EXHIBIT 4.8
EXECUTION COPY
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CLEARWIRE CORPORATION
SENIOR NOTES DUE 2010
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INDENTURE
DATED AS OF AUGUST 5, 2005
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THE BANK OF NEW YORK,
AS TRUSTEE
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE..................... 1
SECTION 1.1. DEFINITIONS.......................................... 1
SECTION 1.2. OTHER DEFINITIONS.................................... 17
SECTION 1.3. TRUST INDENTURE ACT PROVISIONS....................... 18
SECTION 1.4. RULES OF CONSTRUCTION................................ 18
ARTICLE 2 THE NOTES...................................................... 19
SECTION 2.1. FORM AND DATING...................................... 19
SECTION 2.2. EXECUTION AND AUTHENTICATION......................... 20
SECTION 2.3. REGISTRAR AND PAYING AGENT........................... 21
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.................. 22
SECTION 2.5. NOTEHOLDERS LISTS.................................... 22
SECTION 2.6. TRANSFER AND EXCHANGE................................ 22
SECTION 2.7. REPLACEMENT NOTES.................................... 23
SECTION 2.8. OUTSTANDING NOTES.................................... 24
SECTION 2.9. TREASURY NOTES....................................... 24
SECTION 2.10. TEMPORARY NOTES...................................... 24
SECTION 2.11. CANCELLATION......................................... 25
SECTION 2.12. LEGEND; ADDITIONAL TRANSFER AND EXCHANGE
REQUIREMENTS......................................... 25
SECTION 2.13. CUSIP NUMBERS........................................ 27
SECTION 2.14. RANK................................................. 27
ARTICLE 3 REDEMPTION AND PURCHASE........................................ 28
SECTION 3.1. OPTIONAL REDEMPTION; NOTICE TO TRUSTEE............... 28
SECTION 3.2. SELECTION OF NOTES TO BE REDEEMED.................... 28
SECTION 3.3. NOTICE OF REDEMPTION................................. 28
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION....................... 29
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.......................... 29
SECTION 3.6. NOTES REDEEMED IN PART............................... 29
SECTION 3.7. [INTENTIONALLY OMITTED].............................. 30
SECTION 3.8. PURCHASE OF NOTES AT OPTION OF THE HOLDER UPON A
CHANGE OF CONTROL.................................... 30
SECTION 3.9. EFFECT OF CHANGE OF CONTROL PURCHASE NOTICE.......... 31
SECTION 3.10. DEPOSIT OF CHANGE OF CONTROL PURCHASE PRICE.......... 32
SECTION 3.11. NOTES PURCHASED IN PART.............................. 32
SECTION 3.12. COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF
NOTES................................................ 32
SECTION 3.13. ESCROW OF INTEREST PAYMENTS.......................... 33
TABLE OF CONTENTS
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ARTICLE 4 [INTENTIONALLY OMITTED]........................................ 33
ARTICLE 5 [INTENTIONALLY OMITTED]........................................ 33
ARTICLE 6 COVENANTS...................................................... 33
SECTION 6.1. PAYMENT OF NOTES..................................... 33
SECTION 6.2. SEC REPORTS.......................................... 34
SECTION 6.3. COMPLIANCE CERTIFICATES.............................. 34
SECTION 6.4. FURTHER INSTRUMENTS AND ACTS......................... 35
SECTION 6.5. MAINTENANCE OF CORPORATE EXISTENCE................... 35
SECTION 6.6. RULE 144A INFORMATION REQUIREMENT.................... 35
SECTION 6.7. STAY, EXTENSION AND USURY LAWS....................... 35
SECTION 6.8. INFORMATION FOR IRS FILINGS.......................... 36
SECTION 6.9. BUSINESS ACTIVITIES.................................. 36
SECTION 6.10. THE SPECTRUM ENTITIES................................ 36
SECTION 6.11. TAX TREATMENT OF SECURITIES.......................... 36
ARTICLE 7 OTHER RESTRICTIVE COVENANTS.................................... 37
SECTION 7.1. INCURRENCE OF INDEBTEDNESS BY SPECTRUM ENTITY........ 37
SECTION 7.2. REPURCHASE AT THE OPTION OF HOLDERS-ASSET SALES OF
SPECTRUM ENTITIES.................................... 37
SECTION 7.3. RESTRICTED PAYMENTS.................................. 41
SECTION 7.4. LIMITATION ON LIENS.................................. 42
SECTION 7.5. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS................................................ 43
SECTION 7.6. SUCCESSOR SUBSTITUTED................................ 44
SECTION 7.7. TRANSACTIONS WITH AFFILIATES......................... 44
SECTION 7.8. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS........ 45
SECTION 7.9. DESIGNATION OF RESTRICTED AND UNRESTRICTED
SUBSIDIARIES......................................... 46
SECTION 7.10. ADDITIONAL NOTE GUARANTEES........................... 47
SECTION 7.11. REPURCHASE AT THE OPTION OF HOLDERS-ASSET SALES OF
PLEDGED ENTITIES..................................... 48
ARTICLE 8 DEFAULT AND REMEDIES........................................... 51
SECTION 8.1. EVENTS OF DEFAULT.................................... 51
SECTION 8.2. ACCELERATION......................................... 53
SECTION 8.3. OTHER REMEDIES....................................... 54
SECTION 8.4. WAIVER OF DEFAULTS AND EVENTS OF DEFAULT............. 54
SECTION 8.5. CONTROL BY MAJORITY.................................. 55
SECTION 8.6. LIMITATIONS ON SUITS................................. 55
SECTION 8.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT................. 55
SECTION 8.8. COLLECTION SUIT BY TRUSTEE........................... 55
SECTION 8.9. TRUSTEE MAY FILE PROOFS OF CLAIM..................... 56
TABLE OF CONTENTS
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SECTION 8.10. PRIORITIES........................................... 56
SECTION 8.11. UNDERTAKING FOR COSTS................................ 56
SECTION 8.12. WAIVER OF STAY OR EXTENSION LAWS..................... 57
SECTION 8.13. RESTORATION OF RIGHTS AND REMEDIES................... 57
SECTION 8.14. RIGHTS AND REMEDIES CUMULATIVE....................... 57
SECTION 8.15. DELAY OR OMISSION NOT WAIVER......................... 57
ARTICLE 9 TRUSTEE........................................................ 57
SECTION 9.1. DUTIES OF TRUSTEE.................................... 57
SECTION 9.2. RIGHTS OF TRUSTEE.................................... 58
SECTION 9.3. INDIVIDUAL RIGHTS OF TRUSTEE......................... 59
SECTION 9.4. TRUSTEE'S DISCLAIMER................................. 59
SECTION 9.5. NOTICE OF DEFAULT OR EVENTS OF DEFAULT............... 60
SECTION 9.6. HOLDER'S LIST AND REPORTS BY TRUSTEE TO HOLDERS...... 60
SECTION 9.7. COMPENSATION AND INDEMNITY........................... 61
SECTION 9.8. REPLACEMENT OF TRUSTEE............................... 61
SECTION 9.9. SUCCESSOR TRUSTEE BY MERGER, ETC..................... 62
SECTION 9.10. ELIGIBILITY; DISQUALIFICATION........................ 62
SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.... 63
SECTION 9.12. DISQUALIFICATION; CONFLICTING INTERESTS.............. 63
ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE....................... 63
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE.............. 63
SECTION 10.2. APPLICATION OF TRUST MONEY........................... 64
SECTION 10.3. REPAYMENT TO COMPANY................................. 64
SECTION 10.4. REINSTATEMENT........................................ 65
ARTICLE 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS........................... 65
SECTION 11.1. WITHOUT CONSENT OF HOLDERS........................... 65
SECTION 11.2. WITH CONSENT OF HOLDERS.............................. 65
SECTION 11.3. COMPLIANCE WITH TRUST INDENTURE ACT.................. 66
SECTION 11.4. REVOCATION AND EFFECT OF CONSENTS.................... 67
SECTION 11.5. NOTATION ON OR EXCHANGE OF NOTES..................... 67
SECTION 11.6. TRUSTEE TO SIGN AMENDMENTS, ETC...................... 67
SECTION 11.7. EFFECT OF SUPPLEMENTAL INDENTURES.................... 67
ARTICLE 12 COLLATERAL AND SECURITY....................................... 67
SECTION 12.1. PLEDGE AND SECURITY AGREEMENTS....................... 67
SECTION 12.2. RECORDING AND OPINIONS............................... 69
SECTION 12.3. RELEASE OF COLLATERAL................................ 70
SECTION 12.4. CERTIFICATES OF THE COMPANY.......................... 70
SECTION 12.5. CERTIFICATES OF THE TRUSTEE.......................... 70
SECTION 12.6. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE
UNDER THE PLEDGE AND SECURITY AGREEMENTS............ 71
SECTION 12.7. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE
UNDER THE PLEDGE AND SECURITY AGREEMENTS............. 71
TABLE OF CONTENTS
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SECTION 12.8. TERMINATION OF SECURITY INTEREST..................... 71
ARTICLE 13 NOTE GUARANTEES............................................... 71
SECTION 13.1. GUARANTEE............................................ 71
SECTION 13.2. LIMITATION ON GUARANTOR LIABILITY.................... 72
SECTION 13.3. EXECUTION AND DELIVERY OF NOTE GUARANTEE............. 73
SECTION 13.4. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS... 73
SECTION 13.5. RELEASES............................................. 74
ARTICLE 14 LEGAL DEFEASANCE AND COVENANT DEFEASANCE...................... 75
SECTION 14.1. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE........................................... 75
SECTION 14.2. LEGAL DEFEASANCE AND DISCHARGE....................... 75
SECTION 14.3. COVENANT DEFEASANCE.................................. 75
SECTION 14.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE........... 76
SECTION 14.5. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS............. 77
SECTION 14.6. REPAYMENT TO THE COMPANY............................. 77
SECTION 14.7. REINSTATEMENT........................................ 78
ARTICLE 15 MISCELLANEOUS................................................. 78
SECTION 15.1. TRUST INDENTURE ACT CONTROLS......................... 78
SECTION 15.2. NOTICES.............................................. 78
SECTION 15.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS......... 79
SECTION 15.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT... 79
SECTION 15.5. RECORD DATE FOR VOTE OR CONSENT OF NOTEHOLDERS....... 80
SECTION 15.6. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR......... 80
SECTION 15.7. GOVERNING LAW........................................ 80
SECTION 15.8. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS........ 80
SECTION 15.9. NO RECOURSE AGAINST OTHERS........................... 80
SECTION 15.10. SUCCESSORS........................................... 81
SECTION 15.11. MULTIPLE COUNTERPARTS................................ 81
SECTION 15.12. SEPARABILITY......................................... 81
SECTION 15.13. TABLE OF CONTENTS, HEADINGS, ETC..................... 81
THIS INDENTURE dated as of August 5, 2005 is among Clearwire Corporation, a
corporation duly organized under the laws of the State of Delaware (the
"Company"), Clearwire1 (as defined below), Fixed Wireless Holdings, LLC, a
Delaware limited liability company and NextNet Wireless, Inc., a Delaware
corporation, (together with Clearwire1 and Fixed Wireless Holdings, LLC, the
"Guarantors"), and The Bank of New York, as Trustee.
In consideration of the purchase of the Notes (as defined herein) by the
Holders thereof, the parties agree as follows for the benefit of the other and
for the equal and ratable benefit of the Holders of the Company's Senior Notes
due 2010.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Account Control Agreement" means the agreement between the Company and the
Collateral Agent, governing the Interest Payment Collateral.
"Accredited Investor" means an investor that is an "accredited investor" as
defined in Rule 501(a) under the Securities Act.
"Acquiror" means, in a transaction that is a Change of Control, the entity
that acquires substantially all of the properties or assets of the Company and
its Restricted Subsidiaries taken as a whole and is the legal successor to the
Company.
"Additional Notes" means the Series A Notes or Series B Notes (as
determined by the terms of the Purchase Agreement) issued under this Indenture
upon the exercise of the Buyers' Option and in accordance Sections 2.2 and 7.4
of this Indenture.
"Affiliate" means, with respect to any specified person, any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control" when used with respect to any person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar or Paying Agent.
"Applicable Procedures" means, with respect to any transfer or exchange of
beneficial ownership interests in a any series of Global Note, the rules and
procedures of the Depositary, in each case to the extent applicable to such
transfer or exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition or transfer of any
assets (including FCC License Rights) by the Pledged Entities, other
than a transaction governed by Section 3.8; and
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(2) the issuance of Equity Interests of the Pledged Entities by the
Company or any Domestic Restricted Subsidiary, as applicable
(including in connection with any merger or consolidation) or the
sale, transfer, conveyance or other disposition of Equity Interests
(other than directors' qualifying shares and shares issued to foreign
nationals to the extent required by applicable law).
Notwithstanding the preceding, the following items shall be deemed not
to be Asset Sales:
(1) a transfer of Equity Interests between or among the Spectrum Entities
in accordance with Section 6.10 or a transfer of assets of the
Spectrum Entities between or among the Spectrum Entities;
(2) a transfer of Equity Interests between or among the Pledged Entities
or a transfer of assets of the Pledged Entities (other than the
Spectrum Entities) between or among the Pledged Entities (other than
the Spectrum Entities);
(3) the sale or lease of equipment, inventory, accounts receivable or
other assets (other than FCC License Rights) in the ordinary course of
business;
(4) dispositions of accounts receivable in connection with the compromise,
settlement or collection thereof in the ordinary course of business or
in bankruptcy or similar proceedings;
(5) a Restricted Payment that is permitted by Section 7.3;
(6) any sale or disposition of any property or equipment that has become
damaged, worn out or obsolete;
(7) the creation of a Permitted Lien;
(8) non-exclusive licenses of intellectual property in the ordinary course
of business that could not reasonably be expected to have a material
adverse effect on the value of the Collateral or the ability of the
Collateral Agent or the Holders to realize the benefits of, and
intended to be afforded by, the Collateral;
(9) any disposition of Designated Noncash Consideration; provided that
such disposition is treated as an increase in the amount of Net
Proceeds of the Asset Sale that resulted in such Designated Noncash
Consideration and is applied as required under Section 7.2; and
(10) any foreclosure (subject to any intercreditor or subordination
arrangement between such lienholder and the Collateral Agent on behalf
of the Holders) upon any assets of the Spectrum Entities pursuant to
the terms of a Permitted Lien; provided that such foreclosure does not
otherwise constitute a Default under this Indenture.
"Attributable Debt" in respect of a Sale and Leaseback Transaction means,
at the time of determination, the present value of the obligation of the lessee
for net rental payments during the remaining term of the lease included in such
Sale and Leaseback Transaction, including any period for which such lease has
been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated
2
using a discount rate equal to the rate of interest implicit in such
transaction, determined in accordance with GAAP.
"Board Resolution" means a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors of the Company and to be in full force and effect on the date of such
certification.
"Board of Directors" means either the board of directors of the Company or
any committee of the Board of Directors authorized to act for it with respect to
this Indenture.
"Business Day" means each day that is not a Legal Holiday.
"Buyers' Option" means the option of the Purchasers to purchase up to $280
million of Series A or Series B Notes as described in the Purchase Agreement.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" or "capital stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person.
"Cash" or "cash" means such coin or currency of the United States as at any
time of payment is legal tender for the payment of public and private debts.
"Cash Equivalents" means:
(1) U.S. dollars and foreign currency received in the ordinary course of
business or exchanged into U.S. dollars within 180 days;
(2) securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is
pledged in support thereof), maturing, unless such securities are
deposited to defease any Indebtedness, not more than one year from the
date of acquisition;
(3) certificates of deposit and eurodollar time deposits with maturities
of one year or less from the date of acquisition, bankers' acceptances
with maturities not exceeding one year and overnight bank deposits, in
each case, with any domestic commercial bank having capital and
surplus in excess of $500.0 million and a rating at the time of
acquisition thereof of P-1 or better from Xxxxx'x Investors Service,
Inc. or A-1 or better from Standard & Poor's Rating Services;
(4) securities issued and fully guaranteed by any state, commonwealth or
territory of the United States of America, or by any political
subdivision or taxing authority thereof, rated at least "A" by Xxxxx'x
Investors Service, Inc. or Standard & Poor's Rating Services and
having maturities of not more than one year from the date of
acquisition; and
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(5) money market funds denominated in U.S. dollars at least 95% of the
assets of which constitute Cash Equivalents of the kinds described in
clauses (1) through (4) of this definition.
"Certificated Note" means a Note that is in substantially the form attached
hereto as Exhibit A and that does not include the information or the schedule
called for by footnotes 1, 2 and 3 thereof.
"Change of Control" means a change of control of the Company, or any
successor entity that is subject to the terms of this Indenture, which shall be
deemed to have occurred at such time after the Issue Date as any of the
following events shall occur:
(1) any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all of the
Company's assets to any person or group of related persons (other than to
any of the Company's wholly owned Subsidiaries);
(2) the approval by the holders of the Company's Capital Stock of any
plan or proposal for liquidation or dissolution;
(3) if any person or group (other than a person or group of persons
comprised solely of shareholders of the Company as of the Issue Date or
their Affiliates) shall become the beneficial owner, directly or
indirectly, of shares representing more than 50% of the aggregate voting
power represented by the issued and outstanding Voting Stock of the
Company;
(4) prior to a Qualified IPO and other than as results solely from a
transaction that results in a Qualified IPO, if either (i) Xxxxx XxXxx and
any XxXxx Person, taken as a whole, directly or indirectly beneficially
owns less than 50% of the total outstanding Class B Common Stock or (ii)
Xxxxx XxXxx and any XxXxx Person, taken as a whole, directly or indirectly
beneficially owns less than 66 2/3% of the amount of the total outstanding
Class B Common Stock owned by such persons as of the Issue Date; or
(5) prior to a Qualified IPO and other than as results solely from a
transaction that results in a Qualified IPO, any consolidation or merger by
the Company where persons who are beneficial owners of the Company's shares
of Voting Stock immediately prior to such transaction no longer own at
least a majority of the total voting power of the continuing or surviving
corporation or entity.
For purposes of the definition of Change of Control:
"person" or "group" have the meanings given to them for purposes of
Sections 13(d) and 14(d) of the Exchange Act or any successor provisions, and
the term "group" includes 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, or any successor provision;
a "beneficial owner" will be determined in accordance with Rule 13d-3 under
the Exchange Act, as in effect on the date of this Indenture, except that the
number of shares of Voting Stock of the Company will be deemed to include all
outstanding shares of Voting Stock of the Company and unissued shares deemed to
be held by the "person" or "group" or other person with respect to which the
determination is being made, but shall not include any unissued shares deemed to
be held by all other persons;
"beneficially owned" has a meaning correlative to that of beneficial owner;
and
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"unissued shares" means shares of Voting Stock not outstanding that are
subject to options, warrants, rights to purchase or conversion privileges
exercisable within 60 days of the date of determination of a Change of Control.
"Change of Control Purchase Date" means the Effective Date for a Change of
Control. With respect to any purchase for which a Change of Control Purchase
Notice has been delivered after the Effective Date and during the Change of
Control Purchase Period, the Change of Control Purchase Date shall mean the date
that is three (3) Business Days following the earlier of (i) the end of the
Change of Control Purchase Period and (ii) the date of delivery of the Change of
Control Purchase Notice.
"Class A Common Stock" means the Class A common stock of the Company,
$0.0001 par value per share, as it exists on the date of this Indenture and any
shares of any class or classes of capital stock of the Company resulting from
any reclassification or reclassifications thereof and which have no preference
in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which are
not subject to redemption by the Company.
"Class B Common Stock" means the Class B common stock of the Company,
$0.0001 par value per share, as it exists on the date of this Indenture and any
shares of any class or classes of capital stock of the Company resulting from
any reclassification or reclassifications thereof and which have no preference
in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which are
not subject to redemption by the Company.
"Clearwire1" means Clearwire LLC, a Nevada limited liability company and a
wholly-owned subsidiary of Clearwire Corporation.
"Collateral" has the meaning assigned to such term in each of the Pledge
and Security Agreements.
"Collateral Agent" means The Bank of New York.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such successor Company.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time the trust created by this Indenture shall be administered which
office at the date of the execution of this Indenture is located at 000 Xxxxxxx
Xxxxxx - 0 Xxxx, Xxx Xxxx, XX 00000; Attention: Corporate Trust Administration
or at any other time at such other address as the Trustee may designate from
time to time by notice to the Company.
"Default" or "default" means, when used with respect to the Notes, any
event which is or, after notice or passage of time or both, would be an Event of
Default.
"Designated Noncash Consideration" means the Fair Market Value of noncash
consideration received by the Pledged Entities in connection with an Asset Sale
that is so designated as Designated Noncash Consideration pursuant to an
Officers' Certificate, setting forth the basis of such valuation, less the
amount of Cash Equivalents received in connection with a subsequent sale of such
Designated Noncash Consideration.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or
5
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the date on which the Notes
mature; provided, however, that only the portion of Capital Stock which so
matures or is mandatorily redeemable, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof prior to such dates shall be
deemed to be Disqualified Stock. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Company to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 7.3. The
term "Disqualified Stock" shall also include any options, warrants or other
rights that are convertible into Disqualified Stock or that are redeemable at
the option of the holder, or required to be redeemed, prior to the date on which
the Notes mature.
"Domestic Restricted Subsidiary" means a Domestic Subsidiary that is a
Restricted Subsidiary.
"Domestic Subsidiary" means any Subsidiary that was formed under the laws
of the United States or any state of the United States or the District of
Columbia and that is not a Foreign Subsidiary.
"Effective Date" means the date on which the applicable Change of Control
occurs.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder, as in effect from time to
time.
"Exempt Joint Venture" means a Majority Joint Venture engaged in a
Permitted Business providing wireless broadband internet services and not formed
for the purpose of raising capital which is designated in writing as an Exempt
Joint Venture by the Board of Directors of the Company and a copy of such
designation is delivered to the trustee and the Holders; provided that a
Majority Joint Venture may not be designated an Exempt Joint Venture if either
(i) the owner of Equity Interests in the Majority Joint Venture is a financial
institution or fund of a financial institution, an affiliate of a financial
institution, an investment fund or an affiliate of an investment fund or (ii)
after giving effect to such designation, there are Joint Venture Interests and
Exempt Joint Ventures outstanding to or for which the Spectrum Entities shall
have sold, leased, conveyed, transferred or otherwise disposed of FCC License
Rights representing in excess of 2 billion MHz POPS or (iii) FCC License Rights
representing in excess of 500 million MHz POPS are sold, leased, conveyed,
transferred or otherwise disposed of to such Majority Joint Venture. Unless
prohibited by law or to the extent of any non-disclosure agreement, the Company
shall provide the Trustee and the Noteholders a summary description of the
material terms of any Exempt Joint Venture to which Spectrum Entities shall have
sold, leased, conveyed, transferred or otherwise disposed of FCC License Rights
representing in excess of 250 million MHz POPS.
"Fair Market Value" means the value that would be paid by a willing buyer
to an unaffiliated willing seller on an arm's length basis in a transaction not
involving distress or necessity of either party, determined in good faith by a
majority of the disinterested members of the Board of Directors of the Company
(unless otherwise provided in this Indenture).
"FCC" means the Federal Communications Commission and any successor
thereto.
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"FCC License" means any paging, mobile telephone, specialized mobile radio,
microwave, personal communications services and any other license, permit,
consent, certificate of compliance, franchise, approval, waiver or authorization
granted or issued by the FCC, including any of the foregoing authorizing or
permitting the acquisition, construction or operation of any Wireless
Communications System.
"FCC License Rights" means any right, title or interest in, to or under any
FCC License, whether directly or indirectly held, including, without limitation,
any rights owned, granted, approved or issued directly or indirectly by the FCC
or held, leased, licensed or otherwise acquired from or through any party
(including without limitation any rights under Spectrum Leases).
"Final Maturity Date" means August 15, 2010.
"Foreign Subsidiary" means any Person (a) which is organized under the laws
of any jurisdiction outside the United States (within the meaning of Section
7701(a)(9) of the Code), or (b) whose principal assets consist of capital stock
or other Equity Interests of one or more Persons that are "controlled foreign
corporations" within the meaning of Section 957 of the Code.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the date of this Indenture, including those set
forth in (1) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, (2) the statements
and pronouncements of the Financial Accounting Standards Board and (3) such
other statements by such other entity as are approved by a significant segment
of the accounting profession.
