Exhibit 4.1
NII Capital Corp.
8.875% SENIOR NOTES DUE 2019
Indenture
Dated as of December 15, 2009
Wilmington Trust Company
Trustee
CROSS-REFERENCE TABLE*
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Trust Indenture |
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Act Section |
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Indenture Section |
310 |
(a)(1)
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7.10 |
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(a)(2)
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7.10 |
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(a)(3)
(a)(4)
(a)(5)
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N.A.
N.A.
7.10 |
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(b)
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7.10 |
311 |
(c)
(a)
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N.A.
7.11 |
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(b)
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7.11 |
312 |
(c)
(a)
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N.A.
2.06 |
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(b)
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12.03 |
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(c)
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12.03 |
313 |
(a)
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7.06 |
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(b)(1)
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N.A. |
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(b)(2)
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7.06, 7.07 |
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(c)
(d)
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7.06, 12.02
7.06 |
314 |
(a)
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12.05 |
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(b)
(c)(1)
(c)(2)
(c)(3)
(d)
(e)
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N.A.
N.A.
N.A.
N.A.
N.A.
12.05 |
315
316 |
(f)
(a)
(b)
(c)
(d)
(e)
(a)(last sentence)
(a)(1)(A)
(a)(1)(B)
(a)(2)
(b)
(c)
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N.A.
N.A.
N.A.
N.A.
N.A.
N.A.
N.A.
N.A.
N.A.
N.A.
N.A.
12.14 |
317 |
(a)(1)
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N.A. |
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N.A. means not applicable. |
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* |
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This Cross-Reference Table is not part of the Indenture. |
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Trust Indenture |
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Act Section |
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Indenture Section |
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(a)(2)
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N.A. |
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(b)
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N.A. |
318 |
(a)
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N.A. |
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(b)
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N.A. |
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(c)
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12.01 |
TABLE OF CONTENTS
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Page |
ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
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Section 1.01.
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Definitions
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1 |
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Section 1.02.
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Other Definitions
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28 |
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Section 1.03.
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Incorporation by Reference of Trust Indenture Act
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29 |
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Section 1.04.
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Rules of Construction
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29 |
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ARTICLE TWO
THE NOTES
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Section 2.01. |
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Form and Dating |
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30 |
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Section 2.02. |
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Execution and Authentication |
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31 |
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Section 2.03. |
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Methods of Receiving Payments on the Notes |
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32 |
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Section 2.04. |
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Registrar and Paying Agent |
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32 |
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Section 2.05. |
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Paying Agent to Hold Money in Trust |
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32 |
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Section 2.06. |
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Holder Lists |
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32 |
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Section 2.07. |
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Transfer and Exchange |
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33 |
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Section 2.08. |
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Replacement Notes |
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46 |
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Section 2.09. |
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Outstanding Notes |
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46 |
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Section 2.10. |
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Treasury Notes |
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47 |
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Section 2.11. |
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Temporary Notes |
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47 |
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Section 2.12. |
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Cancellation |
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47 |
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Section 2.13. |
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Defaulted Interest |
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47 |
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Section 2.14. |
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CUSIP Numbers |
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48 |
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ARTICLE THREE
REDEMPTION AND OFFERS TO
PURCHASE
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Section 3.01. |
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Notices to Trustee |
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48 |
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Section 3.02. |
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Selection of Notes to Be Redeemed |
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48 |
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Section 3.03. |
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Notice of Redemption |
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49 |
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Section 3.04. |
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Effect of Notice of Redemption |
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49 |
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Section 3.05. |
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Deposit of Redemption Price |
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50 |
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Section 3.06. |
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Notes Redeemed in Part |
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50 |
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Section 3.07. |
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Optional Redemption |
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50 |
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Section 3.08. |
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Repurchase Offers |
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51 |
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Section 3.09. |
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Application of Trust Money |
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53 |
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i
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Page |
ARTICLE FOUR
COVENANTS
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Section 4.01. |
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Payment of Notes |
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53 |
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Section 4.02. |
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Maintenance of Office or Agency |
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53 |
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Section 4.03. |
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Reports |
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54 |
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Section 4.04. |
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Compliance Certificate |
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55 |
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Section 4.05. |
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Taxes |
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56 |
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Section 4.06. |
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Stay, Extension and Usury Laws |
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56 |
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Section 4.07. |
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Restricted Payments |
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56 |
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Section 4.08. |
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Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries |
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59 |
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Section 4.09. |
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Incurrence of Indebtedness |
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61 |
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Section 4.10. |
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Asset Sales |
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65 |
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Section 4.11. |
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Transactions with Affiliates |
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67 |
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Section 4.12. |
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Liens |
