ASSUMPTION SUPPLEMENTAL INDENTURE
Exhibit 4.1
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of December 21, 2009, among
Clearwire Communications LLC, a Delaware limited liability company (the “Company”), Clearwire
Finance, Inc., a Delaware Corporation (“Finance Co” and together with the Company, the “Assuming
Issuers”), the subsidiaries of the Company party hereto (the “Guaranteeing Subsidiaries”),
Clearwire Escrow Corporation, a Delaware corporation, (the “Escrow Issuer”) and Wilmington Trust
FSB, as trustee (the “Trustee”) and as collateral agent (the “Collateral Agent”) under the
Indenture referred to below.
W I T N E S S E T H
WHEREAS, the Escrow Issuer, the Trustee and the Collateral Agent executed and delivered the
indenture dated as of December 9, 2009 (the “Indenture”), providing for the issuance of 12% Senior
Secured Notes due 2015 (the “Notes”);
WHEREAS, the Sections 1027 and 1109 of the Indenture provide that the Escrow Issuer may
execute and deliver to the Trustee a supplemental indenture pursuant to which the Assuming Issuers
shall unconditionally assume all the Escrow Issuer’s Obligations under the Notes and the Indenture
on the terms and conditions set forth herein;
WHEREAS Sections 1027 and 1201 of the Indenture provide that under certain circumstances the
Issuer is required to cause the Guaranteeing Subsidiaries to execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally
guarantee all the Issuer’s Obligations under the Notes and the Indenture pursuant to a Guarantee on
the terms and conditions set forth herein and in the Indenture; and
WHEREAS, pursuant to Section 901 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Escrow Issuer, the Assuming
Issuers, the Guaranteeing Subsidiaries, the Trustee and the Collateral Agent mutually covenant and
agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
2. AGREEMENT TO ASSUME OBLIGATIONS. The Assuming Issuers hereby agree to unconditionally
assume the Escrow Issuer’s Obligations under the Notes and the Indenture on the terms and subject
to the conditions set forth in the Indenture and to be bound by all other applicable provisions of
the Indenture and the Notes and to perform all of the obligations and agreements of the Issuer
under the Indenture.
3. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiaries hereby agree as follows:
(a) The Guaranteeing Subsidiaries hereby become parties to the Indenture as Subsidiary
Guarantors and as such will have all of the rights and be subject to all of the obligations
and agreements of Subsidiary Guarantors under the Indenture. The Guaranteeing Subsidiaries
agree to be bound by all of the provisions of the Indenture applicable to Subsidiary
Guarantors and to perform all of the obligations and agreements of Subsidiary Guarantors
under the Indenture.
(b) The Guaranteeing Subsidiaries agree, on a joint and several basis, to fully,
unconditionally and irrevocably Guarantee to each Holder of the Notes, the Collateral Agent
and the Trustee the Obligations pursuant to Article Twelve of the Indenture on a senior
basis.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee,
incorporator, stockholder or agent of the Guaranteeing Subsidiaries, as such, shall have any
liability for any obligations of the Assuming Issuers or any Guaranteeing Subsidiary under the
Notes, any Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Securities Exchange Commission that
such a waiver is against public policy.
5. RELEASE OF OBLIGATIONS OF THE ESCROW ISSUER. Upon execution of this Supplemental Indenture
by the Assuming Issuers, the Escrow Issuer, the Guaranteeing Subsidiaries, the Trustee and the
Collateral Agent, the Escrow Issuer is released and discharged from all obligations under the Notes
and the Indenture.
6. NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
7. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.
8. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not
affect the construction hereof.
9. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries
and the Issuer.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
| Dated: December 21, 2009 |
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| CLEARWIRE ESCROW CORPORATION |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| CLEARWIRE COMMUNICATIONS LLC |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| CLEARWIRE FINANCE, INC. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
[Signature Page to the Supplemental Indenture]
| GUARANTORS: | ||||||
| CLEARWIRE LEGACY LLC and CLEARWIRE XOHM LLC | ||||||
| By: Clearwire Communications, LLC, as manager | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: Xxxx Xxxxxx | ||||||
| Title: Chief Financial Officer | ||||||
| CLEAR WIRELESS, LLC and CLEARWIRE SPECTRUM HOLDINGS III LLC | ||||||
| By: Clearwire Communications, LLC, as member | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: Xxxx Xxxxxx | ||||||
| Title: Chief Financial Officer | ||||||
| CLEAR GLOBAL SERVICES LLC and CLEARWIRE PAC LLC | ||||||
| By: Clear Wireless LLC, as member | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: Xxxx Xxxxxx | ||||||
| Title: Chief Financial Officer |
[Signature Page to the Supplemental Indenture]
| CLEARWIRE US LLC, BILLING LEGACY LLC, | ||||||
| CLEARWIRE TELECOMMUNICATIONS SERVICES, LLC, | ||||||
| CLEARMEDIA, LLC, FIXED WIRELESS HOLDINGS, LLC, | ||||||
| CLEARWIRE SPECTRUM HOLDINGS II LLC and CLEARWIRE | ||||||
| SPECTRUM HOLDINGS LLC | ||||||
| By: Clearwire Legacy LLC, as member | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: Xxxx Xxxxxx | ||||||
| Title: Chief Financial Officer | ||||||
| WINBEAM LLC | ||||||
| By: Clearwire US LLC, as member | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: Xxxx Xxxxxx | ||||||
| Title: Chief Financial Officer | ||||||
| BWC SPECTRUM, LLC and SFT SPECTRUM, LLC | ||||||
| By: Clearwire Spectrum Holdings II LLC, as manager | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: Xxxx Xxxxxx | ||||||
| Title: Chief Financial Officer |
[Signature Page to the Supplemental Indenture]
| CLEAR WIRELESS BROADBAND LLC, AMERICAN TELECASTING OF MINNESOTA, LLC, AMERICAN TELECASTING OF NEBRASKA, LLC, AMERICAN TELECASTING DEVELOPMENT, LLC, AMERICAN TELECASTING OF ANCHORAGE, LLC, AMERICAN TELECASTING OF BEND, LLC, AMERICAN TELECASTING OF BISMARCK, LLC, AMERICAN TELECASTING OF CINCINNATI, LLC, AMERICAN TELECASTING OF COLORADO SPRINGS, LLC, FRESNO MMDS ASSOCIATES, LLC, FMA LICENSEE SUBSIDIARY, LLC, AMERICAN TELECASTING OF COLUMBUS, LLC, AMERICAN TELECASTING OF DENVER, LLC, AMERICAN TELECASTING OF FORT XXXXX, LLC, AMERICAN TELECASTING OF FT. XXXXXXX, LLC, AMERICAN TELECASTING OF GREEN BAY, LLC, AMERICAN TELECASTING OF XXXXXXX, LLC, AMERICAN TELECASTING OF LANSING, LLC, AMERICAN TELECASTING OF LINCOLN, LLC, AMERICAN TELECASTING OF LITTLE ROCK, LLC, AMERICAN TELECASTING OF LOUISVILLE, LLC, AMERICAN TELECASTING OF MEDFORD, LLC, AMERICAN TELECASTING OF MICHIANA, LLC, AMERICAN