FACE OF NOTE] CLEARWIRE COMMUNICATIONS LLC and CLEARWIRE FINANCE, INC., 12% Senior Secured Note due 2015
Exhibit 4.5
[FACE OF NOTE]
CLEARWIRE COMMUNICATIONS LLC
and
CLEARWIRE FINANCE, INC.,
and
CLEARWIRE FINANCE, INC.,
12% Senior Secured Note due 2015
| No. | CUSIP No. | |
| $ |
CLEARWIRE COMMUNICATIONS LLC, a Delaware limited liability company (the “Company”) and
CLEARWIRE FINANCE, INC., a Delaware corporation (“Finance Co” and, together with the Company, the
“Issuers”, which term includes any successor Person under the Indenture hereinafter referred to),
for value received, promises to pay to Cede & Co., or its registered assigns, the principal sum of
Dollars ($ ), on December 1, 2015.
Interest Rate:
|
12% per annum. | |
Interest Payment Dates:
|
June 1 and December 1 of each year commencing June 1, 2011. | |
Regular Record Dates:
|
May 15 and November 15 of each year. |
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Issuers have caused this Note to be signed manually or by facsimile by
its duly authorized officers.
| CLEARWIRE COMMUNICATIONS LLC, |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CLEARWIRE FINANCE, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
(Form of Trustee’s Certificate of Authentication)
This is one of the 12% Senior Secured Notes due 2015 referred to in the within-mentioned
Indenture.
| WILMINGTON TRUST FSB as Trustee |
||||
| By: | ||||
| Authorized Signatory | ||||
Dated: December 9, 2010
[REVERSE SIDE OF NOTE]
CLEARWIRE COMMUNICATIONS LLC
and
CLEARWIRE FINANCE, INC.
and
CLEARWIRE FINANCE, INC.
12% Senior Secured Note due 2015
1. Principal and Interest; Subordination.
The Issuers will pay the principal of this Note on December 1, 2015.
The Issuers promise to pay interest on the principal amount of this Note on each Interest
Payment Date, as set forth below, at the rate of 12% per annum (subject to adjustment as provided
below).
Interest will be payable semi-annually (to the Holders of record of the Notes (or any
Predecessor Notes) at the close of business on May 15 or November 15 immediately preceding the
Interest Payment Date) on each Interest Payment Date, commencing June 1, 2011.
Interest on this Note will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from December 1, 2010; provided that, if there is no 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 of
twelve 30-day months.
The Issuers shall pay interest on overdue principal and premium, if any, and interest on
overdue installments of interest, to the extent lawful, at a rate per annum equal to the rate of
interest applicable to the Notes.
2. Method of Payment.
The Issuers will pay interest (except defaulted interest) on the principal amount of the Notes
on each June 1 and December 1 to the Persons who are Holders (as reflected in the Note Register at
the close of business on May 15 and November 15 immediately preceding the Interest Payment Date),
in each case, even if the Note is cancelled on registration of transfer or registration of exchange
after such Regular Record Date; provided that, with respect to the payment of principal, the
Issuers will make payment to the Holder that surrenders this Note to any Paying Agent on or after
December 1, 2015.
The Issuers will pay principal (premium, if any) and interest in money of the United States
that at the time of payment is legal tender for payment of public and private debts. However, the
Issuers may pay principal (premium, if any) and interest by its check payable in such money. The
Issuers may pay interest on the Notes either (a) by mailing a check for such interest to a Holder’s
registered address (as reflected in the Note Register) or (b) by wire transfer to an account
located in the United States maintained by the payee. If a payment date is a date other than a
Business Day at a place of payment, payment may be made at that place on the next succeeding day
that is a Business Day and no interest shall accrue for the intervening period.
3. Paying Agent and Note Registrar.
Initially, the Trustee will act as Paying Agent and Note Registrar. The Issuers may change
any Paying Agent or Note Registrar upon written notice thereto. The Issuers, any Subsidiary or any
Affiliate of any of them may act as Paying Agent, Note Registrar or co-registrar.