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69 |
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Section 4.13. |
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Business Activities |
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69 |
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Section 4.14. |
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Offer to Repurchase upon a Change of Control |
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69 |
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Section 4.15. |
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Changes in Covenants When Notes Rated Investment Grade |
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70 |
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Section 4.16. |
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Designation of Restricted and Unrestricted Subsidiaries |
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71 |
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Section 4.17. |
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Payments for Consent |
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73 |
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Section 4.18. |
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Note Guarantees |
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73 |
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ARTICLE FIVE
SUCCESSORS
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Section 5.01. |
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Merger, Consolidation or Sale of Assets |
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74 |
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Section 5.02. |
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Successor Corporation Substituted |
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76 |
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ARTICLE SIX
DEFAULTS AND REMEDIES
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Section 6.01. |
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Events of Default |
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76 |
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Section 6.02. |
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Acceleration |
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78 |
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Section 6.03. |
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Other Remedies |
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78 |
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Section 6.04. |
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Waiver of Past Defaults |
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78 |
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Section 6.05. |
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Control by Majority |
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79 |
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Section 6.06. |
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Limitation on Suits |
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80 |
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Section 6.07. |
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Rights of Holders of Notes to Receive Payment |
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80 |
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Section 6.08. |
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Collection Suit by Trustee |
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80 |
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Section 6.09. |
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Trustee May File Proofs of Claim |
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81 |
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Section 6.10. |
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Priorities |
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81 |
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Section 6.11. |
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Undertaking for Costs |
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82 |
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ARTICLE SEVEN
TRUSTEE
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Section 7.01. |
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Duties of Trustee |
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82 |
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ii
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Page |
Section 7.02.
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Certain Rights of Trustee
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83 |
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Section 7.03.
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Individual Rights of Trustee
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84 |
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Section 7.04.
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Trustees Disclaimer
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84 |
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Section 7.05.
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Notice of Defaults
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84 |
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Section 7.06.
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Reports by Trustee to Holders of the Notes
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84 |
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Section 7.07.
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Compensation and Indemnity
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85 |
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Section 7.08.
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Replacement of Trustee
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85 |
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Section 7.09.
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Successor Trustee by Merger, Etc
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86 |
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Section 7.10.
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Eligibility; Disqualification
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87 |
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Section 7.11.
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Preferential Collection of Claims Against Company
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87 |
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Section 7.12.
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No Representation by Trustee
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87 |
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ARTICLE EIGHT
DEFEASANCE AND COVENANT DEFEASANCE
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Section 8.01. |
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Option to Effect Legal Defeasance or Covenant Defeasance |
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87 |
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Section 8.02. |
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Legal Defeasance and Discharge |
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87 |
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Section 8.03. |
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Covenant Defeasance |
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88 |
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Section 8.04. |
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Conditions to Legal or Covenant Defeasance |
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89 |
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Section 8.05. |
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Deposited
Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions |
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90 |
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Section 8.06. |
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Repayment to the Company |
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91 |
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Section 8.07. |
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Reinstatement |
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91 |
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Section 8.08. |
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Survival of Rights |
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91 |
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ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
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Section 9.01. |
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Without Consent of Holders of Notes |
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92 |
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Section 9.02. |
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With Consent of Holders of Notes |
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93 |
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Section 9.03. |
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Compliance with Trust Indenture Act |
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94 |
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Section 9.04. |
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Revocation and Effect of Consents |
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95 |
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Section 9.05. |
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Notation on or Exchange of Notes |
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95 |
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Section 9.06. |
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Trustee to Sign Amendments, Etc |
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95 |
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ARTICLE TEN
NOTE GUARANTEES
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Section 10.01. |
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Guarantee |
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95 |
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Section 10.02. |
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Limitation on Guarantor Liability |
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96 |
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Section 10.03. |
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Execution and Delivery of Note Guarantee |
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97 |
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Section 10.04. |
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Guarantors May Consolidate, Etc., on Certain Terms |
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97 |
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Section 10.05. |
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Release of a Subsidiary Guarantor |
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98 |
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ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
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Section 11.01. |
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Satisfaction and Discharge |
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99 |
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iii
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Page |
Section 11.02.