TELECASTING OF MONTEREY, LLC, AMERICAN TELECASTING OF OKLAHOMA, LLC, AMERICAN TELECASTING OF PORTLAND, LLC, AMERICAN TELECASTING OF XXXXXXX, LLC, AMERICAN TELECASTING OF SALEM/XXXXXX, LLC, AMERICAN TELECASTING OF SANTA XXXXXXX, LLC, AMERICAN TELECASTING OF SEATTLE, LLC, AMERICAN TELECASTING OF SHERIDAN, LLC, AMERICAN TELECASTING OF TOLEDO, LLC, AMERICAN TELECASTING OF YOUNGSTOWN, LLC, AMERICAN TELECASTING OF YUBA CITY, LLC, ATI OF SANTA XXXX, LLC, ATI SUB, LLC, NSAC, LLC, XXXX GOLD II, LLC, XXXX TUCSON, LLC, XXXX WIRELESS HOLDINGS, LLC, PCTV GOLD II, LLC, PCTV OF MILWAUKEE, LLC, PCTV OF SALT LAKE CITY, LLC, PCTV SUB, LLC, PEOPLE’S CHOICE TV OF ALBUQUERQUE, LLC, PEOPLE’S CHOICE TV OF HOUSTON, LLC, PEOPLE’S CHOICE TV OF ST. LOUIS, LLC, PEOPLE’S CHOICE TV OF TUCSON, LLC, PREFERRED ENTERTAINMENT, LLC, SPEEDCHOICE OF DETROIT, LLC, SPEEDCHOICE OF PHOENIX, LLC, WIRELESS CABLE OF INDIANAPOLIS, LLC, ATL MDS, LLC, BAY AREA CABLEVISION, LLC, BROADCAST CABLE, LLC, CHEROKEE | ||||||
[Signature Page to the Supplemental Indenture]
| WIRELESS OF KNOXVILLE, LLC, G&S TV LLC, LA MDS, LLC, NY MDS, LLC, SCC X, LLC, SF MDS, LLC, SPRINT (BAY AREA), LLC, TDI ACQUISITION SUB, LLC, TRANSWORLD TELECOM II, LLC, TTI ACQUISITION, LLC, TWTV SPOKANE, LLC, VIA/NET, LLC, WAVEPATH SUB, LLC, WBC NY, LLC, WBS CALIFORNIA, LLC, WBS IDAHO, LLC, WBS MONTANA, LLC, WBS OF AMERICA, LLC, WBS OF FT. XXXXXX, LLC, WBS OF MELBOURNE, LLC, WBS OREGON, LLC, WBS OF SACRAMENTO, LLC, WBS WASHINGTON, LLC, WBS OF WEST PALM, LLC, WBSB LICENSING, LLC, WBSCB LICENSING, LLC, WBSE LICENSING, LLC, WBSFP LICENSING, LLC, WBSH LICENSING, LLC, WBSK LICENSING, LLC, WBSM LICENSING, LLC, WBSR LICENSING, LLC, WBSS LICENSING, LLC, WBSWP LICENSING, LLC, WBSY LICENSING, LLC, WCOF, LLC, WHI SD, LLC, WHI SUB, LLC, WIRELESS BROADBAND SERVICES OF AMERICA, LLC, WIRELESS BROADCASTING SYSTEMS OF KNOXVILLE, LLC and KENNEWICK LICENSING, LLC | ||||||
| By: Clearwire XOHM LLC, as manager | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: Xxxx Xxxxxx | ||||||
| Title: Chief Financial Officer |
[Signature Page to the Supplemental Indenture]
| PUERTO RICO BROADBAND LLC | ||||||
| By: Clear Partner Holdings LLC, as manager | ||||||
| By: | /s/ Xxxx Xxxxx | |||||
| Name: Xxxx Xxxxx | ||||||
| Title: President |
[Signature Page to the Supplemental Indenture]
| DETROIT BROADBAND LLC | ||||||
| By: Clear Partner Holdings LLC, as manager | ||||||
| By: | /s/ Xxxx Xxxxx | |||||
| Name: Xxxx Xxxxx | ||||||
| Title: President |
[Signature Page to the Supplemental Indenture]
| CLEAR PARTNER HOLDINGS LLC | ||||||
| By: Clear Wireless LLC, as member | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: Xxxx Xxxxxx | ||||||
| Title: Chief Financial Officer |
[Signature Page to the Supplemental Indenture]
| WILMINGTON TRUST FSB as Trustee and Collateral Agent | ||||||
| By: | /s/ Xxxx Xxxxxxxxx | |||||
| Name: Xxxx Xxxxxxxxx | ||||||
| Title: Vice President |
[Signature Page to the Supplemental Indenture]