"Global Note" means a permanent global security that is in substantially
the form attached hereto as Exhibit A and that includes the information and
schedule called for by footnotes 1, 2 and 3 thereof and which is deposited with
the Depositary or its custodian and registered in the name of the Depositary or
its nominee.
"Government Securities" means securities that are direct obligations of the
United States of America for the timely payment of which its full faith and
credit is pledged.
"Guarantee" means, as to any Person, 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, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof, of all or any part of any Indebtedness of another Person.
"Guarantor" means:
(1) Clearwire1 and its Domestic Restricted Subsidiaries;
(2) NextNet Wireless, Inc. and its Domestic Restricted Subsidiaries;
(3) Fixed Wireless Holdings, LLC and its Domestic Restricted
Subsidiaries; and
(4) any other Subsidiary of the Company that executes a Note Guarantee
in accordance with the provisions of this Indenture;
and their respective successors and assigns until released from their
obligations under their Note Guarantees and this Indenture in accordance with
the terms of this Indenture.
7
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or
from floating to fixed), interest rate cap agreements and interest rate
collar agreements;
(2) other agreements or arrangements designed to manage interest rates
or interest rate risk; and
(3) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange rates or commodity prices.
"Holder" or "Noteholder" means the person in whose name a Note is
registered on the Primary Registrar's books.
"Immaterial Subsidiary" means, as of any date, any Domestic Restricted
Subsidiary whose total assets, as of that date, are less than $5,000,000 and
whose total revenues for the most recent 12-month period do not exceed
$5,000,000; provided that a Domestic Restricted Subsidiary will not be
considered to be an Immaterial Subsidiary if it, directly or indirectly,
guarantees or otherwise provides direct credit support for any Indebtedness of
the Company.
"Incur" means, with respect to any Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become directly or indirectly liable for or with
respect to, or become responsible for, the payment of, contingently or
otherwise, such Indebtedness (and "Incurrence" and "Incurred" will have meanings
correlative to the foregoing); provided that (1) any Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary of the Company
will be deemed to be Incurred by such Restricted Subsidiary at the time it
becomes a Restricted Subsidiary of the Company and (2) neither the accrual of
interest nor the accretion of original issue discount nor the payment of
interest in the form of additional Indebtedness with the same terms and the
payment of dividends on Disqualified Stock or Preferred Stock in the form of
additional shares of the same class of Disqualified Stock or Preferred Stock (to
the extent provided for when the Indebtedness or Disqualified Stock or Preferred
Stock on which such interest or dividend is paid was originally issued) will be
considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) in respect of Capital Lease Obligations and Attributable Debt;
(5) in respect of the balance deferred and unpaid of the purchase price of
any property or services, except any such balance that constitutes an
accrued expense or trade payable; provided that Indebtedness shall not
include any earn-out obligation or obligation in respect
8
of purchase price adjustment, except to the extent that the contingent
consideration relating thereto is not paid within 15 Business Days
after the contingency relating thereto is resolved;
(6) representing Hedging Obligations;
(7) representing Disqualified Stock valued at the greater of its voluntary
or involuntary maximum fixed repurchase price plus accrued dividends;
or
(8) in the case of a Subsidiary of such Person, representing Preferred
Stock valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued dividends,
if and to the extent any of the preceding items (other than letters of credit
and other than pursuant to clauses (4), (5), (6), (7) or (8)) would appear as a
liability upon a balance sheet of the specified Person prepared in accordance
with GAAP. In addition, the term "Indebtedness" includes (x) all Indebtedness of
others secured by a Lien on any asset of the specified Person (whether or not
such Indebtedness is assumed by the specified Person) other than a pledge of
Equity Interests of an Unrestricted Subsidiary to secure Non-Recourse Debt of
such Unrestricted Subsidiary, provided that the amount of such Indebtedness
shall be the lesser of (A) the Fair Market Value of such asset at such date of
determination and (B) the amount of such Indebtedness, and (y) to the extent not
otherwise included, the Guarantee by the specified Person of any Indebtedness of
any other Person, provided further that any obligation of the Company or any
Restricted Subsidiary in respect of minimum guaranteed commissions, or other
similar payments, to clients, minimum returns to clients or stop loss limits in
favor of clients or indemnification obligations to clients, in each case
pursuant to contracts to provide services to clients entered into in the
ordinary course of business, shall be deemed not to constitute Indebtedness. For
purposes hereof, the "maximum fixed repurchase price" of any Disqualified Stock
or Preferred Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Stock or Preferred
Stock, as applicable, as if such Disqualified Stock or Preferred Stock were
repurchased on any date on which Indebtedness shall be required to be determined
pursuant to this Indenture.
The amount of any Indebtedness outstanding as of any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency giving rise to the obligation, and shall be:
(1) the accreted value thereof, in the case of any Indebtedness issued
with original issue discount; and
(2) the principal amount thereof, together with any interest thereon that
is more than 30 days past due, in the case of any other Indebtedness.
"Indenture" means this Indenture as amended or supplemented from time to
time pursuant to the terms of this Indenture.
"Interest Payment Collateral" means the amount sufficient to provide for
payment in full of the scheduled interest payments on the Notes through August
15, 2007; such amount to be deposited in the Collateral Account as required
under the Purchase Agreement and represented in the form of non-callable
Government Securities which account shall be governed by, and subject to, the
terms of the Account Control Agreement.
"Interest Payment Date" means February 15 and August 15 of each year.
9
"Issue Date" means the date of original issuance of the Series A Notes to
the Purchasers under this Indenture.
"Joint Venture Interests" means Equity Interests in a Person engaged in a
Permitted Business that is not a Restricted Subsidiary of the Company.
"Legal Holiday" is a Saturday, Sunday or a day on which state or federally
chartered banking institutions in New York, New York and the state in which the
Corporate Trust Office is located are not required to be open. If a payment date
is a Legal Holiday, payment shall be made on the next succeeding day that is not
a Legal Holiday, and no interest shall accrue for the intervening period. If a
Regular Record Date is a Legal Holiday, the record date shall not be affected.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Majority Joint Venture" means a Restricted Subsidiary of a Spectrum Entity
in which the Spectrum Entities hold less than all of the Voting Stock.
"Material Adverse Effect" means any material adverse effect on the
business, properties, assets, operations, results of operations or condition
(financial or otherwise) or prospects of the Company and its Subsidiaries, taken
as a whole, or on the ability of the Company and each of the Guarantors (as
applicable) to perform their respective obligations under the Transaction
Documents.
"XxXxx Persons" means (i) the immediate family of Xxxxx XxXxx and any
"person" or "group" under Section 13(d)(3) of the Exchange Act that is
controlled by Xxxxx XxXxx or his immediate family, any beneficiary of the estate
of Xxxxx XxXxx or his immediate family or any trust or partnership controlled by
any of the foregoing and (ii) following the death of Xxxxx XxXxx, any
beneficiary of the estate of Xxxxx XxXxx or his immediate family or any trust or
partnership controlled by any of the foregoing or Eagle River Holdings, LLC and
its Subsidiaries or Affiliates.
"MHz POP" means, with respect to FCC License Rights in spectrum, the
channel capacity held in MHz multiplied by the population of the Geographic
Service Area (GSA) for which such rights are held, as reasonably determined by
the Company in a manner generally consistent with past practice and consistent
with the manner used by the Company to calculate MHz POPs on Schedule 4(s) to
the Purchase Agreement.
"Net Proceeds" means the aggregate cash proceeds, if any, including
payments in respect of deferred payment obligations (to the extent corresponding
to the principal, but not the interest component, thereof) received by the
Pledged Entities in respect of any Asset Sale (including, without limitation,
any cash received upon the sale or other disposition of any Designated Noncash
Consideration received in any Asset Sale), net of (1) the direct costs relating
to such Asset Sale and the sale or other disposition of any such non-cash
consideration, including, without limitation, legal, accounting, investment
banking and brokerage fees, and sales commissions, and any relocation expenses
Incurred as a result thereof, (2) taxes paid or payable as a result thereof, in
each case, after taking into account any available tax credits or deductions and
any tax sharing arrangements, (3) amounts required to be applied to any
liabilities secured by a Lien permitted under Section 7.4 (other than any Liens
securing the Secured Obligations or Pari Passu Indebtedness) on the asset or
10
assets that were the subject of such Asset Sale or required to be paid as a
result of such sale, (4) any reserve for adjustment in respect of the sale price
of such asset or assets established in accordance with GAAP, (5) appropriate
amounts to be provided by the Pledged Entities as a reserve against liabilities
associated with such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as determined in accordance with GAAP; provided that (a)
excess amounts set aside for payment of taxes pursuant to clause (2) above
remaining after such taxes have been paid in full or the statute of limitations
therefor has expired and (b) amounts initially held in reserve pursuant to
clause (4) or clause (5) no longer so held or reserved, shall, in the case of
each of subclause (a) and (b), at that time become Net Proceeds.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted Subsidiaries
(a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness), (b) is
directly or indirectly liable as a guarantor or otherwise, or (c)
constitutes the lender;
(2) no default with respect to which (including any rights that the
holders of the Indebtedness may have to take enforcement action
against an Unrestricted Subsidiary) would permit upon notice, lapse of
time or both any holder of any other Indebtedness of the Company or
any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness to be
accelerated or payable prior to its Stated Maturity; and
(3) as to which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries.
"Note Guarantee" means a Guarantee of the Notes pursuant to this Indenture.
"Notes" means the Series A Notes, Series A-1 Notes and Series B Notes
(each, a "Note").
"Officer" means the Chairman or any Co-Chairman of the Board, any Vice
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Controller, the Secretary, the
Treasurer, any Assistant Controller or any Assistant Secretary or any Assistant
Treasurer of the Company.
"Officers' Certificate" means a certificate signed by one or more Officers;
provided, however, that for purposes of Section 6.3, "Officers' Certificate"
means a certificate signed by the principal executive officer, principal
financial officer or principal accounting officer of the Company and by one
other Officer.
"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company or the Trustee.
"Pari Passu Indebtedness" means Indebtedness (including Hedging
Obligations) in an aggregate principal amount at any one time outstanding not to
exceed (a) for any date prior to and including the date that is 180 days
following the Issue Date, $100.0 million or (b) for any date following the date
that is 180 days after the Issue Date, an amount equal to the portion of the
Buyer's Option not exercised plus $100.0 million (in each case less the amount
of Net Proceeds of Asset Sales used by the Spectrum Entities since the Issue
Date to redeem or prepay Pari Passu Indebtedness pursuant to Section 7.2) which
shall be payable on a pari
11
passu basis with, or subordinated in right of payment to, the Indebtedness
represented by the Notes and the related Note Guarantees.
"Permitted Business" means any business conducted or proposed to be
conducted by the Company and its Restricted Subsidiaries on the Issue Date and
other businesses reasonably related, complementary or ancillary thereto or a
reasonable extension or expansion thereof.
"Permitted Liens" means:
(1) Liens securing the Pari Passu Indebtedness;
(2) Liens securing the Secured Obligations;
(3) Liens securing Permitted Refinancing Indebtedness; provided that the
Liens that secure the Indebtedness being refinanced was, and is,
permitted under Section 7.1 and such Liens do not extend to any
property or assets other than the property or assets that secure the
Indebtedness being refinanced;
(4) General rules and regulations of the FCC in 47 CFR 1.9001 et. seq.
governing Spectrum Leases;
(5) Liens on (i) FCC License Rights in favor of the FCC to the extent
required and arising by operation of law, or (ii) arising from the
lease or sublease of such FCC License Rights in the ordinary course of
business solely to the extent that (A) such spectrum is not necessary
to the conduct of the business of the Company and its Subsidiaries as
then conducted or contemplated to be conducted in accordance with the
Company's business plan, as approved by the Board of Directors of the
Company, (B) such Lien could not reasonably be expected to have a
material adverse effect on the value of the Collateral or impair the
utility or operation thereof or the ability of the Collateral Agent or
the Noteholders to realize the benefits of, and intended to be
afforded by, the Collateral, (C) the Collateral Agent has a valid
perfected first priority security interest in such lease or sublease
and all proceeds thereof, including, without limitation, all rents and
other payments thereunder, and (D) such lease or sublease is an Asset
Sale otherwise permitted by this Indenture and any requirements of
this Indenture in connection with such Asset Sale shall have been
complied with;
(6) Liens existing on the Issue Date which (i) are disclosed in Schedule
3(t) of the Purchase Agreement or (ii) individually or in the
aggregate, do not (x) have an adverse affect of more than $3 million
on the Collateral or (y) materially impair the use of Collateral for
the purposes of which the Collateral are held by the Pledged Entities;
(7) Judgment and attachment Liens not giving rise to an Event of Default
and notices of lis pendens and associated rights related to litigation
being contested in good faith by appropriate proceedings and for which
adequate reserves have been made;
(8) Liens, deposits or pledges to secure public or statutory obligations,
surety, stay, appeal, indemnity, performance or other similar bonds or
obligations; and Liens, deposits or pledges in lieu of such bonds or
obligations, or to secure such bonds or obligations, or to secure
letters of credit in lieu of or supporting the payment of such bonds
or obligations;
12
(9) Liens for taxes, assessments and governmental charges not yet
delinquent or being contested in good faith and, in each case, for
which adequate reserves have been established to the extent required
by GAAP; and
(10) Any interest or title of a lessor, licensor or sublicensor in the
property subject to any lease, license or sublicense (other than any
property that is the subject of a Sale and Leaseback Transaction),
including, without limitation, FCC License Rights.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness) permitted hereunder; provided that:
(1) the amount of such Permitted Refinancing Indebtedness does not exceed
the amount of the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus all accrued and unpaid interest
thereon and the amount of any reasonably determined premium necessary
to accomplish such refinancing and such reasonable expenses Incurred
in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and has a Weighted Average Life
to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes
or the Note Guarantees, such Permitted Refinancing Indebtedness is
subordinated in right of payment to the Notes or the Note Guarantees,
as applicable, on terms at least as favorable, taken as a whole, to
the Holders of Notes as those contained in the documentation governing
the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;
(4) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is pari passu in right of payment with the Notes
or any Note Guarantees, such Permitted Refinancing Indebtedness is
pari passu with, or subordinated in right of payment to, the Notes or
such Note Guarantees; and
(5) such Indebtedness is Incurred either (a) by the Company or any
Guarantor or (b) by the Restricted Subsidiary that is the obligor on
the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Pledge and Security Agreements" means the Pledge and Security Agreements
dated as of the date of this Indenture and substantially in the form attached as
Exhibit C and Exhibit D, respectively hereto, as such agreement may be amended,
modified or supplemented from time to time.
13
"Pledged Entities" means Clearwire1, Fixed Wireless Holdings, LLC and
NextNet Wireless, Inc. and their respective Domestic Restricted Subsidiaries, as
applicable, in existence as of the date of this Indenture and their respective
successors and assigns.
"Preferred Stock" means, with respect to any Person, any Capital Stock of
such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions upon liquidation.
"Principal" or "principal" of a debt security, including the Notes, means
the principal of the security plus, when appropriate, the premium, if any, on
the security.
"Public Entity" means an entity with publicly-traded Capital Stock that is
listed on a United States national securities exchange or quoted on the Nasdaq
National Market.
"Qualified IPO" means either: (1) a firm commitment, fully underwritten
public offering primarily in the United States of the Company's Class A Common
Stock (or the equivalent Capital Stock of its successor in accordance with
Section 7.5) by a nationally recognized investment banking firm with gross
proceeds to the Company of not less than $300.0 million, with the Class A Common
Stock listed on either the New York Stock Exchange or the Nasdaq National
Market; or (2) at any time when the Company's Class A Common Stock (or the
equivalent Capital Stock of its successor in accordance with Section 7.5) is
listed on either the New York Stock Exchange or the Nasdaq National Market, the
public float of such listed stock equals or exceeds $300.0 million and the total
equity market capitalization of the Company is not less than $1.0 billion.
"Redemption Date" when used with respect to any Note to be redeemed, means
the date fixed by the Company for such redemption pursuant to this Indenture, as
set forth in Section 3.1 and in the form of Note annexed as Exhibit A hereto.
"Regular Record Date" means, with respect to each Interest Payment Date,
the February 1 or August 1, as the case may be, immediately preceding such
Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act or any successor
for such Rule.
"Remaining Notes" means a principal amount of Series A Notes or Series A-1
Notes, if any, that is $280.0 million minus the aggregate amount of Series A
Notes purchased by the Purchasers on the Issue Date to be purchased by the
Subsequent Purchasers (as defined in the Purchase Agreement) pursuant to the
Purchase Agreement.
"Replacement Assets" means (1) non-current assets (including any such
assets acquired by capital expenditures) that shall be used or useful in a
Permitted Business or (2) substantially all the assets of a Permitted Business
or a majority of the Voting Stock of any Person engaged in a Permitted Business
that shall become on the date of acquisition thereof a Restricted Subsidiary of
the Company (such Replacement Assets to be, in the case of FCC License Rights,
Spectrum Leases and Wireless Communications Systems, including Equity Interests
in entities owning such FCC License Rights, Spectrum Leases and Wireless
Communications Systems, in the nature of substitute, replacement or other
comparable FCC Licenses, Spectrum Leases and Wireless Communications Systems and
Equity Interests in entities owning any FCC License Rights, Spectrum Leases and
Wireless Communications Systems of equivalent Fair Market Value to such
licenses, leases and systems sold or equipment that may be used in expanding any
Wireless Communications Systems,
14
that are, or upon acquisition will become, subject to a valid perfected first
priority Lien under the Pledge and Security Agreements).
"Responsible Officer" means, with respect to the Trustee, any officer
assigned to the Corporate Trust Office, including any Vice President, Assistant
Treasurer Trust Officer or any other officer of the Trustee who customarily
performs functions similar to the above officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Restricted Global Note" means a Global Note that is a Restricted Note.
"Restricted Note" means a Note required to bear the restricted legend set
forth in the form of Note set forth in Exhibit A of this Indenture.
"Restricted Subsidiary" of a Person means any Subsidiary of the relevant
Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 under the Securities Act or any successor to such
Rule.
"Rule 144A" means Rule 144A under the Securities Act or any successor to
such Rule.
"SEC" means the Securities and Exchange Commission.
"Sale and Leaseback Transaction" means, with respect to any Person, any
transaction involving any of the assets or properties of such Person whether now
owned or hereafter acquired, whereby such Person sells or otherwise transfers
such assets or properties and then or thereafter leases such assets or
properties or any part thereof or any other assets or properties which such
Person intends to use for substantially the same purpose or purposes as the
assets or properties sold or transferred.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
"Series A Notes" means the Series A Senior Notes due 2010 or any of them
(each, a "Series A Note"), as amended or supplemented from time to time, that
are issued under this Indenture.
"Series A-1 Notes" means the Series A-1 Senior Notes due 2010 or any of
them (each, a "Series A-1 Note"), as amended or supplemented from time to time,
that are issued under this Indenture.
"Series B Notes" means the Series B Senior Notes due 2010 or any of them
(each, a "Series B Note"), as amended or supplemented from time to time, that
are issued under this Indenture.
"Significant Subsidiary" means any Restricted Subsidiary that would
constitute a "significant subsidiary" within the meaning of Article 1 of
Regulation S-X of the Securities Act.
"Spectrum Entity" means Fixed Wireless Holdings, LLC and its Domestic
Restricted Subsidiaries and each other Pledged Entity that holds any FCC License
Rights that constitute Collateral or Replacement Assets thereof.
15
"Spectrum Lease" means any lease, license, agreement or other arrangement
pursuant to which any Pledged Entities lease, license or otherwise acquire or
obtain any rights, whether exclusive or non-exclusive, with respect to any FCC
License, to which any Pledged Entity is now or may hereafter become a party, as
amended, amended and restated, supplemented or otherwise modified from time to
time.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the date of this Indenture, or for Indebtedness
Incurred after the date of this Indenture, the documentation governing such
Indebtedness when Incurred.
"Subsidiary" means, in respect of any Person, any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers, general partners or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such
Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii)
one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder as in effect on the date of this Indenture, except as
provided in Section 11.3, and except to the extent any amendment to the Trust
Indenture Act expressly provides for application of the Trust Indenture Act as
in effect on another date.
"Tax Original Issue Discount" means original issue discount for United
States federal income tax purposes.
"Total Assets" means, for any Person, the total consolidated assets of such
Person and its Restricted Subsidiaries (less depreciation, amortization,
applicable reserves and other properly deductible items), as shown on its most
recent balance sheet prepared in conformity with GAAP.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture, and thereafter means the successor.
"Unrestricted Certificated Note" means a Certificated Note that is not a
Restricted Note.
"Unrestricted Global Note" means a Global Note that is not a Restricted
Note.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors, but only if such
Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or
preserve such Person's financial condition or to cause such Person to
achieve any specified levels of operating results;
(3) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted
Subsidiaries;
16
(4) is not a Spectrum Entity or a Pledged Entity.
"Vice President" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders of Capital Stock under ordinary circumstances have the power
to vote in the election of the board of directors, managers or trustees of any
Person or other Persons performing similar functions irrespective of whether or
not, at the time, Capital Stock of any other class or classes shall have, or
might have, voting power by reason of the happening of any contingency.
"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 thereof, by (b) the number of years (calculated to the
nearest one-twelfth) that shall elapse between such date and the
making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"Wireless Communications System" means any system to provide
telecommunications services, including, without limitation, specialized mobile
radio system, radio paging system, mobile telephone system, cellular radio
telecommunications system, conventional mobile telephone system, personal
communications system, EBS/ITFS-based system or BRS/MDS/MMDS-based system, data
transmission system or any other paging, mobile telephone, radio, microwave,
communications, broadband or data transmission system.
SECTION 1.2. OTHER DEFINITIONS.
TERM DEFINED IN SECTION
---- ------------------
"Affiliate Transaction".................................... 7.7
"Agent Members"............................................ 2.1
"Asset Sale Offer"......................................... 7.2
"Bankruptcy Law"........................................... 8.1
"Change of Control Notice"................................. 3.8
"Change of Control Purchase"............................... 3.8
"Change of Control Purchase Date".......................... 3.8
"Change of Control Purchase Notice"........................ 3.8
"Change of Control Purchase Period"........................ 3.8
"Change of Control Purchase Price"......................... 3.8
"Company Order"............................................ 2.2
"Covenant Defeasance"...................................... 14.3
"Custodian"................................................ 8.1
"DTC"...................................................... 2.1
"Depositary"............................................... 2.1
"Event of Default"......................................... 8.1
"Excess Proceeds".......................................... 7.2
"Excess Proceeds Trigger Date"............................. 7.2
17
TERM DEFINED IN SECTION
---- ------------------
"First Priority Lien Obligations".......................... 12.1
"indenture securities"..................................... 1.3
"indenture security holder"................................ 1.3
"indenture to be qualified"................................ 1.3
"indenture trustee"........................................ 1.3
"institutional trustee".................................... 1.3
"Legal Defeasance"......................................... 14.2
"Legend"................................................... 2.12
"Paying Agent"............................................. 2.3
"Permitted Debt"........................................... 7.4
"Primary Registrar"........................................ 2.3
"Purchase Agreement"....................................... 2.1
"Purchasers"............................................... 2.1
"QIB"...................................................... 2.1
"Redemption Notice"........................................ 3.1
"Redemption Price"......................................... 3.1
"Registrar"................................................ 2.3
"Restricted Payments"...................................... 7.3
"Secured Obligations"...................................... 12.1
"transfer"................................................. 2.12
SECTION 1.3. TRUST INDENTURE ACT PROVISIONS.
Whenever this Indenture refers to a provision of the TIA, that provision is
incorporated by reference in and made a part of this Indenture. This Indenture
shall also include those provisions of the TIA required to be included herein by
the provisions of the Trust Indenture Reform Act of 1990. The following TIA
terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other obligor on
the Notes.
All other terms used in this Indenture that are defined in the TIA, defined
by TIA reference to another statute or defined by any SEC rule and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 1.4. RULES OF CONSTRUCTION.
(a) Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
18
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) words in the singular include the plural, and words in the plural
include the singular;
(4) provisions apply to successive events and transactions;
(5) the masculine gender includes the feminine and the neuter;
(6) references to agreements and other instruments include subsequent
amendments thereto; and
(7) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE 2
THE NOTES
SECTION 2.1. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit A, which Exhibit is incorporated
in and made part of this Indenture. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company shall
provide any such notations, legends or endorsements to the Trustee in writing.
