or more additional
paying agents.  The term “Registrar”
includes any co-registrars.  The term “Paying
Agent” includes any additional paying agents. 
In addition, the Issuer shall appoint a Calculation Agent to determine
the interest rate on the Notes as provided in Section 1 of the Notes.  The Issuer initially appoints the Trustee as (i) Registrar,
Paying Agent and Calculation Agent in connection with the Notes and (ii) the
Securities Custodian with respect to the Global Notes.


 


(b)                                 The
Issuer shall enter into an appropriate agency agreement with any Registrar,
Paying Agent or Calculation Agent not a party to this Indenture, which shall
incorporate the terms of the TIA.  The
agreement shall implement the provisions of this Indenture that relate to such
agent.  The Issuer shall notify the
Trustee of the name and address of any such agent.  If the Issuer fails to maintain a Registrar, Paying
Agent or Calculation Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.07.  The Issuer or any of its domestically
organized Wholly Owned Subsidiaries may act as Paying Agent, Registrar or
Calculation Agent.


 


(c)                                  The
Issuer may remove any Registrar, Paying Agent or Calculation Agent upon written
notice to such Registrar, Paying Agent or Calculation Agent and to the Trustee;
provided, however,
that no such removal shall become effective until (i) if applicable, acceptance
of an appointment by a successor as evidenced by an appropriate agreement
entered into by the Issuer and such successor Registrar, Paying Agent or
Calculation Agent, as the case may be, and delivered to the Trustee or (ii)
notification to the Trustee that the Trustee shall serve as Registrar, Paying
Agent or Calculation Agent until the appointment of a successor in accordance
with clause (i) above.  The Registrar, Paying
Agent or Calculation Agent may resign at any time upon written notice to the
Issuer and the Trustee; provided, however,
that the Trustee may resign as Paying Agent, Registrar or Calculation Agent only
if the Trustee also resigns as Trustee in accordance with Section 7.08.


 


Section 2.05                                Paying Agent to Hold Money in Trust.  Prior to each due date of the principal of
and interest on any Note, the Issuer shall deposit with each Paying Agent (or
if the Issuer or a Wholly Owned Subsidiary is acting as Paying Agent, segregate
and hold in trust for the benefit of the Persons entitled thereto) a sum
sufficient to pay such principal and interest when so becoming due.  The Issuer shall require each Paying Agent
(other than the Trustee) to agree in writing that a Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by a Paying
Agent for the payment of principal of and interest on the Notes, and shall
notify the Trustee of any default by the Issuer in making any such
payment.  If the Issuer or a Wholly Owned
Subsidiary of the Issuer acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it in trust for the benefit of the Persons
entitled thereto.  The Issuer at any time
may require a Paying Agent to pay all money held by it to the Trustee and


 


35





















 


to account for any funds disbursed by such Paying Agent.  Upon complying with this Section, a Paying
Agent shall have no further liability for the money delivered to the Trustee.


 


Section 2.06                                Holder Lists.  The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders.  If the Trustee is not the Registrar, the
Issuer shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of Holders.


 


Section 2.07                                Transfer and Exchange. 
The Notes shall be issued in registered form and shall be transferable
only upon the surrender of a Note for registration of transfer and in
compliance with the Appendix.  When a
Note is presented to the Registrar with a request to register a transfer, the
Registrar shall register the transfer as requested if its requirements therefor
are met.  When Notes are presented to the
Registrar with a request to exchange them for an equal principal amount of
Notes of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. 
To permit registration of transfers and exchanges, the Issuer shall
execute and the Trustee shall authenticate Notes at the Registrar’s
request.  The Issuer may require payment
of a sum sufficient to pay all taxes, assessments or other governmental charges
in connection with any transfer or exchange pursuant to this Section.  The Issuer shall not be required to make, and
the Registrar need not register, transfers or exchanges of Notes selected for
redemption (except, in the case of Notes to be redeemed in part, the portion
thereof not to be redeemed) or of any Notes for a period of 15 days before a
selection of Notes to be redeemed.


 


Prior to the due
presentation for registration of transfer of any Notes, the Issuer, the
Guarantors, the Trustee, each Paying Agent and the Registrar may deem and treat
the Person in whose name a Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Issuer, any Guarantor (if applicable), the Trustee, a
Paying Agent or the Registrar shall be affected by notice to the contrary.


 


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


 


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


 


Section 2.08                                Replacement Notes.  If
a mutilated Note is surrendered to the Registrar or if the Holder of a Note
claims that the Note has been lost, destroyed or wrongfully taken, the Issuer
shall issue and the Trustee shall authenticate a replacement Note if the
requirements of Section 8-405 of the Uniform Commercial Code are met, such that
the Holder (a) satisfies the Issuer or the Trustee within a reasonable time
after such Holder has notice of such loss, destruction or wrongful taking and
the Registrar does not register a transfer prior to receiving such
notification, (b) makes such request to the Issuer or the Trustee prior to the
Note being acquired by a protected purchaser as defined in Section 8-303 of the
Uniform Commercial Code (a “protected purchaser”) and (c) satisfies any other
reasonable requirements of the Trustee. 
If required by the Trustee or the Issuer, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Trustee to protect the Issuer,
the Trustee, a Paying Agent and the Registrar from any loss that any of them
may suffer if a Note is replaced.  The
Issuer and the Trustee may charge the Holder


 


36





















 


for their expenses in replacing a Note (including without limitation,
attorneys’ fees and disbursements in replacing such Note).  In the event any such mutilated, lost,
destroyed or wrongfully taken Note has become or is about to become due and
payable, the Issuer in its discretion may pay such Note instead of issuing a
new Note in replacement thereof.


 


Every replacement Note is an
additional obligation of the Issuer.


 


The provisions of this
Section 2.08 are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
lost, destroyed or wrongfully taken Notes.


 


Section 2.09                                Outstanding Notes.  (a)  Notes
outstanding at any time are all Notes that have been authenticated by the
Trustee except for


 


(1)                                  Notes cancelled by the
Trustee or delivered to it for cancellation;


 


(2)                                  any Note which has been
replaced pursuant to Section 2.08 unless and until the Trustee and the Issuer
receive proof satisfactory to them that the replaced Note is held by a
protected purchaser; and


 


(3)                                  on or after the maturity
date or any redemption date or date for purchase of the Notes pursuant to an
Offer to Purchase, those Notes payable or to be redeemed or purchased on that
date for which the Trustee (or Paying Agent, other than the Issuer or an
Affiliate of the Issuer) holds money sufficient to pay all amounts then due.


 


(b)                                 A
Note does not cease to be outstanding because the Issuer or one of its
Affiliates holds the Note, provided
that in determining whether the Holders of the requisite principal amount of
the outstanding Notes have given or taken any request, demand,  authorization, direction, notice, consent,
waiver or other action hereunder, Notes owned by the Issuer or any Affiliate of
the Issuer will be disregarded and deemed not to be outstanding, (it being
understood that in determining whether the Trustee is protected in relying upon
any such request, demand, authorization, direction, notice, consent, waiver or
other action, only Notes which the Trustee knows to be so owned will be so
disregarded).


 


(c)                                  If
a Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date, money sufficient to pay all
principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, and no Paying
Agent is prohibited from paying such money to the Holders on that date pursuant
to the terms of this Indenture, then on and after that date such Notes (or
portions thereof) will cease to be outstanding and interest on them ceases to
accrue.


 


Section 2.10                                Temporary Notes.  In
the event that Definitive Notes are to be issued under the terms of this
Indenture, until such Definitive Notes are ready for delivery, the Issuer may
prepare and the Trustee shall authenticate temporary Notes.  Temporary Notes shall be substantially in the
form of Definitive Notes but may have variations that the Issuer considers
appropriate for temporary Notes.  Without
unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate
Definitive Notes and make them available for delivery in exchange for temporary
Notes upon surrender of such temporary Notes at the office or agency of the
Issuer, without charge to the Holder. 
Until such exchange, temporary Notes shall be entitled to the same
rights, benefits and privileges as Definitive Notes.


 


Section 2.11                                Cancellation.  The
Issuer at any time may deliver Notes to the Trustee for cancellation.  The Registrar and each Paying Agent shall forward
to the Trustee any Notes surrendered to them


 


37





















 


for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment or
cancellation and shall dispose of canceled Notes in accordance with its
customary procedures or deliver canceled Notes to the Issuer pursuant to
written direction by an Officer.  The
Issuer may not issue new Notes to replace Notes it has redeemed, paid or
delivered to the Trustee for cancellation. 
The Trustee shall not authenticate Notes in place of canceled Notes
other than pursuant to the terms of this Indenture.


 


Section 2.12                                Defaulted Interest. 
If the Issuer defaults in a payment of interest on the Notes, the Issuer
shall pay the defaulted interest then borne by the Notes (plus interest on such
defaulted interest to the extent lawful), in any lawful manner.  The Issuer may pay the defaulted interest to
the Persons who are Holders on a subsequent special record date.  The Issuer shall fix or cause to be fixed any
such special record date and payment date to the reasonable satisfaction of the
Trustee and shall promptly mail or cause to be mailed to each affected Holder a
notice that states the special record date, the payment date and the amount of
defaulted interest to be paid.


 


Section 2.13                                CUSIP Numbers, ISINs, etc. 
The Issuer in issuing the Notes may use CUSIP numbers, ISINs and “Common
Code” numbers (if then generally in use) and, if so, the Trustee shall use
CUSIP numbers, ISINs and “Common Code” numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers, either as
printed on the Notes or as contained in any notice of a redemption that reliance
may be placed only on the other identification numbers printed on the Notes and
that any such redemption shall not be affected by any defect in or omission of
such numbers.  The Issuer shall advise
the Trustee of any change in the CUSIP numbers, ISINs and “Common Code”
numbers.


 


ARTICLE 3

REDEMPTION


 


Section 3.01                                Optional Redemption.  (a)  From and after the Release, at any time and
from time to time prior to November 1, 2006, the Issuer may redeem the Notes,
in whole or in part, at a redemption price equal to 100% of the principal
amount of the Notes redeemed plus the Applicable Premium as of, and accrued and
unpaid interest and additional interest, if any, to, the applicable redemption
date (subject to the right of Holders to receive interest due on the relevant
interest payment date).


 


(b)                                 At
any time and from time to time on or after November 1, 2006, the Issuer may
redeem the Notes, in whole or in part, at the applicable redemption price
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and additional interest, if any, on the Notes to be redeemed to
the applicable redemption date: 


 


12-month period commencing

November 1 in


 




	
  YEAR

  	
   

  	
  PERCENTAGE

  	
   

  
	
  2006

  	
   

  	
  102.000%

  	
   

  
	
  2007

  	
   

  	
  101.000%

  	
   

  
	
  2008 and
  thereafter

  	
   

  	
  100.000%

  	
   

  






 


Section 3.02                                Redemption with Proceeds of Equity Offerings.  From and after the Release, at any time and
from time to time on or prior to November 1, 2006, the Issuer may redeem
up to 35% of the aggregate principal amount of the Notes issued under this
Indenture at a redemption price of 100% of the principal amount of the Notes,
plus a premium equal to the rate per annum on the Notes applicable on the date
on which notice of redemption is given, with the net cash proceeds received by
the Issuer of any Equity


 


38





















 


Offerings plus accrued and unpaid interest and additional interest, if
any, to the redemption date; provided that:


 


(i)                  at least 65% of the aggregate
principal amount of the Notes issued under this Indenture remains outstanding
immediately after the occurrence of such redemption (excluding Notes held by
the Issuer and its Subsidiaries); and


 


(ii)               the redemption occurs within 90 days of
the date of closing of such Equity Offering.


 


Section 3.03                                Method and Effect of Redemption.  (a)  If
the Issuer elects to redeem Notes, it must notify the Trustee of the redemption
date, the principal amount of Notes to be redeemed and the redemption price by
delivering an Officers’ Certificate and an Opinion of Counsel, to the effect
that such redemption shall comply with the conditions set forth in this Article
3, 40 to 60 days before the redemption date (unless a shorter period is
required or otherwise satisfactory to the Trustee).  The Trustee shall select the Notes to be
redeemed in compliance with the principal national securities exchange, if any,
on which the Notes are listed, or if such Notes are not so listed, on a pro
rata basis, by lot or by any other method the Trustee in its sole discretion
deems fair and appropriate, in denominations of $5,000 principal amounts or an
integral multiple of $1,000 in excess thereof. 
The Trustee shall notify the Issuer promptly of the Notes or portions of
Notes to be called for redemption.  Any
such notice may be cancelled at any time prior to notice of such redemption
being mailed to any Holder and shall thereby be void and of no effect.


 


(b)                                 Notice
of redemption must be sent by the Issuer or at the Issuer’s request, by the
Trustee in the name and at the expense of the Issuer, to Holders whose Notes
are to be redeemed at least 30 but not more than 60 days before the redemption
date, except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with Section 8.01 or Section
8.02 of this Indenture.  The notice of
redemption will identify the Notes to be redeemed and will include or state the
following:


 


(i)                                     the
redemption date;


 


(ii)                                  the
redemption price including the portion thereof representing any accrued interest
or additional interest, if any;


 


(iii)                               the
names and addresses of the Paying Agents where Notes are to be surrendered;


 


(iv)                              notes
called for redemption must be surrendered to a Paying Agent in order to collect
the redemption price and any accrued interest or additional interest;


 


(v)                                 on
the redemption date the redemption price will become due and payable on Notes
called for redemption and interest on Notes called for redemption will cease to
accrue on and after the redemption date;


 


(vi)                              if
fewer than all the outstanding Notes are to be redeemed, the certificate numbers
and principal amounts of the particular Notes to be redeemed, the aggregate
principal amount of Notes to be redeemed and the aggregate principal amount of
Notes to be outstanding after such partial redemption;


 


(vii)                           if
any Note is to be redeemed in part only, the portion of the principal amount of
that Note that is to be redeemed;


 


39





















 


(viii)                        if
any Note is to be redeemed in part, on and after the redemption date, upon
surrender of such Note, new Notes equal in principal amount to the unredeemed
part will be issued;


 


(ix)                                the
CUSIP number, ISIN and/or “Common Code” number, if any, printed on the Notes
being redeemed; and


 


(x)                                   that
no representation is made as to the correctness or accuracy of the CUSIP number
or CINS number, or “common number” listed in such notice or printed on the
Notes and that the Holder should rely only on the other identification numbers
printed on the Notes.


 


(c)                                  Once
notice of redemption pursuant to this Section 3.03 is mailed to the Holders,
Notes called for redemption become due and payable on the redemption date and
at the redemption price stated in the notice. 
Upon surrender to any Paying Agent, the Issuer shall redeem such Notes
at the redemption price.  Commencing on
the redemption date, Notes redeemed will cease to accrue interest; provided, however,
that if the redemption date is after a regular record date and on or prior to
the interest payment date, the accrued interest and additional interest, if
any, shall be payable to the Holder of the redeemed Notes registered on the
relevant record date.  Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder.  Upon
surrender of any Note redeemed in part, the holder will receive a new note
equal in principal amount to the unredeemed portion of the surrendered Note.


 


Section 3.04                                Deposit of Redemption Price. 
Prior to 10:00 a.m., New York City time, on the redemption date,
the Issuer shall deposit with the Paying Agent (or, if the Issuer or a Wholly
Owned Subsidiary is a Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued interest on all Notes or
portions thereof to be redeemed on that date other than Notes or portions of
Notes called for redemption that have been delivered by the Issuer to the
Trustee for cancellation.  On and after
the redemption date, interest shall cease to accrue on Notes or portions
thereof called for redemption so long as the Issuer has deposited with the
Paying Agent funds sufficient to pay the principal of, plus accrued and unpaid
interest on, the Notes to be redeemed, unless a Paying Agent is prohibited from
making such payment pursuant to the terms of this Indenture.


 


Section 3.05                                Redemption for Taxation Reasons.  From and after the Release, the Issuer is
entitled to redeem the Notes, at its option, at any time as a whole but not in
part, upon not less than 30 nor more than 60 days’ notice, at a price
equal to 100% of the outstanding principal amount thereof, plus accrued and
unpaid interest (if any) to the date of redemption, in the event the Issuer has
become or would become obligated to pay, on the next date on which any amount
would be payable with respect to the Notes, any Additional Amounts (as defined
in Section 4.18) as a result of a change in or an amendment to any laws or
treaties (including any regulations or rulings promulgated thereunder) of any
Relevant Taxing Jurisdiction (as defined in Section 4.18) (or any political
subdivision or taxing authority thereof or therein) or in any official position
regarding the application, administration or interpretation of such laws,
treaties, regulations or rulings (including a change resulting from a holding,
judgment or order by a court of competent jurisdiction) which change or
amendment is announced on or after the Issue Date, and the Issuer cannot avoid
such obligation by taking reasonable measures available to it.


 


Before publishing or mailing
notice of redemption of the Notes, the Issuer will deliver to the Trustee an
Officer’s Certificate to the effect that the Issuer cannot avoid its obligation
to pay Additional Amounts by taking reasonable measures available to it.  The Issuer will also deliver an opinion of
independent legal counsel of recognized standing to the effect that the Issuer
would be obligated to pay Additional Amounts as a result of a change or
amendment described above.


 


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No such notice of redemption
may be given more than 90 days before the Issuer first becomes liable to
pay any Additional Amounts or indemnification payments as a result of a change
or amendment described above.


 


Section 3.06                                Special Mandatory Redemption; Notice to Trustee and Escrow Agent.  If the Release has not occurred on or before
5:00 p.m., New York City time, on the Deadline, then the Issuer will, on a
day not more than ten Business Days following the Deadline (the “Special Mandatory Redemption Date”), notify the Trustee
thereof and deliver to the Trustee an Officers’ Certificate stating that such
redemption will comply with the conditions contained in paragraph 6 of the
Notes (the “Special Mandatory Redemption”) and
setting forth the Special Mandatory Redemption Price applicable to such Special
Mandatory Redemption.  Simultaneously
with the giving of such notice by the Issuer to the Trustee, the Issuer shall
notify the Escrow Agent thereof pursuant to Section 1(b) of the Escrow Agreement.


 


Section 3.07                                Notice of Special Mandatory Redemption to Holders.  Notice of the Special Mandatory Redemption
will be mailed promptly to each Holder of the Notes at its registered address,
the Trustee and the Escrow Agent.