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Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions
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100 |
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Section 11.03.
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Section 11.04. Survival
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100 |
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Section 11.04.
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Repayment to the Company
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100 |
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ARTICLE TWELVE
MISCELLANEOUS
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Section 12.01. |
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Trust Indenture Act Controls |
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101 |
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Section 12.02. |
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Notices |
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101 |
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Section 12.03. |
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Communication by Holders of Notes with Other Holders of Notes |
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102 |
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Section 12.04. |
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Certificate and Opinion as to Conditions Precedent |
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102 |
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Section 12.05. |
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Statements Required in Certificate or Opinion |
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102 |
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Section 12.06. |
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Rules by Trustee and Agents |
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103 |
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Section 12.07. |
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No Personal Liability of Directors, Officers, Employees and Stockholders |
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103 |
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Section 12.08. |
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Governing Law |
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103 |
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Section 12.09. |
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Consent to Jurisdiction |
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103 |
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Section 12.10. |
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No Adverse Interpretation of Other Agreements |
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104 |
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Section 12.11. |
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Successors |
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104 |
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Section 12.12. |
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Severability |
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104 |
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Section 12.13. |
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Counterpart Originals |
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104 |
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Section 12.14. |
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Acts of Holders |
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104 |
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Section 12.15. |
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Benefit of Indenture |
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105 |
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Section 12.16. |
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Table of Contents, Headings, Etc. |
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105 |
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EXHIBITS
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Exhibit A
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FORM OF NOTE |
Exhibit B
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FORM OF CERTIFICATE OF TRANSFER |
Exhibit C
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FORM OF CERTIFICATE OF EXCHANGE |
Exhibit D
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FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR |
Exhibit E
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FORM OF NOTATION OF GUARANTEE |
Exhibit F
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FORM OF SUPPLEMENTAL INDENTURE |
iv
INDENTURE dated as of December 15, 2009 among NII Capital Corp., a Delaware corporation (the
Company), the Initial Guarantors (as defined below) listed on the signature pages hereto and
Wilmington Trust Company, a national banking association, as trustee.
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its 8.875% Senior Notes due 2019 to be issued in one or more
series as provided in this Indenture. The Initial Guarantors have duly authorized the execution
and delivery of this Indenture to provide for a guarantee of the Notes and of certain of the
Companys obligations hereunder. All things necessary to make this Indenture a valid agreement of
the Company and the Initial Guarantors, in accordance with its terms, have been done.
The Company, the Guarantors and the Trustee (as defined below) agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders (as defined below) of
the 8.875% Senior Notes due 2019:
ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
144A Global Note means a global note substantially in the form of Exhibit A hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that shall be issued in a denomination
equal to the outstanding principal amount at maturity of the Notes sold in reliance on Rule 144A.
Acquired Indebtedness means Indebtedness of a Person existing at the time such Person
becomes a Restricted Subsidiary or merges with or into the Parent or any of its Restricted
Subsidiaries or which is assumed by the Parent or any of its Restricted Subsidiaries in connection
with an Asset Acquisition and not incurred in connection with, or in anticipation of, such Person
becoming a Restricted Subsidiary or such Asset Acquisition. The term Acquired Indebtedness does
not include Indebtedness of a Person which is redeemed, defeased, retired or otherwise repaid at
the time of or immediately upon consummation of the transactions by which such Person becomes a
Restricted Subsidiary or such Asset Acquisition.
Additional Interest means all additional interest owing on the Notes pursuant to the
Registration Rights Agreement.
Additional Notes means an unlimited maximum aggregate principal amount of Notes (other than
the Notes issued on the date hereof) issued under this Indenture in accordance with Sections 2.02
and 4.09 hereof.
Affiliate of any specified Person means (1) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person
or (2) any executive officer or director of such specified Person. For purposes of
this definition, control, as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 5% or more of the Voting Stock of a Person shall be deemed to
be control. For purposes of this definition, the terms controlling, controlled by and under
common control with shall have correlative meanings.