4. Indenture; Limitations.
The Issuers issued the Notes under an Indenture dated as of November 24, 2009 (the
“Indenture”), among the Issuers, the Subsidiary Guarantors and Wilmington Trust FSB, as trustee
(the “Trustee”) and collateral agent (the “Collateral Agent”). Capitalized terms herein are used
as defined in the Indenture unless otherwise indicated. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture
Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and the
Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law,
in the event of any inconsistency between the terms of this Note and the terms of the Indenture,
the terms of the Indenture shall control.
The Notes are senior secured obligations of the Issuers. The Indenture does not limit the
aggregate principal amount of the Notes.
5. Redemption.
Optional Redemption. Except as described below, the Notes are not redeemable at the
Issuers’ option until December 1, 2012. From and after December 1, 2012, the Issuers may redeem
the Notes, in whole or in part, upon not less than 30 nor more than 60 days’ prior notice by first
class mail, postage prepaid, with a copy to the Trustee, to each Holder of Notes to the address of
such Holder appearing in the Note Register at the Redemption Prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest thereon, if any, to but
excluding the applicable redemption date, subject to the right of Holders of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date, if redeemed during the
twelve-month period beginning on December 1 of each of the years indicated below:
| Year | Percentage | |||
2012 |
106.000 | % | ||
2013 |
103.000 | % | ||
2014 and thereafter |
100.000 | % | ||
In addition, prior to December 1, 2012, the Issuers may, at their option, redeem up to 35% of
the aggregate principal amount of Notes issued under the Indenture at a redemption price equal to
112.000% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon, if
any, to but excluding, the Redemption Date, subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant Interest Payment Date, with the net
proceeds of one or more Equity Offerings of the Issuers or any direct or indirect parent of the
Issuers to the extent such net proceeds are contributed to the Issuers; provided that at least 65%
of the aggregate principal amount of Notes originally issued under the Indenture remains
outstanding immediately after the occurrence of each such redemption; provided further that each
such redemption occurs within 90 days of the date of closing of each such Equity Offering.
At any time prior to the final maturity date of the Notes, the Issuers may also redeem all or
a part of the Notes, upon not less than 30 nor more than 60 days’ prior notice mailed by
first-class mail to each Holder’s registered address, at a Redemption Price equal to 100% of the
principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest, if any, to but excluding the Redemption Date, subject to the rights of Holders of Notes
on the relevant record date to receive interest due on the relevant Interest Payment Date.
6. Repurchase upon a Change in Control and Asset Sales.
Upon the occurrence of (a) a Change in Control, the Holders of the Notes will have the right
to require that the Issuers purchase such Holder’s outstanding Notes, in whole or in part, at a
purchase price of 101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of purchase and (b) Asset Sales, the Issuers may be obligated to make offers to
purchase Notes and Other Pari Passu Lien Obligations with a portion of the Net Proceeds of such
Asset Sales at a redemption price of 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in minimum denominations of $2,000 and
integral multiples of $1,000 in excess thereof. A Holder may register the transfer or exchange of
Notes in accordance with the Indenture. The Note Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Note Registrar need not register the transfer
or exchange of any Notes selected for redemption (except the unredeemed portion of any Note being
redeemed in part).
8. Persons Deemed Owners.
A registered Holder may be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
If money for the payment of principal (premium, if any) or interest remains unclaimed for two
years, the Trustee and the Paying Agent will pay the money back to the Issuers at their written
request. After that, Holders entitled to the money must look to the Issuers for payment, unless an
abandoned property law designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge and Defeasance Prior to Redemption or Maturity.