 


The notice shall state that
all the Notes will be redeemed (including the CUSIP, ISIN and/or “Common Code”
numbers thereof) and shall state:


 


(1)                                  the Special Mandatory
Redemption Date;


 


(2)                                  the Special Mandatory
Redemption Price;


 


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


 


(4)                                  that the Notes must
be surrendered to the Paying Agent in order to collect the redemption price;
and


 


(5)                                  that unless the Issuer
defaults in making such redemption payment, interest on the Notes ceases to
accrue on and after the Special Mandatory Redemption Date.


 


Section 3.08                                Effect of Notice of Special Mandatory Redemption.  Once the notice of redemption described in
Section 3.07 is mailed, the Notes will become due and payable on the Special
Mandatory Redemption Date at the Special Mandatory Redemption Price.  Upon surrender to the Paying Agent, the Notes
shall be paid at the Special Mandatory Redemption Price.


 


Section 3.09                                Deposit of Special Mandatory Redemption Price.  On or prior to 10:00 A.M., New York City
time, on the Special Mandatory Redemption Date, the Issuer shall direct the
Escrow Agent, pursuant to Section 3(b) of the Escrow and Pledge Agreement, to
deposit with the Paying Agent the applicable Special Mandatory Redemption
Price.


 


On and after the Special
Mandatory Redemption Date, if money sufficient to pay the applicable Special
Mandatory Redemption Price shall have been made available in accordance with
the immediately preceding paragraph, the Notes will cease to accrue interest
and the only right of the Holders of the Notes will be to receive payment of
the Special Mandatory Redemption Price. 
If any Note surrendered for redemption shall not be so paid, interest
will be paid, from the Special Mandatory Redemption Date until such redemption
payment is made, on the unpaid principal of the Note and any interest not paid
on such unpaid principal, in each case at the rate and in the manner provided
in the Notes.


 


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ARTICLE 4

COVENANTS


 


Section 4.01                                Payment of Notes.  (a)  The Issuer agrees to pay the principal of and
interest on the Notes on the dates and in the manner provided in the Notes and
this Indenture.  Not later than 9:00 a.m.
(New York City time) on the due date of any principal of or interest on any
Notes, or any redemption or purchase price of the Notes, the Issuer will
deposit with the Trustee (or Paying Agent) money in immediately available funds
sufficient to pay such amounts, provided
that if the Issuer is acting as Paying Agent, it will, on or before each due
date, segregate and hold in a separate trust fund for the benefit of the
Holders a sum of money sufficient to pay such amounts until paid to such
Holders or otherwise disposed of as provided in this Indenture.  In each case the Issuer will promptly notify
the Trustee of its compliance with this paragraph.


 


(b)                                 An
installment of principal or interest will be considered paid on the date due if
the Trustee (or Paying Agent, other than the Issuer) holds on that date money
designated for and sufficient to pay the installment.  If the Issuer acts as Paying Agent, an
installment of principal or interest will be considered paid on the due date
only if paid to the Holders.


 


The Issuer shall pay
interest on overdue principal at the rate specified therefor in the Notes, and
it shall pay interest on overdue installments of interest at the same rate
borne by the Notes to the extent lawful.


 


Section 4.02                                Reports and Other Information.  Notwithstanding that the Issuer may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act,
or otherwise report on an annual and quarterly basis on forms provided for such
annual and quarterly reporting pursuant to rules and regulations promulgated by
the Commission, the Issuer shall (x) file with the Commission and (y) provide
the Trustee and Holders with copies thereof, without cost to each Holder, the
following information:


 


(a)                                  within 90 days after
the end of each fiscal year (or such shorter period as may be required by the Commission),
annual financial information that would be required to be contained in a filing
with the Commission on Form 20-F if the Issuer were required to file such
a form, including (i) a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and (ii) a report on the annual
financial statements by the Issuer’s certified independent accountants, and


 


(b)                                 within 45 days after
the end of each of the first three fiscal quarters of each fiscal year (or such
shorter period as may be required by the Commission) commencing with the fiscal
quarter ending September 30, 2004, all quarterly information that would be
required to be contained in a filing with the Commission on Form 6-K if
the Issuer were required to file such a form, including “Management’s
Discussion and Analysis of Financial Condition and Results of Operations”;


 


provided,
however, that the Issuer shall not be so
obligated to file such reports with the Commission if the Commission does not
permit such filing, in which event the Issuer shall make available such
information to prospective purchasers of Notes, in addition to providing such
information to the Trustee and the Holders, in each case within 15 days after
the time the Issuer would be required to file such information with the Commission
if it were subject to Section 13 or 15(d) of the Exchange Act.


 


The Issuer shall also
furnish to Holders, securities analysts and prospective investors upon request
the information required to be delivered pursuant to Rule 144 and Rule 144A(d)(4)
under the Securities


 


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Act (it being acknowledged
and agreed that, prior to the first date on which information is required to be
provided under this Section 4.02, the information contained in the Offering
Memorandum is sufficient for this purpose).


 


Notwithstanding the
foregoing, the requirements described in this Section 4.02 shall be deemed
satisfied prior to the commencement of the Registered Exchange Offer pursuant
to the Registration Rights Agreements or the effectiveness of the Shelf Registration
Statement contemplated thereby by the filing with the Commission of the
Exchange Offer Registration Statement and/or Shelf Registration Statement, and
any amendments thereto, with such financial information that satisfies
Regulation S-X of the Securities Act.


 


Section 4.03                                Limitation on Incurrence of Indebtedness and Issuance of Preferred
Stock.


 


(a)                                  Notwithstanding
anything contained in this Section 4.03, prior to the Release, the Issuer will
not incur any Indebtedness (including Acquired Debt), except for the Notes.


 


(b)                                 From
and after the release, the Issuer will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise (collectively, “incur”), with
respect to any Indebtedness (including Acquired Debt), and the Issuer will not
permit any of its Restricted Subsidiaries to issue any shares of Preferred
Stock; provided, however,
that the Issuer and any Restricted Subsidiary may incur Indebtedness (including
Acquired Debt) and any Restricted Subsidiary may issue Preferred Stock if the
Debt to Adjusted EBITDA Ratio for the Issuer’s most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is
incurred or such Preferred Stock is issued would be less than or equal to 6.75
to 1.00, determined on a pro forma basis (including a pro forma application of
the net proceeds therefrom), as if the additional Indebtedness had been
incurred or the Preferred Stock had been issued, as the case may be, and the
application of proceeds therefrom had occurred at the beginning of such
four-quarter period; provided
that the amount of Indebtedness that may be incurred and Preferred Stock that
may be issued pursuant to the foregoing by Restricted Subsidiaries that are not
Guarantors of the Notes shall not exceed $25.0 million at any one time
outstanding (the “Non-Guarantor
Exception”).


 


(c)                                  The
limitations set forth in Section 4.03(b) shall not prohibit the incurrence of
any of the following (collectively, “Permitted Debt”):


 


(i)                                     Indebtedness
under the Credit Agreement together with the incurrence of the guarantees
thereunder and the issuance and creation of letters of credit and bankers’
acceptances thereunder (with letters of credit and bankers acceptances being
deemed to have a principal amount equal to the face amount thereof), up to an
aggregate principal amount of $565.0 million outstanding at any one time less
the amount of all mandatory principal payments actually made by the borrower
thereunder in respect of Indebtedness thereunder with Net Proceeds from Asset
Sales;


 


(ii)                                  Indebtedness
represented by the (x) Notes issued on the Issue Date (including any
Guarantees thereof), (y) the Senior Subordinated Notes issued on the Issue
Date (including any Guarantees thereof) or (z) the Subordinated
Shareholder PIK Loan issued on the Issue Date;


 


(iii)                               Indebtedness
existing on the Issue Date (other than Indebtedness described in clauses (i)
and (ii));


 


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(iv)                              Indebtedness
(including Capitalized Lease Obligations) incurred or issued by the Issuer or
any Restricted Subsidiary to finance the purchase, lease or improvement of
property (real or personal) or equipment (including pursuant to the NSS-8
construction contract with Boeing) that is used or useful in a Permitted
Business (whether through the direct purchase of assets or the Capital Stock of
any Person owning such assets) in an aggregate principal amount that, when
aggregated with the principal amount of all other Indebtedness then outstanding
and incurred pursuant to this clause (iv), does not exceed the greater of
(x) $35.0 million and (y) 3.5% of Total Assets;


 


(v)                                 Indebtedness
incurred by the Issuer or any Restricted Subsidiary constituting reimbursement
obligations with respect to letters of credit issued in the ordinary course of
business, including, without limitation, letters of credit in respect of
workers’ compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance or self-insurance or other
Indebtedness with respect to reimbursement-type obligations regarding workers’
compensation claims;


 


(vi)                              Indebtedness
arising from agreements of the Issuer or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the Transactions or the disposition
of any business, assets or a Subsidiary, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business, assets or
a Subsidiary for the purpose of financing such acquisition; provided, however, that
(A) such Indebtedness is not reflected on the balance sheet of the Issuer or
any Restricted Subsidiary (contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on the balance sheet will not
be deemed to be reflected on such balance sheet for purposes of this clause
(A)) and (B) the maximum assumable liability in respect of all such
Indebtedness shall at no time exceed the gross proceeds including non-cash
proceeds (the fair market value of such non-cash proceeds being measured at the
time received and without giving effect to any subsequent changes in value)
actually received by the Issuer and any Restricted Subsidiaries in connection
with such disposition;


 


(vii)                           Indebtedness
of the Issuer owed to and held by any Restricted Subsidiary or Indebtedness of
a Restricted Subsidiary owed to and held by the Issuer or any Restricted Subsidiary;
provided, however,
that (A) any subsequent issuance or transfer of any Capital Stock or any other
event that results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of any such Indebtedness (except to the
Issuer or a Restricted Subsidiary) shall be deemed, in each case, to constitute
the incurrence of such Indebtedness by the issuer thereof and (B) if the
Issuer or, if applicable, any Guarantor is the obligor on such Indebtedness
owing to a Restricted Subsidiary that is not a Guarantor, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all obligations
of the Issuer with respect to the Notes or of such Guarantor with respect to
its Guarantee;


 


(viii)                        shares
of Preferred Stock of a Restricted Subsidiary issued to the Issuer or a
Restricted Subsidiary; provided that
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such shares of Preferred
Stock (except to the Issuer or a Restricted Subsidiary) shall be deemed in each
case to be an issuance of such shares of Preferred Stock;


 


(ix)                                Hedging
Obligations of the Issuer or any Restricted Subsidiary (excluding Hedging
Obligations entered into for speculative purposes) for the purpose of limiting
(A) interest rate


 


44


















 


risk with respect to any Indebtedness that is
permitted by the terms of this Indenture to be outstanding or (B) exchange rate
risk with respect to any currency exchange or (C) commodity risk;


 


(x)                                   obligations
in respect of performance, bid, appeal and surety bonds and performance and
completion guarantees provided by the Issuer or any Restricted Subsidiary or
obligations in respect of letters of credit related thereto, in each case in
the ordinary course of business or consistent with past practice;


 


(xi)                                Indebtedness
of the Issuer or any Restricted Subsidiary or Preferred Stock of any Restricted
Subsidiary not otherwise permitted hereunder in an aggregate principal amount
or liquidation preference which, when aggregated with the principal amount and
liquidation preference of all other Indebtedness and Preferred Stock then
outstanding and incurred pursuant to this clause (xi), does not at any one time
outstanding exceed $50.0 million (it being understood that any Indebtedness or
Preferred Stock incurred pursuant to this clause (xi) shall cease to be deemed
incurred or outstanding for purposes of this clause (xi) but shall be deemed
incurred for the purposes of Section 4.03(b) from and after the first date on
which the Issuer or such Restricted Subsidiary could have incurred such
Indebtedness or Preferred Stock under Section 4.03(b) without reliance on this
clause (xi));


 


(xii)                             any
guarantee by the Issuer or a Guarantor of Indebtedness or other obligations of
any Restricted Subsidiary so long as the incurrence of such Indebtedness
incurred by such Restricted Subsidiary is permitted under the terms of this
Indenture;


 


(xiii)                          the
incurrence by the Issuer or any Restricted Subsidiary of Indebtedness or
Preferred Stock that serves to refund or refinance any Indebtedness incurred as
permitted under Section 4.03(b) and clauses (ii) and (iii) above, this clause
(xiii) and clause (xiv) below or any Indebtedness issued to so refund or
refinance such Indebtedness including additional Indebtedness incurred to pay
premiums and fees in connection therewith (the “Refinancing
Indebtedness”) prior to its respective maturity; provided, however, that
such Refinancing Indebtedness (A) has a Weighted Average Life to Maturity at
the time such Refinancing Indebtedness is incurred which is not less than the
remaining Weighted Average Life to Maturity of the Indebtedness being refunded
or refinanced, (B) to the extent such Refinancing Indebtedness refinances
Indebtedness subordinated or pari passu to
the Notes, such Refinancing Indebtedness is subordinated or pari  passu to the
Notes at least to the same extent as the Indebtedness being refinanced or
refunded, (C) shall not include (x) Indebtedness or Preferred Stock of a
Subsidiary that is not a Guarantor that refinances Indebtedness or Preferred
Stock of the Issuer or a Guarantor or (y) Indebtedness or Preferred Stock of
the Issuer or a Restricted Subsidiary that refinances Indebtedness or Preferred
Stock of an Unrestricted Subsidiary, (D) shall not be in a principal amount in
excess of the principal amount of, premium, if any, accrued interest on, and
related fees and expenses of, the Indebtedness being refunded or refinanced and
(E) shall not have a stated maturity date prior to the Stated Maturity of the
Indebtedness being refunded or refinanced; and provided,
further, that subclauses (A), (B) and
(E) of this clause (xiii) will not apply to any refunding or refinancing of any
Senior Debt;


 


(xiv)                         Indebtedness
or Preferred Stock of Persons that are acquired by the Issuer or any Restricted
Subsidiary or merged into the Issuer or a Restricted Subsidiary in accordance
with the terms of this Indenture; provided that
such Indebtedness or Preferred Stock is not incurred in connection with or in
contemplation of such acquisition or merger; and provided,
further, that after giving effect to
such acquisition or merger, either (A) the Issuer or such Restricted Subsidiary
would be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Debt to Adjusted


 


45





















 


EBITDA Ratio test set forth in Section 4.03(b)
or (B) the Debt to Adjusted EBITDA Ratio would be less than immediately
prior to such acquisition;


 


(xv)                            Indebtedness
arising from the honoring by a bank or financial institution of a check, draft
or similar instrument drawn against insufficient funds in the ordinary course
of business, provided that such Indebtedness,
other than credit or purchase cards, is extinguished within five business days
of its incurrence;


 


(xvi)                         Indebtedness
of the Issuer or any Restricted Subsidiary of the Issuer supported by a letter
of credit issued pursuant to the Credit Agreement in a principal amount not in
excess of the stated amount of such letter of credit;


 


(xvii)                      Contribution
Indebtedness;


 


(xviii)                   Indebtedness
consisting of the financing of insurance premiums;


 


(xix)                           (a)
if the Issuer could incur $1.00 of additional Indebtedness pursuant to Section 4.03(b)
after giving effect to such borrowing, Indebtedness of any Restricted
Subsidiary of the Issuer that is not a Guarantor not otherwise permitted
hereunder or (b) if the Issuer could not incur $1.00 of additional Indebtedness
pursuant to Section 4.03(b) after giving effect to such borrowing,
Indebtedness of any Restricted Subsidiary of the Issuer that is not a Guarantor
incurred for working capital purposes, provided, however, that the aggregate principal amount of Indebtedness
incurred under this clause (xix), when aggregated with the principal amount of
all other Indebtedness then outstanding and incurred pursuant to this clause
(xix), does not exceed $25.0 million;


 


(xx)                              Indebtedness
incurred by a Securitization Subsidiary in a Qualified Securitization Financing
that is not recourse to the Issuer or any Restricted Subsidiary of the Issuer
other than a Securitization Subsidiary (except for Standard Securitization
Undertakings); and


 


(xxi)                           all
premium (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in clauses
(i) through (xx) above.


 


(d)                                 For
purposes of determining compliance with this Section 4.03, in the event that an
item of proposed Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xxi) above, or
is entitled to be incurred pursuant to Section 4.03(b), the Issuer will be
permitted to classify and later reclassify such item of Indebtedness in any
manner that complies with this Section 4.03, and such item of Indebtedness will
be treated as having been incurred pursuant to only one of such categories.
Accrual of interest, the accretion of accreted value and the payment of
interest in the form of additional Indebtedness will not be deemed to be an
incurrence of Indebtedness for purposes of this Section 4.03.  Indebtedness under the Credit Agreement
outstanding on the date of the Release (if applicable) or otherwise on the
Issue Date will be deemed to have been incurred on such date in reliance on the
exception provided by Section 4.03(c)(i). 
The maximum amount of Indebtedness that the Issuer and its Restricted
Subsidiaries may incur pursuant to this Section 4.03 shall not be deemed to be
exceeded, with respect to any outstanding Indebtedness, solely as a result of
fluctuations in the exchange rate of currencies.


 


(e)                                  Notwithstanding
the foregoing, prior to and as a condition to the incurrence of any
Indebtedness that is senior unsecured Indebtedness of the Issuer or any
Restricted Subsidiary and is permitted to be incurred pursuant to Sections 4.03(b),
4.03(c)(i), (xi) and (xiii) (solely with respect to Refinancing


 


46





















 


Indebtedness incurred pursuant
to 4.03(b)), the lender or holder (or representative thereof) of such
Indebtedness shall enter into an intercreditor agreement in substantially the
same form as the Intercreditor Agreement.


 


Section 4.04                                Limitation on Restricted Payments.


 


(a)                                  Notwithstanding
anything contained in Sections 4.04(b) and (c), prior to the Release, the
Issuer will not make any Restricted Payments or any Permitted Investments,
except to the extent necessary to consummate the Release or the Special
Mandatory Redemption and the transactions contemplated by the Escrow Agreement
(including any Investments deemed to exist by virtue of the Escrow Agreement or
the payment of fees and expenses related to the offering of the Notes).


