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Exhibit 4.2(a)
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EARTHWATCH INCORPORATED
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FIRST SUPPLEMENTAL INDENTURE TO THE
AMENDED AND RESTATED INDENTURE
Dated as of July 7, 1999
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THE BANK OF NEW YORK
Trustee
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12-1/2% Senior Discount Notes due 2005
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This First Supplemental Amended and Restated Indenture (the
"Supplemental Indenture"), dated as of July 7, 1999, between EarthWatch
Incorporated, a corporation organized under the laws of the State of Delaware,
and the Bank of New York, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
Whereas, pursuant to Section 9.2 of the Amended and Restated Senior
Notes Indenture dated April 8, 1999, between the Company and the Trustee (the
"Indenture"), relating to the 12 1/2% Senior Notes due 2005, the Company seeks
to amend the provisions related to certain defined terms and other matters
provided for below to allow for the issuance of additional senior notes;
Whereas, all things necessary to make this Supplemental Indenture a
valid supplement to the Indenture according to the terms of this Supplemental
Indenture and the Indenture have been done;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Company and the Trustee mutually covenant and agree as follows:
ARTICLE ONE
DEFINED TERMS
Section 1.1. Defined Terms. All capitalized terms used herein without
definition shall have the meaning ascribed thereto in the Indenture, except as
amended hereby. The words "herein," "hereof" and "hereby" and other words of
similar import used in this Supplemental Indenture refer to this Supplemental
Indenture as a whole and not to any particular section of the Supplemental
Indenture.
ARTICLE TWO
AMENDMENT
Section 2.1. Definitions. The following definitions in Section 1.01
of the Indenture are hereby amended as follows:
(a) The definition of "Permitted Specified Indebtedness" in Section
1.01 of the Indenture is hereby deleted in its entirety and replaced with the
following:
"'Permitted Specified Indebtedness' means one or more issues of
Indebtedness in the form of notes or a bank loan facility resulting in
aggregate net proceeds to the Company not to exceed $130,000,000, after any
amounts paid in respect of any underwriting discounts and commissions,
fees, expenses and other costs payable by the Company and associated with
such issuance of such notes or creation of such bank loan facility, as the
case may be, incurred after the Closing
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Date and so specified as Permitted Specified Indebtedness by the Company at
the time of incurrence pursuant to an officers' certificate delivered to
the Trustee under the Indenture; which Indebtedness (i) shall be equal in
priority of payment or subordinate in right of payment with the Notes, (ii)
shall not be secured by any collateral other than the Collateral and/or any
prefunded interest advanced in connection with such Indebtedness, (iii)
shall be an obligation of the Company only and not any Subsidiary of the
Company and (iv) shall share in the Collateral in the manner specified in
the Security Documents."
(b) The definition of "Permitted Specified Indebtedness Insurance
Amount" in Section 1.01 of the Indenture is hereby deleted in its entirety and
replaced with the following:
"'Permitted Specified Indebtedness Insurance Amount' means the sum of
(i) the aggregate original principal amount of all Permitted Specified
Indebtedness and (ii) the aggregate of any original issue discount or
interest in respect of all Permitted Specified Indebtedness accrued from
the period commencing on the issue date(s) thereof through the earlier of
June 30, 2000 and the date of the first intentional ignition of the launch
vehicle for the First QuickBird Satellite."
(c) The definition of "Security Documents" in Section 1.01 of the
Indenture is hereby deleted in its entirety and replaced with the following:
"'Security Document' means (1) the Pledge Agreement, dated as of
July 7, 1999, among the Company, the Collateral Trustee and The Bank of New
York, as securities intermediary, under which the Company will pledge to
the Collateral Trustee certain United States Treasury Securities purchased
with a portion of the net proceeds of the issuance of the Permitted
Specified Indebtedness to secure payment from time to time of premiums in
respect of the First QuickBird Launch Insurance and (2) the Amended and
Restated Collateral Pledge and Security Agreement dated as of July 7, 1999,
as amended, made by the Company in favor of the Collateral Trustee pursuant
to which Company shall grant to the Collateral Trustee a Lien in the
Collateral and pursuant to which any proceeds of the Collateral shall be
allocated in order to (A) provide on a pari passu basis for (i) the
original principal amount of the Notes on the Issue Date and the original
issue discount and interest accrued for the period from the Issue Date
through the earlier of June 30, 2000 and the date that the First QuickBird
Satellite is launched, all as more specifically provided therein and (ii)
the original principal amount of the Permitted Specified Indebtedness and
original issue discount or interest accrued for the period from the issue
date(s) thereof through the earlier of June 30, 2000 and the date that the
First QuickBird Satellite is launched, all as more specifically provided
therein and (B) provide for the residual payment to the Company after the
required priority payments in respect of the Notes and
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the Permitted Specified Indebtedness, all as more specifically provided
therein, as such Agreement may be amended, restated, supplemented or
otherwise modified from time to time."
(d) The definition of "Specified Date" in Section 1.01 of the
Indenture is hereby deleted in its entirety and replaced with the following:
"'Specified Date' means (i) any Payment Date with respect to an Offer to
Purchase pursuant to Section 4.6, (ii) any Payment Date with respect to an
Offer to Purchase pursuant to Section 4.16, (iii) any Redemption Date with
respect to an optional redemption pursuant to Section 3.1 or (iv) any date
on which the Notes are due and payable after an Event of Default."