Each Note shall be dated the date of its authentication. The Notes are being
offered and sold by the Company pursuant to a Securities Purchase Agreement
dated August 5, 2005 (the "Purchase Agreement") among the Company and the
purchasers party thereto (the "Purchasers"), in transactions exempt from, or not
subject to, the registration requirements of the Securities Act.
(a) Restricted Global Notes. All of the Notes are initially being offered
and sold to qualified institutional buyers as defined in Rule 144A
(collectively, "QIBs" or individually, each a "QIB") under the Securities Act or
to Accredited Investors and shall be issued initially in the form of one or more
Restricted Global Notes, which shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee, at its Corporate Trust Office,
as custodian for the depositary, The Depository Trust Company ("DTC", and such
depositary, or any successor thereto, being hereinafter referred to as the
"Depositary"), and registered in the name of its nominee, Cede & Co. (or any
successor thereto), for the accounts of participation in the Depositary duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Restricted Global Notes may from
time to time be increased or decreased by adjustments made on the records of the
Custodian (as defined in Section 8.1) as hereinafter provided, subject in each
case to compliance with the Applicable Procedures.
(b) Global Notes In General. Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate amount of outstanding Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect replacements, exchanges, purchases or redemptions of such Notes. Any
adjustment of the aggregate principal amount of a Global Note to reflect the
amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee in accordance with instructions
given by the Holder thereof as required by Section 2.12 hereof and shall be made
on the records of the Trustee and the Depositary.
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Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to any Global Note held on their
behalf by the Depositary or under the Global Note, and the Depositary
(including, for this purpose, its nominee) may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner and
Holder of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall (1) prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or (2)
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(c) Book Entry Provisions. The Company shall execute and the Trustee shall,
in accordance with this Subsection 2.1(c), authenticate and deliver initially
one or more Global Notes that (1) shall be registered in the name of the
Depositary or its nominee, (2) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instructions and (3) shall bear
legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO CLEARWIRE CORPORATION (THE "COMPANY") OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY."
SECTION 2.2. EXECUTION AND AUTHENTICATION.
(a) The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture shall not exceed $560.0 million, provided that no
more than $280.0 million of Notes may be authenticated and delivered on the
Issue Date and, subject to Article 6 and Article 7 of this Indenture, no more
than up to an aggregate principal amount of Additional Notes not to exceed
$280.0 million may be authenticated and delivered by the Company, in each case,
in accordance with and pursuant to the terms of the Purchase Agreement. In the
event that the Company issues less than $280.0 million of Notes on the Issue
Date then, at any time until the date that is thirty (30) days after the Issue
Date, the Company may issue and sell the Remaining Notes to any Accredited
Investors in accordance with and pursuant to the terms of Section 1(c) of the
Purchase Agreement. Other than as set forth in this Section 2.2(a), the Company
shall not issue any other Notes under this Indenture. The Series A Notes issued
on the Issue Date, any Remaining Notes and
20
any Additional Notes subsequently issued shall be treated as a single class for
all purposes under this Indenture.
(b) An Officer shall sign the Notes for the Company by manual or facsimile
signature attested by the manual or facsimile signature of the Secretary or an
Assistant Secretary of the Company. Typographic and other minor errors or
defects in any such facsimile signature shall not affect the validity or
enforceability of any Note which has been authenticated and delivered by the
Trustee.
(c) 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.
(d) 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.
(e) The Trustee shall authenticate and make available for delivery Notes
for original issue upon receipt of a written order or orders of the Company
signed by two Officers of the Company (a "Company Order"). Subject to Section
2.2(a), the Company Order shall specify the amount of Notes to be authenticated,
shall provide that all such Notes will be represented by a Restricted Global
Note and the date on which each original issue of Notes is to be authenticated.
(f) The Trustee shall act as the initial authenticating agent. Thereafter,
the Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. An authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent to deal with the Company or an Affiliate of the
Company.
(g) The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 principal amount and any integral multiple
thereof.
SECTION 2.3. REGISTRAR AND PAYING AGENT
(a) The Company shall maintain one or more offices or agencies where Notes
may be presented for registration of transfer or for exchange (each, a
"Registrar"), one or more offices or agencies where Notes may be presented for
payment (each, a "Paying Agent") and one or more offices or agencies where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of any change in the location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands. The Company
will at all times maintain a Paying Agent, Registrar and an office or agency
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served in the Borough of Manhattan, The City of New York.
One of the Registrars (the "Primary Registrar") shall keep a register of the
Notes and of their transfer and exchange.
(b) The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The
21
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. If the Company fails to maintain a Registrar, Paying
Agent or agent for service of notices and demands in any place required by this
Indenture, or fails to give the foregoing notice, the Trustee shall act as such.
The Company or any Affiliate of the Company may act as Paying Agent (except for
the purposes of Section 6.1 and Article 10).
(c) The Company hereby initially designates the Trustee as Paying Agent,
Registrar and Custodian, and each of the Corporate Trust Office of the Trustee
whose address is 000 Xxxxxxx Xxxxxx - 0 Xxxx, Xxx Xxxx, XX 00000, in the Borough
of Manhattan, The City of New York, one such office or agency of the Company for
each of the aforesaid purposes.
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
Prior to 10:00 a.m., New York City time, on each due date of the principal
of, or interest on, any Notes, the Company shall deposit or cause to be
deposited with a Paying Agent a sum sufficient to pay such principal or interest
so becoming due. Subject to Section 10.2, a Paying Agent shall hold in trust for
the benefit of Noteholders or the Trustee all money held by the Paying Agent for
the payment of principal of, or interest on, the Notes, and shall notify the
Trustee of any default by the Company (or any other obligor on the Notes) in
making any such payment. If the Company or an Affiliate of the Company acts as
Paying Agent, it shall, before 10:00 a.m., New York City time, on each due date
of the principal of, or interest on, any Notes, segregate the money and hold it
as a separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee, and the Trustee may at any time during
the continuance of any default, upon written request to a Paying Agent, require
such Paying Agent to pay forthwith to the Trustee all sums so held in trust by
such Paying Agent. Upon doing so, the Paying Agent (other than the Company)
shall have no further liability for the money.
SECTION 2.5. NOTEHOLDERS 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
Noteholders. If the Trustee is not the Primary Registrar, the Company shall
furnish to the Trustee on or before each semiannual 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 Noteholders.
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) Subject to compliance with any applicable additional requirements
contained in Section 2.12, when a Note is presented to a Registrar with a
request to register a transfer thereof or to exchange such Note for an equal
principal amount of Notes of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested; provided, however, that
every Note presented or surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by an assignment form and, if applicable,
a transfer certificate each in the form included in Exhibit A, and in form
satisfactory to the Registrar duly executed by the Holder thereof or its
attorney duly authorized in writing. To permit registration of transfers and
exchanges, upon surrender of any Note for registration of transfer or exchange
at an office or agency maintained pursuant to Section 2.3, the Company shall
execute and the Trustee shall authenticate Notes of a like aggregate principal
amount at the Registrar's request. Any exchange or transfer shall be without
charge, except that the Company or the Registrar may require payment of a sum
sufficient to
22
cover any tax or other governmental charge that may be imposed in relation
thereto, and provided that this sentence shall not apply to any exchange
pursuant to Section 2.10, 2.12(a), 3.6, 3.11, 3.13 or 11.5.
(b) Neither the Company, any Registrar nor the Trustee shall be required to
exchange or register a transfer of (1) any Notes for a period of 15 days next
preceding mailing of a notice of Notes to be redeemed, (2) any Notes or portions
thereof selected or called for redemption (except in the case of redemption of a
Note in part, the portion thereof not to be redeemed) or (3) any Notes or
portions thereof in respect of which a Change of Control Purchase Notice has
been delivered and not withdrawn by the Holder thereof (except, in the case of
the purchase of a Note in part, the portion thereof not to be purchased).
(c) All Notes issued upon any transfer or exchange of Notes shall be valid
obligations of the Company, evidencing the same debt and entitled to the same
benefits under this Indenture, as the Notes surrendered upon such transfer or
exchange.
(d) Any Registrar appointed pursuant to Section 2.3 hereof shall provide to
the Trustee such information as the Trustee may reasonably require in connection
with the delivery by such Registrar of Notes upon transfer or exchange of Notes.
(e) Each Holder of a Note agrees to indemnify the Company and the Trustee
against any liability that may result from the transfer, exchange or assignment
of such Holder's Note in violation of any provision of this Indenture and/or
applicable United States federal or state securities law.
(f) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Agent Members or other
beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
SECTION 2.7. REPLACEMENT NOTES.
(a) If any mutilated Note is surrendered to the Company, a Registrar or the
Trustee, or the Company, a Registrar and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and there is
delivered to the Company, the applicable Registrar and the Trustee such security
or indemnity as will be required by them to save each of them harmless, then, in
the absence of notice to the Company, such Registrar or the Trustee that such
Note has been acquired by a bona fide purchaser, the Company shall execute, and
upon its written request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Note or in lieu of any such destroyed, lost or stolen
Note, a new Note of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, or is about to be purchased, redeemed or
by the Company pursuant to Article 3, the Company in its discretion may, instead
of issuing a new Note, pay, redeem, or purchase such Note, as the case may be.
(c) Upon the issuance of any new Notes under this Section 2.7, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation
23
thereto and any other reasonable expenses (including the reasonable fees and
expenses of the Trustee or the Registrar) in connection therewith.
(d) Every new Note issued pursuant to this Section 2.7 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.
(e) The provisions of this Section 2.7 are (to the extent lawful) exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
SECTION 2.8. OUTSTANDING NOTES.
(a) Notes outstanding at any time are all Notes authenticated by the
Trustee, except for those canceled by it, those redeemed or purchased pursuant
to Article 3, those delivered to the Trustee for cancellation or surrendered for
transfer or exchange and those described in this Section 2.8 as not outstanding.
(b) If a Note is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Company receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
(c) If a Paying Agent (other than the Company or an Affiliate of the
Company) holds in respect of the outstanding Notes on a Redemption Date, a
Change of Control Purchase Date or the Final Maturity Date money sufficient to
pay the principal of (including premium, if any) and accrued interest on Notes
(or portions thereof) payable on that date, then on and after such Redemption
Date, Change of Control Purchase Date, or the Final Maturity Date, as the case
may be, such Notes (or portions thereof, as the case may be) shall cease to be
outstanding and interest on them shall cease to accrue; provided that if such
Notes are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision thereof satisfactory to the Trustee has been
made.
SECTION 2.9. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any notice, direction, waiver or consent, Notes owned by
the Company or any other obligor on the Notes or by any Affiliate of the Company
(other than Notes purchased by Affiliates under the Purchase Agreement) or of
such other obligor shall be disregarded, except that, for purposes of
determining whether the Trustee shall be protected in relying on any such
notice, direction, waiver or consent, only Notes which a Responsible Officer of
the Trustee actually knows are so owned shall be so disregarded. Notes so owned
which have been pledged in good faith shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to the Notes and that the pledgee is not the Company or any other
obligor on the Notes or any Affiliate of the Company (other than pledgees of
Notes purchased by Affiliates under the Purchase Agreement) or of such other
obligor.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may prepare and
execute, and, upon receipt of a Company Order, the Trustee shall authenticate
and deliver, temporary Notes. Temporary Notes shall be substantially in the form
of definitive Notes but may have variations that the Company with the
24
consent of the Trustee considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
and deliver definitive Notes in exchange for temporary Notes.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee or its agent any
Notes surrendered to them for transfer, exchange, redemption, purchase or
payment. The Trustee and no one else shall cancel, in accordance with its
standard procedures, all Notes surrendered for transfer, exchange, redemption,
purchase, payment or cancellation and shall dispose of the canceled Notes in
accordance with its standard procedures. All Notes which are redeemed, purchased
or otherwise acquired by the Company or any of its Subsidiaries prior to the
Final Maturity Date shall be delivered to the Trustee for cancellation, and the
Company may not hold or resell such Notes or issue any new Notes to replace any
such Notes.
SECTION 2.12. LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS.
(a) If Notes are issued upon the transfer, exchange or replacement of Notes
subject to restrictions on transfer and bearing the legends set forth on the
forms of Notes attached hereto as Exhibit A (collectively, the "Legend"), or if
a request is made to remove the Legend on a Note, the Notes so issued shall bear
the Legend, or the Legend shall not be removed, as the case may be, unless there
is delivered to the Company and the Registrar such satisfactory evidence, which
shall include an opinion of counsel if requested by the Company or such
Registrar, as may be reasonably required by the Company and the Registrar, that
neither the Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A, Rule 144 or Regulation S under the Securities Act or that such Notes are
not "restricted" within the meaning of Rule 144 under the Securities Act;
provided that no such evidence need be supplied in connection with the sale of
such Note pursuant to a registration statement that is effective at the time of
such sale. Upon (1) provision of such satisfactory evidence if requested, or (2)
notification by the Company to the Trustee and Registrar of the sale of such
Note pursuant to a registration statement that is effective at the time of such
sale, the Trustee, at the written direction of the Company, shall authenticate
and deliver a Note that does not bear the Legend. If the Legend is removed from
the face of a Note and the Note is subsequently held by an Affiliate of the
Company, the Legend shall be reinstated.
(b) A Global Note may not be transferred, in whole or in part, to any
Person other than the Depositary or a nominee or any successor thereof, and no
such transfer to any such other Person may be registered; provided that the
foregoing shall not prohibit any transfer of a Note that is issued in exchange
for a Global Note but is not itself a Global Note. No transfer of a Note to any
Person shall be effective under this Indenture or the Notes unless and until
such Note has been registered in the name of such Person. Notwithstanding any
other provisions of this Indenture or the Notes, transfers of a Global Note, in
whole or in part, shall be made only in accordance with this Section 2.12.
(c) Subject to the succeeding paragraph, every Note shall be subject to the
restrictions on transfer provided in the Legend other than a Restricted Global
Note. Whenever any Restricted Note other than a Restricted Global Note is
presented or surrendered for registration of transfer or for exchange for a Note
registered in a name other than that of the Holder, such Note must be
accompanied by a certificate in substantially the form set forth in Exhibit A,
dated the date of such surrender and signed by the Holder of such Note, as to
compliance with such restrictions on transfer. The Registrar shall not be
required to accept for such registration of transfer or exchange any Note not so
accompanied by a properly completed certificate.
25
(d) The restrictions imposed by the Legend upon the transferability of any
Note shall cease and terminate when such Note has been sold pursuant to an
effective registration statement under the Securities Act or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Note as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Note for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by, if requested by the Company or the
Registrar, an opinion of counsel reasonably acceptable to the Company and
addressed to the Company in form acceptable to the Company, to the effect that
the transfer of such Note has been made in compliance with Rule 144 or such
successor provision), be exchanged for a new Note, of like tenor and aggregate
principal amount, which shall not bear the restrictive Legend. The Company shall
inform the Trustee of the effective date of any registration statement
registering the Notes under the Securities Act. The Trustee shall not be liable
for any action taken or omitted to be taken by it in good faith in accordance
with the aforementioned opinion of counsel or registration statement.
(e) No transfer of a Note to any Person shall be effective under this
Indenture or the Notes if such transfer would, in the reasonable judgment of the
Company, require the Company or any of its Subsidiaries to become subject to the
reporting requirements under the Exchange Act.
As used in the preceding Subsections 2.12(d) and (e), the term "transfer"
encompasses any sale, pledge, transfer, hypothecation or other disposition of
any Note.
(f) The provisions below shall apply only to Global Notes:
(1) Notwithstanding any other provisions of this Indenture or the
Notes, a Global Note shall not be exchanged in whole or in part for a Note
registered in the name of any Person other than the Depositary or one or more
nominees thereof, provided that a Global Note may be exchanged for Notes
registered in the names of any person designated by the Depositary in the event
that (A) the Depositary has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Note or such Depositary has ceased to
be a "clearing agency" registered under the Exchange Act, and a successor
Depositary is not appointed by the Company within 90 days, (B) the Company has
provided the Depositary with written notice that it has decided to discontinue
use of the system of book-entry transfer through the Depositary or any successor
Depositary or (C) an Event of Default has occurred and is continuing with
respect to the Notes. Any Global Note exchanged pursuant to subclauses (A) or
(B) immediately above shall be so exchanged in whole and not in part, and any
Global Note exchanged pursuant to subclause (C) immediately above may be
exchanged in whole or from time to time in part as directed by the Depositary.
Any Note issued in exchange for a Global Note or any portion thereof shall be a
Global Note; provided that any such Note so issued that is registered in the
name of a Person other than the Depositary or a nominee thereof shall not be a
Global Note.
(2) Notes issued in exchange for a Global Note or any portion thereof
shall be issued in definitive, fully registered form, without interest coupons,
shall have an aggregate principal amount equal to that of such Global Note or
portion thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and shall bear
the applicable legends provided for herein. Any Global Note to be exchanged in
whole shall be surrendered by the Depositary to the Trustee, as Registrar. With
regard to any Global Note to be exchanged in part, either such Global Note shall
be so surrendered for exchange or, if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global Note, the principal amount
thereof shall be reduced, by an amount equal to the portion
26
thereof to be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and deliver the Note issuable on such exchange to or upon the order
of the Depositary or an authorized representative thereof.
(3) Subject to the provisions of clause (5) of this Subsection
2.12(f), the registered Holder may grant proxies and otherwise authorize any
Person, including Agent Members and persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Notes.
(4) In the event of the occurrence of any of the events specified in
clause (1) of this Subsection 2.12(f) above, the Company will promptly make
available to the Trustee a reasonable supply of Certificated Notes in
definitive, fully registered form, without interest coupons.
(5) Neither Agent Members nor any other Persons on whose behalf Agent
Members may act shall have any rights under this Indenture with respect to any
Global Note registered in the name of the Depositary or any nominee thereof, or
under any such Global Note, and the Depositary or such nominee, as the case may
be, may be treated by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner and holder of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such Persons governing
the exercise of the rights of a holder of any Note.
(6) The Company hereby undertakes to use its reasonable best efforts
to maintain the DTC eligibility of the Notes.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Notes may use one or more "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption or purchase as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Notes or as contained in any notice of a
redemption or purchase and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption or purchase
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the "CUSIP" numbers.
SECTION 2.14. RANK.
The Notes shall constitute senior indebtedness of the Company and shall
rank pari passu with all other senior indebtedness of the Company and senior to
all other indebtedness of the Company.
27
ARTICLE 3
REDEMPTION AND PURCHASE
SECTION 3.1. OPTIONAL REDEMPTION; NOTICE TO TRUSTEE.
(a) At any time and from time to time after the Issue Date, the Company may
redeem the Notes in whole or in part for cash at a Redemption Price equal to
102.5% of the principal amount thereof plus accrued and unpaid interest up to
but excluding the Redemption Date and the pro rata portion of the then-remaining
Interest Payment Collateral attributable to such Notes (collectively, the
"Redemption Price"), if any, upon at least 30 days' notice given in the manner
set forth in Section 3.3 (a "Redemption Notice") provided that if the Redemption
Date falls after a Regular Record Date and on or before an Interest Payment
Date, then the interest will be payable to the Holders in whose names the Notes
were registered at the close of business on such Regular Record Date.
(b) If the Company elects to redeem Notes pursuant to this Section 3.1, it
shall notify the Trustee at least 30 days prior to the Redemption Date as fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee) of
the Redemption Date and the principal amount of Notes to be redeemed.
SECTION 3.2. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed, the Trustee shall, at
least 30 days but not more than 60 days prior to the Redemption Date, select the
Notes to be redeemed. The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption, on a pro rata basis. Notes
in denominations of $1,000 may only be redeemed in whole. The Trustee may select
for redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal of Notes that have denominations larger than $1,000. Provisions of
this Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption.
SECTION 3.3. NOTICE OF REDEMPTION.
(a) At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause to be mailed a Redemption Notice to each Holder
of Notes to be redeemed at such Holder's address as it appears on the
Registrar's books.
(b) The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of each Paying Agent;
(4) that Notes called for redemption must be presented and surrendered
to a Paying Agent to collect the Redemption Price;
(5) that, unless the Company defaults in making the payment of the
Redemption Price, interest on Notes called for redemption shall cease to accrue
on and after the Redemption Date and the only
28
remaining right of the Holder shall be to receive payment of the Redemption
Price payable to such Holder upon presentation and surrender to a Paying Agent
of the Notes;
(6) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, upon presentation and surrender of such Note, a new Note or Notes in
aggregate principal amount equal to the unredeemed portion thereof will be
issued; and
(7) the CUSIP number of the Notes, if any.
If any of the Notes to be redeemed is in the form of a Global Note, then
the Company shall modify such notice to the extent necessary to accord with the
procedures of the Depositary applicable to redemptions. At the Company's written
request, which request shall (1) be irrevocable once given and (2) set forth all
relevant information required by clauses (1) through (7) of Subsection 3.3(b),
the Trustee shall give the notice of redemption to each Holder in the Company's
name and at the Company's expense; provided, however, that, in all cases, the
text of such notice of redemption shall be prepared by the Company.
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Notes called for redemption become due
and payable on the Redemption Date and at the Redemption Price payable upon
redemption. On or after the Redemption Date and upon presentation and surrender
to a Paying Agent, Notes called for redemption shall be paid at the Redemption
Price; provided that if the Redemption Date falls after a Regular Record Date
and on or before an Interest Payment Date, then interest on the Notes up to but
excluding the Redemption Date will be payable on the Interest Payment Date to
the Holders in whose names the Notes are registered at the close of business on
such Regular Record Date and the Redemption Price payable on the Redemption Date
shall be adjusted accordingly.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m., New York City time, on the Redemption Date, the
Company shall deposit with a Paying Agent (or, if the Company acts as Paying
Agent, shall segregate and hold in trust) an amount of money (in immediately
available funds if deposited on such Redemption Date) sufficient to pay the
Redemption Price of all Notes to be redeemed on that date, other than Notes or
portions thereof called for redemption on that date which have been delivered by
the Company to the Trustee for cancellation. The Paying Agent shall as promptly
as practicable return to the Company any money not required for that purpose or,
if such money is then held by the Company in trust and is not required for such
purpose, it shall be discharged from the trust.
SECTION 3.6. NOTES REDEEMED IN PART.
Upon presentation and surrender of a Note that is redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
29
SECTION 3.7. [INTENTIONALLY OMITTED].
SECTION 3.8. PURCHASE OF NOTES AT OPTION OF THE HOLDER UPON A CHANGE OF
CONTROL.
(a) If at any time any Notes remain outstanding there shall have occurred a
Change of Control, all or any portion of the Notes of any Holder equal to $1,000
or an integral multiple of $1,000, shall be purchased by the Company, at the
option of such Holder (a "Change of Control Purchase"), at a purchase price
equal to 102.5% of the principal amount of the Notes to be purchased, together
with interest accrued and unpaid to, but excluding, the Change of Control
Purchase Date and the pro rata portion of the then-remaining Interest Payment
Collateral attributable to such Notes (the "Change of Control Purchase Price"),
provided, however, if the Change of Control Purchase Date falls after a Regular
Record Date but on or before the related Interest Payment Date, then the
interest on the Notes payable on such date shall be payable to the Holders in
whose name the Notes were registered at the close of business on such Regular
Record Date.
"Change of Control Purchase Period" means the period beginning upon receipt
of the Change of Control Notice and ending thirty (30) Business Days after the
Effective Date.
(b) Within 10 days after the Company knows or reasonably should know of the
occurrence of a Change of Control, the Company, or, at the written request and
expense of the Company, the Trustee, shall mail a written notice of the Change
of Control to the Trustee (if the Trustee does not mail such notice) and to each
Holder (and to beneficial owners as required by applicable law) (a "Change of
Control Notice"). The Change of Control Notice shall include the form of Option
to Elect Purchase Upon a Change of Control Notice set forth as part of Exhibit A
hereto (a "Change of Control Purchase Notice") to be completed by the Holder and
shall state:
(1) the date of such Change of Control and, briefly, the events causing
such Change of Control;
(2) that a Change of Control Purchase Notice must be given during the
Change of Control Purchase Period;
(3) the anticipated Change of Control Purchase Date;
(4) the Change of Control Purchase Price;
(5) the Holder's right to require the Company to purchase the Notes;
(6) the name and address of each Paying Agent and that the Notes must be
surrendered to the Paying Agent to collect payment;
(7) the procedures that the Holder must follow to exercise rights under
this Section 3.8;
(8) the procedures for withdrawing a Change of Control Purchase Notice,
including a form of notice of withdrawal;
(9) that, unless the Company defaults in making payment of the Change of
Control Purchase Price, Notes covered by any Change of Control
Purchase Notice will cease to be outstanding and interest will cease
to accrue on and after the Change of Control Purchase Date; and
30
(10) the CUSIP number of the Notes, if any.