 


(b)                                 From
and after the Release, the Issuer will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly:


 


(i)                                     declare
or pay any dividend or make any other payment or distribution on account of the
Issuer’s or any of its Restricted Subsidiaries’ Equity Interests, including any
dividend or distribution payable in connection with any merger or consolidation
(other than (A) dividends or distributions by the Issuer payable in Equity
Interests (other than Disqualified Stock) of the Issuer or in options, warrants
or other rights to purchase such Equity Interests (other than Disqualified
Stock) or (B) dividends or distributions by a Restricted Subsidiary to the
Issuer or any other Restricted Subsidiary so long as, in the case of any
dividend or distribution payable on or in respect of any class or series of
securities issued by a Restricted Subsidiary other than a Wholly Owned
Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro
rata share of such dividend or distribution in accordance with its Equity
Interests in such class or series of securities);


 


(ii)                                  purchase,
redeem or otherwise acquire or retire for value any Equity Interests of the
Issuer or any direct or indirect parent corporation of the Issuer, including in
connection with any merger or consolidation involving the Issuer;


 


(iii)                               make
any principal payment on, or redeem, repurchase, defease or otherwise acquire
or retire for value, in each case prior to any scheduled repayment, sinking
fund payment or maturity, any Indebtedness subordinated or junior in right of
payment to the Notes or, if applicable, any Guarantee (other than (x) Indebtedness
permitted under Section 4.03(c)(vi) or (vii) and (y) the purchase,
repurchase or other acquisition of Indebtedness subordinated or junior in right
of payment to the Notes, as the case may be, 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 or acquisition);
or


 


(iv)                              make
any Restricted Investment


 


(all such
payments and other actions set forth in clauses (i) through (iv) above being
collectively referred to as “Restricted Payments”),
unless, at the time of and after giving effect to such Restricted Payment:


 


(1)                                  no
Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment;


 


(2)                                  the
Issuer would, at the time of such Restricted Payment and after giving pro forma
effect thereto as if such Restricted Payment had been made at the beginning of
the applicable


 


47





















 


four-quarter
period, have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt to Adjusted EBITDA Ratio test set forth in
Section 4.03(b); and


 


(3)                                  such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Issuer and the Restricted Subsidiaries after the Issue
Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv),
(v), (vii), (viii), (ix), (x), (xi), (xiii), (xiv) and (xvi) of
Section 4.04(c)), is less than the amount equal to the difference between
(1) the Cumulative Credit and (2) 1.4 times Cumulative Interest
Expense.


 


(c)                                  The
provisions of Section 4.04(b) shall not prohibit:


 


(i)                                     the
payment of any dividend or other distribution or the consummation of any
irrevocable redemption within 60 days after the date of declaration thereof, if
at the date of declaration such payment would have complied with the provisions
of this Indenture;


 


(ii)                                  (A)
the redemption, repurchase, retirement or other acquisition of any Equity
Interests of the Issuer or any direct or indirect parent corporation (“Retired Capital Stock”) or Indebtedness subordinated to the
Notes, as the case may be, in exchange for or out of the proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary or the Issuer)
of Equity Interests of the Issuer or contributions to the equity capital of the
Issuer (in each case, other than Disqualified Stock) (“Refunding
Capital Stock”) and (B) the declaration and payment of accrued
dividends on the Retired Capital Stock out of the proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary or the Issuer) of Refunding
Capital Stock;


 


(iii)                               the
redemption, repurchase or other acquisition or retirement of Indebtedness
subordinated to the Notes or a Guarantee made by exchange for, or out of the
proceeds of the substantially concurrent sale of, new Indebtedness of the
borrower thereof, which is incurred in compliance with Section 4.03 so long as


 


(A)                              the
principal amount of such new Indebtedness does not exceed the principal amount
of the Indebtedness subordinated to the Notes or, if applicable, a Guarantee
being so redeemed, repurchased, acquired or retired for value plus the amount
of any reasonable premium required to be paid under the terms of the instrument
governing the Indebtedness subordinated to the Notes or, if applicable, a
Guarantee being so redeemed, repurchased, acquired or retired and any
reasonable fees and expenses incurred in the issuance of such new Indebtedness,


 


(B)                                such
new Indebtedness is subordinated to the Notes and any such applicable Guarantee
at least to the same extent as such Indebtedness subordinated to such Notes so
purchased, exchanged, redeemed, repurchased, acquired or retired for value,


 


(C)                                such
new Indebtedness has a final scheduled maturity date equal to or later than the
final scheduled maturity date of the Indebtedness subordinated to such Notes or
a Guarantee being so redeemed, repurchased, acquired or retired and


 


(D)                               such
new Indebtedness has a Weighted Average Life to Maturity equal to or greater
than the remaining Weighted Average Life to Maturity of the Indebtedness
subordinated to such Notes or a Guarantee being so redeemed, repurchased,
acquired or retired;


 


48





















 


(iv)                              a
Restricted Payment to pay for the repurchase, retirement or other acquisition
or retirement for value of common Equity Interests of the Issuer or any of its
direct or indirect parent entities held by any future, present or former
employee, director or consultant of the Issuer, any of its Subsidiaries or (to
the extent such person renders services to the businesses of the Issuer and its
Subsidiaries) the Issuer’s direct or indirect parent entities, pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement or arrangement; provided, however, that the aggregate amount of all such Restricted
Payments made under this clause (iv) does not exceed in any calendar year $5.0
million (with unused amounts in any calendar year being carried over to the
next two succeeding calendar years); and provided, further, that such amount in any calendar year may be
increased by an amount not to exceed:


 


(A)                              the
cash proceeds from the sale of Equity Interests of the Issuer and, to the
extent contributed to the Issuer, Equity Interests of any of its direct or
indirect parent entities, in each case to members of management, directors or
consultants of the Issuer, any of its Subsidiaries or (to the extent such
person renders services to the businesses of the Issuer and its Subsidiaries)
the Issuer’s direct or indirect parent entities, that occurs after the Issue
Date; plus


 


(B)                                the
cash proceeds of key man life insurance policies received by the Issuer or its
Restricted Subsidiaries, or by any direct or indirect parent entity to the
extent contributed to the Issuer, after the Issue Date; less


 


(C)                                the
amount of any Restricted Payments previously made pursuant to clauses (A) and
(B) of this clause (iv);


 


(provided that the Issuer may elect to apply all or any
portion of the aggregate increase contemplated by clauses (A) and (B) above in
any calendar year);


 


(v)                                 repurchases
of Equity Interests deemed to occur upon exercise of stock options or warrants
if such Equity Interests represent a portion of the exercise price of such
options or warrants;


 


(vi)                              the
payment of dividends on the Issuer’s common stock (or the payment of dividends
to any direct or indirect parent entity to fund a payment of dividends on such
entity’s common stock) following the first public offering of the Issuer’s
common stock or the common stock of any of its direct or indirect parent
entities after the Issue Date, of up to 6.0% per annum or the net proceeds
received by or contributed to the Issuer in any past or future public offering,
other than public offerings with respect to the Issuer’s or its parent’s common
stock registered on Form S-8 and other than any public sale constituting an Excluded
Contribution;


 


(vii)                           Investments
that are made with Excluded Contributions;


 


(viii)                        the
declaration and payment of dividends to, or the making of loans to, Parent in
amounts required for it to pay;


 


(A)                              (i)
overhead (including salaries and other compensation expenses), tax liabilities
of Parent, legal, accounting and other professional fees and expenses, (ii)
fees and expenses related to any equity offering, investment or acquisition
permitted hereunder (whether or not successful) and (iii) other fees and
expenses in connection with the maintenance of its existence and its ownership
of the Issuer; and


 


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(B)                                (i)
with respect to each tax year (or portion thereof) that Parent qualifies as a
Flow Through Entity, a distribution by Parent to the holders of the Equity
Interests of Parent of an amount equal to the product of (x) the amount of
aggregate net taxable income allocated by Parent to the direct or indirect
holders of the Equity Interests of Parent for such period and (y) the
Presumed Tax Rate for such period and (ii) with respect to any tax year
(or portion thereof) that Parent does not qualify as a Flow Through Entity, the
payment of dividends or other distributions to any direct or indirect holders
of Equity Interests of Parent in amounts required for such holder to pay
federal, state or local income taxes (as the case may be) imposed directly on
such holder to the extent such income taxes are attributable to the income of
Parent and its Subsidiaries; provided,
however, that in each case the
amount of such payments in respect of any tax year does not exceed the amount
that the Parent and its Subsidiaries would have been required to pay in respect
of federal, state or local taxes (as the case may be) in respect of such year
if Parent and its Subsidiaries paid such taxes directly as a stand-alone
taxpayer (or stand-alone group);


 


(ix)                                distributions
or payments of Securitization Fees;


 


(x)                                   cash
dividends or other distributions on the Issuer’s or any Restricted Subsidiary’s
Capital Stock used to, or the making of loans, the proceeds of which will be
used to, fund the payment of fees and expenses incurred in connection with the
Transactions, this offering or owed to Affiliates, in each case to the extent
permitted by Section 4.07;


 


(xi)                                declaration
and payment of dividends to holders of any class or series of Disqualified
Stock of the Issuer or any Restricted Subsidiary issued in accordance with
Section 4.03 to the extent such dividends are included in the definition of “Cumulative
Interest Expense”;


 


(xii)                             other
Restricted Payments in an aggregate amount not to exceed $35.0 million;


 


(xiii)                          the
declaration and payment of dividends or distributions to holders of any class
or series of Designated Preferred Stock issued after the Issue Date and the
declaration and payment of dividends to any direct or indirect parent company
of the Issuer, the proceeds of which will be used to fund the payment of
dividends to holders of any class or series of Designated Preferred Stock of
any direct or indirect parent company of the Issuer issued after the Issue
Date; provided, however,
that (A) for the most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date of
issuance of such Designated Preferred Stock, after giving effect to such
issuance on the first day of such period (and the payment of dividends or
distributions) on a pro forma basis, the Issuer would have had a Debt to
Adjusted EBITDA Ratio of less than 6.75 to 1.00 and (B) the aggregate
amount of dividends declared and paid pursuant to this clause (xiii) does not
exceed the net cash proceeds actually received by the Issuer from any such sale
of Designated Preferred Stock issued after the Issue Date;


 


(xiv)                         the
distribution, as a dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Issuer or a Restricted Subsidiary of the Issuer by,
Unrestricted Subsidiaries;


 


(xv)                            the
repurchase, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness pursuant to Sections 4.06 and 4.08; provided that all Notes tendered by holders of the Notes in
connection with the related Change of Control Offer or Asset Sale Offer, as
applicable, have been repurchased, redeemed or acquired for value;


 


50





















 


(xvi)                         Investments
in Unrestricted Subsidiaries having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (xvi)
that are at the time outstanding, without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of cash
and/or marketable securities, not to exceed $10.0 million at the time of
such Investment (with the fair market value of each Investment being measured
at the time made and without giving effect to subsequent changes in value);


 


(xvii)                      any
payments made in connection with the consummation of the Transactions or as
contemplated by the Acquisition Documents (whether on the Issue Date or
thereafter), including the distribution of any cash that remains on the balance
sheet of the Issuer on the Issue Date after giving effect to the consummation
of the Transactions; provided, however, that after giving effect to any
such payment or distribution, in no event shall the aggregate contribution from
the Sponsors (including the Subordinated Shareholder PIK Loan and any
additional equity contribution) necessary to consummate the Acquisition be less
than $163.0 million; and


 


(xviii)                   any
payments to Parent made in accordance with Section 4.17 in an aggregate amount
equal to any amounts not required to be applied to the repayment of
Indebtedness pursuant to Section 4.17;


 


provided,
however, that at the time of, and after
giving effect to, any Restricted Payment permitted under clauses (ii) (with
respect to the payment of dividends on Refunding Capital Stock pursuant to
clause (B) thereof), (vi), (x), (xii),(xiii), (xiv), (xv), (xvi) and (xviii) of
this Section 4.04(c), no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof.


 


The amount of all Restricted
Payments (other than cash) will be the fair market value on the date of the
Restricted Payment of the asset(s) or securities proposed to be transferred or
issued by the Issuer or such Subsidiary, as the case may be, pursuant to the
Restricted Payment. The fair market value of any assets or securities that are
required to be valued by this covenant will be determined in good faith by the
Management Board of the Issuer.


 


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


 


Section 4.05                                Dividend and Other Payment Restrictions Affecting Subsidiaries.  The Issuer will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create or permit to
exist or become effective any consensual encumbrance or restriction on the
ability of any such Restricted Subsidiary to:


 


(a)                                  pay dividends or make
any other distributions on its Capital Stock to the Issuer 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 owed to the Issuer or
any of its Restricted Subsidiaries;


 


51





















 


(b)                                 make loans or advances
to the Issuer or any of its Restricted Subsidiaries; or


 


(c)                                  sell, lease or
transfer any of its properties or assets to the Issuer or any of its Restricted
Subsidiaries;


 


except in each
case for such encumbrances or restrictions existing under or by reason of:


 


(1)                                      contractual
encumbrances or restrictions in effect on the Issue Date, including, without
limitation, pursuant to Indebtedness existing on the Issue Date or the Credit
Agreement and related documentation (whether or not existing on the Issue
Date);


 


(2)                                      this Indenture;


 


(3)                                      purchase money
obligations for property acquired in the ordinary course of business that
impose restrictions of the nature discussed in clause (c) above on the property
so acquired;


 


(4)                                      applicable law
or any applicable rule, regulation or order;


 


(5)                                      any agreement
or other instrument of a Person acquired by the Issuer or any Restricted
Subsidiary in existence at the time of such acquisition (but not created in
contemplation thereof), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired;


 


(6)                                      contracts for
the sale of assets, including, without limitation, customary restrictions with
respect to a Subsidiary pursuant to an agreement that has been entered into for
the sale or disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary;


 


(7)                                      secured
Indebtedness otherwise permitted to be incurred pursuant to Section 4.03 and
Section 4.11 that limits the right of the debtor to dispose of the assets
securing such Indebtedness;


 


(8)                                      restrictions on
cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;


 


(9)                                      other
Indebtedness of Restricted Subsidiaries (i) that are Guarantors which
Indebtedness is permitted to be incurred pursuant to an agreement entered into
subsequent to the Issue Date in accordance with Section 4.03 or (ii) that
are not Guarantors which Indebtedness is incurred subsequent to the Issue Date
pursuant to the Non-Guarantor Exception or clauses (iv), (xi) and (xix) of
Section 4.03(c);


 


(10)                                customary
provisions in joint venture agreements and other similar agreements entered
into in the ordinary course of business;


 


(11)                                customary
provisions contained in leases or licenses of intellectual property and other
similar agreements entered into in the ordinary course of business;


 


(12)                                customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest;


 


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(13)                                customary
provisions restricting assignment of any agreement entered into in the ordinary
course of business;


 


(14)                                any
encumbrances or restrictions of the type referred to in clauses (a), (b) and
(c) above imposed by any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1), (2) and (5) above, provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings are,
in the good faith judgment of the Issuer’s Management Board, no more
restrictive with respect to such dividend and other payment restrictions than
those contained in the dividend or other payment restrictions prior to such
amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing; or


 


(15)                                any encumbrance
or restriction of a Securitization Subsidiary effected in connection with a
Qualified Securitization Financing; provided, however, that such restrictions apply only to such
Securitization Subsidiary.


 


Section 4.06                                Asset Sales.  (a)  Prior
to the Release, the Issuer will not consummate an Asset Sale except to the
extent necessary to consummate the Release, the Special Mandatory Redemption
and the transactions contemplated by the Escrow Agreement.  From and after the Release, the Issuer will
not, and will not permit any of its Restricted Subsidiaries to, consummate an
Asset Sale unless (1) the Issuer (or such Restricted Subsidiary, as the case
may be) receives consideration at the time of the Asset Sale at least equal to
the fair market value (as determined in good faith by the Issuer) of the assets
or Equity Interests issued or sold or otherwise disposed of; and (2) at
least 75% of the consideration received in the Asset Sale by the Issuer or such
Restricted Subsidiary is in the form of cash or Cash Equivalents.  The amount of:


 


(i)                                     any
liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most recent
balance sheet or in the notes thereto) of the Issuer or any Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the
Notes) that are assumed by the transferee of any such assets and for which the
Issuer and all Restricted Subsidiaries have been validly released by all
creditors in writing,


 


(ii)                                  any
securities received by the Issuer or such Restricted Subsidiary from such
transferee that are converted by the Issuer or such Restricted Subsidiary into
cash (to the extent of the cash received) within 180 days following the receipt
thereof, and


 


(iii)                               any
Designated Non-cash Consideration received by the Issuer or any of its Restricted
Subsidiaries in such Asset Sale having an aggregate fair market value (as
determined in good faith by the Issuer), taken together with all other
Designated Non-cash Consideration received pursuant to this clause (iii) that
is at that time outstanding, not to exceed the greater of (x) $50.0
million and (y) 5.0% of Total Assets at the time of the receipt of such
Designated Non-cash Consideration (with the fair market value of each item of
Designated Non-cash Consideration being measured at the time received without
giving effect to subsequent changes in value)


 


shall be
deemed to be cash solely for the purposes of Section 4.06(a)(2).


 


(b)                                 Within
365 days after the receipt of any Net Proceeds from an Asset Sale (or Event of
Loss Proceeds), the Issuer or such Restricted Subsidiary may apply those Net
Proceeds (together with any Event of Loss Proceeds required to be applied as
provided in Section 4.15) at its option to:


 


53





















 


(i)                                     permanently
reduce Obligations under (A) the Credit Agreement (and, in the case of
revolving Obligations thereunder, to correspondingly reduce commitments with
respect thereto), (B) Indebtedness of the Issuer or any Restricted
Subsidiary that is a Guarantor that ranks pari passu with
the Notes or the applicable Guarantee of the Issuer or any Restricted
Subsidiary that is a Guarantor and is secured by a Lien on the assets subject
to such Asset Sale or Event of Loss or (C) Indebtedness that ranks pari passu with the Notes or the
applicable Guarantee (provided
that if the Issuer or a Restricted Subsidiary that is a Guarantor shall so
reduce Obligations under such Indebtedness, it will equally and ratably reduce
Obligations under the Notes by making an offer (in accordance with the
procedures set forth below for an Asset Sale Offer) to all holders of Notes to
purchase at a purchase price equal to 100% of the principal amount thereof,
plus accrued and unpaid interest and additional interest, if any, the pro rata
principal amount of Notes) or Indebtedness of a Restricted Subsidiary that is
not a Guarantor, in each case other than Indebtedness owed to the Issuer or an
Affiliate of the Issuer (provided
that in the case of any reduction of any revolving obligations, the Issuer or
such Restricted Subsidiary shall effect a corresponding reduction of commitments
with respect thereto);


 


(ii)                                  make
an investment in (A) any one or more businesses; provided
that such investment in any business is in the form of the acquisition of
Capital Stock and results in the Issuer or a Restricted Subsidiary owning an
amount of the Capital Stock of such business such that it constitutes a
Restricted Subsidiary, (B) capital expenditures or (C) other assets, in each of
(A), (B) and (C), used or useful in a Permitted Business; and/or


 


(iii)                               make
an investment in (A) any one or more businesses; provided
that such investment in any business is in the form of the acquisition of
Capital Stock and it results in the Issuer or a Restricted Subsidiary owning an
amount of the Capital Stock of such business such that it constitutes a
Restricted Subsidiary, (B) properties or (C) assets that, in each of (A), (B)
and (C), replace the businesses, properties and assets that are the subject of
such Asset Sale or Event of Loss;


 


provided that in the case of clauses
(ii) and (iii) above, a binding commitment shall be treated as a
permitted application of the Net Proceeds from the date of such commitment so
long as the Issuer or such Restricted Subsidiary enters into such commitment
with the good faith expectation that such Net Proceeds will be applied to
satisfy such commitment (an “Acceptable
Commitment”) and, in the event any Acceptable Commitment is later
cancelled or terminated for any reason before such Net Proceeds are so applied,
the Issuer or such Restricted Subsidiary either applies the Net Proceeds in
accordance with this paragraph or enters into another Acceptable Commitment
within nine months of such cancellation or termination.