If the Issuers irrevocably deposit, or cause to be deposited, with the Trustee money or
Government Securities sufficient to pay the then outstanding principal of (premium, if any) and
accrued interest on the Notes (a) to Redemption or Maturity Date, the Issuers will be discharged
from its obligations under the Indenture and the Notes, except in certain circumstances for certain
covenants thereof, and (b) to the Stated Maturity, the Issuers will be discharged from certain
covenants set forth in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Security Documents 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 Outstanding Notes, and any existing Default or compliance with any
provision may be waived with the consent of the Holders of a majority in aggregate principal amount
of the Outstanding Notes. Without notice to or the consent of any Holder, the parties thereto may
amend or supplement the Indenture, the Security Documents or the Notes to, among other things, cure
any ambiguity, defect or inconsistency and make any change that does not adversely affect the
rights of any Holder.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without limitation, covenants with
respect to the following matters: (i) Incurrence of Indebtedness and Issuance of Disqualified Stock
and preferred stock; (ii) Restricted Payments; (iii) transactions with Affiliates; (iv) Liens; (v)
purchase of Notes upon a Change in Control; (vi) disposition of proceeds of Asset Sales; (vii)
guarantees of Indebtedness by Restricted Subsidiaries; (viii) dividend and other payment
restrictions affecting Restricted Subsidiaries; (ix) merger and certain transfers of assets; (x)
limitation on activities of Finance Co and Spectrum Entities and (xi) future Subsidiary Guarantors.
Within 120 days after the end of each fiscal year, the Issuers must report to the Trustee on
compliance with such limitations.
13. Successor Persons.
When a successor Person or other entity assumes all the obligations of its predecessor under
the Notes and the Indenture, the predecessor Person will be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the Outstanding Notes may declare all the Notes
to be immediately due and payable. If a bankruptcy or insolvency default with respect to the
Issuers or any Subsidiary Guarantors that is a Significant Subsidiary occurs and is continuing, the
Notes automatically become immediately due and payable. Holders may not enforce the Indenture, the
Security Documents or the Notes except as provided in the Indenture. The Trustee and the
Collateral Agent may require indemnity reasonably satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a majority in
aggregate principal amount of the Outstanding Notes may direct the Trustee in its exercise of any
trust or power.
15. Guarantees.
The Issuers’ obligations under the Notes are fully, irrevocably and unconditionally guaranteed
on a senior secured basis, to the extent set forth in the Indenture, by each of the Subsidiary
Guarantors.
16. Trustee Dealings with Issuers.
The Trustee or the Collateral Agent under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for, and otherwise deal with, the Issuers and their Affiliates as if it were not
the Trustee or the Collateral Agent.
17. Authentication.
This Note shall not be valid until the Trustee signs the certificate of authentication on the
other side of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a 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 U/G/M/A (= Uniform Gifts to
Minors Act).
The Issuers will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to CLEARWIRE COMMUNICATIONS LLC, 0000 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: General Counsel, or CLEARWIRE FINANCE, INC., 0000 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuers. The agent may substitute another to act for
him.
Date: __________________
| Your Signature: | ||||||
face of this Note) |
Signature Guarantee*: __________________________
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers pursuant to Section 1017 or
1018 of the Indenture, check the appropriate box below:
| o Section 1017 | o Section 1018 |
If you want to elect to have only part of the Note purchased by the Issuers pursuant to
Section 1017 or Section 1018 of the Indenture, state the amount you elect to have purchased:
| $ | ||||||||
Date: |
||||||||
| Your Signature: | ||||||||
face of this Note) |
||||||||
| Tax Identification No.: | ||||||
Signature Guarantee*: _____________________________
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:
| Principal Amount | ||||||||||||||||
| Amount of decrease | Amount of increase | of this Global Note | Signature of authorized | |||||||||||||
| in Principal Amount | in Principal Amount | following such | signatory of Trustee | |||||||||||||
| Date of Exchange | of this Global Note | of this Global Note | decrease (or increase) | or Custodian | ||||||||||||
| * | This schedule should be included only if the Note is issued in global form. |