If any of the Notes is in the form of a Global Note, then the Company shall
modify such notice to the extent necessary to accord with the procedures of the
Depositary applicable to the purchase of Global Notes.
(c) A Holder may exercise its rights specified in this Section 3.8 upon
delivery of a Change of Control Purchase Notice (which may be delivered by
letter, overnight courier, hand delivery, facsimile transmission or in any other
written form and, in the case of Global Notes, may be delivered electronically
or by other means in accordance with the Depositary's customary procedures) to
any Paying Agent at any time prior to the close of business on the last Business
Day of the Change of Control Purchase Period.
(1) The delivery of a Holder's Note to any Paying Agent prior to, on or
after the Change of Control Purchase Date (together with all necessary
endorsements) at the office of such Paying Agent shall be a condition
to the receipt by the Holder of the Change of Control Purchase Price
therefor.
(2) The Company shall only be obliged to purchase pursuant to this Section
3.8, a portion of a Note if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture
that apply to the purchase of all of a Note also apply to the purchase
of such portion of such Note.
(3) Notwithstanding anything herein to the contrary, any Holder delivering
to a Paying Agent the Change of Control Purchase Notice contemplated
by this Subsection 3.8(c) shall have the right to withdraw such Change
of Control Purchase Notice in whole or in a portion thereof that is a
principal amount of $1,000 or in an integral multiple thereof at any
time prior to the close of business on last Business Day of the Change
of Control Purchase Period by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.9.
(4) A Paying Agent shall promptly notify the Company of the receipt by it
of any Change of Control Purchase Notice or written withdrawal
thereof.
(5) Anything herein to the contrary notwithstanding, in the case of Global
Notes, any Change of Control Purchase Notice may be delivered or
withdrawn and such Notes may be surrendered or delivered for purchase
in accordance with the Applicable Procedures as in effect from time to
time.
SECTION 3.9. EFFECT OF CHANGE OF CONTROL PURCHASE NOTICE.
(a) Upon receipt by any Paying Agent of the Change of Control Purchase
Notice specified in Subsection 3.8(c), the Holder of the Note in respect of
which such Change of Control Purchase Notice was given shall (unless such Change
of Control Purchase Notice is withdrawn as specified below) thereafter be
entitled to receive the Change of Control Purchase Price with respect to such
Note. Such Change of Control Purchase Price shall be paid to such Holder
promptly following the later of (1) the Change of Control Purchase Date with
respect to such Note (provided that the conditions in Subsection 3.8(c) have
been satisfied) and (2) the time of delivery of such Note to a Paying Agent by
the Holder thereof in the manner required by Subsection 3.8(c).
(b) A Change of Control Purchase Notice may be withdrawn by means of a
written notice (which may be delivered by mail, overnight courier, hand
delivery, facsimile transmission or in any other written
31
form and, in the case of Global Notes, may be delivered electronically or by
other means in accordance with the Depositary's customary procedures) of
withdrawal delivered by the Holder to a Paying Agent at any time prior to the
close of business on the Business Day immediately preceding the Change of
Control Purchase Date, specifying the principal amount of the Note or portion
thereof (which must be a principal amount of $1,000 or an integral multiple of
$1,000 in excess thereof) with respect to which such notice of withdrawal is
being submitted.
SECTION 3.10. DEPOSIT OF CHANGE OF CONTROL PURCHASE PRICE.
(a) On or before 10:00 a.m., New York City time, on the Change of Control
Purchase Date, the Company shall deposit with the Trustee or with a Paying Agent
(other than the Company or an Affiliate of the Company) an amount of money (in
immediately available funds if deposited on such Change of Control Purchase
Date) sufficient to pay the aggregate Change of Control Purchase Price of all
the Notes or portions thereof that are to be purchased on such Change of Control
Purchase Date. The manner in which the deposit required by this Section 3.10 is
made by the Company shall be at the option of the Company, provided that such
deposit shall be made in a manner such that the Trustee or a Paying Agent shall
have immediately available funds on the Change of Control Purchase Date.
(b) If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Change of Control Purchase Price of any Note for which a
Change of Control Purchase Notice has been tendered and not withdrawn in
accordance with this Indenture then, on the Change of Control Purchase Date,
such Note will cease to be outstanding and the rights of the Holder in respect
thereof shall terminate (other than the right to receive the Change of Control
Purchase Price as aforesaid). The Company shall publicly announce the principal
amount of Notes purchased on or as soon as practicable after the Change of
Control Purchase Date.
SECTION 3.11. NOTES PURCHASED IN PART.
Any Note that is to be purchased only in part shall be surrendered at the
office of a Paying Agent, and promptly after the Change of Control Purchase
Date, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Note, without service charge, a new Note or Notes, of such
authorized denomination or denominations as may be requested by such Holder, in
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Note so surrendered that is not purchased.
SECTION 3.12. COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF NOTES.
In connection with any offer to purchase of Notes under Section 3.8, the
Company shall (a) comply with Rule 13e-4 and Rule 14e-1 (or any successor to
either such Rule), if applicable, under the Exchange Act, (b) file the related
Schedule TO (or any successor or similar schedule, form or report) if required
under the Exchange Act, and (c) otherwise comply with all federal and state
securities laws in connection with such offer to purchase or purchase of Notes,
all so as to permit the rights of the Holders and obligations of the Company
under Sections 3.8 through 3.11 to be exercised in the time and in the manner
specified therein.
32
SECTION 3.13. ESCROW OF INTEREST PAYMENTS.
The Company shall purchase and pledge to the Collateral Agent, for the
exclusive benefit of the Noteholders, the Interest Payment Collateral. Such
Interest Payment Collateral shall be deposited and held in a collateral account
(the "Collateral Account") with The Bank of New York (the "Securities
Intermediary"). The Company hereby (i) grants to the Collateral Agent for the
benefit of the Noteholders a first priority security interest in and lien upon
the Collateral Account and all cash, cash equivalents, instruments, securities
(including any Interest Payment Collateral), and other financial or other assets
which are maintained in the Collateral Account, as well as all security
entitlements arising out of the assets carried in the Collateral Account, and
all additional assets which are delivered by Company to the Securities
Intermediary for deposit in the Collateral Account, from time to time and at any
time, together with any substitutions or replacements, all cash and non-cash
proceeds thereof, including but not limited to insurance proceeds, all cash and
stock dividends, all securities issued pursuant to stock split or rights
offerings or similar events, and all securities issued in exchange for any other
of the foregoing as a result of mergers, reorganizations or similar transactions
(the "Pledged Collateral") and (ii) agrees to execute and deliver on the Issue
Date an Account Control Agreement with respect to the Pledged Collateral,
substantially in the form attached as Exhibit E hereto with the Securities
Intermediary and the Collateral Agent (as amended or modified from time to time,
the "Account Control Agreement"). Each Holder of Notes, by its acceptance
thereof, consents and agrees to the terms of the Account Control Agreement as
the same may be amended from time to time and directs the Collateral Agent to
enter into the Account Control Agreement. Upon the payment in full of the
interest on the outstanding notes through the August 15, 2007 Interest Payment
Date and so long as no Event of Default shall have occurred and be continuing
which would with the passage of time and failure to cure would result in an
Event of Default, any amount remaining in the Collateral Account shall be
released to the Company and the Account Control Agreement shall be terminated.
ARTICLE 4
[INTENTIONALLY OMITTED]
ARTICLE 5
[INTENTIONALLY OMITTED]
ARTICLE 6
COVENANTS
SECTION 6.1. PAYMENT OF NOTES.
(a) Interest shall accrue in respect of the Notes at the rate and in the
manner provided in the Notes and this Indenture. The Company shall promptly make
all payments in respect of the Notes on the dates and in the manner provided in
the Notes and this Indenture. An installment of principal or interest shall be
considered paid on the date it is due if the Paying Agent (other than the
Company) holds by 10:00 a.m., New York City time, on that date money, deposited
by or on behalf of the Company sufficient to pay the installment. Accrued and
unpaid interest on any Note that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Note is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company
33
maintained for such purpose. The Company shall, to the fullest extent permitted
by law, pay interest in immediately available funds on overdue principal
(including premium, if any) and overdue installments of interest at the rate
borne by the Notes.
(b) Payment of the principal of (and premium, if any) and interest on the
Notes shall be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, the Corporate Trust
Office of the Trustee in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address appears in the Register; provided further that a Holder with an
aggregate principal amount in excess of $2,000,000 will be paid by wire transfer
in immediately available funds at the election of such Holder if such Holder has
provided wire transfer instructions to the Company at least 10 Business Days
prior to the payment date.
SECTION 6.2. SEC REPORTS.
(a) The Company shall file all reports and other information and documents
which it is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, if the Company is subject to these sections of the Exchange Act,
within 15 days after the applicable filing date as set forth in the Exchange
Act.
(b) At any time when the Company is not subject to Section 13 of 15(d) of
the Exchange Act, the Company shall furnish to the Trustee (i) quarterly
financial statements within 45 days after the end of each fiscal quarter that
are substantially equivalent to those the Company would otherwise be required to
file with the Commission in a Quarterly Report on Form 10-Q and (ii) annual
financial statements within 90 days after the end of each fiscal year that are
substantially equivalent to those the Company would be required to file with the
Commission in an Annual Report on Form 10-K, including a report thereon by the
Company's certified independent accountants, provided that in each case the
delivery of materials to the Trustee by electronic means shall be deemed
"furnished" to the Trustee for purposes of this Section 6.2(d); provided,
further, that the Company shall be deemed to have satisfied its obligations
under each of (i), (ii) and (iii) above if it files such information with the
Commission (if the Commission will accept such filing) or otherwise makes such
financial statements and other information available on or through its web site.
(c) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 6.3. COMPLIANCE CERTIFICATES.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company (beginning with the fiscal year ending December
31, 2005), an Officers' Certificate executed by any of the Chief Executive
Officer, the Chief Financial Officer or the Chief Accounting Officer of the
Company as to the signer's knowledge of the Company's compliance with all
conditions and covenants on its part contained in this Indenture and stating
whether or not the signer knows of any default or Event of Default. If such
signer knows of such a default or Event of Default, the Officers' Certificate
shall describe the default or Event of Default and the efforts to remedy the
same. For the purposes of this Section 6.3, compliance shall be
34
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture.
The Company shall promptly deliver to the Trustee and in any event within
30 days after the Company becomes aware of the occurrence of any Event of
Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the Company is
taking or proposes to take with respect thereto.
SECTION 6.4. FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee, the Company and the Guarantors will execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
SECTION 6.5. MAINTENANCE OF CORPORATE EXISTENCE.
Subject to Article 7, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights (charter and statutory) and franchises.
SECTION 6.6. RULE 144A INFORMATION REQUIREMENT.
Within the period prior to the expiration of the holding period applicable
to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision), the Company covenants and agrees that it shall, during any period in
which it is not subject to Section 13 or 15(d) under the Exchange Act, upon the
request of any Holder or beneficial holder of the Notes make available to such
Holder or beneficial holder of Notes which continue to be Restricted Notes in
connection with any sale thereof and any prospective purchaser of Notes
designated by such Holder or beneficial holder, the information required
pursuant to Rule 144A(d)(4) under the Securities Act and it will take such
further action as any Holder or beneficial holder of such Notes may reasonably
request, all to the extent required from time to time to enable such Holder or
beneficial holder to sell its Notes without registration under the Securities
Act within the limitation of the exemption provided by Rule 144A, as such Rule
may be amended from time to time. Upon the request of any Holder or any
beneficial holder of the Notes, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
SECTION 6.7. STAY, EXTENSION AND USURY LAWS.
The Company and the Guarantors covenant (to the extent that it may lawfully
do so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law or other law which would prohibit or forgive the Company or the
Guarantors from paying all or any portion of the principal of, premium, if any,
or interest, on the Notes as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and each of the Company and the Guarantors (to
the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
35
SECTION 6.8. INFORMATION FOR IRS FILINGS.
The Company shall provide to the Trustee on a timely basis such information
as the Trustee requires to enable the Trustee to prepare and file any form
required to be submitted by the Company with the Internal Revenue Service and
the Holders.
SECTION 6.9. BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any Restricted Subsidiary
thereof to, engage in any business other than Permitted Businesses, except to
such extent as would not be material to the Company and its Restricted
Subsidiaries taken as a whole.
SECTION 6.10. THE SPECTRUM ENTITIES
The Company shall not permit any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of any of the Company's
or any of its Subsidiaries' Equity Interests in any Spectrum Entity to any
Person (unless such Person is a Spectrum Entity), except for any such sales,
leases or transfers which are Asset Sales permitted under Section 7.2 of this
Indenture. Except for Equity Interests of Spectrum Entities sold, leased,
exchanged or transferred in accordance with this Section 6.10, all Spectrum
Entities shall remain, directly or indirectly, wholly-owned Subsidiaries of the
Company and no Spectrum Entity shall change its jurisdiction of incorporation or
formation to any jurisdiction outside of the United States.
SECTION 6.11. TAX TREATMENT OF SECURITIES.
The Company agrees, and each Holder and any beneficial owner of a Note by
its purchase thereof shall be deemed to agree, to treat the Notes, for United
States federal income tax purposes, as contingent payment debt instruments that
are subject to Treasury Regulation Section 1.1275-4(b). For United States
federal income tax purposes, the Company agrees, and each Holder and any
beneficial owner of a Note by its purchase thereof shall be deemed to agree, to
accrue interest with respect to outstanding Notes as Tax Original Issue Discount
according to the "noncontingent bond method" set forth in Section 1.1275-4(b) of
the Treasury Regulations, using the applicable comparable yield set forth in
Annex A to this Indenture, compounded semiannually, and the applicable projected
payment schedule attached as Annex A to this Indenture.
The Company acknowledges and agrees, and each Holder and any beneficial
owner of a Note by its purchase thereof shall be deemed to acknowledge and
agree, that (i) the projected payment schedule is not provided for any purpose
other than the determination of interest accruals and adjustments thereof in
respect of the Notes for United States federal income tax purposes and (ii) the
comparable yield and the projected payment schedule do not constitute a
projection or representation regarding the amounts payable on the Notes.
36
ARTICLE 7 OTHER RESTRICTIVE COVENANTS
SECTION 7.1. INCURRENCE OF INDEBTEDNESS BY SPECTRUM ENTITIES.
(A) The Spectrum Entities shall not, directly or indirectly,
Incur any Indebtedness.
(B) Section 7.1(A) shall not prohibit the Incurrence by the
Spectrum Entities of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the Incurrence of Pari Passu Indebtedness;
(ii) the Incurrence of Indebtedness represented by the Notes and the
related Note Guarantees;
(iii) the Incurrence of Permitted Refinancing Indebtedness in exchange
for, or the net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was permitted by
this Indenture to be Incurred under clauses (i), (ii) and (iii) of this
Section 7.1(B);
(iv) any Indebtedness represented by Spectrum Leases to the extent
that they constitute Capital Lease Obligations (for purposes of
clarification the foregoing is not meant to expand the ability of the
Company to incur Permitted Debt but simply to take into account the fact
that the Spectrum Leases may be deemed to constitute Capital Lease
Obligations);
(v) the Incurrence of Indebtedness to the extent that the proceeds
thereof are promptly applied to satisfy and discharge the Notes and Pari
Passu Indebtedness in full; and
(vi) the Incurrence of additional unsecured Indebtedness in an
aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
renew, refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (vi), not to exceed $5.0 million.
SECTION 7.2. ASSET SALES OF SPECTRUM ENTITIES.
The Spectrum Entities will not consummate an Asset Sale unless:
(1) the Spectrum Entities receive consideration at the time of such
Asset Sale at least equal to the Fair Market Value of the assets or Equity
Interests issued or sold or otherwise disposed of, provided that, (i) with
respect to an Asset Sale (in a single transaction or a series of related
transactions) to an Affiliate of the Company involving FCC License Rights or
Spectrum Leases covering in excess of 500.0 million MHz POPs (in a single
transaction or series of related transactions), the Company shall obtain an
opinion as to the fairness to the Spectrum Entity of such Asset Sale from a
financial point of view issued by an independent accounting, appraisal or
investment banking firm of national standing; and (ii) if the Spectrum Entities
have, since the Issue Date, consummated Asset Sales involving FCC License Rights
or Spectrum Leases covering in excess of 3.0 billion MHz POPs in the aggregate,
then with respect to any single Asset Sale (in a single transaction or a series
of related transactions) to any person or group of persons involving FCC License
37
Rights or Spectrum Leases covering in excess of 500.0 million MHz POPs, the
Company shall obtain an opinion as to the fairness to the Spectrum Entity of
such Asset Sale from a financial point of view issued by an independent
accounting, appraisal or investment banking firm of national standing; and
(2) 100% of the consideration therefor is in the form of cash, Cash
Equivalents or Replacement Assets or a combination of the foregoing, all of
which shall be received by one or more Spectrum Entities. For purposes of this
100% limitation, any Designated Noncash Consideration received by the Spectrum
Entities in such Asset Sale having an aggregate Fair Market Value, taken
together with all other Designated Noncash Consideration received that is at
that time outstanding, not to exceed $35 million (with the Fair Market Value of
each item of Designated Noncash Consideration being measured at the time
received and without giving effect to subsequent changes in value) shall be
deemed to be cash.
Notwithstanding the foregoing clause (2), from the Issue Date through
August 15, 2006, the Spectrum Entities may receive Joint Venture Interests as
consideration for Asset Sales involving FCC License Rights or Spectrum Leases
covering up to 1.0 billion MHz POPs in the aggregate. If any such Joint Venture
Interests are acquired by the Spectrum Entities, the Company shall cause the
Spectrum Entities to consummate Asset Sales prior to August 15, 2006 in which
the Joint Venture Interests will be replaced with cash, Cash Equivalents or
Replacement Assets such that on and after August 15, 2006 the Spectrum Entities
do not hold any Joint Venture Interests; provided, that for any such Asset
Sales, an opinion as to the fairness of any Asset Sale shall not be required in
connection with any such Asset Sale to the Company or a Restricted Subsidiary of
the Company (other than a Spectrum Entity).
Notwithstanding the foregoing clause (1)(i), an opinion as to the fairness
of any Asset Sale shall not be required in connection with any Asset Sale to the
Company or a Restricted Subsidiary of the Company (other than a Spectrum Entity)
if substantially contemporaneously therewith, the assets so transferred are
exchanged by the Company or Restricted Subsidiary for Joint Venture Interests.
Within 365 days after the receipt by the Spectrum Entity of any Net
Proceeds from an Asset Sale, the Spectrum Entity may apply such Net Proceeds at
its option:
(1) to make an Asset Sale Offer (as defined below);
(2) to redeem on a pro rata basis the Notes in accordance with Article 3
and a pro rata or lesser amount of Pari Passu Indebtedness; or
(3) to purchase Replacement Assets.
Pursuant to the Pledge and Security Agreements, the Collateral Agent on
behalf of the Holders of Notes shall have a valid perfected first priority Lien
in any Replacement Assets or Net Proceeds received by the Spectrum Entities in
connection with an Asset Sale.
Pending the final application of any such Net Proceeds, the Spectrum
Entities, as applicable, shall maintain such Net Proceeds in cash or may invest
such Net Proceeds in Cash Equivalents. Such cash or Cash Equivalents, as the
case may be, shall be held in a deposit account subject to a Lien in favor of
the Collateral Agent on behalf of the Holder of Notes and the applicable
Spectrum Entity shall deliver (i) a security agreement, in form and substance
satisfactory to the Collateral Agent, and (ii) an account control agreement, in
form and substance satisfactory to the Collateral Agent, with respect to such
deposit account duly executed
38
by such Spectrum Entity, the deposit bank or securities intermediary, as the
case may be, and the Collateral Agent.
On the 366th day after an Asset Sale or such earlier date, if any, as any
of the Spectrum Entities determine not to apply the Net Proceeds relating to
such Asset Sale as set forth above (each such date being referred as an "Excess
Proceeds Trigger Date"), such aggregate amount of Net Proceeds that has not been
applied on or before the Excess Proceeds Trigger Date as permitted in this
Section 7.2 ("Excess Proceeds") will be applied by the Company to make an offer
(an "Asset Sale Offer") to all Holders of Notes and all holders of Pari Passu
Indebtedness containing provisions similar to those set forth in the Indenture
with respect to offers to purchase with the proceeds of sales of assets, to
purchase the maximum principal amount of Notes and such other Pari Passu
Indebtedness that may be purchased out of the Excess Proceeds. The offer price
in any Asset Sale Offer will be equal to 100% of the principal amount of the
Notes and 100% of the principal amount of such other Pari Passu Indebtedness, in
each case plus accrued and unpaid interest to the date of purchase, and will be
payable in cash.
The Company may defer the Asset Sale Offer until there are aggregate
unutilized Excess Proceeds equal to or in excess of $25.0 million resulting from
one or more Asset Sales, at which time the entire unutilized amount of Excess
Proceeds (not only the amount in excess of $25.0 million) will be applied as
provided in the preceding paragraph. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Spectrum Entities, as applicable may
use such Excess Proceeds (x) to redeem on a pro rata basis any outstanding Notes
in accordance with Article 3 and Pari Passu Indebtedness, (y) to purchase
Replacement Assets in accordance with the terms of this Section 7.2 or (z) to
invest in Cash Equivalents, and, in the case of (y) and (z), any such
Replacement Assets and Cash Equivalents shall be subject to a valid perfected
first priority Lien under the Pledge and Security Agreements. If the aggregate
principal amount of Notes and such other Pari Passu Indebtedness tendered into
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such
other Pari Passu Indebtedness will be purchased on a pro rata basis based on the
principal amount of Notes and such other Pari Passu Indebtedness tendered. Upon
completion of each Asset Sale Offer, the Excess Proceeds subject to such Asset
Sale will no longer be deemed to be Excess Proceeds.
In the event that, pursuant to this Section 7.2 hereof, the Company is
required to commence an Asset Sale Offer, it will follow the procedures
specified below.
The Asset Sale Offer shall be made to all Holders and all holders of other
Indebtedness that is pari passu with the Notes containing provisions similar to
those set forth in this Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets. The Asset Sale Offer will remain open for
a period of at least 20 Business Days following its commencement and not more
than 30 Business Days, except to the extent that a longer period is required by
applicable law (the "Offer Period"). No later than three Business Days after the
termination of the Offer Period (the "Purchase Date"), the Company will apply
all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other
Pari Passu Indebtedness (on a pro rata basis, if applicable) or, if less than
the Offer Amount has been tendered, all Notes and other Indebtedness tendered in
response to the Asset Sale Offer.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest to the
Purchase Date will be paid to the Person in whose name a Note is registered at
the close of business on such record date, and no additional interest will be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
39
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
will contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the
terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section 7.2
and the length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment shall remain
outstanding and continue to accrue interest;
(4) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer will cease to
accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Asset
Sale Offer may elect to have Notes purchased in integral multiples of
$1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any Asset
Sale Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" attached to the Notes
completed, or transfer by book-entry transfer, to the Company, the
Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the
Purchase Date;
(7) that Holders will be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such
Note purchased;
(8) that, if the aggregate principal amount of Notes and Pari Passu
Indebtedness surrendered by holders thereof exceeds the Offer Amount,
the Company will select the Notes and Pari Passu Indebtedness to be
purchased on a pro rata basis based on the principal amount of Notes
and such Pari Passu Indebtedness surrendered (with such adjustments as
may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, will be
purchased); and
(9) that Holders whose Notes were purchased only in part will be issued
new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and will
deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers' Certificate stating that such Notes or portions
thereof were accepted for payment by the Company in accordance with the terms of
this Section 7.2. The Company, the Depositary or the Paying Agent, as the case
may be, will make
40
payment of the purchase price of the Notes tendered by such Holder and accepted
by the Company for purchase in accordance with Section 6.1, and the Company will
promptly issue a new Note, and the Trustee, upon written request from the
Company, will authenticate and mail or deliver (or cause to be transferred by
book entry) such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
will publicly announce the results of the Asset Sale Offer on the Purchase Date.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sales
provisions of the Indenture, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached their
obligations under the Asset Sale provisions of the Indenture by virtue of such
compliance.