 


When the aggregate
amount of Net Proceeds (or Event of Loss Proceeds) not applied or invested in
accordance with the preceding paragraph (“Excess Proceeds”)
exceeds $10.0 million, the Issuer will make an offer to all holders of Notes
(an “Asset Sale Offer”) to purchase on a pro
rata basis the maximum principal amount of Notes that may be purchased out of
the Excess Proceeds.  The offer price in
any Asset Sale Offer will be equal to 100% of principal amount plus accrued and
unpaid interest and additional interest, if any, to the date of purchase, and
will be payable in cash.


 


Pending the final
application of any such Net Proceeds (or Event of Loss Proceeds), the Issuer or
such Restricted Subsidiary of the Issuer may temporarily reduce revolving
credit borrowings or otherwise invest the Net Proceeds (or Event of Loss
Proceeds) in any manner not prohibited by this Indenture.  The Issuer shall commence an Asset Sale Offer
with respect to Excess Proceeds within ten Business Days after the date that
Excess Proceeds exceed $10.0 million by mailing the notice required pursuant to
the terms of Section 4.06(f), with a copy to the Trustee.  If any Excess Proceeds remain after consummation
of an Asset Sale Offer, the Issuer may use those Excess Proceeds for any
purpose not otherwise prohibited


 


54





















 


by this Indenture. If the
aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds
the amount of Excess Proceeds, the Trustee will select the Notes to be
purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.


 


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


 


(d)                                 Not
later than the date upon which written notice of an Asset Sale Offer is
delivered to the Trustee as provided above, the Issuer shall deliver to the
Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds,
(ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which
such Asset Sale Offer is being made and (iii) the compliance of such allocation
with the provisions of Section 4.06(b). 
On such date, the Issuer shall also irrevocably deposit with the Trustee
or with a Paying Agent (or, if the Issuer or a Wholly Owned Subsidiary is
acting as a Paying Agent, such Paying Agent shall segregate and hold in trust)
an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as
directed in writing by the Issuer, and to be held for payment in accordance
with the provisions of this Section 4.06. 
Upon the expiration of the period for which the Asset Sale Offer remains
open (the “Offer Period”), the Issuer shall
deliver to the Trustee for cancellation the Notes or portions thereof that have
been properly tendered to and are to be accepted by the Issuer.  The Trustee (or a Paying Agent, if not the
Trustee) shall, on the date of purchase, mail or deliver payment to each
tendering Holder in the amount of the purchase price.  In the event that the Excess Proceeds
delivered by the Issuer to the Trustee is greater than the purchase price of
the Notes tendered, the Trustee shall deliver the excess to the Issuer immediately
after the expiration of the Offer Period for application in accordance with
Section 4.06.


 


(e)                                  Holders
electing to have a Note purchased shall be required to surrender the Note, with
an appropriate form duly completed, to the Issuer at the address specified in
the notice at least three Business Days prior to the purchase date.  Holders shall be entitled to withdraw their
election if the Trustee or the Issuer receives not later than one Business Day
prior to the Purchase Date, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note which was delivered by
the Holder for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased.  If
at the end of the Offer Period more Notes are tendered pursuant to an Asset
Sale Offer than the Issuer is required to purchase, selection of such Notes for
purchase shall be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which such Notes are
listed, or if such Notes are not so listed, on a pro rata basis, by lot or by
such other method as the Trustee shall deem fair and appropriate (and in such
manner as complies with applicable legal requirements); provided
that no Notes of $5,000 or less shall be purchased in part.


 


(f)                                    Notices
of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at
least 30 but not more than 60 days before the purchase date to each Holder of
Notes at such Holder’s registered address. 
If any Note is to be purchased in part only, any notice of purchase that
relates to such Note shall state the portion of the principal amount thereof
that is to be purchased.


 


(g)                                 A
new Note in principal amount equal to the unpurchased portion of any Note
purchased in part shall be issued in the name of the Holder thereof upon
cancellation of the original Note.  On
and after the purchase date, unless the Issuer defaults in payment of the purchase
price, interest shall cease to accrue on Notes or portions thereof purchased.


 


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Section 4.07                                Transactions with Affiliates.  (a)  On
or prior to the Release, the Issuer will not enter or permit to exist any
Affiliate Transaction (as defined below) other than to the extent necessary to
consummate the Acquisition, the transactions contemplated by the Escrow
Agreement, the Release or the Special Mandatory Redemption.  From and after the Release, the Issuer will
not, and will not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”) involving aggregate consideration in
excess of $2.0 million, unless:


 


(i)                                     the
Affiliate Transaction is on terms that are not materially less favorable, taken
as a whole, to the Issuer or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Issuer or such
Restricted Subsidiary with an unrelated Person on an arm’s length basis; and


 


(ii)                                  the
Issuer delivers to the Trustee, with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, a resolution of the Management Board set forth in an
Officers’ Certificate certifying that such Affiliate Transaction complies with
this covenant and that such Affiliate Transaction has been approved by a
majority of the disinterested members, if any, of the Management Board.


 


(b)                                 The
provisions of Section 4.07(a) shall not apply to the following:


 


(i)                                     transactions
between or among the Issuer and/or any Restricted Subsidiary or any entity that
becomes a Restricted Subsidiary as a result of such transaction;


 


(ii)                                  Restricted
Payments and Permitted Investments (other than pursuant to clause (12) of the
definition thereof) permitted by Section 4.04;


 


(iii)                               the
payment to Sponsors of annual management, consulting, monitoring and advisory
fees in an aggregate amount in any fiscal year not in excess of the greater of
(A) $2.5 million and (B) 2.0% of Adjusted EBITDA of the Issuer for
the immediately preceding fiscal year, plus reasonable out-of-pocket costs and
expenses in connection therewith and unpaid amounts accrued for prior periods
(but after the Issue Date), and the execution of any management or monitoring
agreement subject to the same limitations;


 


(iv)                              the
payment of reasonable and customary fees paid to, and indemnities provided on
behalf of, officers, directors, employees or consultants of the Issuer, any
Restricted Subsidiary or (to the extent such person renders services to the
businesses of the Issuer and its Subsidiaries) any of the Issuer’s direct or
indirect parent entities;


 


(v)                                 payments
by the Issuer or any Restricted Subsidiary to the Sponsors and any of their
Affiliates made for any financial advisory, financing, underwriting or
placement services or in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or divestitures,
which payments are approved by a majority of the members of the Management
Board of the Issuer in good faith;


 


(vi)                              transactions
in which the Issuer or any Restricted Subsidiary delivers to the Trustee a
letter from an Independent Financial Advisor stating that such transaction is
fair to the Issuer or such Restricted Subsidiary from a financial point of
view;


 


56





















 


(vii)                           payments
or loans (or cancellations of loans) to employees or consultants of the Issuer,
any Restricted Subsidiary or (to the extent such person renders services to the
businesses of the Issuer and its Subsidiaries) any of the Issuer’s direct or
indirect parent entities and employment agreements, stock option plans and
other compensatory arrangements, which are, in each case, approved by a
majority of the Management Board of the Issuer in good faith and which are otherwise
permitted under this Indenture;


 


(viii)                        payments
made or performance under any agreement as in effect on the Issue Date
(including, without limitation, each of the agreements entered into in
connection with the Transactions) or any amendment thereto (so long as any such
amendment is not less advantageous to the holders of the Notes in any material
respect than the original agreement as in effect on the Issue Date);


 


(ix)                                the
existence of, or the performance by the Issuer or any of its Restricted
Subsidiaries of its obligations under the terms of, the Shareholders’ Agreement
(including any registration rights agreement or purchase agreements related
thereto to which it is party as of the Issue Date and any similar agreement
that it may enter into thereafter); provided, however, that the existence of, or the performance by the
Issuer or any of its Restricted Subsidiaries of its obligations under, any
future amendment to the Shareholders’ Agreement or under any similar agreement
entered into after the Issue Date shall only be permitted by this clause (ix)
to the extent that the terms of any such amendment or new agreement are not
otherwise disadvantageous to holders of the Notes in any material respect;


 


(x)                                   the
Transactions and the payment of all fees and expenses related to the Transactions,
including any fees to the Sponsors;


 


(xi)                                transactions
with customers, clients, suppliers, or purchasers or sellers of goods or
services, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Indenture, that are fair to the Issuer or the
Restricted Subsidiaries, in the reasonable determination of the members of the
Management Board of the Issuer or the senior management thereof, or are on
terms at least as favorable as might reasonably have been obtained at such time
from an unaffiliated party;


 


(xii)                             if
otherwise permitted hereunder, the issuance of Equity Interests (other than
Disqualified Stock) of Parent to any Permitted Holder or of the Issuer to
Parent or to any Permitted Holder;


 


(xiii)                          any
transaction effected as part of a Qualified Securitization Financing;


 


(xiv)                         any
employment agreements entered into by the Issuer or any of the Restricted
Subsidiaries in the ordinary course of business; and


 


(xv)                            any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Management Board of the
Issuer.


 


Section 4.08                                Change of Control.  (a)  Upon a Change of Control, each holder of
Notes will have the right to require the Issuer to repurchase all or any part
(equal to $5,000 or an integral multiple of $1,000 in excess thereof) of that
Holder’s Notes pursuant to a Change of Control Offer in accordance with the
terms contemplated in this Indenture.  In
the Change of Control Offer, the Issuer shall offer a Change of Control Payment
(as defined below) to purchase such Notes at a purchase price in cash equal to
101%


 


57





















 


of the aggregate principal amount of Notes repurchased plus accrued and
unpaid interest and additional interest, if any, on the Notes repurchased, to
the date of purchase (subject to the right of the Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date) (the “Change of Control Payment”).  Prior to being required to comply with any of
the terms of this Section 4.08 but in any event within 90 days following a
Change of Control, to the extent required to permit the Issuer to comply with
this Section 4.08, the Issuer shall either (i) repay all outstanding Senior
Debt or (ii) obtain the requisite consents, if any, under all agreements
governing outstanding Senior Debt.  The
Issuer’s failure to comply with the covenant described in the immediately
preceding sentence (and any failure to send the notice referenced above as a
result of the prohibition in the preceding sentence) may (with notice and lapse
of time) constitute an Event of Default described in Section 6.01(c) but shall
not constitute an Event of Default described in Section 6.01(a).  The Issuer will publicly announce the results
of the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.


 


(b)                                 Within
30 days following any Change of Control, except to the extent that the Issuer
has exercised its right to redeem the Notes in accordance with Article 3 of
this Indenture, the Issuer shall mail a notice (a “Change of
Control Offer”) to each Holder with a copy to the Trustee, stating:


 


(i)                                     that
a Change of Control has occurred and that such Holder has the right to require
the Issuer to purchase all or a portion of such Holder’s Notes at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and
unpaid interest to the date of purchase (subject to the right of the Holders of
record on the relevant record date to receive interest on the relevant interest
payment date);


 


(ii)                                  the
circumstances and relevant facts and financial information regarding such
Change of Control;


 


(iii)                               the
purchase date (the “Change of Control Purchase
Date”) (which shall be no earlier than 30 days nor later than 60
days from the date such notice is mailed); and


 


(iv)                              the
instructions determined by the Issuer, consistent with this Section, that a
Holder must follow in order to have its Notes purchased.


 


(c)                                  Holders
electing to have a Note purchased shall be required to surrender the Note, with
an appropriate form duly completed, to the Issuer at the address specified in
the notice at least three Business Days prior to the Change of Control Purchase
Date.  The Holders shall be entitled to
withdraw their election if the Trustee or the Issuer receives not later than
one Business Day prior to the Change of Control Purchase Date a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note which was delivered for purchase by the Holder and a statement
that such Holder is withdrawing his election to have such Note purchased.  Holders whose Notes are purchased only in
part shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.


 


(d)                                 On
the Change of Control Purchase Date, the Issuer shall, to the extent lawful:


 


(i)                                     accept
for payment all Notes or portions of Notes properly tendered pursuant to the
Change of Control Offer;


 


(ii)                                  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


 


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(iii)                               deliver
or cause to be delivered to the Trustee the Notes properly accepted together
with an Officers’ Certificate stating the aggregate principal amount of Notes
or portions of Notes being purchased by the Issuer.


 


(e)                                  On
the Change of Control Purchase Date all Notes purchased by the Issuer under
this Section shall be delivered to the Trustee for cancellation, and the Issuer
shall pay the Change of Control Payment to the Holders entitled thereto.  The paying agent will promptly mail to each
holder of Notes properly tendered the Change of Control Payment for such Notes,
and the Trustee will 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 new Note will be in a principal amount of $5,000 or an integral
multiple of $1,000 in excess thereof.


 


(f)                                    Notwithstanding
the foregoing provisions of this Section, the Issuer shall not be required to
make a Change of Control Offer upon a Change of Control if a third party makes
the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in Section 4.08(b) applicable to a
Change of Control Offer made by the Issuer and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.  A Change of Control Offer may be made in
advance of a Change of Control, conditioned upon such Change of Control, if a
definitive agreement is in place for the Change of Control at the time of
making of the Change of Control Offer.


 


(g)                                 At
the time the Issuer delivers Notes to the Trustee which are to be accepted for
purchase, the Issuer shall also deliver an Officers’ Certificate stating that
such Notes are to be accepted by the Issuer pursuant to and in accordance with
the terms of this Section 4.08.  A Note
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.


 


(h)                                 Prior
to any Change of Control Offer, the Issuer shall deliver to the Trustee an
Officers’ Certificate stating that all conditions precedent contained herein to
the right of the Issuer to make such offer have been complied with.


 


(i)                                     The
Issuer shall comply with the requirements of Section 14e-1 of the Exchange Act
and any other securities laws or regulations in connection with the repurchase
of Notes pursuant to this Section to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control.  To the extent that
the provisions of any securities laws or regulations conflict with provisions
of this Section, the Issuer shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
this Section by virtue thereof.


 


Section 4.09                                Compliance Certificate. 
The Issuer shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Issuer an Officers’ Certificate stating that in the
course of the performance by the signers of their duties as Officers of the
Issuer they would normally have knowledge of any Default and whether or not the
signers know of any Default that occurred during such period.  If they do, the certificate shall describe
the Default, its status and what action the Issuer is taking or proposes to
take with respect thereto.  The Issuer
also shall comply with Section 314(a)(4) of the TIA.


 


Section 4.10                                Further Instruments and Acts.  Upon request of the Trustee, the Issuer shall
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of
this Indenture.


 


Section 4.11                                Liens.  (a)  Prior to the Release, the Issuer shall not,
and shall not permit any Restricted Subsidiary to, incur or suffer to exist any
Lien upon any of its property (including Capital Stock and intercompany notes),
whether owned on the Issue Date or thereafter acquired, or any interest therein


 


59





















 


or any income or profits therefrom that secures any obligation, except
the Lien of the Trustee on the Escrowed Property and any Lien contemplated
under the Escrow Agreement.  From and
after the Release, the Issuer will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien (other than Permitted Liens) that secures obligations under any
Indebtedness ranking pari passu
with or subordinated to the Notes or, if applicable, any related Guarantee on
any asset or property of the Issuer or any Restricted Subsidiary, or any income
or profits therefrom, or assign or convey any right to receive income therefrom,
unless:


 


(i)                                     in
the case of Liens securing Indebtedness subordinated to the Notes or any
Guarantee, the Notes and any applicable Guarantees are secured by a Lien on
such property, assets or proceeds that is senior in priority to such Liens; or


 


(ii)                                  in
all other cases, the Notes or the applicable Guarantee or Guarantees are
equally and ratably secured.


 


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


 


(i)                                     (A) Liens
securing the Notes and (B) Liens securing Indebtedness permitted to be incurred
pursuant to clauses (i), (iv) and (xi) of Section 4.03(c) and (C) Liens
incurred to secure Obligations in respect of any Indebtedness permitted to be incurred
pursuant to Section 4.03; provided that,
with respect to Liens securing Obligations permitted under this subclause (C),
at the time of incurrence and after giving pro forma effect thereto, the
Consolidated Secured Debt Ratio would be no greater than 4.0 to 1.0; and


 


(ii)                                  Permitted
Liens.


 


Section 4.12                                Limitation on Layering. 
The Issuer will not, and will not permit any Restricted Subsidiary that
is a Guarantor to, directly or indirectly, incur any Indebtedness that is or
purports to be by its terms (or by the terms of any agreement governing such
Indebtedness) contractually subordinated or junior in right of payment to any Indebtedness
(including Acquired Debt) of the Issuer or such Restricted Subsidiary, as the
case may be, unless such Indebtedness is also by its terms (or by the terms of
any agreement governing such Indebtedness) made expressly subordinated to the
Notes to the extent and in the same manner as such Indebtedness is subordinated
to other Indebtedness of the Issuer or such Guarantor’s Guarantee of the Notes
(as applicable).


 


Section 4.13                                Maintenance of Office or Agency.  (a) 
The Issuer shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Issuer in respect of the Notes and this Indenture may be served.  The Issuer shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Issuer
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the corporate trust office of the
Trustee as set forth in Section 13.02.


 


(b)                                 The
Issuer may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however, that
no such designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain an office or agency in the Borough of Manhattan, the City
of New York.  The Issuer shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.