Agent means any Registrar, Paying Agent or co-registrar.
Applicable Premium means, with respect to a Note at any date of redemption, the greater of
(i) 1.0% of the principal amount of such Note and (ii) the excess of (A) the present value at such
date of redemption of (1) the redemption price of such Note at December 15, 2014 (such redemption
price being described herein at Section 3.07) plus (2) all remaining required interest payments due
on such Note through December 15, 2014 (excluding accrued but unpaid interest to the date of
redemption), computed using a discount rate equal to the Treasury Rate plus 50 basis points, over
(B) the principal amount of such Note.
Applicable Procedures means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream
that apply to such transfer or exchange.
Asset Acquisition means:
(1) an Investment by the Parent or any of its Restricted Subsidiaries in any other Person
pursuant to which such Person shall become a Restricted Subsidiary or shall be merged into or
consolidated with the Parent or any of its Restricted Subsidiaries but only if such Persons
primary business is a Permitted Business, or
(2) an acquisition by the Parent or any of its Restricted Subsidiaries of the property and
assets of any Person other than the Parent or any of its Restricted Subsidiaries that constitute
all or substantially all of a division, operating unit or line of business of such Person but only
if the property and assets so acquired is a Permitted Business.
Asset Disposition means the sale or other disposition by the Parent or any of its Restricted
Subsidiaries, other than to the Parent or another Restricted Subsidiary, of (a) all or
substantially all of the Capital Stock of any Restricted Subsidiary or (b) all or substantially all
of the assets that constitute a division, operating unit or line of business of the Parent or any
of its Restricted Subsidiaries.
Asset Sale means:
(1) the sale, lease, conveyance or other disposition of any assets, other than a transaction
governed by Sections 4.14 and/or Section 5.01; and
(2) (a) the issuance of Equity Interests by any of the Parents Restricted Subsidiaries or (b)
the sale by the Parent or any Restricted Subsidiary thereof of any Equity Interests it owns in any
of its Subsidiaries (other than directors qualifying shares and shares issued to foreign nationals
to the extent required by applicable law).
2
Notwithstanding the preceding, the following items shall be deemed not to be Asset Sales:
(1) any single transaction or series of related transactions that involves assets or Equity
Interests having a Fair Market Value of less than $15.0 million;
(2) a transfer of assets or Equity Interests between or among the Parent and its Restricted
Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary of the Parent to the Parent or
to another Restricted Subsidiary;
(4) the sale, lease, sublease, license, sublicense, consignment, conveyance or other
disposition of equipment, inventory, accounts receivable or other assets in the ordinary course of
business in compliance with Section 4.11;
(5) the sale or other disposition of Cash Equivalents;
(6) 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;
(7) a Restricted Payment that is permitted by Section 4.07 and any Permitted Investment;
(8) any sale or disposition of any property or equipment that has become damaged, worn out or
obsolete;
(9) the creation of a Lien not prohibited by this Indenture;
(10) the licensing of intellectual property or other general intangibles (other than Wireless
Licenses) to third persons on terms approved by the Board of Directors of the Parent in good faith
and in the ordinary course of business;
(11) the sale or other disposition of transmission towers and related equipment and assets in
one or more Sale and Leaseback Transactions, in an aggregate amount not to exceed $100.0 million;
(12) any surrender or waiver of contract rights or the settlement, release or surrender of
contract, tort or other claims of any kind; and
(13) any disposition arising from foreclosure, condemnation or similar action with respect to
any property or other assets or exercise of termination rights under any lease, license, concession
or other agreement.
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,
3
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 using a discount rate equal to the rate
of interest implicit in such transaction, determined in accordance with GAAP.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.
Beneficial Owner has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular person
(as that term is used in Section 13(d)(3) of the Exchange Act), such person shall be deemed to
have beneficial ownership of all securities that such person has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms Beneficially Owns and
Beneficially Owned shall have a corresponding meaning.
Board of Directors means:
(1) with respect to a corporation, the board of directors of the corporation or, except
in the context of the definitions of Change of Control, a duly authorized committee
thereof;
(2) with respect to a partnership, the Board of Directors of the general partner of the
partnership;
(3) with respect to a limited liability company, the managing member or members or any
controlling committee or board of directors of such company or of the sole member or of the
managing member thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a
similar function.