SECTION 7.3. RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly:
(1) declare or pay (without duplication) any dividend or make any
other payment or distribution on account of the Company's Equity Interests
(including, without limitation, any payment in connection with any merger or
consolidation involving the Company) or to the direct or indirect holders of the
Company's Equity Interests in their capacity as such (other than dividends,
payments or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company thereof held by
Persons other than the Company; or
(3) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
contractually subordinated to the Notes or any Note Guarantees, except a payment
of interest or principal at the Stated Maturity thereof (all such payments and
other actions set forth in clauses (1), (2) and (3) being collectively referred
to as "Restricted Payments"),
(b) The preceding provisions will not prohibit:
(1) the making of any Restricted Payment in exchange for, or out of
the net cash proceeds of a contribution to the common equity of the Company or a
substantially concurrent sale (other than to a Subsidiary of the Company) of,
Equity Interests (other than Disqualified Stock) of the Company;
(2) the repurchase of Equity Interests of the Company deemed to occur
upon the exercise of options or warrants to the extent that such Equity
Interests represent all or a portion of the exercise price thereof;
(3) the repurchase of Equity Interests of the Company constituting
fractional shares;
(4) the defeasance, redemption, repurchase or other acquisition of
Indebtedness subordinated to the Notes or the Note Guarantees with the net cash
proceeds from an Incurrence of Permitted Refinancing Indebtedness;
41
(5) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company or any of its Restricted
Subsidiaries held by any current or former employee, consultant or director of
the Company or any of its Restricted Subsidiaries pursuant to the terms of any
employee equity subscription agreement, stock option agreement or similar
agreement approved by a majority of the disinterested members of the Board of
Directors of the Company; and
(6) Restricted Payments pursuant to agreements or arrangements in
effect on the Issue Date.
Notwithstanding the foregoing, no Spectrum Entity shall at any time pay a
dividend or make any payment or distribution to any entity that is not a
Spectrum Entity unless the proceeds of such dividend or distribution is applied
in its entirety on a pro rata basis to redemption of the Notes or Pari Passu
Indebtedness in accordance with the terms of the Indenture; provided that, (i)
each Spectrum Entity may pay a dividend or make payments and distributions to
the Company so that the Company may pay its combined, consolidated or unitary
tax liabilities and any franchise tax liabilities, so long as the Company uses
the dividend, payment or distribution to pay such taxes at such time and (ii) an
Exempt Joint Venture may make distributions to holders of its Equity Interests
on a pro rata basis.
SECTION 7.4. LIMITATION ON LIENS.
(1) The Company shall not, and will not permit any of its Subsidiaries
(including the Spectrum Entities) to, directly or indirectly, create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien (other
than Permitted Liens) on any Collateral held by Spectrum Entities or on the
Equity Interests of Spectrum Entities.
(2) The Company shall not, and will not permit any of its Subsidiaries
(including the Pledged Entities) to, directly or indirectly, create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien
securing Indebtedness on any Collateral held by Pledged Entities (other than
Spectrum Entities) or on the Company's Equity Interests in Pledged Entities
(other than Spectrum Entities),other than:
(A) Permitted Liens;
(B) Liens on property existing at the time of acquisition thereof
by a Pledged Entity or any Restricted Subsidiary of a Pledged Entity, provided
that such Liens were in existence prior to the contemplation of such acquisition
and do not extend to any property other than the property so acquired by such
Pledged Entity or such Restricted Subsidiary;
(C) Liens to secure Indebtedness, including Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or any part
of the purchase price or cost of design, construction, installation or
improvement of property (real or personal), plant or equipment used in a
Permitted Business; and
(D) Liens in the ordinary course of business of the Pledged
Entities in an aggregate amount not to exceed $5.0 million at any one time
outstanding.
42
SECTION 7.5. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person (in a
transaction in which the Company is not the surviving corporation) or convey,
transfer or lease or otherwise dispose of its properties and assets
substantially as an entirety (in one or more related transactions) to any other
Person, unless:
(1) in case the Company shall consolidate with or merge into another
Person (in a transaction in which the Company is not the surviving
corporation) or convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially
as an entirety is a corporation, limited liability company,
partnership, trust or other entity, is organized and validly existing
under the laws of the United States of America or any State thereof
and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and any
premium and interest on all the Notes and the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed by the Person (if other than the
Company) formed by such consolidation or into which the Company shall
have been merged or by the Person which shall have acquired the
Company's assets; and
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be
continuing; and
(3) each Guarantor, unless such Guarantor is the Person with which the
Company has entered into a transaction under this covenant, will have
by amendment to its Note Guarantee confirmed that its Note Guarantee
will apply to the obligations of the Company or the surviving Person
in accordance with the Notes and the Indenture; and
(4) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture comply with this Article 7 and Article 11 and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
The provisions of this Section 7.5 shall similarly apply to successive
consolidations, mergers, sales or conveyances.
Notwithstanding the foregoing, other than as permitted under Section 7.2 or
7.11 (and other than a sale or other disposition by the Company that would
comply with Section 7.11 as if it were subject thereto), as applicable, the
Company shall not convey, transfer or lease or otherwise dispose of or transfer
any of its Equity Interests, in (x) the Spectrum Entities and their respective
successors, or (y) Clearwire1, its Domestic Restricted Subsidiaries and their
respective successors to any other Person other than to a wholly owned
Subsidiary that is or becomes a Guarantor, and, in each case, has pledged all of
such Equity Interests to the Collateral Agent pursuant to the Pledge and
Security Agreements unless the proceeds thereof are used to redeem all of the
Notes in accordance with Article 3.
43
SECTION 7.6. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
7.5, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Notes.
SECTION 7.7. TRANSACTIONS WITH AFFILIATES.
The Company 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, make, amend, renew or extend any transaction,
contract, agreement, understanding, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each, an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable arm's-length transaction by
the Company or such Restricted Subsidiary with a Person that is not an
Affiliate of the Company or any of its Restricted Subsidiaries; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $5.0
million, a Board Resolution set forth in an Officers' Certificate certifying
that such Affiliate Transaction or series of related Affiliate Transactions
complies with this covenant; and
(b) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $50.0
million, an opinion as to the fairness to the Company or such Restricted
Subsidiary of such Affiliate Transaction or series of related Affiliate
Transactions from a financial point of view issued by an independent accounting,
appraisal or investment banking firm of national standing.
The following items will not be deemed to be Affiliate Transactions (except
with respect to any transaction involving a Spectrum Entity that is not
expressly permitted pursuant to another Section of this Indenture) and,
therefore, will not be subject to the provisions of the prior paragraph:
(1) transactions between or among the Company and/or its Restricted
Subsidiaries or any Person that will become a Restricted Subsidiary as
part of any such transactions; provided that transactions between or
among the Company, any Restricted Subsidiary and any Foreign
Subsidiaries shall not be deemed to Affiliate Transactions if such
transactions are, in the good faith determination of the Board of
Directors of the Company, in the best interests of the Company and are
on terms that are at least as favorable to the Company and/or any
Restricted Subsidiary than those that can be obtained in a comparable
arm's-length transaction with a Person that is not an Affiliate of the
Company or any Restricted Subsidiary;
(2) payment of reasonable and customary fees to, and reasonable and
customary indemnification and similar payments on behalf of, directors
of the Company;
44
(3) Restricted Payments that are permitted by Section 7.3;
(4) Asset Sales by Spectrum Entities to the Company or any Subsidiaries
that are permitted by, and in accordance with, Section 7.2;
(5) any sale of Equity Interests of the Company or its Restricted
Subsidiaries;
(6) transactions pursuant to agreements or arrangements in effect on the
Issue Date, or any amendment, modification, or supplement thereto or
replacement thereof, as long as such agreement or arrangement, as so
amended, modified, supplemented or replaced, taken as a whole, is not
more disadvantageous to the Company and its Restricted Subsidiaries
than the original agreement or arrangement in existence on the Issue
Date;
(7) any employment, consulting, service or termination agreement, or
reasonable and customary indemnification arrangements, entered into by
the Company or any of its Restricted Subsidiaries with officers and
employees of the Company or any of its Restricted Subsidiaries and the
payment of compensation to officers and employees of the Company or
any of its Restricted Subsidiaries (including amounts paid pursuant to
employee benefit plans, employee stock option or similar plans), so
long as such agreement or payment has been approved by a majority of
the disinterested members of the Board of Directors of the Company;
(8) payments or loans to employees or consultants in the ordinary course
of business which are approved by a majority of the disinterested
members of the Board of Directors of the Company in good faith;
(9) transactions with a Person that is an Affiliate of the Company solely
because the Company, directly or indirectly, owns Equity Interests in,
or controls, such Person; and
(10) 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 the Indenture,
which are fair to the Company and its Restricted Subsidiaries in the
determination of the Board of Directors or the senior management of
the Company, or are on terms at least as favorable as might reasonably
have been obtained at such time from an unaffiliated party.
SECTION 7.8. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into any Sale and Leaseback Transaction; provided that
the Company or any Restricted Subsidiary thereof may enter into a Sale and
Leaseback Transaction if:
(1) if applicable, the Company or such Restricted Subsidiary, as
applicable, could have Incurred such Indebtedness under Section 7.1 or
Section 7.4 in an amount equal to the Attributable Debt relating to
such Sale and Leaseback Transaction;
(2) the gross cash proceeds of that Sale and Leaseback Transaction are at
least equal to the Fair Market Value of the property that is the
subject of that Sale and Leaseback Transaction;
45
(3) the transfer of assets in that Sale and Leaseback Transaction is
permitted by, and the Company applies the proceeds of such transaction
in compliance with Section 7.2; and
(4) the assets transferred in such Sale and Leaseback Transaction are not
Collateral.
SECTION 7.9. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
(a) The Board of Directors of the Company may designate any Restricted
Subsidiary of the Company to be an Unrestricted Subsidiary; provided that:
(1) any Guarantee by the Company or any Restricted Subsidiary thereof
of any Indebtedness of the Subsidiary being so designated shall be deemed to be
an Incurrence of Indebtedness by the Company or such Restricted Subsidiary (or
both, if applicable) at the time of such designation, and such Incurrence of
Indebtedness would be permitted under Section 7.4;
(2) except as would be permitted under Section 7.7, the Subsidiary
being so designated is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary thereof unless
either (A) such agreement, contract, arrangement or understanding is 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, which are fair to the Company and its Restricted
Subsidiaries in the determination of the Board of Directors or the senior
management of the Company, or (B) the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company; and
(3) no Default or Event of Default would be in existence following
such designation.
(b) Any designation of a Restricted Subsidiary of the Company as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the
Trustee the Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the preceding
conditions and was permitted by this Indenture. If, at any time, any
Unrestricted Subsidiary would fail to meet any of the preceding requirements
described in Section 7.9(a)(2), it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness, Investments, or
Liens on the property, of such Subsidiary shall be deemed to be Incurred or made
by a Restricted Subsidiary of the Company as of such date and, if such
Indebtedness, Investments or Liens are not permitted to be Incurred or made as
of such date under this Indenture, the Company shall be in default under this
Indenture.
(c) The Board of Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that:
(1) such designation shall be deemed to be an Incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness (including any Non-Recourse Debt) of such Unrestricted Subsidiary
and such designation shall only be permitted if such Indebtedness is permitted
under Section 7.4; and
(2) no Default or Event of Default would be in existence following
such designation.
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SECTION 7.10. ADDITIONAL NOTE GUARANTEES.
If (i) any of the Pledged Entities or any of their respective Domestic
Restricted Subsidiaries acquires or creates another Domestic Restricted
Subsidiary (other than an Exempt Joint Venture), or (ii) any Spectrum Entity
acquires or creates a Domestic Subsidiary (other than an Exempt Joint Venture),
then the Company will cause that newly acquired or created Domestic Subsidiary
or Domestic Restricted Subsidiary, as the case may be, to (a) execute a Note
Guarantee pursuant to a supplemental indenture in form and substance
satisfactory to the Trustee, (b) enter into and deliver supplements to the
Pledge and Security Agreements, or such other pledge and security agreements in
form and substance satisfactory to the Collateral Agent and the Trustee, and
take all such action necessary or advisable to create, maintain and perfect the
valid first priority perfected security interests in the Collateral intended to
be created thereby, (c) deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee within 10 Business Days of the date on which it was
acquired or created to the effect that such supplemental indenture, supplements
to the Pledge and Security Agreements or such other pledge and security
agreements have been duly authorized, executed and delivered by that Domestic
Subsidiary or Domestic Restricted Subsidiary, as the case may be and constitute
valid and binding agreements of that Domestic Subsidiary or Domestic Restricted
Subsidiary, as the case may be, enforceable in accordance with its terms
(subject to customary exceptions), and (d) deliver an Opinion of Counsel in
accordance with the requirements of Section 12.2(a); provided that any Domestic
Subsidiary or Domestic Restricted Subsidiary, as the case may be, that
constitutes an Immaterial Subsidiary need not comply with clauses (a) through
(d) above until such time as it ceases to be an Immaterial Subsidiary. The form
of such Note Guarantee is attached as Exhibit B hereto.
If any Spectrum Entity acquires or creates an Exempt Joint Venture then:
(1) the Exempt Joint Venture shall not, without the consent of the
Trustee as directed by Holders of at least a majority in aggregate
principal amount of the Notes then outstanding,
(A) commence a voluntary case or proceeding;
(B) consent to the entry of an order for relief against it in an
involuntary case or proceeding or the commencement of any case against it;
(C) consent to the appointment of a Custodian of it or for all or
substantially all of its property;
(D) make a general assignment for the benefit of its creditors;
(E) file a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(F) consent to the filing of such a petition or the appointment
of or taking possession by a Custodian,
in each case within the meaning of any Bankruptcy Law;
(2) the Exempt Joint Venture shall not permit its liquidated and
non-contingent liabilities, not subject to dispute to exceed $1 million
(other than claims or obligations not constituting Indebtedness that are
(i) incurred in the ordinary course of business and consistent with
ordinary business terms and (ii) paid when due); and
47
(3) the Company will provide notice to the Trustee and the Noteholders
in the event that a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Exempt Joint Venture in an
involuntary case or proceeding or adjudicates the Exempt Joint Venture insolvent
or bankrupt;
(B) appoints a Custodian of the Exempt Joint Venture or for all
or substantially all of the property of the Exempt Joint Venture; or
(C) orders the winding up or liquidation of the Exempt Joint
Venture.
None of the requirements of the immediately preceding clauses (1), (2) and
(3) shall apply to any Exempt Joint Venture if such Exempt Joint Venture
complies with clauses (a) through (d) of the first paragraph of this Section
7.10.
SECTION 7.11. ASSET SALES OF PLEDGED ENTITIES.
The Pledged Entities (other than the Spectrum Entities) will not
consummate an Asset Sale unless:
(1) the Pledged Entities receive consideration at the time of such
Asset Sale at least equal to the Fair Market Value of the assets or equity
interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration therefor received by the Pledged
Entities is in the form of cash, Cash Equivalents or Replacement Assets or a
combination of the foregoing. For purposes of this 75% limitation, each of the
following will be deemed to be cash:
(a) any liabilities (as shown on the Pledged Entities' most recent
balance sheet) of the Pledged Entities (other than contingent liabilities,
Indebtedness that is by its terms subordinated to the Notes or any Note
Guarantee and liabilities to the extent owed to the Pledged Entities or any
Subsidiary of the Pledged Entities) that are assumed by the transferee of any
such assets or equity interests pursuant to a written assignment and assumption
agreement that releases the Pledged Entities from further liability therefor;
(b) any securities, notes or other obligations received by the Pledged
Entities from such transferee that are converted by the Pledged Entities into
Cash Equivalents or Replacement Assets within 180 days of the receipt thereof
(to the extent of the Cash Equivalents or Replacement Assets received in that
conversion);
(c) any Designated Noncash Consideration received by the Pledged
Entities in such Asset Sale having an aggregate Fair Market Value, taken
together with all other Designated Noncash Consideration received pursuant to
this clause (c) that is at that time outstanding does not exceed $50.0 million
(with the Fair Market Value of each item of Designated Noncash Consideration
being measured at the time received and without giving effect to subsequent
changes in value).
Within 365 days after the receipt by the Pledged Entities of any Net
Proceeds from an Asset Sale, the Pledged Entities may apply such Net Proceeds:
(1) to make a Pledged Entities Asset Sale Offer (as defined in this
Section 7.11);
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(2) to redeem on a pro rata basis the Notes in accordance with Article 3
and a pro rata or lesser amount of Pari Passu Indebtedness; or
(3) to purchase Replacement Assets.
Pursuant to the Security Agreement, the Collateral Agent on behalf of the
Holders of Notes shall have a valid perfected first priority Lien in any
Replacement Assets or Net Proceeds received by the Pledged Entities in
connection with an Asset Sale.
Pending the final application of any such Net Proceeds, the Pledged
Entities shall maintain the Net Proceeds in cash or may temporarily reduce
revolving credit borrowings that constitute Pari Passu Indebtedness or invest
such Net Proceeds in Cash Equivalents. Such cash or Cash Equivalents, as the
case may be, shall be held in a deposit account subject to a Lien in favor of
the Collateral Agent on behalf of the Holder of Notes and the applicable Pledged
Entity shall deliver (i) a security agreement, in form and substance
satisfactory to the Collateral Agent, and (ii) an account control agreement, in
form and substance satisfactory to the Collateral Agent, with respect to such
deposit account duly executed by such Pledged Entity, the deposit bank or
securities intermediary, as the case may be, and the Collateral Agent.
On the 366th day after an Asset Sale or such earlier date, if any, as any
of the Pledged Entities determine not to apply the Net Proceeds relating to such
Asset Sale as set forth above (each such date being referred as a "Pledged
Entities Excess Proceeds Trigger Date"), such aggregate amount of Net Proceeds
that has not been applied on or before the Excess Proceeds Trigger Date as
permitted in this Section 7.11 ("Pledged Entities Excess Proceeds") will be
applied by the Company to make an offer (a "Pledged Entities Asset Sale Offer")
to all Holders of Notes and all holders of Pari Passu Indebtedness containing
provisions similar to those set forth in the Indenture with respect to offers to
purchase with the proceeds of sales of assets, to purchase the maximum principal
amount of Notes and such other Pari Passu Indebtedness that may be purchased out
of the Pledged Entities Excess Proceeds. The offer price in any Pledged Entities
Asset Sale Offer will be equal to 100% of the principal amount of the Notes and
100% of the principal amount of such other Pari Passu Indebtedness plus accrued
and unpaid interest, to the date of purchase, and will be payable in cash.
The Company may defer the Pledged Entities Asset Sale Offer until there are
aggregate unutilized Excess Proceeds equal to or in excess of $25.0 million
resulting from one or more Asset Sales, at which time the entire unutilized
amount of Pledged Entities Excess Proceeds (not only the amount in excess of
$25.0 million) will be applied as provided in the preceding paragraph. If any
Excess Proceeds remain after consummation of a Pledged Entities Asset Sale
Offer, the Pledged Entities may use such Excess Proceeds (x) to redeem on a pro
rata basis any outstanding Notes in accordance with Article 3 and Pari Passu
Indebtedness, (y) to purchase Replacement Assets in accordance with the terms of
this Section 7.11 or (z) to invest in Cash Equivalents, and, in the case of (y)
and (z), any such Replacement Assets and Cash Equivalents shall be subject to a
valid perfected first priority Lien under the Pledge and Security Agreements. If
the aggregate principal amount of Notes and such other Pari Passu Indebtedness
tendered into such Pledged Entities Asset Sale Offer exceeds the amount of
Pledged Entities Excess Proceeds, the Notes and such other Pari Passu
Indebtedness will be purchased on a pro rata basis based on the principal amount
of Notes and such other Pari Passu Indebtedness tendered. Upon completion of
each Asset Sale Offer, the Pledged Entities Excess Proceeds subject to such
Asset Sale will no longer be deemed to be Pledged Entities Excess Proceeds.
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In the event that, pursuant to this Section 7.11 hereof, the Company is
required to commence a Pledged Entities Asset Sale Offer, it will follow the
procedures specified in Section 7.2 with respect to an Asset Sale Offer.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sales
provisions of the Indenture, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached their
obligations under the Asset Sale provisions of the Indenture by virtue of such
compliance.
SECTION 7.12. SPECTRUM HOLDINGS.
If less than 85 % of the aggregate Spectrum Holdings of the Spectrum
Entities fail to be ESC-compliant based upon the compliance percentage assessed
on the basis of FCC License or Underlying License (as defined below), as the
case may be, from which the Spectrum Holding is derived, as provided in this
Section 7.12, then the Company will take all commercially reasonable efforts to
bring the Spectrum Holdings into at least 85 % ESC compliant within 90 days.
For purposes of this Section 7.12, "Spectrum Holdings" means the present
effective right of the Spectrum Entities to use a defined portion of the
radiofrequency spectrum within a "Geographic Service Area" as defined below in
the conduct of the business of the Company, including rights directly from FCC
Licenses and rights under Spectrum Leases with FCC licensees of such spectrum.
"Underlying License" means the license granted by the FCC to the lessor to
the Spectrum Entities under a Spectrum Lease.
"Geographic Service Area" means either the area for incumbent site-based
licensees that is bounded by a circle having a 35 mile radius and centered at
the station's reference coordinates, which was the previous protected service
area to which incumbent licensees were entitled prior to January 10, 2005, and
is bounded by the chords drawn between intersection points of the licensee's
previous 35 mile protected service area and those of respective adjacent market
co-channel licensees or a BTA that is licensed to the respective BRS/BTA
authorization holder subject to the exclusion of overlapping co-channel
incumbent geographic service area.
"Effective Spectrum Criteria"(or "ESC") means,
(a) with respect to Spectrum Holdings in the form of an FCC License, that a
Spectrum Entity holds the FCC License and that the FCC License is currently
effective in accordance with its terms and authorizes the present use of the
entire portion of the radiofrequency specified in such FCC License for use by
the Spectrum Entities throughout the entirety of the Geographic Service Area
specified in such FCC License without any further authorization from the FCC,
except to the extent that a change in FCC rules or policies affects the ability
of a Spectrum Entity to use the entire portion of the radiofrequency specified
in such FCC License; and
(b) with respect to Spectrum Holdings in the form of a Spectrum Lease:
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(1) The lessor under the spectrum lease (or, in the case of a sublease, the
sublessor's lessor) is the authorized holder of an FCC License that is currently
effective in accordance with its terms and authorizes the present use of the
entire portion of the radiofrequency specified in such FCC License throughout
the entirety of the Geographic Service Area specified in such FCC License
without any further authorization from the FCC, except to the extent that a
change in FCC rules or policies affects the ability of a Spectrum Entity to use
the entire portion of the radiofrequency specified in such spectrum lease;
(2) The Geographic Service Area and the portion of the radiofrequency
spectrum authorized for use by the lessor in the FCC License held by the lessor
includes the entirety of both the Geographic Service Area and the portion of the
radiofrequency spectrum specified in the Spectrum Lease; and the FCC License
permits the lessor to lease and the Spectrum Lease validly leases to the
Spectrum Entity that is a party thereto the entire portion of the radiofrequency
spectrum specified in the Spectrum Lease throughout the entire Geographic
Service Area specified in such Spectrum Lease for use by such Spectrum Entity in
its business; except to the extent that a change in FCC rules or policies
affects the ability of a Spectrum Entity to use the entire portion of the
radiofrequency specified in such Spectrum Lease; and
(3) Either
(a) the spectrum lease is of a type and category that requires FCC approval
to be valid and has currently effective FCC approval, or
(b) the spectrum lease is not of a type and category that requires FCC
approval.
The compliance percentage for purposes of this covenant shall be derived
from a fraction, the denominator of which is the total number of the Underlying
Licenses and FCC Licenses from which the Spectrum Holdings derive (based on
separate call signs), whether derived directly or by Spectrum Lease, and the
numerator of which is the number of Underlying Licenses and FCC Licenses for
which the Spectrum Holdings derived therefrom are ESC-compliant.
ARTICLE 8
DEFAULT AND REMEDIES
SECTION 8.1. EVENTS OF DEFAULT.