 


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(c)                                  The
Issuer hereby designates the corporate trust office of the Trustee or its Agent,
in the Borough of Manhattan, the City of New York as such office or agency of
the Issuer in accordance with Section 2.04.


 


Section 4.14                                Business Activities. 
The Issuer shall not, and shall not permit any Restricted Subsidiary
(other than a Securitization Subsidiary) to, engage in any business other than
Permitted Businesses, except to such extent as would not be material to the
Issuer and its Subsidiaries taken as a whole.


 


Section 4.15                                Maintenance of Insurance. 
The Issuer and each Restricted Subsidiary will obtain, maintain and keep
in full force and effect at all times (i) with respect to each Satellite
to be launched by the Issuer or any Restricted Subsidiary, launch insurance
with respect to each such Satellite covering the launch of such Satellite and a
period thereafter, but only to the extent, if at all, and on such terms
(including period, exclusions, limitations on coverage and coverage amount) as
are determined by the Management Board of the Issuer to be in the best
interests of the Issuer and evidenced by a resolution of the Management Board
delivered to the Trustee, (ii) with respect to each Satellite it currently
owns or has risk of loss for, other than any Excluded Satellite, In-Orbit
Insurance and (iii) at all times subsequent to the coverage period of the
launch insurance described in clause (i) above, if any, or if launch
insurance is not procured, at all times subsequent to the initial completion of
in-orbit testing, in each case other than in the case of any such Satellite
that is an Excluded Satellite, In-Orbit Insurance; provided, however, that at any time with
respect to a Satellite that is not an Excluded Satellite, the Issuer shall not
be required to maintain In-Orbit Insurance in excess of 50% of the net book
value of each such Satellite (it being understood that any Satellite protected
by In-Orbit Spare Capacity shall be deemed to be insured for a percentage of
its net book value as set forth in the definition of “In-Orbit Spare Capacity”).  In the event of any loss, damage or failure
affecting a Satellite insured pursuant to clause (i), (ii) or (iii) above or
the expiration and non-renewal of an insurance policy for such a Satellite
resulting from a claim of loss under such policy causes a failure to comply
with this proviso, the Issuer shall be deemed to be in compliance with this
proviso for the 120 days immediately following such loss, damage or
failure or policy expiration, provided
that the Issuer procures such insurance or In-Orbit Spare Capacity as necessary
to comply with the preceding proviso within such 120 day period.


 


The insurance policies
required by the foregoing paragraph shall


 


(i)                                     contain
no exclusions other than


 


(A)                              Acceptable
Exclusions and such other exclusions or limitations of coverage as may be
applicable to a substantial portion of Satellites of the same model or relating
to systemic failures or anomalies as are then customary in the Satellite
insurance market and


 


(B)                                such
specific exclusions applicable to the performance of the Satellite being
insured as are reasonably accepted by the Management Board of the Issuer in
order to obtain insurance for a price that is, and on other terms and
conditions that are, commercially reasonable and


 


(ii)                                  provide
coverage for all risks of loss of and damage to the Satellite including for
partial loss, constructive total loss and total loss.


 


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


 


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In the event of
the unavailability of In-Orbit Spare Capacity for any reason, the Issuer shall,
subject to the proviso to the first paragraph above, within 120 days of
such loss or unavailability, be required to have in effect In-Orbit Insurance
complying with clause (ii) or (iii) of the first paragraph above, as
applicable, with respect to all Satellites that the In-Orbit Spare Capacity was
intended to protect so long as In-Orbit Spare Capacity is unavailable, provided that the Issuer and its Restricted Subsidiaries
shall be considered in compliance with this Section for the 120 days
immediately following such loss or unavailability, as the case may be.


 


In the event that
the Issuer or its Restricted Subsidiaries receive proceeds from any Satellite insurance
covering any Satellite owned by the Issuer or any of its Restricted
Subsidiaries, or in the event that the Issuer or any of its Restricted
Subsidiaries receives proceeds from any insurance maintained for it by any
Satellite Manufacturer or any launch provider covering any of such Satellites
(the event resulting in the payment of such proceeds, an “Event of
Loss”), all Event of Loss Proceeds in respect of such Event of Loss
shall be applied in the manner provided for in Section 4.06(b).


 


Section 4.16                                Limitation on Guarantees of Indebtedness by Restricted Subsidiaries.  The Issuer will not permit any of its
Restricted Subsidiaries (other than a Securitization Subsidiary formed in
connection with Qualified Securitization Financing) to, directly or indirectly,
guarantee the payment of any Indebtedness of the Issuer or any other Restricted
Subsidiary of the Issuer (other than: (1) the Non-Guarantor Exception,
(2) Permitted Debt of a Restricted Subsidiary of the Issuer,
(3) Indebtedness under Hedging Obligations in reliance on clause (ix)
of the definition of “Permitted Debt” or (4) Indebtedness under the
revolving credit portion of the Credit Agreement), unless:


 


(a)                                  such Restricted
Subsidiary simultaneously executes and delivers a supplemental indenture to this
Indenture providing for a Guarantee by such Restricted Subsidiary;


 


(b)                                 such Restricted
Subsidiary waives and will not in any manner whatsoever claim or take the
benefit or advantage of any rights of reimbursement, indemnity or subrogation
or any other rights against the Issuer or any other Restricted Subsidiary as a
result of any payment by such Restricted Subsidiary under its Guarantee; and


 


(c)                                  such Restricted
Subsidiary shall deliver to the Trustee an Opinion of Counsel to the effect
that


 


(1)                                  such Guarantee
has been duly executed and authorized and


 


(2)                                  such Guarantee
constitutes a valid, binding and enforceable obligation of such Restricted
Subsidiary, except insofar as enforcement thereof may be limited by bankruptcy,
insolvency or similar laws (including, without limitation, all laws relating to
fraudulent transfers) or other provisions limiting the enforcement of such
Guarantee under Dutch law and except insofar as enforcement thereof is subject
to general principles of equity;


 


provided that this covenant shall not be
applicable to any guarantee of any Restricted Subsidiary that existed at the
time such Person became a Restricted Subsidiary and was not incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary.


 


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A Guarantor shall be
automatically and unconditionally released and discharged from all of its
obligations under its Guarantee of the applicable Notes if:


 


(a)                                  (i) all
of its assets or Capital Stock is sold or transferred, in each case in a
transaction in compliance with Section 4.06, (ii) the Guarantor merges
with or into, or consolidates with or amalgamates with, or transfers all or
substantially all of its assets to, another Person in compliance with Section
5.01, (iii) (A) the guarantee of the Credit Agreement, except a
discharge or release by or as a result of payment under such guarantee, or
(B) the Indebtedness that resulted in the creation of such Guarantee, as
the case may be, is released or discharged or (iv) such Guarantor is
designated an Unrestricted Subsidiary in accordance with the terms of this Indenture;


 


(b)                                 such
Guarantor has delivered to the Trustee a certificate of a Responsible Officer
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to such transaction have been complied with; and


 


(c)                                  such
Guarantor is released from its guarantee of the Credit Agreement.


 


Section 4.17                                Matters Relating to NSS-8. 
Prior to the entry into commercial service of NSS-8, the Issuer will
not, and will not permit any Restricted Subsidiary to, consummate any sale,
transfer, conveyance or other disposition of NSS-8, or the sale, transfer,
conveyance or other disposition of rights related to, or terminate or satisfy
any obligations pursuant to, the construction contract with Boeing related to
NSS-8 (any such event, an “NSS-8
Asset Sale”), unless the proceeds of any such NSS-8 Asset Sale are
applied, in whole or in part, at the Issuer’s option, as follows:


 


(1)                                  in accordance with
Section 4.06; or


 


(2)                                  (a) with respect to
the first $100.0 million from any such NSS-8 Asset Sale, (x) to repay
Indebtedness under the Credit Agreement or any other Indebtedness (other than
Subordinated Indebtedness or the Subordinated Shareholder PIK Loan) in an
amount equal to not less than 82% of such initial proceeds and (y) to the
Sponsors in an amount equal to 18% of such initial proceeds; and


 


(b)                                 with respect to any
remaining proceeds from any such NSS-8 Asset Sale, (x) to repay
Indebtedness under the Credit Agreement or any other Indebtedness (other than
Subordinated Indebtedness or the Subordinated Shareholder PIK Loan) in an
amount equal to not less than 18% of such additional proceeds and (y) to
the Sponsors in an amount equal to 82% of such additional proceeds up to a
maximum aggregate amount pursuant to this clause (b) and clause (a)
above of $95.0 million; and


 


(c)                                  with respect to any
additional amounts not paid to the Sponsors in accordance with clauses (a)
and (b) above, to repay Indebtedness under the Credit Agreement or any other
Indebtedness (other than Subordinated Indebtedness or the Subordinated
Shareholder PIK Loan).


 


Section 4.18                                Additional Amounts. 
The Issuer and, if applicable, any Guarantor is required to make all
payments under or with respect to the Notes free and clear of and without
withholding or deduction for or on account of any and all present and future
taxes, levies, imposts, deductions, charges, duties and withholdings and any
charges of a similar nature (including interest, penalties and other
liabilities with respect thereto) (“Taxes”)
imposed or levied by or on behalf of the government of The Netherlands or any
political subdivision thereof or any authority therein or thereof having power
to tax, or by any other jurisdiction in which the Issuer or, if applicable, any
Guarantor is organized or resident, has an office or conducts business for tax
purposes or from or through which payment is made (each a “Relevant


 


63





















 


Taxing Jurisdiction”),
unless the Issuer or such Guarantor is required to withhold or deduct Taxes by
law.


 


If the Issuer or
any Guarantor, if applicable, is so required to withhold or deduct any amount
for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any
payment made under or with respect to the Notes, the Issuer or any Guarantor
will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net
amount received by the Holder (including Additional Amounts) after such
withholding or deduction will not be less than the amount the Holder would have
received if such Taxes had not been withheld or deducted; provided, however, that
the foregoing obligation to pay Additional Amounts does not apply to
(1) any Taxes that would not have been so imposed but for the existence of
any present or former connection between the relevant Holder (or between a fiduciary,
settlor, beneficiary, member or shareholder of, or possessor of power over, the
relevant holder, if the relevant Holder is an estate, nominee, trust,
partnership, limited liability company or corporation) and the Relevant Taxing
Jurisdiction, including such relevant Holder (or such fiduciary, settlor,
beneficiary, member, shareholder or possessor) being or having been a citizen
or resident thereof or being or having been engaged in trade or business
therein or having or having had a permanent establishment therein (other than a
connection arising solely from the acquisition, ownership, holding or
disposition of such Note, the receipt of payments thereunder or the enforcement
of a holder’s rights in respect thereof); (2) any estate, inheritance,
gift, sales transfer, or similar tax, assessment or governmental charge;
(3) any Taxes that are imposed or withheld by reason of the failure of the
Holder or beneficial owner of the Note, to the extent legally entitled to do
so, to comply with any reasonable request by the Issuer to provide information
or documentation concerning the nationality, residence or identity of such Holder
or beneficial owner or to make any declaration or similar claim or satisfy any
certification, information or reporting requirement, which is required or
imposed by a statute, treaty, regulation or administrative practice of a
Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction
in the rate of withholding or deduction of, all or part of any Taxes;
(4) except in the case of the winding-up of the Issuer or any Guarantor,
any Taxes which would not have been imposed but for the presentation of a Note
for payment (where presentation is required) in the Relevant Taxing
Jurisdiction (unless, by reason of the Issuer’s or such Guarantor’s actions,
presentment could not have been made elsewhere); (5) a withholding or deduction
imposed on a payment to an individual which is required to be made pursuant to
the European Union Directive on the taxation of savings income which was
adopted by the ECOFIN Council on June 3, 2003, or any law implementing or
complying with, or introduced in order to conform to, such Directive; or
(6) any Taxes imposed by reason of any combination of clauses
(1) through (5) above.


 


In addition, the Issuer will
not pay Additional Amounts (a) if the payment could have been made without
such deduction or withholding if the beneficiary of the payment had presented
the Note for payment within 30 days after the date on which such payment
or such Note became due and payable or the date on which payment thereof is
duly provided for, whichever is later (except to the extent that the Holder
would have been entitled to Additional Amounts had the Note been presented on
the last day of such 30-day period), or (b) where, had the beneficial
owner of the Note been the holder of the Note, such beneficial holder would not
have been entitled to payment of Additional Amounts by reason of clauses
(1) to (6) inclusive above.


 


The Issuer (or, if
applicable, any Guarantor making payments on the Notes) will make any withholding
or deduction required in respect of Taxes, and remit the full amount deducted
or withheld to the relevant authority in accordance with applicable law.


 


At least 30 days prior
to each date on which any payment under or with respect to the Notes is due and
payable (unless such obligation to pay Additional Amounts arises shortly before
or after the 30th day prior to such date, in which case it shall be promptly
thereafter), if the Issuer will be obligated to pay Additional Amounts with
respect to such payment, the Issuer will deliver to the Trustee an Officers’ Certificate


 


64





















 


stating the fact that such
Additional Amounts will be payable and the amounts so payable and will set
forth such other information necessary to enable the Trustee to pay such
Additional Amounts to holders of Notes on the payment date.  Each such Officers’ Certificate shall be
relied upon until receipt of a further Officers’ Certificate addressing such
matters.  The Issuer (and, if applicable,
any Guarantor) will use reasonable efforts to provide the Trustee with official
receipts or other documentation reasonably satisfactory to the Trustee
evidencing the payment of the Taxes with respect to which Additional Amounts
are paid.


 


The Issuer will
indemnify and hold harmless each eligible holder of Notes and, upon written request
of any eligible Holder of Notes, reimburse such Holder for the amount of any
Taxes levied or imposed on and paid by such holder as a result of the failure of
the Issuer to withhold or otherwise timely pay any Taxes for which the eligible
holder of Notes would have been eligible to receive payment of Additional
Amounts hereunder, provided, however, that the indemnification obligation provided for in
this paragraph shall not extend to any Taxes imposed on an eligible holder of
Notes for which such eligible holder of Notes would not have been eligible to
receive payment of Additional Amounts hereunder had the Issuer properly
withheld or paid such Taxes.


 


Whenever in this Indenture
there is mentioned, in any context, the payment of:


 


(1)                                  principal;


 


(2)                                  purchase price in
connection with a purchase of Notes;


 


(3)                                  interest; or


 


(4)                                  any other amount
payable on or with respect to any of the Notes,


 


such reference
shall be deemed to include payment of Additional Amounts or indemnification
payments as described in this Section 4.18 to the extent that, in such context,
Additional Amounts or indemnification payments are, were or would be payable in
respect thereof.


 


The Issuer will pay any
present or future stamp, court or documentary taxes, charges or similar levies
(referred to in this paragraph as “stamp
taxes”) that arise in any Relevant Taxing Jurisdiction from the
execution, delivery, enforcement or registration of the Notes, this Indenture
or any other document or instrument in relation thereto or the receipt of any
payments with respect to the Notes, and the Issuer will agree to indemnify and
hold harmless the Holders for any such stamp taxes (including penalties, interest
and related expenses) paid by such Holders.


 


The obligations
described in this Section 4.18 will survive any termination, defeasance or discharge
of this Indenture and will apply mutatis
mutandis to any jurisdiction in which any successor Person to the
Issuer or, if applicable, any Guarantor is organized or resident, has an
office, conducts business or has a paying agent or any political subdivision or
taxing authority or agency thereof or therein.


 


ARTICLE 5

MERGER, CONSOLIDATION OR SALE OF ASSETS


 


Section 5.01                                Merger, Consolidation or Sale of
Assets of the Issuer.  Prior
to the Release, except in connection with the Release or the Special Mandatory
Redemption and the transactions contemplated by the Escrow Agreement, the
Issuer shall not merge, consolidate or amalgamate with or into any other Person
or sell, transfer, assign, lease or convey or otherwise dispose of all or
substantially all of its assets in any one transaction or series of related
transactions.  From and after the
Release, the Issuer may


 


65





















 


not, directly or indirectly (x) consolidate or merge with or into or
wind up into another Person (whether or not the Issuer is the surviving
corporation) or (y) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of its properties or assets, in one or more related
transactions, to another Person, unless, in each case:


 


(i)                                     either:


 


(A)                              the
Issuer is the surviving corporation; or


 


(B)                                the
Person formed by or surviving any such consolidation or merger (if other than
the Issuer) or to which such sale, assignment, transfer, conveyance or other
disposition has been made is an entity organized or existing under the laws of
the jurisdiction of organization of the Issuer, a member State of the European
Union or the United States, any state of the United States, the District of
Columbia or any territory thereof (the Issuer or such Person, as the case may
be, hereinafter referred to as the “Successor Company”);


 


(ii)                                  the
Successor Company (if other than the Issuer) expressly assumes all the
obligations of the Issuer under the Notes, this Indenture and the Registration
Rights Agreements pursuant to agreements reasonably satisfactory to the
Trustee;


 


(iii)                               immediately
after such transaction no Default or Event of Default exists;


 


(iv)                              after
giving pro forma effect thereto and any related financing transactions as if
the same had occurred at the beginning of the applicable four-quarter period, either


 


(A)                              the
Successor Company (if other than the Issuer) would have been permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Debt to Adjusted
EBITDA Ratio test set forth in Section 4.03(b) determined on a pro forma basis
(including pro forma application of the net proceeds therefrom), as if such
transaction had occurred at the beginning of such four-quarter period; or


 


(B)                                the
Debt to Adjusted EBITDA Ratio for the Successor Company and its Restricted
Subsidiaries would be less than such ratio for the Issuer and its Restricted
Subsidiaries immediately prior to such transaction; and


 


(v)                                 the
Issuer shall have delivered to the Trustee a certificate from a Responsible
Officer and an Opinion of Counsel, each stating that such consolidation, merger
or transfer and such amendment or supplement (if any) comply with this
Indenture.


 


The Successor Company shall
succeed to, and be substituted for, the Issuer under this Indenture and the
Notes.  Notwithstanding the foregoing
clauses (iii) and (iv) of this Section 5.01, (a) any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Issuer or to another Restricted Subsidiary and (b) the Issuer may
merge with an Affiliate incorporated solely for the purpose of reincorporating
the Issuer in a (or another) state of the United States, so long as the amount
of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased
thereby.