Board Resolution means a resolution certified by the Secretary or an Assistant Secretary of
the Parent or the Company, as applicable, to have been duly adopted by the Board of Directors of
the Parent or the Company, as applicable and to be in full force and effect on the date of such
certification.
Broker-Dealer has the meaning set forth in the Registration Rights Agreement.
Business Day means any day other than a Legal Holiday.
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, and the Stated Maturity thereof shall be
the date of the last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be prepaid by the lessee without payment of a penalty.
4
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person.
Cash Equivalents means:
(1) (a) United States dollars; and (b) in the case of the Parent or any Restricted
Subsidiary of the Parent, the local currency of the country in which it or any of its
Restricted Subsidiaries operates;
(2) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in support thereof), having
maturities, unless such securities are deposited to defease any Indebtedness, of not more
than one year from the date of acquisition thereof;
(3) demand deposits, certificates of deposit, overnight deposits and 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
commercial bank that is organized under the laws of the United States of America, any state
thereof or any foreign country recognized by the United States and at the time of
acquisition thereof has capital and surplus in excess of $500.0 million (or the foreign
currency equivalent thereof) and a rating of P-1 or better from Moodys or A-1 or better
from S&P or, with respect to a commercial bank organized outside of the United States, a
local market credit rating of at least BBB- (or the then equivalent grade) by S&P and the
equivalent rating by Moodys, or with government owned financial institution that is
organized under the laws of any of the countries in which the Parents Restricted
Subsidiaries conduct business;
(4) commercial paper outstanding at any time issued by any Person that is organized
under the laws of the United States of America, any state thereof or any foreign country
recognized by the United States and rated P-1 or better from Moodys or A-1 or better from
S&P or, with respect to Persons organized outside of the United States, a local market
credit rating at least BBB- (or the then equivalent grade) by S&P and the equivalent
rating by Moodys and in each case with maturities of not more than 360 days from the date
of acquisition thereof;
5
(5) securities with final maturities of not more than one year from the date of
acquisition thereof issued or fully guaranteed by any state, territory or municipality of
the United States of America or by any political subdivision, taxing authority, agency or
instrumentality thereof or any country recognized by the United States, which securities are
rated at the time of acquisition at least A by S&P or A by Moodys;
(6) insured demand deposits made in the ordinary course of business and consistent with
the Parents or its Subsidiaries customary cash management policy in any domestic office of
any commercial bank organized under the laws of the United States of America or any state
thereof;
(7) repurchase obligations with a term of not more than 360 days for underlying
securities of the types described in clauses (2), (3) and (4) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;
(8) local currency denominated investments in government issued instruments with a term
of not more than 360 days from the date of acquisition, but only to the extent the countrys
credit rating is at least BBB- (or the then equivalent grade) by S&P and the equivalent
rating by Moodys; and
(9) investments, classified in accordance with GAAP as current assets of the Parent or
any of its Restricted Subsidiaries, in money market funds or investment programs registered
under the Investment Company Act of 1940 or similar provision under foreign law, at least
90% of the portfolios of which are limited solely to Investments of the character, quality
and maturity described in clauses (1) through (8) of this definition.
Change of Control means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Parent and its Restricted Subsidiaries,
taken as a whole, to any person (as that term is used in Section 13(d)(3) of the Exchange
Act);
(2) the adoption of a plan relating to the liquidation or dissolution of the Parent or
the Company;
(3) any person or group (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding any employee benefit plan of such person or its Subsidiaries,
and any Person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the Beneficial Owner, directly or indirectly, of 35%
or more of the Voting Stock of Parent or the Company on a fully-diluted basis (and taking
into account all such securities that such person or group has the right to acquire
pursuant to any option right to the extent that such option right is exercisable within 60
days after the date of determination);
6
(4) the first day on which a majority of the members of the Board of Directors of the
Parent or the Company are not Continuing Directors;
(5) the Parent or the Company consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into the Parent or the Company, in any such
event pursuant to a transaction in which any of the outstanding Voting Stock of the Parent
or the Company, as the case may be, or such Person is converted into or exchanged for cash,
securities or other property, other than any such transaction where, the Voting Stock of the
Parent or the Company as the case may be, outstanding immediately prior to such transaction
is converted into or exchanged for Voting Stock (other than Disqualified Stock) of the
surviving or transferee Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately after giving effect to such
issuance); or
(6) Parent ceases to own 100% of the Equity Interests of the Company (unless the Parent
and the Company are merged);
provided that no Change of Control shall be deemed to occur if the Notes are rated Baa3 or better
by Moodys and BBB- or better by Standard & Poors (or, if either such entity ceases to rate the
Notes for reasons outside of the control of the Parent or the Company, the equivalent investment
grade credit rating from any other nationally recognized statistical rating organization within
the meaning of Section 3(a)(62) under the Exchange Act, selected by the Company as a replacement
agency) for a period of at least 90 consecutive days, beginning on the date of such event, which
period will be extended for so long as the rating of the Notes is under publicly announced
consideration for possible downgrading by the applicable rating agency.