(a) An "Event of Default" shall occur upon:
(1) the failure of the Company to pay or cause to be paid the
principal of, or premium, if any, when due on any Note (whether at maturity,
upon acceleration, redemption, repurchase or otherwise);
(2) the failure of the Company to pay or cause to be paid any interest
on any Note when due that continues for 30 days;
(3) the failure of the Company to give the Change of Control Notice
when required by Section 3.8, if such failure continues for 20 days;
51
(4) the failure of the Company to comply with the provisions of
Section 7.1 or Section 7.4, if such failure continues for 30 days after the
Company becomes aware or reasonably should have been aware of such failure or
the Notice of Default specified below is given;
(5) the failure of the Company to perform or observe any other
covenant required by, this Indenture, the Notes, the Account Control Agreement
or the Pledge and Security Agreements or the breach of any representation or
warranty made in the Purchase Agreement, if such failure continues for 60 days
after the Notice of Default specified below is given; provided, however, no
breach of a representation or warranty made in the Purchase Agreement shall
constitute an Event of Default unless such breach causes a Material Adverse
Effect;
(6) a default under any indebtedness for money borrowed by the Company
or the Guarantors in an aggregate outstanding principal amount in excess of
$25.0 million, which default (A) is a payment default unless such payment
default is waived, cured, rescinded or annulled or unless such indebtedness is
discharged, in any case within 30 days of the date such payment was due or, if
longer, during any applicable grace or cure period, (B) is caused by the failure
to pay principal at the final maturity on such indebtedness by the end of the
applicable grace period, if any, unless such indebtedness is discharged, or (C)
results in the acceleration of such indebtedness, unless such acceleration is
waived, cured, rescinded or annulled or unless such indebtedness is discharged;
provided, however, that any payment default on, or a default that results in the
acceleration of, any Pari Passu Indebtedness shall be an Event of Default
regardless of whether the amount of any such Indebtedness exceeds $25 million;
(7) the entry against the Company or the Guarantors of a final
judgment or judgments (not subject to appeal and not covered by insurance)
aggregating in excess of $25.0 million, which judgments remain unpaid, unstayed,
undischarged or unbonded for a period of 60 days;
(8) the Company, a Guarantor that is a Significant Subsidiary, or any
Spectrum Entity with Total Assets, when taken together with the Total Assets of
any other Spectrum Entity that has become subject to the provisions of this
clause (8), in excess of $10.0 million, pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding or the commencement of any case against it;
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(F) consents to the filing of such a petition or the appointment
of or taking possession by a Custodian; or
(9) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
52
(A) is for relief against the Company or the Guarantors that are
Significant Subsidiaries in an involuntary case or proceeding or adjudicates the
Company or the Guarantors insolvent or bankrupt;
(B) appoints a Custodian of the Company or the Guarantors that
are Significant Subsidiaries or for all or substantially all of the property of
the Company; or
(C) orders the winding up or liquidation of the Company or the
Guarantors that are Significant Subsidiaries;
and in each case the order or decree remains unstayed and in effect for 60
consecutive days.
The term "Bankruptcy Law" means Title 11 of the United States Code (or any
successor thereto) or any similar federal or state law for the relief of
debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
(10) except as permitted by this Indenture, any Note Guarantee shall
be held in any judicial proceeding to be unenforceable or invalid or shall cease
for any reason to be in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, shall deny or disaffirm its obligations under
its Note Guarantee;
(11) any Pledge and Security Agreement or the Account Control
Agreement at any time for any reason shall cease to be in full force and effect,
or shall cease to be effective to grant the Collateral Agent or perfect the
Liens with the priority purported to be created thereby on (i) a portion of the
Collateral (other than the Interest Payment Collateral) thereunder that is in
excess of $10.0 million, subject to Liens permitted pursuant to Section 7.4 or
(ii) the Collateral Account; and
(12) the Company or any Guarantor shall assert in writing that any
Lien created under the Pledge and Security Agreements is invalid or
unenforceable.
(b) A default under clauses (4) or (5) of Subsection 8.1(a) is not an Event
of Default until the Trustee notifies the Company, or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding notify the
Company and the Trustee, in writing of the default, and the Company does not
cure the default within the time specified in clauses (4) or (5) of Subsection
8.1(a) after receipt of such notice. The notice given pursuant to this Section
8.1 must specify the default, demand that it be remedied and state that the
notice is a Notice of Default. When any default under this Section 8.1 is cured,
it ceases.
The Trustee shall not be charged with knowledge of any Event of Default
unless written notice thereof shall have been given to a Trust Officer at the
Corporate Trust Office of the Trustee by the Company, a Paying Agent, any Holder
or any agent of any Holder or unless it acquires actual knowledge of such Event
of Default in the course of performing other duties pursuant to this Indenture.
SECTION 8.2. ACCELERATION.
If an Event of Default (other than an Event of Default specified in clause
(8) or (9) of Subsection 8.1(a)) occurs and is continuing with respect to the
Company, the Trustee may, by notice to the Company, or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding may, by notice
to the Company and the Trustee, declare the principal amount, and all accrued
and unpaid interest, and any premium to the date of acceleration on the Notes
then outstanding (if not then due and payable) to be due
53
and payable upon any such declaration, and the same shall become and be
immediately due and payable. If an Event of Default specified in clause (8) or
(9) of Subsection 8.1(a) occurs and is continuing with respect to the Company,
the principal amount, and all accrued and unpaid interest, and any premium on
the Notes then outstanding 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. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may rescind an acceleration and its
consequences if (a) all existing Events of Default, other than the nonpayment of
the principal of the Notes which has become due solely by such declaration of
acceleration, have been cured or waived; (b) to the extent the payment of such
interest is lawful, interest (calculated at the rate per annum borne by the
Notes) on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid;
(c) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; and (d) all payments due to the Trustee and any
predecessor Trustee under Section 9.7 have been made. No such rescission shall
affect any subsequent default or impair any right consequent thereto. In the
event of a declaration of acceleration of the Notes because an Event of Default
has occurred and is continuing as a result of the acceleration of any
Indebtedness described in clause (6) of Section 8.1 above or a payment default
on such Indebtedness, the declaration of acceleration of the Notes shall be
automatically annulled if the holders of such Indebtedness described in
subclause (A) above have rescinded the declaration of acceleration in respect of
such Indebtedness within 30 days of the date of such declaration or waived the
payment default, as applicable, and if: (i) the annulment of the acceleration of
Notes would not conflict with any judgment or decree of a court of competent
jurisdiction; and (ii) all existing Events of Default, except nonpayment of
principal or interest on the Notes that became due solely because of the
acceleration of the Notes, have been cured or waived.
SECTION 8.3. OTHER REMEDIES.
(a) If an Event of Default occurs and is continuing, the Trustee may, but
shall not be obligated to, pursue any available remedy by proceeding at law or
in equity to collect the payment of the principal of or interest and any premium
on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law.
SECTION 8.4. WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.
Subject to Sections 8.7 and 11.2, the Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may
waive an existing default or Event of Default and its consequences, except a
default or Event of Default in the payment of the principal of, premium, or
interest on any Note or any default or Event of Default in respect of any
provision of this Indenture or the Notes which, under Section 11.2, cannot be
modified or amended without the consent of the Holder of each Note affected.
When a default or Event of Default is waived, it is cured and ceases; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
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SECTION 8.5. CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of another Holder or the Trustee, or that may involve
the Trustee in personal liability unless the Trustee is offered indemnity
reasonably satisfactory to it; provided, however, that the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction.
SECTION 8.6. LIMITATIONS ON SUITS.
(a) A Holder may not pursue any remedy with respect to this Indenture or
the Notes (except actions for payment of overdue principal, premium, if any, or
interest) unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Notes then outstanding.
(b) A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over such other
Noteholder.
SECTION 8.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of the principal of the Redemption Price,
the Change of Control Repurchase Price or any interest on the Note, on or after
the respective due dates expressed in the Note and this Indenture and to bring
suit for the enforcement of any such payment on or after such respective dates,
is absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
SECTION 8.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in the payment of principal or interest specified in
clause (1) or (2) of Subsection 8.1(a) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or another obligor on the Notes for the whole amount of principal and
accrued interest remaining unpaid, together with, to the extent that payment of
such interest is lawful interest on overdue principal and overdue installments
of interest in each case at the rate per annum borne by the Notes and such
further amount as shall be sufficient to cover the costs and expenses of
collection,
55
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
SECTION 8.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceedings relative to the Company (or any other obligor on the
Notes), its creditors or its property and shall be entitled and empowered to
collect and receive any money or other property payable or deliverable on any
such claims and to distribute the same, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 9.7, and to the extent that such payment of the reasonable compensation,
expenses, disbursements and advances in any such proceedings shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
property which the Holders may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or, on behalf of any Holder, to authorize, accept or
adopt any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 8.10. PRIORITIES.
(a) If the Trustee collects any money pursuant to this Article 8, it shall
pay out the money in the following order:
(1) First, to the Trustee for amounts due under Section 9.7;
(2) Second, to Holders for amounts due and unpaid on the Notes for
principal 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;
(3) Third, to such other Person or Persons, if any, to the extent
entitled thereto; and
(4) Fourth, the balance, if any, to the Company.
(b) The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 8.10.
SECTION 8.11. 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
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Section 8.11 does not apply to a suit made by the Trustee, a suit by a Holder
pursuant to Section 8.7, or a suit by Holders of more than 10% in aggregate
principal amount of the Notes then outstanding.
SECTION 8.12. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not 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 Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 8.13. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 8.14. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes in the last paragraph of Section
3.08, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 8.15. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 9
TRUSTEE
SECTION 9.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
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(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties as are specifically set
forth in this Indenture and no others; and
(2) 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. The Trustee,
however, shall examine any certificates and opinions which by any provision
hereof are specifically required to be delivered to the Trustee 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:
(1) this paragraph does not limit the effect of Subsection (b) of this
Section 9.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) 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 8.5.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise Incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers
unless the Trustee shall have received adequate indemnity in its opinion against
potential costs and liabilities Incurred by it relating thereto.
Every provision of this Indenture that in any way relates to the Trustee is
subject to Subsections (a), (b), (c) and (d) of this Section 9.1.
(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 Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 9.2. RIGHTS OF TRUSTEE.
(a) Subject to Section 9.1:
(1) The Trustee may rely conclusively 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.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to Section
12.4(b). The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers' Certificate or Opinion.
(3) The Trustee may act through its agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care by it hereunder.
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(4) 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 conferred under this Indenture.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any such action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(6) 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 reasonably satisfactory to the
Trustee against the costs, expenses and liabilities which might be Incurred by
it in compliance with such request or direction.
(7) 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, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall Incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(8) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer of the Trustee has actual knowledge
thereof or unless written notice from the Company or the Holders of at least 25%
of the aggregate principal amount of the then outstanding Notes of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office, and such notice references the Notes and this Indenture.
(9) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, including, without limitation as Paying Agent and Registrar, and to
each agent, custodian and other Person employed to act hereunder.
(10) the Trustee may request that the Company deliver a certificate
setting forth the names of individuals and/or titles of officers authorized at
such time to take specified actions pursuant to this Indenture
SECTION 9.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or an Affiliate of the
Company with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights. However, the Trustee is subject to Sections 9.10
and 9.11.
SECTION 9.4. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Notes, it shall not be accountable for the Company's use of the
proceeds from the Notes, and it shall not be responsible for any statement in
the Notes other than its certificate of authentication.
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SECTION 9.5. NOTICE OF DEFAULT OR EVENTS OF DEFAULT.
If a default or an Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each Noteholder notice of all
uncured defaults or Events of Default known to it within 30 days after the
Trustee becomes aware of such defaults or Events of Default. However, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding notice is in the interests of
Noteholders, except in the case of a default or an Event of Default in payment
of the principal of, or premium, if any, or interest on any Note when due or in
the payment of any redemption or purchase obligation.
SECTION 9.6. HOLDER'S LIST AND REPORTS BY TRUSTEE TO HOLDERS.
(a) The Company will furnish or cause to be furnished to the Trustee: (1)
quarterly, not more than 15 days after each Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Noteholders as of such Record Date; and (2) at such other times as the Trustee
may request in writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished; excluding from any such list
names and addresses received by the Trustee in its capacity as Registrar;
provided, however, that no such list need be furnished so long as the Trustee is
acting as Registrar.
(b) (1) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 9.6(a) and the names and
addresses of Noteholders received by the Trustee in its capacity as Registrar.
The Trustee may destroy any list furnished to it as provided in Section 9.6(b)
upon receipt of a new list so furnished.
(2) The rights of Noteholders to communicate with other Noteholders
with respect to their rights under this Indenture or under the Notes, and the
corresponding rights and duties of the Trustee, shall be as provided by the TIA.
(3) Every Noteholders of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Noteholders made pursuant
to the TIA.
(c) If a report is required by TIA Section 313, within 60 days after each
August 1, beginning with October 15, 2006, the Trustee shall mail to each
Noteholder a brief report dated as of such October 15 that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Section 313(b)(2) and
(c).
(d) A copy of each report at the time of its mailing to Noteholders shall
be mailed to the Company and, to the extent required by the TIA, filed with the
SEC, and each stock exchange, if any, on which the Notes are listed. The Company
shall notify the Trustee whenever the Notes become listed on any stock exchange
or listed or admitted to trading on any quotation system and any changes in the
stock exchanges or quotation systems on which the Notes are listed or admitted
to trading and of any delisting thereof.
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SECTION 9.7. COMPENSATION AND INDEMNITY.
(a) The Company shall pay to the Trustee from time to time such
compensation (as agreed to from time to time by the Company and the Trustee in
writing) for its services (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances Incurred or made by it. Such expenses may
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
(b) The Company shall indemnify the Trustee or any predecessor Trustee
(which for purposes of this Section 9.7 shall include its officers, directors,
employees and agents) for, and hold it harmless against, any and all loss,
liability, damage, claim or expense including taxes (other than taxes based
upon, measured by or determined by the income of the Trustee), (including
reasonable legal fees and expenses) Incurred by it in connection with the
acceptance or administration of its duties under this Indenture or any action or
failure to act as authorized or within the discretion or rights or powers
conferred upon the Trustee hereunder including the reasonable costs and expenses
of the Trustee and its counsel in defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity.
(c) The Company need not reimburse the Trustee for any expense or indemnify
it against any loss or liability Incurred by it resulting from its gross
negligence or bad faith.
(d) To secure the Company's payment obligations in this Section 9.7, the
Trustee shall have a senior claim to which the Notes are hereby made subordinate
on all money or property held or collected by the Trustee to pay the principal
of and interest on particular Notes. The obligations of the Company under this
Section 9.7 shall survive the satisfaction and discharge of this Indenture or
the resignation or removal of the Trustee.
(e) When the Trustee Incurs expenses or renders services after an Event of
Default specified in clause (6) or (7) of Subsection 8.1(a) occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law. The provisions of this Section shall
survive the termination of this Indenture.
SECTION 9.8. REPLACEMENT OF TRUSTEE.
(a) The Trustee may resign by so notifying the Company and to the Holders
of Notes. The Holders of a majority in aggregate principal amount of the Notes
then outstanding may remove the Trustee at any time by so notifying the Trustee
and may, with the Company's written consent, appoint a successor Trustee. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 9.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
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(b) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. The resignation or removal of a Trustee shall not be effective until a
successor Trustee shall have delivered the written acceptance of its appointment
as described below.
(c) If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of 10% in principal amount of the Notes then outstanding may petition
any court of competent jurisdiction for the appointment of a successor Trustee
at the expense of the Company.
(d) The Holders of a majority in aggregate principal amount of the Notes
then outstanding may upon removal of the Trustee nominate a successor trustee
that shall be deemed appointed as successor trustee unless, within ten Business
Days after notice to the Company of such nomination, the Company objects
thereto, in which case the Trustee so removed or any other Holder, or if such
Trustee so removed or any Holder fails to act, the Company, upon the terms and
conditions provided herein, may petition any court of competent jurisdiction for
an appointment of a successor trustee.
(e) If the Trustee fails to comply with Section 9.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee and be released from its obligations (exclusive of any
liabilities that the retiring Trustee may have Incurred while acting as Trustee)
hereunder, 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. A successor Trustee shall mail
notice of its succession to each Holder.
(g) A retiring Trustee shall not be liable for the acts or omissions of any
successor Trustee after its succession.
(h) Notwithstanding replacement of the Trustee pursuant to this Section
9.8, the Company's obligations under Section 9.7 shall continue for the benefit
of the retiring Trustee.
SECTION 9.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust assets (including the administration
of this Indenture) to, another corporation, the resulting, surviving or
transferee corporation, without any further act, shall be the successor Trustee,
provided such transferee corporation shall qualify and be eligible under Section
9.10. Such successor Trustee shall promptly mail notice of its succession to the
Company and each Holder.
SECTION 9.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall always satisfy the requirements of paragraphs (1), (2)
and (5) of TIA Section 310(a). The Trustee (or its parent holding company) shall
have a combined capital and surplus of at least $50,000,000. If at any time the
Trustee shall cease to satisfy any such requirements, it shall resign
immediately in the manner and with the effect specified in this Article 9. The
Trustee shall be subject to the provisions of TIA Section 310(b). Nothing herein
shall prevent the Trustee from filing with the SEC the application referred to
in the penultimate paragraph of TIA Section 310(b).
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SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
SECTION 9.12. DISQUALIFICATION; CONFLICTING INTERESTS
If the Trustee has or shall acquire a conflicting interest within the
meaning of the TIA, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the TIA and this Indenture.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE.
(a) This Indenture shall cease to be of further effect (except as to
registration of transfer herein expressly provided for and as further provided
below), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered (other than
(i) Notes which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 2.7 and (ii) Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 10.3) have been delivered to the Trustee for cancellation;
or
(B) all such Notes not theretofore delivered to the Trustee for
cancellation,
(i) have become due and payable,
(ii) will become due and payable at the Final Maturity Date
within one year, or
(iii) are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company;
(2) and the Company has deposited with the Trustee or a Paying Agent
(other than the Company or any of its Affiliates) as trust funds in trust for
the purpose of and in an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the
case of Notes which have become due and payable) or to the Final Maturity Date
or Redemption Date, as the case may be;
(3) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
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(4) the Company has delivered irrevocable instructions to the Trustee
under this Indenture to apply the deposited money toward the payment of the
Notes at maturity or the Redemption Date, as the case may be;
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
relating to the satisfaction and discharge of this Indenture have been complied
with.
(b) Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.7, and, if money shall
have been deposited with the Trustee pursuant to clause (2) of Subsection
10.1(a), the provisions of Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.12 and 12.5,
Article 3, the last paragraph of Section 6.2 and this Article 10, shall survive
until the Notes have been paid in full.
SECTION 10.2. APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 10.3, the Trustee or a Paying Agent
shall hold in trust, for the benefit of the Holders, all money deposited with it
pursuant to Section 10.1 and shall apply the deposited money in accordance with
this Indenture and the Notes to the payment of the principal of and interest on
the Notes.
SECTION 10.3. REPAYMENT TO COMPANY.
(a) The Trustee and each Paying Agent shall promptly pay to the Company
upon request any excess money (1) deposited with them pursuant to Section 10.1
and (2) held by them at any time.
(b) The Trustee and each Paying Agent shall, subject to applicable
abandoned property laws, pay to the Company upon request any money held by them
for the payment of principal or interest that remains unclaimed for two years
after a right to such money has matured; provided, however, that the Trustee or
such Paying Agent, before being required to make any such payment, may at the
expense of the Company cause to be mailed to each Holder entitled to such money
notice that such money remains unclaimed and that after a date specified
therein, which shall be at least 30 days from the date of such mailing, any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Holders entitled to money must look to the Company
for payment as general creditors unless an applicable abandoned property law
designates another person.
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SECTION 10.4. REINSTATEMENT. If the Trustee or any Paying Agent is unable
to apply any money in accordance with Section 10.2 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, then
the Company's obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 10.1 until
such time as the Trustee or such Paying Agent is permitted to apply all such
money in accordance with Section 10.2; provided, however, that if the Company
has made any payment of the principal of or interest on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive any such payment from the money held by
the Trustee or such Paying Agent.
ARTICLE 11
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 11.1. WITHOUT CONSENT OF HOLDERS.
(a) The Company and the Trustee may amend or supplement this Indenture or
the Notes without notice to or consent of any Noteholder for the purpose of:
(1) adding to the Company's covenants for the benefit of the Holders;
(2) surrendering any right or power conferred upon the Company;
(3) complying with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA, if required;
(4) curing any ambiguity, error, inconsistency or correcting or
supplementing any defective provision contained in this Indenture provided that
such action pursuant to this clause (4) shall not adversely affect the interests
of the Holders in any material respect;
(5) adding or modifying any other provisions which the Company and the
Trustee may deem necessary or desirable and which will not adversely affect the
interests of the Holders in any material respect;
(6) complying with the provisions of this Indenture in the event of a
merger, consolidation or transfer of assets (including the provisions of
Sections 7.5 and 7.6); or
(7) providing for uncertificated Notes in addition to the Certificated
Notes so long as such uncertificated Notes are in registered form for purposes
of the Internal Revenue Code of 1986, as amended.
SECTION 11.2. WITH CONSENT OF HOLDERS.
(a) The Company and the Trustee may amend or supplement this Indenture or
the Notes with the written consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding or by the adoption of a
resolution by the Holders of at least a majority in aggregate principal amount
of the Notes represented at the meeting. The Holders of at least a majority in
aggregate principal amount of the Notes then outstanding may waive compliance in
a particular instance by the Company with any provision of this Indenture or the
Notes without notice to any Holder. However, notwithstanding the foregoing but
subject to Section 11.4, without the written consent of each Holder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 8.4, may
not:
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(1) change the maturity of the principal of or any installment of
interest on, with respect to any Note;
(2) reduce the principal amount of, premium, if any, or interest on,
or the amount payable upon redemption or purchase pursuant to Article 3, with
respect to any Note or amend or modify in any manner adverse to the Holders the
Company's obligation to make such payments, whether through an amendment or
waiver of provisions in the covenants, definitions or otherwise;
(3) reduce the interest rate or interest with respect to any Note;
(4) change the currency of payment of principal of, premium, if any,
or interest on any Note;
(5) impair the right to institute suit for the enforcement of any
payment on or with respect to any Note;
(6) modify any of the provisions of this Section 11.2 or Section 8.4,
except to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each outstanding Note
affected thereby;
(7) reduce the percentage of the principal amount of the outstanding
Notes the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver provided
for in this Indenture;
(8) change the ranking of the Notes or any Note Guarantee in a manner
adverse to the Holders, provided that securing an asset to a greater or lesser
extent shall not be deemed to change the ranking of the Notes for the purposes
of this clause (8);
(9) modify the right of the Holder to cause the Company to redeem the
Notes upon a Change of Control or the obligation of the Company to make and
consummate an Asset Sale Offer or modify any of the provisions or definitions
with respect thereto;
(10) release any Guarantor from any of its obligations under its Note
Guarantee or this Indenture otherwise than in accordance with the terms of this
Indenture and the Pledge and Security Agreements; or
(11) release all or substantially all of the Collateral except as
permitted by the terms of the Pledge and Security Agreements.
(b) After an amendment, supplement or waiver under this Section 11.2
becomes effective, the Company shall promptly mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
SECTION 11.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as in effect at the date of such amendment or supplement.
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SECTION 11.4. REVOCATION AND EFFECT OF CONSENTS.
(a) Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
its Note or portion of a Note if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver becomes effective.
(b) After an amendment, supplement or waiver becomes effective, it shall
bind every Noteholder, unless it makes a change described in any of clauses (1)
through (14) of Subsection 11.2(a). In that case the amendment, supplement or
waiver shall bind each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note.
SECTION 11.5. NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms.
SECTION 11.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article 11 if the amendment or supplemental indenture does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, in its sole discretion, but need not sign it. In
signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be entitled to receive and, subject to Section 9.1, shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
stating that such amendment or supplemental indenture is authorized or permitted
by this Indenture. The Company may not sign an amendment or supplemental
indenture until the Board of Directors approves it.
SECTION 11.7. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
ARTICLE 12 COLLATERAL AND SECURITY
SECTION 12.1. PLEDGE AND SECURITY AGREEMENTS.