 


Section 5.02                                Merger, Consolidation or Sale of Assets by a Guarantor.  (a) 
Subject to the provisions of Section 11.02(b) (which govern the release
of a Guarantee upon the sale, transfer or disposition of a Restricted
Subsidiary of the Issuer that is a Guarantor), no Guarantor shall, and the
Issuer shall not permit any Guarantor to, consolidate or merge with or into or
wind up into (whether or not such Guarantor


 


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is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions to any Person unless:


 


(i)             such Guarantor is the surviving
corporation or the Person formed by or surviving any such consolidation or
merger (if other than such Guarantor) or to which such sale, assignment, transfer,
lease, conveyance or other disposition will have been made is a corporation
organized or existing under the laws of the United States, any state thereof,
the District of Columbia or any territory thereof (such Guarantor or such
Person, as the case may be, being herein called the “Successor
Guarantor”);


 


(ii)          the Successor Guarantor (if other than such
Guarantor) expressly assumes all the obligations of such Guarantor under the
Indenture pursuant to supplemental indentures or other documents or instruments
in form reasonably satisfactory to the Trustee;


 


(iii)       immediately after such transaction no Default or
Event of Default shall exist; and


 


(iv)      the Issuer shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such amendment or supplement (if any) comply
with this Indenture.


 


The Successor Guarantor will
succeed to, and be substituted for, such Guarantor under this Indenture and the
Registration Rights Agreement. Notwithstanding the foregoing, (a) a Guarantor
may merge with an Affiliate incorporated solely for the purpose of reincorporating
such Guarantor in another state of the United States, the District of Columbia
or any territory thereof, so long as the amount of Indebtedness of the
Guarantor is not increased thereby, and (b) any Guarantor may merge into or
transfer all or part of its properties and assets to the Issuer or another
Guarantor.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01                                Events of Default.  An
“Event of Default” occurs if:


 


(a)                                  the Issuer defaults
in payment when due and payable, upon redemption, acceleration or otherwise, of
principal of, or premium, if any, on the Notes,


 


(b)                                 the Issuer defaults in
the payment when due of interest or additional interest, if any, on or with
respect to the Notes and such default continues for a period of 30 days,


 


(c)                                  the Issuer defaults
in the performance of, or breaches any covenant, warranty or other agreement
contained in this Indenture (other than a default in the performance or breach
of a covenant, warranty or agreement which is specifically dealt with in
clauses (a) or (b) above) and such default or breach continues for a period of
60 days after the notice specified below; provided that a
default under this clause (c) will not constitute an Event of Default until the
Trustee or the Holders of 25% in principal amount of outstanding Notes under
this Indenture notify the Issuer of the default and the Issuer does not cure
such default within 60 days after receipt of such notice,


 


(d)                                 the Issuer defaults
under any mortgage, indenture or instrument under which there is issued or by
which there is secured or evidenced any Indebtedness for money borrowed by the
Issuer or any Restricted Subsidiary or the payment of which is guaranteed by
the Issuer or any Restricted Subsidiary (other than Indebtedness owed to the
Issuer or a Restricted Subsidiary), whether such Indebtedness or guarantee now
exists or is created after the Issue Date, if (A) such 


 


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default either (1) results from the failure
to pay any such Indebtedness at its stated final maturity (after giving effect
to any applicable grace periods) or (2) relates to an obligation other than the
obligation to pay principal of any such Indebtedness at its stated final
maturity and results in the holder or holders of such Indebtedness causing such
Indebtedness to become due prior to its stated maturity and (B) the principal
amount of such Indebtedness, together with the principal amount of any other
such Indebtedness in default for failure to pay principal at stated final
maturity (after giving effect to any applicable grace periods), or the maturity
of which has been so accelerated, aggregate $15.0 million or more at any one
time outstanding,


 


(e)                                  the Issuer or any
Significant Subsidiary fails to pay final judgments (other than any judgments
covered by insurance policies issued by reputable and creditworthy insurance
companies) aggregating in excess of $15.0 million, which final judgments remain
unpaid, undischarged and unstayed for a period of more than 60 days after such
judgment becomes final, and an enforcement proceeding has been commenced by any
creditor upon such judgment or decree which is not promptly stayed,


 


(f)                                    the Issuer or any
Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:


 


(i)                                     commences
a voluntary case;


 


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


 


(iii)                               consents
to the appointment of a Custodian of it or for any substantial part of its
property; or


 


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


 


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


 


(i)                                     is
for relief against the Issuer or any Significant Subsidiary in an involuntary
case;


 


(ii)                                  appoints
a Custodian of the Issuer or any Significant Subsidiary or for any substantial
part of its property;


 


(iii)                               orders
the winding up or liquidation of the Issuer or any Significant Subsidiary; or


 


(iv)                              or
any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 60 days.


 


The foregoing shall constitute
Events of Default whatever the reason for any such Event of Default and whether
it is voluntary or involuntary or is effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body.


 


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The term “Bankruptcy Law”
means Title 11, United States Code, or any similar federal, state or, so long
as the Issuer is domiciled in The Netherlands, Dutch law for the relief of
debtors.  The term “Custodian” means any
receiver, trustee, assignee, liquidator, custodian or similar official under
any Bankruptcy Law.


 


Section 6.02                                Acceleration.  If an
Event of Default (other than an Event of Default specified in clauses (f) and
(g) of Section 6.01 with respect to the Issuer) shall occur and be continuing,
the Trustee or the holders of at least 25% in principal amount of outstanding
Notes may declare the principal of and accrued interest on such Notes to be due
and payable by notice in writing to the Issuer and the Trustee specifying the
respective Event of Default and that it is a “notice of acceleration” (the “Acceleration Notice”), and the same (1) shall become
immediately due and payable or (2) if there are any amounts outstanding
under the Credit Agreement, shall become immediately due and payable upon the
first to occur of an acceleration under the Credit Agreement or five Business
Days after receipt by the Issuer and the Representative under the Credit
Agreement of such Acceleration Notice but only if such Event of Default is then
continuing.  Notwithstanding the
foregoing, if an Event of Default specified in clauses (f) and (g) above with
respect to the Issuer occurs and is continuing, then all unpaid principal of,
and premium, if any, and accrued and unpaid interest on all of the outstanding
Notes shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any holder of the Notes.  The Holders
of a majority in principal amount of the Notes outstanding by notice to the Trustee
may rescind an acceleration and its consequences if:


 


(i)                                     the
rescission would not conflict with any judgment or decree;


 


(ii)                                  all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of acceleration;


 


(iii)                               to
the extent the payment of such interest is lawful, interest on overdue installments
of interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid;


 


(iv)                              if
the Issuer has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances; and


 


(v)                                 in
the event of the cure or waiver of an Event of Default of the type described in
clauses (f) and (g) of Section 6.01, the Trustee shall have received an
Officers’ Certificate and an opinion of counsel that such Event of Default has
been cured or waived.


 


No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.


 


In the event of any Event of
Default specified in Section 6.01(d), such Event of Default and all
consequences thereof (excluding, however, any resulting payment default) shall
be annulled, waived and rescinded, automatically and without any action by the
Trustee or the Holders of the Notes, if within 20 days after such Event of
Default arose the Issuer delivers an Officers’ Certificate to the Trustee
stating that (x) the Indebtedness or guarantee that is the basis for such Event
of Default has been discharged or (y) the holders thereof have rescinded or
waived the acceleration, notice or action (as the case may be) giving rise to
such Event of Default or (z) the default that is the basis for such Event of
Default has been cured, it being understood that in no event shall an
acceleration of the principal amount of the Notes as described above be
annulled, waived or rescinded upon the happening of any such events.


 


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Section 6.03                                Other Remedies.  If an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy at law or in equity to collect the payment of principal of or interest
on the Notes or to enforce the performance of any provision of the Notes or
this Indenture.


 


The Trustee may maintain a
proceeding even if it does not possess any of the Notes or does not produce any
of them in the proceeding.  A delay or
omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.  No remedy is exclusive of any other
remedy.  All available remedies are cumulative.


 


Section 6.04                                Waiver of Past Defaults. 
Provided the Notes are not then due and payable by reason of a
declaration of acceleration, the Holders of a majority in principal amount of
the Notes outstanding by notice to the Trustee may waive an existing Default
and its consequences except (a) a Default in the payment of the principal of or
interest on a Note, (b) a Default arising from the failure to redeem or
purchase any Note when required pursuant to the terms of this Indenture or (c)
a Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Holder affected. 
When a Default is waived, it is deemed cured and the Issuer, the Trustee
and the Holders will be restored to their former positions and rights under
this Indenture, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right.


 


Section 6.05                                Control by Majority. 
The Holders of a majority in principal amount of the Notes outstanding
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred
on the Trustee.  However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of any other Holder or that would involve the Trustee in personal
liability; provided, however,
that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. 
Prior to taking any action under this Indenture, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.


 


Section 6.06                                Limitation on Suits.  (a)  Except to enforce the right to receive
payment of principal, premium (if any) or interest when due, no Holder may
pursue any remedy with respect to this Indenture or the Notes unless:


 


(i)                                     the
Holder gives to the Trustee written notice stating that an Event of Default is
continuing;


 


(ii)                                  the
Holders of at least 25% in principal amount of the Notes make a written request
to the Trustee to pursue the remedy;


 


(iii)                               such
Holder or Holders offer to the Trustee reasonable security or indemnity
satisfactory to it against any loss, liability or expense;


 


(iv)                              the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and


 


(v)                                 the
Holders of a majority in principal amount of the Notes outstanding do not give
the Trustee a direction inconsistent with the request during such 60-day
period.


 


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


 


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Section 6.07                                Rights of the Holders to Receive Payment.  Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of principal of and interest
on the Notes held by such Holder, on or after the respective due dates
expressed or provided for in the Notes, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.


 


Section 6.08                                Collection Suit by Trustee. 
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Issuer or any other obligor on the Notes for the
whole amount then due and owing (together with interest on overdue principal
and (to the extent lawful) on any unpaid interest at the rate provided for in
the Notes) and the amounts provided for in Section 7.07.


 


Section 6.09                                Trustee May File Proofs of Claim.  The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation,
expenses disbursements and advances of the Trustee (including counsel,
accountants, experts or such other professionals as the Trustee deems
necessary, advisable or appropriate)) and the Holders allowed in any judicial
proceedings relative to the Issuer or any Guarantor, their creditors or their
property, shall be entitled to participate as a member, voting or otherwise, of
any official committee of creditors appointed in such matters and, unless
prohibited by law or applicable regulations, may vote on behalf of the Holders
in any election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.


 


Section 6.10                                Priorities.  If the
Trustee collects any money or property pursuant to this Article 6, it shall pay
out the money or property in the following order:


 


FIRST:  to the Trustee for amounts due under Section
7.07;


 


SECOND: to the
Holders for amounts due and unpaid on the Notes for principal, premium, if any,
and interest, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Notes for principal and interest,
respectively; and


 


THIRD:  to the Issuer or, to the extent the Trustee
collects any amount for any Guarantor, to such Guarantor.


 


The Trustee may fix a record
date and payment date for any payment to the Holders pursuant to this
Section.  At least 15 days before such
record date, the Trustee shall mail to each Holder and the Issuer a notice that
states the record date, the payment date and amount to be paid.


 


Section 6.11                                Undertaking for Costs. 
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party
litigant.  This Section does not apply to
a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Notes.


 


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Section 6.12                                Waiver of Stay or Extension Laws.  Neither the Issuer nor any Guarantor (to the
extent it may lawfully do so) shall at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Issuer
and each Guarantor (to the extent that it may lawfully do so) hereby expressly
waive all benefit or advantage of any such law, and shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law had
been enacted.


 


ARTICLE 7

TRUSTEE


 


Section 7.01                                Duties of Trustee.  (a)  If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs.


 


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


 


(i)                                     the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and


 


(ii)                                  in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. 
However, in the case of certificates or opinions required by any
provision hereof to be provided to it, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.


 


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


 


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


 


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


 


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


 


(iv)                              no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers.


 


(d)                                 Every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b) and (c) of this Section.


 


(e)                                  The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Issuer.


 


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(f)                                    Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.


 


(g)                                 Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section and to the provisions of the TIA.


 


Section 7.02                                Rights of Trustee.  (a)  The Trustee may conclusively rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person.  The Trustee need not
investigate any fact or matter stated in the document.


 


(b)                                 Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. 
The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.


 


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


 


(d)                                 The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers; provided, however, that
the Trustee’s conduct does not constitute willful misconduct or negligence.


 


(e)                                  The
Trustee may consult with counsel of its own selection and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Notes shall be full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.


 


(f)                                    The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, note or other paper
or document unless requested in writing to do so by the Holders of not less
than a majority in principal amount of the Notes at the time outstanding, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Issuer, personally or by
agent or attorney, at the expense of the Issuer and shall incur no liability of
any kind by reason of such inquiry or investigation.


 


(g)                                 The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.


 


(h)                                 The
rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each
agent, custodian and other Person employed to act hereunder.


 


(i)                                     Except
with respect to Section 4.01, the Trustee shall have no duty to inquire as to
the performance of the Issuer with respect to the covenants contained in
Article 4.  In addition, the Trustee
shall not be deemed to have knowledge of an Event of Default except
(i) any Default or Event of Default occurring pursuant to Sections 4.01,
6.01(a) or 6.01(b) or (ii) any Default or Event of Default of which the
Trustee shall have received written notification or obtained actual knowledge.


 


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(j)                                     Delivery
of reports, information and documents to the Trustee under Section 4.02 is for
informational purposes only and the Trustee’s receipt of the foregoing shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer’s
compliance with any of their covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).


 


Section 7.03                                Individual Rights of Trustee.  The Trustee in its individual or any other
capacity may become the owner or pledgee of Notes and may otherwise deal with
the Issuer or its Affiliates with the same rights it would have if it were not
Trustee.  Any Paying Agent or Registrar
may do the same with like rights. 
However, the Trustee must comply with Sections 7.10 and 7.11.


 


Section 7.04                                Trustee’s Disclaimer. 
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture, any Guarantee or the Notes, it
shall not be accountable for the Issuer’s use of the proceeds from the Notes,
and it shall not be responsible for any statement of the Issuer or any
Guarantor in this Indenture or in any document issued in connection with the
sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.


 


Section 7.05                                Notice of Defaults. 
If a Default occurs and is continuing and if it is actually known to the
Trustee, the Trustee shall mail to each Holder notice of the Default within the
earlier of 90 days after it occurs or 30 days after it is actually known to a
Trust Officer or written notice of it is received by the Trustee.  Except in the case of a Default in the
payment of principal of, premium (if any) or interest on any Note, the Trustee
may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interests of the
Holders.


 


Section 7.06                                Reports by Trustee to the Holders.  As promptly as practicable after each May 15
beginning with the May 15 following the date of this Indenture, and in any
event prior to May 15 in each year, the Trustee shall mail to each Holder
a brief report dated as of such May 15 that complies with Section 313(a)
of the TIA if and to the extent required thereby.  The Trustee shall also comply with Section
313(b) of the TIA.


 


A copy of each report at the
time of its mailing to the Holders shall be filed with the Commission and each
stock exchange (if any) on which the Notes are listed.  The Issuer agrees to notify promptly the
Trustee whenever the Notes become listed on any stock exchange and of any
delisting thereof.


 


Section 7.07                                Compensation and Indemnity. 
The Issuer shall pay to the Trustee from time to time reasonable
compensation for its services.  The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust.  The Issuer shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services.  Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee’s agents, counsel, accountants and experts.  The Issuer and each Guarantor, jointly and
severally shall indemnify the Trustee against any and all loss, liability, claim,
damage or expense (including reasonable attorneys’ fees and expenses) incurred
by or in connection with the acceptance or administration of this trust and the
performance of its duties hereunder, including the costs and expenses of
enforcing this Indenture or Guarantee against the Issuer or a Guarantor
(including this Section 7.07) and defending itself against or investigating any
claim (whether asserted by the Issuer, any Guarantor, any Holder or any other
Person).  The Trustee shall notify the
Issuer of any claim for which it may seek indemnity promptly upon obtaining
actual knowledge thereof; provided, however, that any failure so to notify the Issuer shall not
relieve the Issuer or any Guarantor of its indemnity obligations
hereunder.  The Issuer shall defend the
claim and the indemnified party shall provide reasonable cooperation at the
Issuer’s expense in the defense.  Such
indemnified parties may have separate counsel and the Issuer and the
Guarantors, as applicable shall pay the fees and expenses of such counsel;


 


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provided, however,
that the Issuer shall not be required to pay such fees and expenses if it
assumes such indemnified parties’ defense and, in such indemnified parties’
reasonable judgment, there is no conflict of interest between the Issuer and
the Guarantors, as applicable, and such parties in connection with such
defense.  The Issuer need not reimburse
any expense or indemnify against any loss, liability or expense incurred by an
indemnified party through such party’s own willful misconduct, negligence or
bad faith.


 


To secure the Issuer’s and
the Guarantors’ payment obligations in this Section, the Trustee shall have a
Lien prior to the Notes on all money or property held or collected by the
Trustee other than money or property held in trust to pay principal of and
interest on particular Notes.


 


The Issuer’s and the
Guarantors’ payment obligations pursuant to this Section shall survive the
satisfaction or discharge of this Indenture, any rejection or termination of
this Indenture under any bankruptcy law or the resignation or removal of the
Trustee.  Without prejudice to any other
rights available to the Trustee under applicable law, when the Trustee incurs
expenses after the occurrence of a Default specified in Section 6.01(f) or (g)
with respect to the Issuer, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.


 


Section 7.08                                Replacement of Trustee. 
(a)  The Trustee may resign at any
time by so notifying the Issuer.  The
Holders of a majority in principal amount of the Notes outstanding may remove
the Trustee by so notifying the Trustee and may appoint a successor
Trustee.  The Issuer shall remove the
Trustee if:


 


(i)                                     the
Trustee fails to comply with Section 7.10;


 


(ii)                                  the
Trustee is adjudged bankrupt or insolvent;


 


(iii)                               a
receiver or other public officer takes charge of the Trustee or its property;
or


 


(iv)                              the
Trustee otherwise becomes incapable of acting.


 


(b)                                 If
the Trustee resigns, is removed by the Issuer or by the Holders of a majority
in principal amount of the Notes outstanding and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.


 


(c)                                  A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Issuer. 
Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. 
The successor Trustee shall mail a notice of its succession to the
Holders.  The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the Lien provided for in Section 7.07.


 


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


 


(e)                                  If
the Trustee fails to comply with Section 7.10, unless the Trustee’s duty to
resign is stayed as provided in Section 310(b) of the TIA, any Holder who has
been a bona fide holder of a Note for at least six months may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee.