Commission means the United States Securities and Exchange Commission.
Clearstream means Clearstream Banking, société anonyme, Luxembourg (formerly Cedel Bank,
société anonyme), and any successor thereto.
Common Stock means, with respect to any Person, any Capital Stock (other than Preferred
Stock) of such Person, whether outstanding on the Issue Date or issued thereafter.
Company means NII Capital Corp. until a successor replaces it pursuant to Section 5.01
hereof and thereafter means the successor.
Consolidated Cash Flow means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus:
(1) provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period (including withholding taxes), to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income; plus
(2) Fixed Charges of such Person and its Restricted Subsidiaries for such period, to
the extent that any such Fixed Charges were deducted in computing such Consolidated Net
Income; plus
7
(3) depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and other non-cash
expenses or charges (including, without limitation, minority interest expense and foreign
exchange losses and excluding any such non-cash expense to the extent that it represents an
accrual of or reserve for cash expenses in any future period or amortization of a prepaid
cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries
for such period to the extent that such depreciation, amortization and other non-cash
expenses or charges were deducted in computing such Consolidated Net Income, such other
non-cash expenses to include, without limitation, impairment charges associated with
goodwill, wireless licenses, other indefinite-lived assets and long-lived assets, and
stock-based compensation awards; minus
(4) non-cash items increasing such Consolidated Net Income (including, without
limitation, foreign exchange gains) for such period, other than the accrual of revenue
consistent with past practice;
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the income or profits of, the
Fixed Charges of and the depreciation and amortization and other non-cash expenses of, a Restricted
Subsidiary of the Parent shall be added to Consolidated Net Income to compute Consolidated Cash
Flow of the Parent (A) in the same proportion that the Net Income of such Restricted Subsidiary was
added to compute such Consolidated Net Income of the Parent and (B) solely for the purpose of
determining the amount available for Restricted Payments under Section 4.07(a)(3)(i), only to the
extent that a corresponding amount would be permitted at the date of determination to be dividended
or distributed to the Parent by such Restricted Subsidiary without any prior governmental approval
(that has not been obtained), and without direct or indirect restriction pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Subsidiary or holders of its Capital Stock, unless such
restriction has been legally waived or is contained in any agreement governing Indebtedness that is
permitted by the covenant described under Section 4.08, provided, that the restrictions on the
declaration or payment of dividends or similar distributions contemplated by this clause (B) shall
not include approvals required by the Board of Directors or shareholders of the Restricted
Subsidiary, the requirement to obtain audited financial statements and any other requirements that
are administrative in nature and in the good faith judgment of the Parent would be satisfied;
provided further, that amounts shall not be excluded by this clause (B) to the extent they are paid
or could be paid in cash to the specified Person or a Restricted Subsidiary thereof by dividend,
distribution or other payment (including, without limitation, making loans, repaying indebtedness
or paying under intercompany arrangements).
Consolidated Leverage Ratio means on any Transaction Date, the ratio of:
(1) the aggregate amount of Indebtedness of the Parent and its Restricted Subsidiaries
on a consolidated basis outstanding on such Transaction Date, to
8
(2) the aggregate amount of Consolidated Cash Flow of the Parent and its Restricted
Subsidiaries for the Four Quarter Period.