All obligations of (a) the Company under this Indenture, the Notes and the
Purchase Agreement, including, without limitation, due and punctual payment of
the principal of and interest on the Notes when and as the same shall be due and
payable, whether on an interest payment date, at maturity, by acceleration,
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repurchase, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes and the prompt payment and performance of all other
obligations of the Company to the Holders of Notes or the Trustee under this
Indenture, the Purchase Agreement and the Notes, and (b) each Guarantor under
this Indenture, including its guarantee under Article 13 of this Indenture or
under any Note Guarantee of the obligations of the Company, including, without
limitation, the prompt payment of the principal of, premium and interest on, the
Notes in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and the prompt payment or performance of all other
obligations of the Company to the Holders or the Trustee under this Indenture or
under the Notes, all according to the terms hereunder or thereunder (all such
obligations, collectively, the "Secured Obligations"), are secured as provided
in the Pledge and Security Agreements which the Company and the Guarantors have
entered into simultaneously with the execution of this Indenture and which are
attached as Exhibit C and Exhibit D, respectively hereto (it being understood
and agreed that, notwithstanding anything that may be to the contrary herein,
neither this Indenture nor the Pledge and Security Agreements shall require or
create a pledge of or other security interest in (x) more than 65% of the
outstanding capital stock of, or other equity interests in, any Foreign
Subsidiary owned by a Domestic Restricted Subsidiary, or (y) any asset of a
Foreign Subsidiary). Each Holder of Notes, by its acceptance thereof, consents
and agrees to the terms of the Pledge and Security Agreements (including,
without limitation, the provisions providing for foreclosure and release of
Collateral) as the same may be in effect or may be amended from time to time in
accordance with their terms and authorizes and directs the Collateral Agent to
enter into the Pledge and Security Agreements and to perform its obligations and
exercise its rights thereunder in accordance therewith. The Company will deliver
to the Trustee copies of all documents, agreements and instruments delivered to
the Collateral Agent pursuant to the Pledge and Security Agreements, and will do
or cause to be done all such acts and things as may be necessary or proper, or
as may be required by the provisions of the Pledge and Security Agreements, to
assure and confirm to the Trustee and the Collateral Agent the security interest
in the Collateral contemplated hereby, by the Pledge and Security Agreements or
any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture and of the Notes
secured hereby, according to the intent and purposes herein expressed. The
Company and its Subsidiaries may grant security for Pari Passu Indebtedness with
an equal priority to the security granted to the Holders of the Notes. The
Company will take, and will cause its Subsidiaries to take, upon request of the
Trustee, any and all actions reasonably required to cause the Pledge and
Security Agreements to create and maintain, as security for the obligations of
the Company and the Guarantors hereunder, a valid and enforceable perfected
first priority Lien in and on all the Collateral, in favor of the Collateral
Agent for the benefit of the Holders of Notes and Pari Passu Indebtedness, if
any, superior to and prior to the rights of all third Persons and subject to no
Liens other than Permitted Liens and Liens permitted pursuant to Section 7.4 of
this Indenture. Upon the issuance of any Pari Passu Indebtedness, the Trustee
shall enter into an intercreditor agreement, on behalf of the Holders of Notes,
with the holders of such Pari Passu Indebtedness setting forth the relative
rights of the Holders of Notes and the holders of the Pari Passu Indebtedness on
terms reasonably acceptable to the Noteholders and the holders of the Pari Passu
Indebtedness; provided, that such intercreditor agreement shall (i) acknowledge
and confirm that the Notes and the Pari Passu Indebtedness (together, the "First
Priority Lien Obligations") are secured equally and ratably by a first priority
lien on the Collateral, (ii) provide for allocations and distributions of
proceeds of the Collateral on a pro rata basis as between the Noteholders and
the holders of the Pari Passu Indebtedness, and (iii) provide that any actions
that the Collateral Agent is required to take at the direction of Holders of
Notes, or any consents or actions required to be taken by the Holders of Notes,
shall be taken at the direction of or by, as applicable, the holders of a
majority in interest of the First Priority Lien Obligations.
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SECTION 12.2. RECORDING AND OPINIONS.
(a) The Company will furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel:
(1) stating that, in the opinion of such counsel, the Pledge and
Security Agreements create valid and effective security interests in favor of
the Collateral Agent for the benefit of the Holders and Pari Passu Indebtedness,
if any, in the Collateral as security for the Secured Obligations;
(2) stating that, in the opinion of such counsel, all requisite
filings of financing statements and all other filings, recordings and
registrations have been made and the security interests in favor of the
Collateral Agent for the benefit of the Holders and Pari Passu Indebtedness, if
any, in the Collateral are perfected;
(3) stating that, in the opinion of such counsel, all certificates
representing Equity Interests pledged pursuant to the Pledge and Security
Agreements have been delivered to the Collateral Agent for the benefit of the
Holders and Pari Passu Indebtedness, if any, indorsed in blank by an effective
endorsement or accompanied by undated stock powers or other appropriate
instrument of transfer, the security interests in favor of the Collateral Agent
for the benefit of the Holders and Pari Passu Indebtedness, if any, in such
Equity Interests are perfected, and assuming that the Collateral Agent has no
notice of any adverse claim to such Equity Interests, the Collateral Agent has
acquired the security interest in such Equity Interests free of adverse claims;
and
(4) as to such other matters, and otherwise in form and substance,
reasonably satisfactory to the Trustee.
(b) The Company will furnish to the Collateral Agent and the Trustee on
March 31 in each year beginning with March 31, 2006, an Opinion of Counsel,
dated as of such date, either:
(1) (A) stating that, in the opinion of such counsel, action has been
taken with respect to the recording, registering, filing, re-recording,
re-registering and re-filing of all supplemental indentures, financing
statements, continuation statements or other instruments of further assurance as
is necessary to maintain the Liens of the Pledge and Security Agreements and
reciting with respect to the security interests in the Collateral the details of
such action or referring to prior Opinions of Counsel in which such details are
given, and (B) stating that, in the opinion of such counsel, based on relevant
laws as in effect on the date of such Opinion of Counsel, all financing
statements and continuation statements have been executed and filed that are
necessary as of such date and during the succeeding 12 months fully to preserve
and protect, to the extent such protection and preservation are possible by
filing, the rights of the Holders of Notes and Pari Passu Indebtedness, if any,
and the Collateral Agent and the Trustee hereunder and under the Pledge and
Security Agreements with respect to the security interests in the Collateral; or
(2) stating that, in the opinion of such counsel, no such action is
necessary to maintain such Liens and assignment.
(c) The Company will otherwise comply with the provisions of TIA Section
314(b).
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SECTION 12.3. RELEASE OF COLLATERAL.
(a) No Collateral may be released from the Liens and security interests
created by the Pledge and Security Agreements pursuant to the provisions of the
Pledge and Security Agreements unless the certificate required by this Section
12.3 has been delivered to the Collateral Agent. Notwithstanding the foregoing,
the Liens and security interests created by the Pledge and Security Agreements
shall be released for any Collateral sold in connection with any Asset Sale
permitted pursuant to the terms of this Indenture. In connection with the
release of any security interests in any Collateral sold in connection with any
Asset Sale permitted pursuant to the terms of this Indenture, such release of
Collateral shall be made pursuant to a release in form and substance
satisfactory to the Collateral Agent.
(b) At any time when a Default or Event of Default has occurred and is
continuing and the maturity of the Notes has been accelerated (whether by
declaration or otherwise) and the Trustee has delivered a notice of acceleration
to the Collateral Agent, no release of Collateral pursuant to the provisions of
the Pledge and Security Agreements will be effective as against the Holders of
Notes.
(c) The release of any Collateral from the terms of this Indenture and the
Pledge and Security Agreements will not be deemed to impair the security under
this Indenture in contravention of the provisions hereof if and to the extent
the Collateral is released pursuant to the terms of the Pledge and Security
Agreements. To the extent applicable, the Company will cause TIA Section 313(b),
relating to reports, and TIA Section 314(d), relating to the release of property
or securities from the Liens and security interests of the Pledge and Security
Agreements and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interests of the Pledge and
Security Agreements, to be complied with. Any certificate or opinion required by
TIA Section 314(d) may be made by an Officer of the Company except in cases
where TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person will be an independent engineer, appraiser or
other expert selected or approved by the Trustee and the Collateral Agent in the
exercise of reasonable care.
SECTION 12.4. CERTIFICATES OF THE COMPANY.
The Company will furnish to the Trustee and the Collateral Agent, prior to
each proposed release of Collateral pursuant to the Pledge and Security
Agreements:
(1) all documents required by TIA Section 314(d); and
(2) an Opinion of Counsel, which may be rendered by internal counsel
to the Company, to the effect that such accompanying documents constitute all
documents required by TIA Section 314(d).
The Trustee may, to the extent permitted by Sections 9.1 and 9.2 hereof,
accept as conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such documents and such Opinion of Counsel.
SECTION 12.5. CERTIFICATES OF THE TRUSTEE.
In the event that the Company wishes to release Collateral in accordance
with the Pledge and Security Agreements and has delivered the certificates,
opinion and documents required by the Pledge and Security Agreements, Sections
12.3 and 12.4 hereof and under TIA Section 314(d), then the Trustee will deliver
a certificate to the Collateral Agent setting forth such determination.
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SECTION 12.6. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
PLEDGE AND SECURITY AGREEMENTS.
Subject to the provisions of Section 9.1 and 9.2 hereof, the Trustee may,
in its sole discretion and without the consent of the Holders of Notes, direct,
on behalf of the Holders of Notes, the Collateral Agent to take all actions it
deems necessary or appropriate in order to:
(1) enforce any of the terms of the Pledge and Security Agreements;
and
(2) collect and receive any and all amounts payable in respect of the
obligations of the Company hereunder.
The Trustee will have power to institute and maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the Collateral
by any acts that may be unlawful or in violation of the Pledge and Security
Agreements or this Indenture, and such suits and proceedings as the Trustee may
deem expedient to preserve or protect its interests and the interests of the
Holders of Notes in the Collateral (including power to institute and maintain
suits or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders of Notes or of the Trustee).
SECTION 12.7. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
PLEDGE AND SECURITY AGREEMENTS.
The Trustee is authorized to receive any funds for the benefit of the
Holders of Notes distributed under the Pledge and Security Agreements, and to
make further distributions of such funds to the Holders of Notes according to
the provisions of this Indenture.
SECTION 12.8. TERMINATION OF SECURITY INTEREST.
Upon the payment in full of all obligations of the Company under this
Indenture and the Notes, or upon Legal Defeasance, the Trustee will, at the
request of the Company, deliver a certificate to the Collateral Agent stating
that such obligations have been paid in full, and instruct the Collateral Agent
to release the Liens pursuant to this Indenture and the Pledge and Security
Agreements.
ARTICLE 13
NOTE GUARANTEES
SECTION 13.1. GUARANTEE.
(a) Subject to this Article 13, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that:
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(1) the principal of, premium and interest on (including, without
limitation, all interest that accrues after the commencement of any proceeding
or following any event described in Section 8.1(a)(8) hereof, whether or not the
payment of such interest is unenforceable or is not allowable due to the
existence of such proceeding or following such event), the Notes will be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful, all fees, commissions, expense reimbursements,
indemnifications and all other amounts due or to become due under Notes or the
Indenture and all other obligations of the Company to the Holders or the Trustee
hereunder, or under the Notes will be promptly paid in full or performed, all in
accordance with the terms of this Indenture and the Notes; and
(2) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Note Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, will be reinstated in full
force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (2) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) will forthwith become due and payable by the Guarantors for
the purpose of this Note Guarantee. The Guarantors will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee.
SECTION 13.2. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or
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conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to any Note Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor will be limited to the maximum amount
that will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 13, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
SECTION 13.3. EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To evidence its Note Guarantee set forth in Section 13.1 hereof, each
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form attached as Exhibit B hereto will be endorsed by an Officer of such
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in Section
13.1 hereof will remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note Guarantee
no longer holds that office at the time the Trustee authenticates the Note on
which a Note Guarantee is endorsed, the Note Guarantee will be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Note Guarantee set forth in this
Indenture on behalf of the Guarantors.
In the event that the Pledged Entities or any of their respective Domestic
Restricted Subsidiaries creates or acquires any Domestic Restricted Subsidiary
after the date of this Indenture, if required by Section 7.10 hereof, the
Company will cause such Domestic Restricted Subsidiary to comply with the
provisions of Section 7.10 hereof and this Article 13, to the extent applicable.
SECTION 13.4. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Except as otherwise provided in Section 13.5 hereof, no Guarantor may sell
or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless:
(1) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(2) either:
(A) subject to Section 13.5 hereof, the Person acquiring the
property in any such sale or disposition or the Person formed by or surviving
any such consolidation or merger unconditionally assumes all the obligations of
that Guarantor under this Indenture and its Note Guarantee on the terms set
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forth herein or therein, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee; or
(B) the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture,
including without limitation, Section 7.2 hereof.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person will succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued will in all respects have the same legal rank and benefit
under this Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.
Except as set forth in Article 7 hereof, and notwithstanding clauses 2(A)
and (B) above, nothing contained in this Indenture or in any of the Notes will
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or will prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
SECTION 13.5. RELEASES.
(a) The Note Guarantee of a Guarantor (other than (x) the Company and (y)
any Subsidiary of the Company that owns Equity Interests in the Company) shall
be released:
(i) in connection with any transaction permitted by this Indenture
after which such Guarantor would no longer constitute a Restricted
Subsidiary of the Company, if the sale of Capital Stock, if any, complies
with Section 7.2 or Section 7.11;
(ii) if the Company properly designates any Restricted Subsidiary that
is a Guarantor as an Unrestricted Subsidiary under this Indenture;
(iii) upon satisfaction and discharge of the Notes as set forth under
or upon defeasance of the Notes as set forth under Article 14; or
(iv) solely in the case of a Note Guarantee created pursuant to
Section 7.9, upon the release or discharge of the Guarantee which resulted
in the creation of such Note Guarantee pursuant to Section 7.9, except a
discharge or release by or as a result of payment under such Guarantee.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under this Indenture
as provided in this Article 13.
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ARTICLE 14 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.1. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of the Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 14.2 or 14.3 be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article 14.
SECTION 14.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 14.1 hereof of the option
applicable to this Section 14.2, the Company shall, subject to the satisfaction
of the conditions set forth in Section 14.4 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes and all
obligations of the Guarantors shall be deemed to have been discharged with
respect to their obligations under the Note Guarantees on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Company and the Guarantors shall
be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes and Note Guarantees, respectively, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 14.5 and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Notes to receive solely from the trust fund described
in Section 14.4, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any and interest on such Notes when
such payments are due, (b) the Company's obligations with respect to such Notes
under Article 2 concerning issuing temporary Notes, registration of Notes and
mutilated, destroyed, lost or stolen Notes and the Company's obligations under
Section 8.1, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's and the Guarantors' obligations in
connection therewith and (d) this Article 14. Subject to compliance with this
Article 14, the Company may exercise its option under this Section 14.2
notwithstanding the prior exercise of its option under Section 14.3 hereof.
SECTION 14.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 14.1 hereof of the option
applicable to this Section 14.3, the Company and the Guarantors shall, subject
to the satisfaction of the conditions set forth in Section 14.4 hereof, be
released from their obligations under the covenants contained in Sections 7.1,
7.2,7.3, 7.4, 7.5, 7.7, 7.8 and 7.9 with respect to the outstanding Notes on and
after the date the conditions set forth in Section 14.4 are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed
not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company and
the Guarantors may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such
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covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 8.1, but, except as specified above, the remainder of this Indenture and
such Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 14.1 of the option applicable to this Section 14.3, subject to the
satisfaction of the conditions set forth in Section 14.4, Sections 8.1(a)(3) and
(4) shall not constitute Events of Default.
SECTION 14.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
(A) The following shall be the conditions to the application of
either Section 14.2 or 14.3 to the outstanding Notes:
(i) the Company must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such 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
on the outstanding Notes on the Stated Maturity or on the applicable redemption
date, as the case may be, and the Company must specify whether the Notes are
being defeased to maturity or to a particular redemption date;
(ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (b) since the Issue Date,
there has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the 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;
(iii) in the case of Covenant Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that the Holders of the 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 shall have occurred and
be continuing either: (a) on the date of such deposit; or (b) insofar as Events
of Default from bankruptcy 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 to which the Company or any of its Restricted
Subsidiaries is a party or by which the Company or any of its Restricted
Subsidiaries is bound;
(vi) the Company must have delivered to the Trustee an
Opinion of Counsel to the effect that assuming no intervening bankruptcy of
either of the Company or any Guarantor between the date of deposit and the 91st
day following the deposit and assuming that no Holder is an "insider"
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of the Company under applicable bankruptcy law, after the 91st day following the
deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally, including Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code,
and Section 15 of the New York Debtor and Creditor Law;
(vii) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over the other creditors of the Company with the
intent of defeating, hindering, delaying or defrauding creditors of the Company
or others;
(viii) if the Notes are to be redeemed prior to their Stated
Maturity, the Company must deliver to the Trustee irrevocable instructions to
redeem all of the Notes on the specified redemption date; and
(ix) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent (other than the expiration of the 123-day period referred to in
Section 14.4(a)(vi)) relating to the Legal Defeasance or the Covenant Defeasance
have been complied with.
SECTION 14.5. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
(A) Subject to Section 14.6, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee pursuant to Section 14.4 in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium and interest, but such money need not
be segregated from other funds except to the extent required by law.
(B) The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 14.4 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
(C) Anything in this Article 14 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held by
it as provided in Section 14.4 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 14.4(a)), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 14.6. REPAYMENT TO THE COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
and interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its written request or (if then held by the Company)
shall be discharged from such trust;
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and the Holder of such Note shall thereafter look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
reasonable expense of the Company cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.
SECTION 14.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 14.2 or
14.3, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 14.2 or 14.3 and, in the case of a Legal Defeasance, the Guarantors'
obligations under their respective Note Guarantees shall be revised and
reinstated as though no deposit had occurred pursuant to Section 14.2, in each
case until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 14.2 or 14.3, as the case may be;
provided, however, that, if the Company make any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 15
MISCELLANEOUS
SECTION 15.1. TRUST INDENTURE ACT CONTROLS.
If any provision hereof limits, qualifies or conflicts with another
provision of the TIA which is required hereunder to be a part of and govern this
Indenture, the required provision shall control.
SECTION 15.2. NOTICES.
Any demand, authorization notice, request, consent or communication shall
be given in writing and delivered in person or mailed by first-class mail,
postage prepaid, addressed as follows or transmitted by facsimile transmission
(confirmed by delivery in person or mail by first-class mail, postage prepaid,
or by guaranteed overnight courier) to the following facsimile numbers:
If to the Company, to:
Clearwire Corporation
0000 Xxxx Xxxxxxxxxx Xxxx XX, Xxxxx #000
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
78
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No. (000) 000-0000
Telephone No.: (000) 000-0000
if to the Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx - 0 Xxxx
Xxx Xxxx, XX 00000
Attn: Corporate Trust Services
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Such notices or communications shall be effective when received.
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed by
first-class mail or delivered by an overnight delivery service to it at its
address shown on the register kept by the Primary Registrar.
Failure to mail a notice or communication to a Noteholder or any defect in
it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication to a Noteholder is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it.
SECTION 15.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Trustee shall comply with TIA Section 312(b) relating to Noteholder
communications. The Company, the Trustee, the Registrar and any other person
shall have the protection of TIA Section 312(c).
SECTION 15.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
(a) Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee at the
request of the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent (including any covenants, compliance with
which constitutes a condition precedent), if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent (including any covenants, compliance with
which constitutes a condition precedent) have been complied with.
79
(b) Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) 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;
(3) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant 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 15.5. RECORD DATE FOR VOTE OR CONSENT OF NOTEHOLDERS.
The Company (or, in the event deposits have been made pursuant to Section
10.1, the Trustee) may set a record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date shall not be
more than thirty (30) days prior to the date of the commencement of solicitation
of such action.
SECTION 15.6. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR.
The Trustee may make reasonable rules (not inconsistent with the terms of
this Indenture) for action by or at a meeting of Holders. Any Registrar or
Paying Agent may make reasonable rules for its functions.
SECTION 15.7. 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 15.8. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary of the Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 15.9. NO RECOURSE AGAINST OTHERS.
All liability described in paragraph 16 of the Notes of any director,
officer, employee or stockholder, as such, of the Company is waived and
released.
80
SECTION 15.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall bind
its successor. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 15.11. MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent the
same agreement.
SECTION 15.12. SEPARABILITY.
In case any provisions in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 15.13. TABLE OF CONTENTS, HEADINGS, ETC.
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 to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
[SIGNATURE PAGE FOLLOWS]
81
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of
the date and year first above written.
CLEARWIRE CORPORATION
By: /s/
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
CLEARWIRE LLC
By: /s/
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
FIXED WIRELESS HOLDINGS, LLC
By: /s/
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
NEXTNET WIRELESS, INC.
By: /s/
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/
------------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
CLEARWIRE SPECTRUM CORP.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
CLEARWIRE TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
CLEARWIRE COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
JONSSON COMMUNICATIONS, CORPORATION
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
NEXTNET WIRELESS ASIA, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
NEXTNET INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
UNISON WIRELESS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
XXXXX WIRELESS HONOLULU INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
EXHIBIT A
[FORM OF FACE OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO CLEARWIRE CORPORATION (THE "COMPANY") OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS NOTE IS A
GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.(1)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE
144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON
----------
(1) This paragraph should be included only if the Note is a Global Note.
WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION
OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
NOTES AT THE TIME OF TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE
IN VIOLATION OF THE FOREGOING RESTRICTIONS.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.(2)
FOR PURPOSES OF SECTIONS 1272, 1273 AND 0000 XX XXX XXXXXX XXXXXX INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), THIS NOTE IS ISSUED WITH ORIGINAL
ISSUE DISCOUNT. THE ISSUE DATE OF THIS NOTE IS [ ]. THIS NOTE WAS ISSUED AS PART
OF AN INVESTMENT UNIT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. IN
ADDITION, THIS NOTE IS SUBJECT TO UNITED STATES FEDERAL INCOME TAX REGULATIONS
GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF SECTIONS 1272,
1273 AND 1275 OF THE CODE, THE ISSUE PRICE OF THIS NOTE IS $[ ] PER $1,000 OF
PRINCIPAL AMOUNT AND THE COMPARABLE YIELD FOR THIS NOTE IS [ ] PERCENT PER
ANNUM, COMPOUNDED SEMI-ANNUALLY, WHICH WILL BE TREATED AS THE YIELD TO MATURITY
OF THIS NOTE FOR UNITED STATES FEDERAL INCOME TAX PURPOSES.
----------
(2) This paragraph should be included only if the Note is a Temporary Global
Note under Regulation S.
A-3
THE COMPANY AGREES, AND EACH HOLDER AND ANY BENEFICIAL OWNER OF THIS NOTE
BY ITS PURCHASE THEREOF WILL BE DEEMED TO HAVE AGREED, FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES, (1) TO TREAT THIS NOTE AS A CONTINGENT PAYMENT DEBT
INSTRUMENT THAT IS SUBJECT TO TREASURY REGULATIONS SECTION 1.1275-4 (THE
"CONTINGENT PAYMENT REGULATIONS"), (2) TO ACCRUE INTEREST WITH RESPECT TO THIS
NOTE AS ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES
ACCORDING TO THE "NONCONTINGENT BOND METHOD" DESCRIBED IN THE CONTINGENT PAYMENT
REGULATIONS AND (3) TO BE BOUND BY THE COMPANY'S DETERMINATION OF THE ISSUE
PRICE OF THIS NOTE AND THE "COMPARABLE YIELD" AND "PROJECTED PAYMENT SCHEDULE"
OF THIS NOTE, IN EACH CASE WITHIN THE MEANING OF THE CONTINGENT PAYMENT
REGULATIONS. THE COMPANY AGREES TO PROVIDE PROMPTLY TO THE HOLDER OF THIS NOTE,
UPON WRITTEN REQUEST, THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT, THE ISSUE
PRICE, THE ISSUE DATE, THE YIELD TO MATURITY, THE COMPARABLE YIELD AND THE
PROJECTED PAYMENT SCHEDULE WITH RESPECT TO THIS NOTE. ANY SUCH WRITTEN REQUEST
SHOULD BE SENT TO THE COMPANY AT THE FOLLOWING ADDRESS: CLEARWIRE CORPORATION,
0000 XXXX XXXXXXXXXX XXXX XX, XXXXX #000, XXXXXXXX, XXXXXXXXXX 00000, ATTENTION:
TREASURY DEPARTMENT, TELEPHONE NUMBER: (000) 000-0000.