 


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(f)                                    Notwithstanding
the replacement of the Trustee pursuant to this Section, the Issuer’s obligations
under Section 7.07 shall continue for the benefit of the retiring Trustee.


 


Section 7.09                                Successor Trustee by Merger. 
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.


 


In case at the
time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture any of the Notes
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee may authenticate
such Notes either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have.


 


Section 7.10                                Eligibility; Disqualification.  The Trustee shall at all times satisfy the
requirements of Section 310(a) of the TIA. 
The Trustee shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition.  The Trustee shall comply with
Section 310(b) of the TIA, subject to its right to apply for a stay of its duty
to resign under the penultimate paragraph of Section 310(b) of the TIA; provided, however, that
there shall be excluded from the operation of Section 310(b)(1) of the TIA any
series of securities issued under this Indenture and any indenture or
indentures under which other securities or certificates of interest or participation
in other securities of the Issuer are outstanding if the requirements for such
exclusion set forth in Section 310(b)(1) of the TIA are met.


 


Section 7.11                                Preferential Collection of Claims Against Issuer.  The Trustee shall comply with Section 311(a)
of the TIA, excluding any creditor relationship listed in Section 311(b) of the
TIA.  A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the TIA to the extent indicated.


 


ARTICLE 8

DISCHARGE OF INDENTURE; DEFEASANCE


 


Section 8.01                                Discharge of Liability on Notes.  This Indenture shall be discharged and shall
cease to be of further effect (except as to surviving rights of registration of
transfer or exchange of Notes, as expressly provided for in this Indenture) as
to all outstanding Notes:


 


(a)                                  when either:


 


(i)                                     all
the Notes theretofore authenticated (other than Notes pursuant to Section 2.08
which have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust) have
been delivered to the Trustee for cancellation; or


 


(ii)                                  all
of the Notes that have not been delivered to the Trustee for cancellation
(a) have become due and payable, (b) will become due and payable at their
stated maturity within one year or (c) if redeemable at the option of the
Issuer, are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving


 


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of notice of redemption by the Trustee in the
name, and at the expense, of the Issuer, and the Issuer has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the holders cash in U.S. dollars, non-callable
Government Securities, or a combination of cash in U.S. dollars and
non-callable Government Securities in amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the entire
Indebtedness on the Notes not delivered to the Trustee for cancellation for
principal, premium and additional interest, if any, and accrued interest to the
date of maturity or redemption;


 


(b)                                 the Issuer has paid or
caused to be paid all sums payable by it under this Indenture;


 


(c)                                  the Issuer has
delivered irrevocable instructions to the Trustee to apply the deposited money
toward the payment of the Notes at maturity or the redemption date, as the case
may be; and


 


(d)                                 the Issuer has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel
stating that all conditions precedent under this Indenture relating to the
satisfaction and discharge of this Indenture have been complied with.


 


Section 8.02                                Defeasance.  (a)  The Issuer may, at its option and at any
time, elect to have all of its obligations discharged with respect to the
outstanding Notes issued under this Indenture (“Legal Defeasance”)
except for:


 


(i)                                     the
rights of holders of outstanding Notes issued thereunder to receive payments in
respect of the principal of, or interest or premium and additional interest, if
any, on such Notes when such payments are due from the trust referred to below;


 


(ii)                                  the
Issuer’s obligations with respect to the Notes issued thereunder 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;


 


(iii)                               the
rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s
obligations in connection therewith; and


 


(iv)                              this
Section 8.02(a).


 


(b)                                 The
Issuer may, at its option and at any time, elect to have its obligations
released with respect to Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09,
4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18 and the operation of Article 5 and
Sections 6.01(c), 6.01(d), 6.01(e), 6.01(f) (with respect to Significant Subsidiaries
of the Issuer only) and 6.01(g) (with respect to Significant Subsidiaries of
the Issuer only) of this Indenture (“Covenant Defeasance”)
and thereafter any omission to comply with those covenants will not constitute
a Default or Event of Default with respect to the Notes.  The Issuer may exercise its Legal Defeasance
option notwithstanding its prior exercise of its Covenant Defeasance
option.  In the event the Issuer terminates
all of its obligations under the Notes and this Indenture (with respect to such
Notes) by exercising its Legal Defeasance option or its Covenant Defeasance
option, the obligations of each Guarantor under its Guarantee of such Notes
shall be terminated simultaneously with the termination of such obligations.


 


If the Issuer exercises its
Legal Defeasance option, payment of the Notes so defeased may not be
accelerated because of an Event of Default. 
If the Issuer exercises its Covenant Defeasance option, payment


 


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of the Notes so defeased may
not be accelerated because of an Event of Default specified in Sections
6.01(c), 6.01(d), 6.01(e), 6.01(f) (with respect to Significant Subsidiaries of
the Issuer only) and 6.01(g) (with respect to Significant Subsidiaries of the
Issuer only) or because of the failure of the Issuer to comply with Section
5.01.


 


Upon satisfaction of the
conditions set forth herein and upon request of the Issuer, the Trustee shall
acknowledge in writing the discharge of those obligations that the Issuer
terminates.


 


(c)                                  Notwithstanding
clauses (a) and (b) above, the Issuer’s obligations in Sections 2.04, 2.05,
2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in this Article 8 shall survive until
the Notes have been paid in full. 
Thereafter, the Issuer’s obligations in Sections 7.07, 8.06 and 8.07
shall survive such satisfaction and discharge.


 


Section 8.03                                Conditions to Defeasance. 
(a)  The Issuer may exercise its
Legal Defeasance option or its Covenant Defeasance option only if:


 


(i)                                     the
Issuer has irrevocably deposited with the Trustee, in trust, for the benefit of
the holders of the Notes issued thereunder, cash in U.S. dollars, non-callable
Government Securities, or a combination of cash in U.S. dollars and
non-callable Government Securities, in amounts as will 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 issued thereunder on the stated maturity or on the
applicable redemption date, as the case may be, and the Issuer must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;


 


(ii)                                  in
the case of Legal Defeasance, the Issuer has delivered to the Trustee an
opinion of counsel reasonably acceptable to the Trustee confirming that (a) the
Issuer 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 will confirm that, the holders
of the respective outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred; provided that the opinion of counsel
required by this clause (ii) need not be delivered if all Notes not theretofore
delivered to the Trustee for cancellation (x) have become due and payable
or (y) will become due and payable on the maturity date within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Issuer;


 


(iii)                               in
the case of Covenant Defeasance, the Issuer has delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that the
holders of the respective outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;


 


(iv)                              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 granting of Liens in connection
therewith) or insofar as Events of Default (other than Events of Default resulting
from the borrowing of funds to be applied to such deposit and the granting of
Liens in connection therewith) resulting from the borrowing of funds


 


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or insolvency events are concerned, at any time in the
period ending on the 91st day after the date of deposit;


 


(v)                                 such
Legal Defeasance or Covenant Defeasance will 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 Issuer or any of its
Restricted Subsidiaries is a party or by which the Issuer or any of its
Restricted Subsidiaries is bound;


 


(vi)                              the
Issuer must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Issuer with the intent of preferring the holders of
Notes over the other creditors of the Issuer with the intent of defeating,
hindering, delaying or defrauding creditors of the Issuer or others; and


 


(vii)                           the
Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance as contemplated by this Article 8 have been
complied with.


 


(b)                                 Before
or after a deposit, the Issuer may make arrangements satisfactory to the
Trustee for the redemption of such Notes at a future date in accordance with
Article 3.


 


Section 8.04                                Application of Trust Money. 
The Trustee shall hold in trust money or Government Obligations
(including proceeds thereof) deposited with it pursuant to this Article 8.  It shall apply the deposited money and the
money from Government Obligations through each Paying Agent and in accordance
with this Indenture to the payment of principal of and interest on the Notes so
discharged or defeased.


 


Section 8.05                                Repayment to Issuer. 
Each of the Trustee and each Paying Agent shall promptly turn over to
the Issuer upon request any money or Government Obligations held by it as
provided in this Article which, in the written opinion of nationally recognized
firm of independent public accountants delivered to the Trustee (which delivery
shall only be required if Government Obligations have been so deposited), are
in excess of the amount thereof which would then be required to be deposited to
effect an equivalent discharge or defeasance in accordance with this Article.


 


Subject to any applicable
abandoned property law, the Trustee and each Paying Agent shall pay to the Issuer
upon written request any money held by them for the payment of principal or
interest that remains unclaimed for two years, and, thereafter, Holders
entitled to the money must look to the Issuer for payment as general creditors,
and the Trustee and each Paying Agent shall have no further liability with respect
to such monies.


 


Section 8.06                                Indemnity for Government Obligations.  The Issuer shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against deposited
Government Obligations or the principal and interest received on such
Government Obligations.


 


Section 8.07                                Reinstatement.  If the
Trustee or any Paying Agent is unable to apply any money or Government
Obligations in accordance with this Article 8 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuer’s
obligations under this Indenture and the Notes so discharged or defeased shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article 8 until such time as the Trustee or any Paying Agent is permitted to
apply all such money or Government Obligations in accordance with this Article
8; provided, however,
that, if the Issuer has made any payment of principal of or interest on, any
such Notes because of the reinstatement of its obligations, the Issuer shall


 


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be subrogated to the rights of the Holders of such Notes to receive
such payment from the money or Government Obligations held by the Trustee or
any Paying Agent.


 


ARTICLE 9

AMENDMENTS AND WAIVERS


 


Section 9.01                                Without Consent of the Holders.  The Issuer and the Trustee may amend or
supplement this Indenture or the Notes without notice to or consent of any
Holder:


 


(i)                                     to
cure any ambiguity, defect or inconsistency;


 


(ii)                                  to
provide for uncertificated Notes in addition to or in place of certificated
Notes; provided, however,
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;


 


(iii)                               to
provide for the assumption of the Issuer’s obligations to holders of Notes in
the case of a merger or consolidation or sale of all or substantially all of
the Issuer’s assets pursuant to Article 5 hereof;


 


(iv)                              to
add any Guarantee of the Notes;


 


(v)                                 to
add to the covenants of the Issuer for the benefit of the Holders or to
surrender any right or power herein conferred upon the Issuer;


 


(vi)                              to
comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the TIA;


 


(vii)                           to
make any change that would provide additional rights or benefits to the Holders
of Notes or that does not adversely affect the legal rights under this
Indenture of any Holder; or


 


(viii)                        to
provide for the issuance of the Exchange Notes or Additional Notes, which shall
have terms substantially identical in all material respects to the Initial
Notes, and which shall be treated, together with any outstanding Initial Notes,
as a single issue of securities.


 


After an amendment under
this Section 9.01 becomes effective, the Issuer shall mail to the Holders a
notice briefly describing such amendment. 
The failure to give such notice to all Holders, or any defect therein,
shall not impair or affect the validity of an amendment under this Section
9.01.


 


Section 9.02                                With Consent of the Holders. 
The Indenture or the Notes issued thereunder may be amended or
supplemented with the consent of the holders of at least a majority in
principal amount of the Notes then outstanding issued under this Indenture
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), and any existing default or
compliance with any provision of this Indenture or the Notes issued thereunder
may be waived with the consent of the holders of a majority in principal amount
of the then outstanding Notes issued under this Indenture (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes).  However,
without the consent of each Holder of an outstanding Note affected, an
amendment or waiver may not (with respect to any Notes held by a non-consenting
Holder):


 


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(i)                                     reduce
the principal amount of Notes whose holders must consent to an amendment, supplement
or waiver;


 


(ii)                                  reduce
the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption of the Notes (other than pursuant to
Sections 4.06 or 4.08 hereof);


 


(iii)                               reduce
the rate of or change the time for payment of interest on any Note;


 


(iv)                              waive
a Default or Event of Default in the payment of principal of, or interest or
premium, 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 Notes and a waiver of the payment default that resulted
from such acceleration);


 


(v)                                 make
any Note payable in money other than that stated in the Notes;


 


(vi)                              release
any Guarantee by a Wholly Owned Restricted Subsidiary;


 


(vii)                           make
any change in Section 6.04 or 6.07 or the second sentence of this Section 9.02;


 


(viii)                        waive
a redemption payment with respect to any Note issued thereunder (other than a
payment required by Sections 4.06 or 4.08 hereof); or


 


(ix)                                modify
the provisions of Section 3.06.


 


It shall not be necessary
for the consent of the Holders under this Section 9.02 to approve the particular
form of any proposed amendment, but it shall be sufficient if such consent
approves the substance thereof.


 


After an amendment under
this Section 9.02 becomes effective, the Issuer shall mail to the Holders a
notice briefly describing such amendment. 
The failure to give such notice to all Holders, or any defect therein,
shall not impair or affect the validity of an amendment under this Section
9.02.


 


Section 9.03                                Compliance with Trust Indenture Act.  From the date on which this Indenture is
qualified under the TIA, every amendment, waiver or supplement to this Indenture
or the Notes shall comply with the TIA as then in effect.


 


Section 9.04                                Revocation and Effect of Consents and Waivers.  (a)  A
consent to an amendment or a waiver by a Holder of a Note shall bind the Holder
and every subsequent Holder of that Note or portion of the Note that evidences
the same debt as the consenting Holder’s Note, even if notation of the consent
or waiver is not made on the Note. 
However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder’s Note or portion of the Note if the Trustee receives
the notice of revocation before the date on which the Trustee receives an
Officers’ Certificate from the Issuer certifying that the requisite principal
amount of Notes have consented.  After an
amendment or waiver becomes effective, it shall bind every Holder.  An amendment or waiver becomes effective upon
the (i) receipt by the Issuer or the Trustee of consents by the Holders of the
requisite principal amount of securities, (ii) satisfaction of conditions to
effectiveness as set forth in this Indenture and any indenture supplemental
hereto containing such amendment or waiver and (iii) execution of such
amendment or waiver (or supplemental indenture) by the Issuer and the Trustee.


 


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(b)                                 The
Issuer may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this
Indenture.  If a record date is fixed,
then notwithstanding the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. 
No such consent shall be valid or effective for more than 120 days after
such record date.


 


Section 9.05                                Notation on or Exchange of Notes.  If an amendment, supplement or waiver changes
the terms of a Note, the Issuer may require the Holder of the Note to deliver
it to the Trustee.  The Trustee may place
an appropriate notation on the Note regarding the changed terms and return it
to the Holder.  Alternatively, if the Issuer
or the Trustee so determines, the Issuer in exchange for the Note shall issue
and the Trustee shall authenticate a new Note that reflects the changed
terms.  Failure to make the appropriate
notation or to issue a new Note shall not affect the validity of such
amendment, supplement or waiver.


 


Section 9.06                                Trustee to Sign Amendments. 
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 9 if the amendment does not adversely affect the
rights, duties, liabilities or immunities of the Trustee.  If it does, the Trustee may but is not
required to sign it.  In signing such
amendment, the Trustee shall be entitled to receive indemnity reasonably satisfactory
to it and shall be provided with, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers’ Certificate and an Opinion of Counsel
stating that such amendment, supplement or waiver is authorized or permitted by
this Indenture and that such amendment, supplement or waiver is the legal,
valid and binding obligation of the Issuer and the Guarantors, enforceable
against them in accordance with its terms, subject to customary exceptions, and
complies with the provisions hereof (including Section 9.03).


 


Section 9.07                                Payment for Consent. 
The Issuer will not, and will 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.


 


Section 9.08                                Additional Voting Terms. 
All Notes issued under this Indenture shall vote and consent together on
all matters (as to which any of such Notes may vote) as one class and no series
of Notes will have the right to vote or consent as a separate class on any
matter.


 


ARTICLE 10

[RESERVED]


 


ARTICLE 11

GUARANTEES


 


Section 11.01                          Guarantees of the Notes. 
(a)  Subject to the provisions of
this Article 11, the Guaranteed Obligations of the Issuer, if any, pursuant to
the Notes, including any repurchase obligation resulting from a Change of
Control, shall be unconditionally guaranteed, jointly and severally, on an
unsecured senior basis, by each Wholly Owned Restricted Subsidiary of the
Issuer that guarantees certain of the Issuer’s obligations as provided in
Section 4.16 or otherwise.


 


(b)                                 Each
Guarantor agrees that its Guarantee shall remain in full force and effect until
payment in full of all the Guaranteed Obligations, or, solely in the case of
the Guarantee by the Parent, until


 


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such time following the
issuance of the Notes that the Issuer and the Parent elect in their sole
discretion to release such Guarantee. 
Each Guarantor further agrees that its Guarantee herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment,
or any part thereof, of principal of or interest on any Guaranteed Obligation
is rescinded or must otherwise be restored by any Holder or the Trustee upon
the bankruptcy or reorganization of the Issuer or otherwise.


 


(c)                                  Upon
the occurrence of the Guarantee by any Restricted Subsidiary pursuant to the
first paragraph of this section, required thereby to provide a Note Guarantee,
the Issuer will cause each such Restricted Subsidiary (other than a
Securitization Subsidiary) to execute a Note Guarantee or Guarantee Supplement,
satisfactory in form and substance to the Trustee (and with such documentation
relating thereto as the Trustee may require, including, without limitation,
opinions of counsel as to the enforceability of such guarantee), pursuant to
which such Restricted Subsidiary will become a Guarantor.


 


(d)                                 Each
Guarantor hereby jointly and severally, irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, to each Holder and
to the Trustee and its successors and assigns (i) the full and punctual payment
when due, whether at Stated Maturity, by acceleration, by redemption or
otherwise, of all obligations of the Issuer under this Indenture (including
obligations to the Trustee) and the Notes, whether for payment of principal of,
premium, if any, or interest on in respect of the Notes and all other monetary
obligations of the Issuer under this Indenture and the Notes and (ii) the full
and punctual performance within applicable grace periods of all other
obligations of the Issuer whether for fees, expenses, indemnification or
otherwise under this Indenture and the Notes (all the foregoing being
hereinafter collectively called the “Guaranteed Obligations”).  Each Guarantor further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from each such Guarantor, and that each such Guarantor shall
remain bound under this Article 11 notwithstanding any extension or renewal of
any Guaranteed Obligation.


 


(e)                                  Each
Guarantor waives presentation to, demand of payment from and protest to the
Issuer of any of the Guaranteed Obligations and also waives notice of protest
for nonpayment.  Each Guarantor waives
notice of any default under the Notes or the Guaranteed Obligations.  The obligations of each Guarantor hereunder
shall not be affected by (i) the failure of any Holder or the Trustee to assert
any claim or demand or to enforce any right or remedy against the Issuer or any
other Person under this Indenture, the Notes or any other agreement or otherwise;
(ii) any extension or renewal of this Indenture, the Notes or any other
agreement; (iii) any rescission, waiver, amendment or modification of any of
the terms or provisions of this Indenture, the Notes or any other agreement;
(iv) the release of any security held by any Holder or the Trustee for the
Guaranteed Obligations or any Guarantor; (v) the failure of any Holder or
Trustee to exercise any right or remedy against any other guarantor of the
Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor,
except as provided in Section 11.02(b).