Section 2.2. New Defined Term. The Indenture is hereby amended by
adding the following defined term to Section 1.01 of the Indenture thereto in
the appropriate alphabetical order:
"'Insurance Proceeds Payment Amount' means the amount of proceeds, if any,
received by the Collateral Trustee under First QuickBird Launch Insurance."
Section 2.3. Amendment to Article Four. The Indenture is hereby
amended by adding to Article Four the following as Section 4.16 of the
Indenture.
"Section 4.16. Repurchase of Notes upon an Insurance Proceeds
Payment. The Company must commence, within 30 days of receipt by the
Collateral Trustee of any proceeds under the First Quickbird Launch
Insurance, and must thereafter consummate an Offer to Purchase the Notes
then outstanding, and an offer to purchase the Permitted Specified
Indebtedness then outstanding, on a pro rata basis in an aggregate amount
equal to the Insurance Proceeds Payment Amount not previously subject to an
Offer to Purchase under this Section 4.16 at a purchase price for the Notes
and the Permitted Specified Indebtedness equal to 100% of the accreted
value thereof on the relevant payment date, plus accrued and unpaid
interest, if any, to such payment date. If the aggregate purchase price of
the Notes and the Permitted Specified Indebtedness tendered in connection
with such offers to purchase is less than the Insurance Proceeds Payment
Amount, the remaining Insurance Proceeds Payment Amount shall be paid over
to the Company and may be used for general corporate purposes."
Section 2.4. Amendment to Section 6.1. Section 6.1 of the Indenture
is hereby amended by:
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(a) deleting clause (c) in its entirety and replacing it with the
following:
"(c) the failure to make or consummate an Offer to Purchase in accordance
with Section 4.6 or Section 4.16 hereof;"
(b) deleting clause (i) in its entirety and replacing it with the
following:
"(i) with respect to the First QuickBird Satellite, there shall occur
(1) the loss of more than 15% of such satellite's capacity or (2) any other
event that permits or requires the payment of proceeds of the First
QuickBird Launch Insurance by an insurance company thereunder and, in
either such case, the proceeds of the First QuickBird Launch Insurance are
not paid over to the Collateral Trustee within 90 days of demand being made
under the applicable First QuickBird Launch Insurance policy."
Section 2.5. Amendment to Section 8.2. The Indenture is hereby
amended by deleting the sentence prior to clause (a) of Section 8.2 in its
entirety and replacing it with the following:
"Section 8.2. Defeasance of Certain Obligations. The Company may
omit to comply with any term, provision or condition set forth in Sections
4.2 through 4.12, 4.14 and 4.16 (except for any covenant otherwise required
by the TIA), and clauses (c), (d), (e) and (f) of Section 6.1 shall be
deemed not to be Events of Default, in each case with respect to the
outstanding Notes if:"
Section 2.6. Amendment to Section 10.1. The Indenture is hereby
amended by deleting clause (a) of Section 10.1 in its entirety and replacing it
with the following:
"(a) The Company shall enter into the Security Documents (in the form
attached hereto as Exhibit F) and comply with the terms and provisions
thereof. The purpose of the Security Documents is to provide the Trustee
with an interest in the First QuickBird Launch Insurance and any and all
proceeds thereof which will be shared, pari passu, with the interest
therein of the holders of Permitted Specified Indebtedness as provided in
the Security Documents. It is the intent that (i) the interest of the
Trustee (through the Collateral Trustee) in such First QuickBird Launch
Insurance not be less than an amount sufficient to provide for the
aggregate original principal amount of the Notes and original issue
discount or interest accrued on the Notes for the period from the issue
date(s) through the earlier of June 30, 2000 and the date of the first
intentional ignition of the launch vehicle for the First QuickBird
Satellite, and (ii) the aggregate interest of the Collateral Trustee in
such First QuickBird Launch Insurance not be less than the sum of (x) the
amount provided in clause (i) of this sentence plus (y) the
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Permitted Specified Indebtedness Insurance Amount. The Trustee and the
Collateral Trustee is authorized to enter into such modifications,
amendments and supplements to the Security Documents for the purpose of
effectively securing any issues of Permitted Specified Indebtedness on a
pari passu basis with the Notes as provided in this Section 10.1."
ARTICLE THREE
MISCELLANEOUS
Section 3.1. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
Section 3.2. Severability Clause. In case any provision in this
Supplemental 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 3.3. Entire Agreement. This Supplemental Indenture is
intended by the parties to be a final expression of their agreement in respect
of the subject matter contained herein and, together with the Indenture,
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
Section 3.4. Ratification; Supplemental Indentures Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder heretofore or hereafter
authenticated and delivered shall be bound hereby. The Trustee makes no
representation or warranty as to the validity or sufficiency of this
Supplemental Indenture.
Section 3.5. Effectiveness. This Supplemental Indenture shall become
effective upon due execution.
Section 3.6. Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
Section 3.7. Headings. The headings of the Articles and the sections
in this Supplemental Indenture are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
EARTHWATCH INCORPORATED
By: /s/ Herbert T. Satterlee
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Name: Herbert T. Satterlee
Title: Chief Executive Officer,
President and Director
THE BANK OF NEW YORK, as Collateral
Agent
By: /s/ Walter N. Gitlin
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Name: Walter N. Gitlin
Title: Vice President
Address for notice:
101 Barclay Street, Floor 21 West
New York, New York 10286
Telecopier No: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