THE HOLDER OF THIS NOTE IS ENTITLED TO THE BENEFITS OF A SECURITIES
PURCHASE AGREEMENT, DATED AS OF AUGUST 5, 2005 BY AND AMONG THE COMPANY, THE
GUARANTORS AND THE BUYERS REFERRED TO THEREIN (THE "SECURITIES PURCHASE
AGREEMENT") AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY
WITH THE PROVISIONS OF SUCH SECURITIES PURCHASE AGREEMENT. THE HOLDER OF THIS
NOTE IS ENTITLED TO THE BENEFITS OF AN INDENTURE, DATED AS OF AUGUST 5, 2005 BY
AND AMONG THE COMPANY, THE GUARANTORS AND THE TRUSTEE (THE "INDENTURE") AND, BY
ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS
OF SUCH INDENTURE. NO TRANSFER OF THIS NOTE SHALL BE MADE WITHOUT COMPLYING WITH
THE PROVISIONS OF THE INDENTURE.
A-4
CLEARWIRE CORPORATION
CUSIP: __________ R-______
SENIOR NOTES DUE 2010
Clearwire Corporation, a Delaware corporation (the "Company", which term
shall include any successor corporation under the Indenture referred to on the
reverse hereof), promises to pay to ___________ _________________, or registered
assigns, the principal sum of _____________________________ Dollars
($__________) on August 15, 2010 or such greater or lesser amount as is
indicated on the Schedule of Exchanges of Notes on the other side of this
Note.(3)
Interest Payment Dates: ____________ and ____________.
Regular Record Dates: ____________ and ____________.
Additional provisions of this Note are set forth on the other side of this
Note.
SIGNATURE PAGE FOLLOWS
----------
(3) This last portion of this sentence should be included only if the Note is a
Global Note.
A-5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CLEARWIRE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated: , 200
------------- -
Trustee's Certificate of Authentication: This is one of the
Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------
Authorized Signatory
A-6
[FORM OF REVERSE SIDE OF NOTE]
CLEARWIRE CORPORATION
SENIOR NOTES DUE 2010
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
1. INTEREST/ESCROW
Clearwire Corporation, a Delaware corporation (the "Company", which term
shall include any successor corporation under the Indenture), promises to pay
interest on the principal amount of this Note in cash as follows:
(1) on or after ____________, 20__, if a Qualified IPO has not been
consummated, at the rate of ___% per annum;
(2) on or after ____________, 20__ (but prior to ____________, 20__),
if a Qualified IPO has not been consummated, at the rate of ___% per annum;
(3) on or after____________, 20__, (but prior to ____________, 20__)
if a Qualified IPO has not been consummated, at the rate of ___% per annum; and
(4) otherwise, at the rate of ___% per annum.
The Company shall pay interest semi-annually in arrears on ____________ and
____________ of each year, commencing ____________, 2006. Interest on the Notes
shall accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from ____________, 20__; provided, however, that if
there is not an existing default in the payment of interest and if this Note is
authenticated between a Regular Record Date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such
Interest Payment Date. Interest will be computed on the basis of a 360-day year,
comprised of twelve 30-day months.
The Company shall purchase and pledge to the Collateral Agent, for the
exclusive benefit of the Noteholders, approximately $___.0 million of
non-callable Government Securities, which will be sufficient upon receipt of
scheduled principal and interest payments thereon, to provide for the payment in
full of the first four (4) scheduled interest payments due on the Notes and, in
the case of issuance of the Additional Notes, approximately an additional $___.0
million of non-callable Government Securities, which will be sufficient upon
receipt of scheduled principal and interest payments thereon, to provide for the
payment in full of the first three (3) scheduled interest payments due on the
Additional Notes. Such securities shall be placed in an collateral account and
governed by the terms of the Account Control Agreement.
No sinking fund is provided for the Notes.
A-7
2. METHOD OF PAYMENT
The Company shall pay interest on this Note (except defaulted interest) to
the person who is the Holder of this Note at the close of business on
_______________ or ____________, as the case may be, (each, a Regular Record
Date) immediately preceding the related Interest Payment Date. The Holder must
surrender this Note to a Paying Agent to collect payment of principal. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts. The
Company may, however, pay principal and interest in respect of any Certificated
Note by check or wire payable in such money; provided, however, that a Holder
with an aggregate principal amount in excess of $2,000,000 will be paid by wire
transfer in immediately available funds at the election of such Holder if such
Holder has provided wire transfer instructions to the Company. The Company may
mail an interest check to the Holder's registered address.
3. PAYING AGENT AND REGISTRAR
Initially, The Bank of New York, the Trustee (which term shall include any
successor trustee) under the Indenture will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to the
Holder. The Company or any of its Subsidiaries may, subject to certain
limitations set forth in the Indenture, act as Paying Agent or Registrar.
4. INDENTURE, LIMITATIONS
This Note is one of a duly authorized issue of Notes of the Company
designated as its Senior Notes due 2010 (the "Notes"), issued under an Indenture
dated as of _________, 20___ (together with any supplemental indentures thereto,
the "Indenture"), between the Company and the Trustee. The terms of this Note
include those stated in the Indenture and those required by or made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended, as in
effect on the date of the Indenture. This Note is subject to all such terms, and
the Holder of this Note is referred to the Indenture and said Act for a
statement of them.
The Notes are senior secured obligations of the Company. The aggregate
principal amount of Notes which may be authenticated and delivered under the
Indenture is unlimited. The Company may, subject to Article 6 and Article 7 of
the Indenture and applicable law, issue Additional Notes under the Indenture.
The Notes issued on the Issue Date and any Additional Notes subsequently issued
shall be treated as a single class for all purposes under this Indenture.
5. OPTIONAL REDEMPTION
At any time and from time to time after the Issue Date, the Company may
redeem the Notes in whole or in part for cash at a Redemption Price equal to
___% of the principal amount thereof plus accrued and unpaid interest up to but
excluding the Redemption Date and the pro rata portion of the remaining Interest
Payment Collateral attributable to such Notes, if any, upon the delivery of a
Redemption Notice, provided that if the Redemption Date falls after a Regular
Record Date and on or before an Interest Payment Date, then the interest will be
payable to the Holders in whose names the Notes were registered at the close of
business on such Regular Record Date.
A-8
6. NOTICE OF REDEMPTION
Notice of redemption, as set forth in Section 3.3 of the Indenture, will be
mailed by first-class mail at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at its registered
address. Notes in denominations larger than $1,000 may be redeemed in part, but
only in whole multiples of $1,000. On and after the Redemption Date, subject to
the deposit with the Paying Agent of funds sufficient to pay the Redemption
Price plus accrued interest to, but excluding, the Redemption Date, interest
shall cease to accrue on Notes or portions of them called for redemption.
7. PURCHASE OF NOTES AT OPTION OF HOLDER UPON A CHANGE OF CONTROL
(a) At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase all or any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Notes held by such
Holder on the Change of Control Purchase Date at the Change of Control Purchase
Price equal to ___% of the principal amount of the Notes to be purchased,
together with interest accrued and unpaid to, but excluding, the Change of
Control Purchase Date and the pro rata portion of the remaining Interest Payment
Collateral attributable to such Notes, if any, provided, however, if the Change
of Control Purchase Date falls after a Regular Record Date but on or before the
related Interest Payment Date, then the interest on the Notes payable on such
date shall be payable to the Holders in whose name the Notes were registered at
the close of business on such Regular Record Date.
8. DENOMINATIONS, TRANSFER, EXCHANGE
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder may register the transfer of
or exchange Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes or other governmental charges that may be imposed
in relation thereto by law or permitted by the Indenture.
9. PERSONS DEEMED OWNERS
The Holder of a Note may be treated as the owner of it for all purposes.
10. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent will pay the money back to the Company at its
written request, subject to applicable unclaimed property law. After that,
Holders entitled to money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
11. AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding, and an existing default or Event
of Default and its consequence or compliance with any provision of the Indenture
or the Notes may be waived in a particular instance with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without the consent of or notice to any Holder, the Company
A-9
and the Trustee may amend or supplement the Indenture or the Notes to, among
other things, cure any ambiguity, defect or inconsistency or make any other
change that does not adversely affect the rights of any Holder.
12. SUCCESSOR ENTITY
When a successor corporation assumes all the obligations of its predecessor
under the Notes and the Indenture in accordance with the terms and conditions of
the Indenture, the predecessor corporation (except in certain circumstances
specified in the Indenture) be released from those obligations.
13. DEFAULTS AND REMEDIES
This Holder of this Note is entitled to certain remedies upon the
occurrence of an Event of Default as set out in Article 8 of the Indenture.
14. TRUSTEE DEALINGS WITH THE COMPANY
The Bank of New York, as Trustee under the Indenture, in its individual or
any other capacity, may make loans to, accept deposits from and perform services
for the Company or an Affiliate of the Company, and may otherwise deal with the
Company or an Affiliate of the Company, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Notes or the
Indenture nor for any claim based on, in respect of or by reason of such
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
16. AUTHENTICATION
This Note shall not be valid until the Trustee or an authenticating agent
manually signs the certificate of authentication on the other side of this Note.
17. ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors Act).
All terms defined in the Indenture and used in this Note but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
18. INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this Note and the
Indenture, the provisions of the Indenture shall control. This Note shall be
governed by, and construed in accordance with, the laws of the State of New
York.
A-10
The Company will furnish to any Holder, upon written request and without
charge, a copy of the Indenture. Requests may be made to: Clearwire Corporation,
0000 Xxxx Xxxxxxxxxx Xxxx XX, Xxxxx #000 Xxxxxxxx, XX 00000; Attention: General
Counsel.
A-11
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------------------------------
as agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
Date:
------------------------------- ----------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
* Signature guaranteed by:
By:
---------------------------------
* The signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP);
or (iv) such other guaranty program acceptable to the Trustee.
A-12
OPTION TO ELECT PURCHASE
UPON A CHANGE OF CONTROL
To: Clearwire Corporation
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Clearwire Corporation (the "Company") as
to the occurrence of a Change of Control with respect to the Company and
requests and instructs the Company to purchase the entire principal amount of
this Note, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in accordance with the terms of the Indenture
referred to in this Note at the Change of Control Purchase Price, together with
accrued interest to, but excluding, such date, to the registered Holder hereof.
Dated:
------------------------------- ----------------------------------------
----------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule
17Ad-15 under the Securities Exchange
Act of 1934.
----------------------------------------
Signature Guaranty
Principal amount to be redeemed
(in an integral multiple of $1,000,
if less than all):
-------------------------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
A-13
SCHEDULE OF EXCHANGES OF SECURITIES(4)
The following exchanges, purchase, redemptions or purchases of a part of
this Global Note have been made:
PRINCIPAL AMOUNT
OF THIS GLOBAL NOTE AUTHORIZED
FOLLOWING SUCH SIGNATORY AMOUNT OF DECREASE AMOUNT OF INCREASE
DECREASE DATE OF OF NOTES IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT
EXCHANGE (OR INCREASE) CUSTODIAN OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE
---------------------- ---------- ------------------- -------------------
----------
(4) This schedule should be included only if the Note is a Global Note.
A-14
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF RESTRICTED NOTES
Re: Senior Notes due 2010 (the "Notes") of Clearwire Corporation
This certificate relates to $_______ principal amount of Notes owned in
(check applicable box)
[ ] book-entry or [ ] definitive form by ___________ (the "Transferor").
The Transferor has requested a Registrar or the Trustee to exchange or
register the transfer of such Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with transfer
restrictions relating to the Notes as provided in Section 2.12 of the Indenture
dated as of August 5, 2005 between Clearwire Corporation and The Bank of New
York, as trustee (the "Indenture"), and the transfer of such Note is being made
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Securities Act") (check applicable box) or the transfer
or exchange, as the case may be, of such Note does not require registration
under the Securities Act because (check applicable box):
[ ] Such Note is being transferred pursuant to an effective registration
statement under the Securities Act.
[ ] Such Note is being acquired for the Transferor's own account, without
transfer.
[ ] Such Note is being transferred to the Company or a Subsidiary (as
defined in the Indenture) of the Company.
[ ] Such Note is being transferred to a person the Transferor reasonably
believes is a "qualified institutional buyer" (as defined in Rule 144A
or any successor provision thereto ("Rule 144A") under the Securities
Act) that is purchasing for its own account or for the account of a
"qualified institutional buyer", in each case to whom notice has been
given that the transfer is being made in reliance on such Rule 144A,
and in each case in reliance on Rule 144A.
[ ] Such Note is being transferred pursuant to and in compliance with an
exemption from the registration requirements under the Securities Act
in accordance with Rule 144 (or any successor thereto) ("Rule 144")
under the Securities Act.
[ ] Such Note is being transferred to a non-U.S. Person in an offshore
transaction in compliance with Rule 904 of Regulation S under the
Securities Act (or any successor thereto).
A-15
[ ] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144,
Rule 903 or Rule 904, and the Transferor hereby further certifies that
it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with
the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form
of Exhibit D to the Indenture and (2) an Opinion of Counsel provided
by the Transferor or the Transferee (a copy of which the Transferor
has attached to this certification), to the effect that such Transfer
is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to
the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Restricted Definitive
Notes and in the Indenture and the Securities Act.
[ ] Such Note is being transferred pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act
(other than an exemption referred to above) and as a result of which
such Note will, upon such transfer, cease to be a "restricted
security" within the meaning of Rule 144 under the Securities Act.
The Transferor acknowledges and agrees that, if the transferee will hold
any such Notes in the form of beneficial interests in a global Note which is a
"restricted security" within the meaning of Rule 144 under the Securities Act,
then such transfer can only be made pursuant to (i) Rule 144A under the
Securities Act and such transferee must be a "qualified institutional buyer" (as
defined in Rule 144A) or (ii) Regulation S under the Securities Act.
Date:
------------------------------- ----------------------------------------
(Insert Name of Transferor)
A-16
EXHIBIT B
[FORM OF NOTATION OF GUARANTEE]
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of August 5, 2005 (the "Indenture") among
Clearwire Corporation, (the "Company"), the Guarantors party thereto and The
Bank of New York, as trustee (the "Trustee"), (a) the due and punctual payment
of the principal of, premium and interest on, the Notes, whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal of and interest on the Notes, if any, if lawful, and the
due and punctual performance of all other obligations of the Company to the
Holders or the Trustee all in accordance with the terms of the Indenture and (b)
in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. The obligations of the Guarantors
to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and
the Indenture are expressly set forth in Article 13 of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Note
Guarantee.
Capitalized terms used but not defined herein have the meanings given to
them in the Indenture.
[Signature Pages Follow]
X-00
XXXXXXX X
XXXXXX XXXXXXXXX
X-00
XXXXXXX X
SECURITY AGREEMENT
A-19
EXHIBIT E
ACCOUNT CONTROL AGREEMENT
A-20
ANNEX A
APPLICABLE COMPARABLE YIELD* AND PROJECTED PAYMENT SCHEDULE
Comparable Yield = [__]%, compounded semiannually
Date Projected Payment per $1000 Note
---- --------------------------------
February 15, 2006
August 15, 2006
February 15, 2007
August 15, 2007
February 15, 2008
August 15, 2008
February 15, 2009
August 15, 2009
February 15, 2010
August 15, 2010
* The comparable yield means the annual yield the Company would pay, as of
the Issue Date, on a noncontingent, fixed-rate debt security with terms and
conditions otherwise comparable to those of the Notes. The schedule of
projected payments has not been determined for any purpose other than for
the determination of interest accruals and adjustments thereof in respect
of the Notes for United States federal income tax purposes. The comparable
yield and the schedule of projected payments do not constitute a projection
or representation regarding the amounts payable on the Notes.
A-21
================================================================================
CLEARWIRE CORPORATION
SENIOR NOTES DUE 2010
----------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 16, 2006
TO THE
INDENTURE
DATED AS OF AUGUST 5, 2005
----------
THE BANK OF NEW YORK,
AS TRUSTEE
================================================================================
FIRST SUPPLEMENTAL INDENTURE, dated as of February 16, 2006 (this
"Supplemental Indenture"), to the Indenture dated as of August 5, 2005 (the
"Original Indenture"), together with the Supplemental Indenture and as amended,
supplemented or otherwise modified from time to time, the "Indenture"), among
Clearwire Corporation (the "Company"), Clearwire LLC, Fixed Wireless Holdings,
LLC and NextNet Wireless, Inc. (together with Clearwire LLC and Fixed Wireless
Holdings, LLC, the "Guarantors") and The Bank of New York, as Trustee.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Original Indenture.
WHEREAS, the parties desire to supplement the Original Indenture to
authorize the issuance of up to an additional $360,350,000 in aggregate
principal amount of Additional Notes under the Indenture, regardless of whether
such Additional Notes are issued pursuant to any exercise of the Buyers' Option;
WHEREAS, the parties desire to further supplement the Original Indenture to
reduce the amount of permitted Pari Passu Indebtedness in an amount
corresponding to the principal amount of such $100,000,000 of Additional Notes,
if any, issued by the Company pursuant to the Indenture;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
In consideration of the mutual promises and agreements set forth herein,
the adequacy of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
Amendments
SECTION 1.01. Section 2.2 of the Original Indenture shall be replaced, in
its entirety, by the following:
Section 2.2 EXECUTION AND AUTHENTICATION
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture shall not exceed $620.7 million,
provided that no more than $280.0 million of Notes may be
authenticated and delivered on the Issue Date and, subject to Article
6 and Article 7 of this Indenture, no more than up to an aggregate
principal amount of Additional Notes not to exceed $360.35 million may
be authenticated and delivered by the Company. In the event that the
Company issues less than $280.0 million of Notes on the Issue Date
then, at any time until the date that is thirty (30) days after the
Issue Date, the Company may issue and sell the Remaining Notes to any
Accredited Investors in accordance with and pursuant to the terms of
Section 1(c) of the Purchase Agreement. Other than as set forth in
this Section 2.2(a), the Company shall not issue any other Notes under
this Indenture. The Series A Notes issued on the Issue Date, any
Remaining Notes
and any Additional Notes subsequently issued shall be treated as a
single class for all purposes under this Indenture.
SECTION 1.02. Definitions
(a) The definition of "Additional Notes" in the Original Indenture shall
be replaced, in its entirety, by the following:
"Additional Notes" means the Series A Notes or Series B Notes (as
determined by the terms of the Purchase Agreement) issued in
accordance with Sections 2.2 and 7.4 of this Indenture.
(b) The definition of "Pari Passu Indebtedness" in the Indenture shall be
replaced, in its entirety, by the following:
"Pari Passu Indebtedness" means Indebtedness (including Hedging
Obligations) in an aggregate principal amount at any one time
outstanding not to exceed $620.7 million (less (i) the principal
amount of Notes issued under this Indenture and (ii) the amount of Net
Proceeds of Asset Sales used by the Spectrum Entities since the Issue
Date to redeem or prepay Pari Passu Indebtedness pursuant to Section
7.2) which shall be payable on a pari passu basis with, or
subordinated in right of payment to, the Indebtedness represented by
the Notes and the related Note Guarantees.
ARTICLE II
Miscellaneous
SECTION 2.01. Ratification of Original Indenture; Supplemental Indenture
Part of Original Indenture. Except as expressly amended or supplemented 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 of any Note heretofore or hereafter authenticated and delivered
pursuant to the Indenture shall be bound hereby.
SECTION 2.02. Concerning the Trustee. The recitals contained herein shall
be taken as the statements of the Company and the Guarantors, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental
Indenture.
SECTION 2.03. Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which when so executed shall be deemed to be
an original, but all such counterparts shall together constitute one and the
same instrument.
[SIGNATURE PAGES FOLLOW]
CLEARWIRE CORPORATION
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
CLEARWIRE LLC
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
FIXED WIRELESS HOLDINGS, LLC
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
NEXTNET WIRELESS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
CLEARWIRE SPECTRUM CORP.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
SIGNATURES CONTINUED
Supplemental Indenture
CLEARWIRE TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
CLEARWIRE COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
JONSSON COMMUNICATIONS, CORPORATION
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
NEXTNET WIRELESS ASIA, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
NEXTNET INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
SIGNATURES CONTINUED
Supplemental Indenture
UNISON WIRELESS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
XXXXX WIRELESS HONOLULU INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
Supplemental Indenture
THE BANK OF NEW YORK
as Trustee
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: VICE PRESIDENT
Supplemental Indenture
================================================================================
CLEARWIRE CORPORATION
SENIOR NOTES DUE 2010
----------
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 16, 2006
TO THE
INDENTURE
DATED AS OF AUGUST 5, 2005
----------
THE BANK OF NEW YORK,
AS TRUSTEE
================================================================================
1
SECOND SUPPLEMENTAL INDENTURE, dated as of February 16, 2006 (this
"Supplemental Indenture"), to the Indenture dated as of August 5, 2005 as
supplemented by the First Supplemental Indenture dated as of February 16, 2006
(the "Original Indenture"), together with this Supplemental Indenture and as
amended, supplemented or otherwise modified from time to time, the "Indenture"),
among Clearwire Corporation (the "Company"), Clearwire LLC, Fixed Wireless
Holdings, LLC and NextNet Wireless, Inc. (together with Clearwire LLC and Fixed
Wireless Holdings, LLC, the "Guarantors") and The Bank of New York, as Trustee.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Original Indenture.
WHEREAS, the parties desire to supplement the Original Indenture to;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
In consideration of the mutual promises and agreements set forth herein,
the adequacy of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
Amendments
SECTION 1.01. Section 3.13 of the Original Indenture shall be replaced, in
its entirety, by the following:
(a) Section 3.13 ESCROW OF INTEREST PAYMENTS.
The Company shall purchase and pledge to the Collateral Agent, for the
exclusive benefit of the Noteholders, the Interest Payment Collateral.
Such Interest Payment Collateral shall be deposited and held in a
collateral account (the "Collateral Account") with The Bank of New
York (the "Securities Intermediary"). The Company hereby (i) grants to
the Collateral Agent for the benefit of the Noteholders a first
priority security interest in and lien upon the Collateral Account and
all cash, cash equivalents, instruments, securities (including any
Interest Payment Collateral), and other financial or other assets
which are maintained in the Collateral Account, as well as all
security entitlements arising out of the assets carried in the
Collateral Account, and all additional assets which are delivered by
Company to the Securities Intermediary for deposit in the Collateral
Account, from time to time and at any time, together with any
substitutions or replacements, all cash and non-cash proceeds thereof,
including but not limited to insurance proceeds, all cash and stock
dividends, all securities issued pursuant to stock split or rights
offerings or similar events, and all securities issued in exchange for
any other of the foregoing as a result of mergers, reorganizations or
similar transactions (the "Pledged Collateral") and (ii) agrees to
execute and deliver on the Issue Date an Account Control Agreement
with respect to the Pledged Collateral,
2
substantially in the form attached as Exhibit E hereto with the
Securities Intermediary and the Collateral Agent (as amended or
modified from time to time, the "Account Control Agreement"). Each
Holder of Notes, by its acceptance thereof, consents and agrees to the
terms of the Account Control Agreement as the same may be amended from
time to time and directs the Collateral Agent to enter into the
Account Control Agreement. Upon the payment in full of the interest on
the outstanding notes through the February 15, 2008 Interest Payment
Date and so long as no Event of Default shall have occurred and be
continuing which would with the passage of time and failure to cure
would result in an Event of Default, any amount remaining in the
Collateral Account shall be released to the Company and the Account
Control Agreement shall be terminated.
ARTICLE II
Miscellaneous
SECTION 2.01. Ratification of Original Indenture; Supplemental Indenture
Part of Original Indenture. Except as expressly amended or supplemented 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 of any Note heretofore or hereafter authenticated and delivered
pursuant to the Indenture shall be bound hereby.
SECTION 2.02. Concerning the Trustee. The recitals contained herein shall
be taken as the statements of the Company and the Guarantors, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental
Indenture.
SECTION 2.03. Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which when so executed shall be deemed to be
an original, but all such counterparts shall together constitute one and the
same instrument.
[SIGNATURE PAGES FOLLOW]
3
CLEARWIRE CORPORATION
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
CLEARWIRE LLC
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
FIXED WIRELESS HOLDINGS, LLC
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
NEXTNET WIRELESS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
CLEARWIRE SPECTRUM CORP.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
SIGNATURES CONTINUED
Supplemental Indenture
CLEARWIRE TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
CLEARWIRE COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
JONSSON COMMUNICATIONS, CORPORATION
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
NEXTNET WIRELESS ASIA, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
NEXTNET INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
SIGNATURES CONTINUED
Supplemental Indenture
UNISON WIRELESS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
XXXXX WIRELESS HONOLULU INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
Supplemental Indenture
THE BANK OF NEW YORK
as Trustee
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: VICE PRESIDENT
Supplemental Indenture