 


(f)                                    Each
Guarantor hereby waives any right to which it may be entitled to have its obligations
hereunder divided among the Guarantors, if applicable, such that such Guarantor’s
obligations would be less than the full amount claimed.  Each Guarantor hereby waives any right to
which it may be entitled to have the assets of the Issuer first be used and
depleted as payment of the Issuer’s or such Guarantor’s obligations hereunder
prior to any amounts being claimed from or paid by such Guarantor hereunder.  Each Guarantor hereby waives any right to
which it may be entitled to require that the Issuer be sued prior to an action
being initiated against such Guarantor.


 


(g)                                 Each
Guarantor further agrees that its Guarantee herein constitutes a guarantee of
payment, performance and compliance when due (and not a guarantee of
collection) and waives any right to require that any resort be had by any
Holder or the Trustee to any security held for payment of the Guaranteed Obligations.


 


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(h)                                 [RESERVED]


 


(i)                                     Except
as expressly set forth in Sections 8.01(b), 11.02 and 11.06, the obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Guaranteed
Obligations or otherwise.  Without
limiting the generality of the foregoing, the obligations of each Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any remedy
under this Indenture, the Notes or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the obligations, or by any other act or thing
or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of any Guarantor or would otherwise
operate as a discharge of any Guarantor as a matter of law or equity.


 


(j)                                     In
furtherance of the foregoing and not in limitation of any other right which any
Holder or the Trustee has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Issuer to pay the principal of or interest on
any Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, or to perform or comply
with any other Guaranteed Obligation, each Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith pay, or cause
to be paid, in cash, to the Holders or the Trustee an amount equal to the sum
of (i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued
and unpaid interest on such Guaranteed Obligations (but only to the extent not
prohibited by applicable law) and (iii) all other monetary obligations of the
Issuer to the Holders and the Trustee.


 


(k)                                  Each
Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any Guaranteed Obligations guaranteed
hereby until payment in full of all Guaranteed Obligations.  Each Guarantor further agrees that, as between
it, on the one hand, and the Holders and the Trustee, on the other hand, (i)
the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated
as provided in Article 6 for the purposes of any Guarantee herein, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in
respect of the Guaranteed Obligations guaranteed hereby, and (ii) in the event
of any declaration of acceleration of such Guaranteed Obligations as provided
in Article 6, such Guaranteed Obligations (whether or not due and payable)
shall forthwith become due and payable by such Guarantor for the purposes of
this Section 11.01.


 


(l)                                     Each
Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder
in enforcing any rights under this Section 11.01.


 


(m)                               Upon
request of the Trustee, each Guarantor shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.


 


Section 11.02                          Limitation on Liability. 
(a)  Any term or provision of this
Indenture to the contrary notwithstanding, the maximum aggregate amount of the
Guaranteed Obligations guaranteed hereunder by any Guarantor shall not exceed
the maximum amount that can be hereby guaranteed without rendering this Indenture
or the Guarantees, as they relate to such Guarantor, subject to avoidance under
applicable fraudulent conveyance provisions of the United States Bankruptcy
Code or other comparable provision of applicable law.


 


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(b)                                 A
Guarantor shall be automatically and unconditionally released and discharged
from all of its obligations under its Guarantee of the Guaranteed Obligations as
provided in Section 4.16.


 


Section 11.03                          Successors and Assigns. 
This Article 11 shall be binding upon each Guarantor and its successors
and assigns and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges conferred upon
that party in this Indenture and in the Notes shall automatically extend to and
be vested in such transferee or assignee, all subject to the terms and
conditions of this Indenture.


 


Section 11.04                          No Waiver.  Neither a
failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article 11 shall operate as
a waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any right, power or privilege.  The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not
exclusive of any other rights, remedies or benefits which either may have under
this Article 11 at law, in equity, by statute or otherwise.


 


Section 11.05                          Modification.  No
modification, amendment or waiver of any provision of this Article 11, nor the
consent to any departure by any Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Trustee, and
then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given.  No
notice to or demand on any Guarantor in any case shall entitle such Guarantor
to any other or further notice or demand in the same, similar or other circumstances.


 


Section 11.06                          Execution of Supplemental Indenture for Future Guarantors.  (a) 
Each Subsidiary and other Person which is required to become a Guarantor
pursuant to Section 4.16 or this Article 11 shall promptly execute and deliver
to the Trustee a supplemental indenture in the form of Exhibit D hereto pursuant
to which such Subsidiary or other Person shall become a Guarantor under this
Article 11 and shall guarantee the Guaranteed Obligations.  Concurrently with the execution and delivery
of such supplemental indenture, the Issuer shall deliver to the Trustee an
Opinion of Counsel and an Officers’ Certificate to the effect that such
supplemental indenture has been duly authorized, executed and delivered by such
Subsidiary or other Person and that, subject to the application of bankruptcy,
insolvency, moratorium, fraudulent conveyance or transfer and other similar
laws relating to creditors’ rights generally and to the principles of equity,
whether considered in a proceeding at law or in equity, the Guarantee of such
Guarantor is a legal, valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms and/or to such
other matters as the Trustee may reasonably request.


 


Section 11.07                          Non-Impairment.  The
failure to endorse a Guarantee on any Note shall not affect or impair the
validity thereof.


 


ARTICLE 12

[RESERVED]


 


ARTICLE 13

MISCELLANEOUS


 


Section 13.01                          Trust Indenture Act Controls.  If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by, or
with another provision (an “incorporated provision”)
included in this Indenture by operation of, Sections 310 to 318 of the TIA,
inclusive, such imposed duties or incorporated provision shall control.


 


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Section 13.02                          Notices.  (a)  Any notice or communication required or
permitted hereunder shall be in writing and delivered in person, via facsimile
or mailed by first-class mail addressed as follows:


 


if to the Issuer:


 


c/o New Skies Satellites B.V.

Rooseveltplantsoen 4

2517 KR The Hague

Attention:  Thai Rubin


 


with a copy to:


 


c/o Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York  10017

Attention:  Risë B. Norman


 


and a copy to:


 


Blackstone Capital Partners Cayman IV L.P.

345 Park Avenue

New York, New York  10154


 


if to the Trustee:


 


U.S. Bank National Association

60 Livingston Avenue

St. Paul, Minnesota  55107-2292

Fax:  (651) 495-8097


 


The Issuer or the Trustee by
notice to the other may designate additional or different addresses for
subsequent notices or communications.


 


(b)                                 Any
notice or communication mailed to a Holder shall be mailed, first class mail,
to the Holder at the Holder’s address as it appears on the registration books
of the Registrar and shall be sufficiently given if so mailed within the time
prescribed.


 


(c)                                  Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.  If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives
it, except that notices to the Trustee are effective only if received.


 


Section 13.03                          Communication by the Holders with Other Holders.  The Holders may communicate pursuant to
Section 312(b) of the TIA with other Holders with respect to their rights under
this Indenture or the Notes.  The Issuer,
the Trustee, the Registrar and other Persons shall have the protection of
Section 312(c) of the TIA.


 


Section 13.04                          Certificate and Opinion as to Conditions Precedent.  Upon any request or application by the Issuer
to the Trustee to take or refrain from taking any action under this Indenture,
the Issuer shall furnish to the Trustee at the request of the Trustee:


 


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(a)                                  an Officers’
Certificate in form reasonably satisfactory to the Trustee stating that, in the
opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and


 


(b)                                 an Opinion of Counsel
in form reasonably satisfactory to the Trustee stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.


 


Section 13.05                          Statements Required in Certificate or Opinion.  Each certificate or opinion with respect to
compliance with a covenant or condition provided for in this Indenture (other
than pursuant to Section 4.09) shall include:


 


(a)                                  a statement that the
individual making such certificate or opinion has read such covenant or condition;


 


(b)                                 a brief statement as
to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;


 


(c)                                  a statement that, in
the opinion of such individual, he has made such examination or investigation
as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and


 


(d)                                 a statement as to
whether or not, in the opinion of such individual, such covenant or condition
has been complied with; provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers’ Certificate or certificates of public
officials.


 


Section 13.06                          When Notes Disregarded. 
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuer, any Guarantor or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer or any
Guarantor shall be disregarded and deemed not to be outstanding, except that,
for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which the Trustee
knows are so owned shall be so disregarded. 
Subject to the foregoing, only Notes outstanding at the time shall be
considered in any such determination.


 


Section 13.07                          Rules by Trustee, Paying Agent and Registrar.  The Trustee may make reasonable rules for
action by or a meeting of the Holders. 
The Registrar and a Paying Agent may make reasonable rules for their functions.


 


Section 13.08                          Legal Holidays.  If a
payment date is not a Business Day, payment shall be made on the next
succeeding day that is a Business Day, and no interest shall accrue on any amount
that would have been otherwise payable on such payment date if it were a
Business Day for the intervening period. 
If a regular record date is not a Business Day, the record date shall
not be affected.


 


Section 13.09                          Governing Law.  THIS
INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.


 


Section 13.10                          Jurisdiction; Consent to Service of Process.  (a) 
The Issuer hereby irrevocably and unconditionally submits, for itself
and its property, to the general jurisdiction of the New York State courts,
sitting in the Borough of Manhattan, the City of New York, or the federal
courts of the United States of America for the Southern District of New York,
and any appellate court from any thereof, in any


 


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action or proceeding arising out of or relating to this Indenture or
the Notes, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Indenture shall affect any right that any Holder may otherwise have to bring
any action or proceeding relating to this Indenture or the Notes against the
Issuer or their properties in the courts of any jurisdiction.


 


(b)                                 The
Issuer hereby irrevocably and unconditionally waives, and agrees not to plea or
claim, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Indenture or the
Notes in any New York State or federal court. 
Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.


 


(c)                                  The
Issuer hereby irrevocably and unconditionally appoints CT Corporation System
with an office on the date hereof at 111 Eighth Avenue, New York, New York
10011 and its successors hereunder (the “Process Agent”),
as its agent to receive on behalf of each of the Issuer and its property of all
writs, claims, process, and summonses in any action or proceeding brought
against it in the State of New York. 
Such service may be made by mailing or delivering a copy of such process
to the Issuer, in care of the Process Agent at the address specified above for
the Process Agent, and the Issuer hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf.  Failure by the Process Agent to give notice
to the Issuer, as applicable, or failure of the Issuer to receive notice of
such service of process shall not impair or affect the validity of such service
on the Process Agent or the Issuer, or of any judgment based thereon.  The Issuer covenants and agrees that it shall
take any and all reasonable action, including the execution and filing of any
and all documents, that may be necessary to continue the designation of the
Process Agent above in full force and effect, and to cause the Process Agent to
act as such.  The Issuer further covenants
and agrees to maintain at all times an agent with offices in New York City to
act as its Process Agent.  Nothing herein
shall in any way be deemed to limit the ability to serve any such writs,
process or summonses in any other manner permitted by applicable law.


 


Section 13.11                          No Recourse Against Others. 
No director, officer, employee, incorporator or holder of any equity
interests in the Issuer (other than New Skies Holding B.V.) or of any Guarantor
or any direct or indirect parent corporation, as such, shall have any liability
for any obligations of the Issuer or the Guarantors under the Notes or this
Indenture or for any claim based on, in respect of, or by reason of, such obligations
or their creation.  Each Holder of Notes
by accepting a Note waives and releases all such liability.


 


Section 13.12                          Successors.  All
agreements of the Issuer in this Indenture and the Notes shall bind its
successors.  All agreements of the
Trustee in this Indenture shall bind its successors.


 


Section 13.13                          Multiple Originals. 
The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but
all of them together represent the same agreement.  One signed copy is enough to prove this
Indenture.


 


Section 13.14                          Table of Contents; Headings. 
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not
modify or restrict any of the terms or provisions hereof.


 


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Section 13.15                          Indenture Controls. 
If and to the extent that any provision of the Notes limits, qualifies
or conflicts with a provision of this Indenture, such provision of this
Indenture shall control.


 


Section 13.16                          Severability.  In case
any provision in this Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and such provision shall be ineffective
only to the extent of such invalidity, illegality or unenforceability.


 


Section 13.17                          Currency of Account; Conversion of Currency; Foreign Exchange
Restrictions.  Any amount
received or recovered in a currency other than U.S. Dollars by a Holder of
Notes (whether as a result of, or of the enforcement of, a judgment or order of
a court of any jurisdiction, in the winding-up or dissolution of the Issuer or
otherwise) in respect of any sum expressed to be due to it from the Issuer
shall only constitute a discharge to the Issuer to the extent of the U.S. Dollar
amount, which the recipient is able to purchase with the amount so received or
recovered in that other currency on the date of that receipt or recovery (or,
if it is not practicable to make that purchase on that date, on the first date
on which it is practicable to do so).  If
that U.S. Dollar amount is less than the U.S. Dollar amount expressed to be due
to the recipient under the applicable Notes, the Issuer shall indemnify it
against any loss sustained by it as a result as set forth in Section 13.17(a).  In any event, the Issuer and the Guarantors
shall indemnify the recipient against the cost of making any such
purchase.  For the purposes of this
Section 13.17, it will be sufficient for the Holder of a Note to certify in a
satisfactory manner (indicating sources of information used) that it would have
suffered a loss had an actual purchase of U.S. Dollars, been made with the
amount so received in that other currency on the date of receipt or recovery
(or, if a purchase of U.S. Dollars on such date had not been practicable, on
the first date on which it would have been practicable, it being required that
the need for a change of date be certified in the manner mentioned above).  The indemnities set forth in this Section
13.17 constitute separate and independent obligations from other obligations of
the Issuer and the Guarantors, shall give rise to a separate and independent
cause of action, shall apply irrespective of any indulgence granted by any
Holder of the Notes and shall continue in full force and effect despite any
other judgment, order, claim or proof for a liquidated amount in respect of any
sum due under the Notes.


 


(a)                                  The
Issuer, jointly and severally, covenant and agree that the following provisions
shall apply to conversion of currency in the case of the Notes, the Guarantees
and this Indenture:


 


(1)                                  (A)                              If for the
purpose of obtaining judgment in, or enforcing the judgment of, any court in
any country, it becomes necessary to convert into a currency (the “Judgment Currency”) an amount due in any other currency (the
“Base Currency”), then the conversion
shall be made at the rate of exchange prevailing on the Business Day before the
day on which the judgment is given or the order of enforcement is made, as the
case may be (unless a court shall otherwise determine).


 


(B)                                 If
there is a change in the rate of exchange prevailing between the Business Day
before the day on which the judgment is given or an order of enforcement is
made, as the case may be (or such other date as a court shall determine), and
the date of receipt of the amount due, the Issuer and the Guarantors will pay
such additional (or, as the case may be, such lesser) amount, if any, as may be
necessary so that the amount paid in the Judgment Currency when converted at
the rate of exchange prevailing on the date of receipt will produce the amount
in the Base Currency originally due.


 


(2)                                  In the event of the
winding-up of the Issuer or any Guarantor at any time while any amount or
damages owing under the Notes, the Guarantees and this Indenture, or any judgment
or order rendered in respect thereof, shall remain outstanding, the Issuer and
the Guarantors


 


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shall indemnify and hold the Holders and the Trustee harmless against
any deficiency arising or resulting from any variation in rates of exchange
between (i) the date as of which the Applicable Currency Equivalent of the
amount due or contingently due under the Notes, the Guarantees and this
Indenture (other than under this subsection (a)(2)) is calculated for the
purposes of such winding-up and (ii) the final date for the filing of proofs of
claim in such winding-up.  For the
purpose of this subsection (a)(2), the final date for the filing of proofs of
claim in the winding-up of the Issuer or any Guarantor shall be the date fixed
by the liquidator or otherwise in accordance with the relevant provisions of
applicable law as being the latest practicable date as at which liabilities of
the Issuer or such Guarantor may be ascertained for such winding-up prior to
payment by the liquidator or otherwise in respect thereto.


 


(b)                                 The
obligations contained in the first paragraph of this Section 13.17 and in subsections
(a)(1)(B) and (a)(2) of this Section 13.17 shall constitute separate and independent
obligations from the other obligations of the Issuer and the Guarantors under
this Indenture, shall give rise to separate and independent causes of action
against the Issuer and the Guarantors, shall apply irrespective of any waiver
or extension granted by any Holder or the Trustee or either of them from time
to time and shall continue in full force and effect notwithstanding any
judgment or order or the filing of any proof of claim in the winding-up of the
Issuer or any Guarantor for a liquidated sum in respect of amounts due
hereunder (other than under subsection (a)(2) above) or under any such judgment
or order.  Any such deficiency as
aforesaid shall be deemed to constitute a loss suffered by the Holders or the
Trustee, as the case may be, and no proof or evidence of any actual loss shall
be required by the Issuer or any Guarantor or the liquidator or otherwise or
any of them.  In the case of subsection (a)(2)
above, the amount of such deficiency shall not be deemed to be reduced by any
variation in rates of exchange occurring between the said final date and the
date of any liquidating distribution.


 


(c)                                  The
term “rate(s) of exchange” shall mean the rate of exchange quoted by Reuters at
10:00 a.m. (New York time) for spot purchases of the Base Currency with the
Judgment Currency other than the Base Currency referred to in subsections (a)(1)
and (a)(2) above and includes any premiums and costs of exchange payable.


 


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IN WITNESS WHEREOF, the
parties have caused this Indenture to be duly executed as of the date first
written above.


 


	
   

  	
  NEW SKIES SATELLITES B.V.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Walid
  Kamhawi

  	
   

  
	
   

  	
   

  	
  Name: Walid
  Kamhawi

  	
   

  
	
   

  	
   

  	
  Title:
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ L.F.M.
  Heine

  	
   

  
	
   

  	
   

  	
  Name: MeesPierson
  Intertrust B.V.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J.C.M.
  Veerman

  	
   

  
	
   

  	
   

  	
  Name:
  MeesPierson Intertrust B.V.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard
  Prokosch

  	
   

  
	
   

  	
   

  	
  Name:
  Richard Prokosch

  	
   

  
	
   

  	
   

  	
  Title: Vice
  President

  	
   

  



 


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