In determining the Consolidated Leverage Ratio:
(1) pro forma effect shall be given to any Indebtedness that is to be incurred or
repaid on the Transaction Date;
(2) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any Asset Disposition)
that occur during the Reference Period as if they had occurred and such proceeds had been
applied on the first day of such Reference Period;
(3) pro forma effect shall be given to asset dispositions and asset acquisitions
(including giving pro forma effect to the application of proceeds of any asset disposition)
that have been made by any Person that has become a Restricted Subsidiary of the Parent or
has been merged with or into the Parent or any Restricted Subsidiary during such Reference
Period and that would have constituted Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Restricted Subsidiary, as if such asset
dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that
occurred on the first day of such Reference Period.
To the extent that pro forma effect is given to an Asset Acquisition or Asset Disposition,
such pro forma calculation shall be based upon the four full fiscal quarters immediately preceding
the Transaction Date of the Person, or division, operating unit or line of business of the Person,
that is acquired or disposed of for which financial information is available, and Consolidated Cash
Flow shall be calculated on a pro forma basis in accordance with Regulation S-X under the
Securities Act, but without giving effect to clause (3) of the proviso set forth in the definition
of Consolidated Net Income.
Consolidated Net Income means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; provided that:
(1) the Net Income of any Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the specified Person or a Restricted
Subsidiary thereof;
(2) solely for the purpose of determining the amount available for Restricted Payments
under Section 4.07(a)(3)(i), the Net Income of any Restricted Subsidiary shall be excluded
to the extent that the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that Restricted
Subsidiary or holders of its Capital Stock, unless such restriction with respect to the
payment of dividends or similar distributions has been
9
legally waived or is contained in any agreement governing Indebtedness that is
permitted under Section 4.08, provided, that the restrictions on the declaration or payment
of dividends or similar distributions contemplated by this clause (2) shall not include
approvals required by the Board of Directors or shareholders of the Restricted Subsidiary,
the requirement to obtain audited financial statements and any other requirements that are
administrative in nature and in the good faith judgment of the Parent would be satisfied;
provided further, that the Net Income of a Restricted Subsidiary shall not be excluded by
this clause (2) to the extent it is paid or could be paid in cash to the specified Person or
a Restricted Subsidiary thereof by dividend, distribution or other payment (including,
without limitation, making loans, repaying indebtedness or paying under intercompany
arrangements).
(3) the Net Income of any Person acquired during the specified period for any period
prior to the date of such acquisition shall be excluded;
(4) the cumulative effect of a change in accounting principles shall be excluded; and
(5) notwithstanding clause (1) above, the Net Income or loss of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the specified Person or one of
its Subsidiaries.
Corporate Trust Office of the Trustee shall be at the address of the Trustee specified in
Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.
Continuing Directors means, as of any date of determination, any member of the Board of
Directors of the Parent or the Company, as applicable who:
(1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board of Directors at the
time of such nomination or election or, in the case of the Company, was nominated for
election or elected by the Parent.
Credit Facilities means, one or more debt facilities, commercial paper facilities or
indentures, in each case with banks or other institutional lenders or a trustee, providing for
revolving credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from such lenders
against such receivables), letters of credit or issuances of notes, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to
time.
Custodian means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.
10
Default means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
Definitive Note means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.07 hereof, substantially in the form of Exhibit A hereto, and
such Note shall not bear the Global Note Legend and shall not have the Schedule of Exchanges of
Interests in the Global Note attached thereto.
Depositary means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.04 hereof as the Depositary with respect to the Notes, and
any and all successors thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.
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 upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is one year after the date on which the
Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require the Parent 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 Parent may not
repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07. 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 that is one
year after the date on which the Notes mature.
Domestic Restricted Subsidiary means any Restricted Subsidiary of the Parent other than a
Restricted Subsidiary that is (1) a controlled foreign corporation under Section 957 of the
Internal Revenue Code (a) whose primary operating assets are located outside the United States and
(b) that is not subject to tax under Section 882(a) of the Internal Revenue Code because of a trade
or business within the United States or (2) a Subsidiary of an entity described in the preceding
clause (1).
Equity Interests means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).
Equity Offering means any public or private placement of Capital Stock (other than
Disqualified Stock) of the Parent (other than pursuant to a registration statement on Form S-8 or
otherwise relating to equity securities issuable under any employee benefit plan of the Parent) to
any Person other than any Subsidiary of the Parent.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Exchange Notes means the Notes issued in the Registered Exchange Offer in accordance with
Section 2.07(f) hereof.
11
Exchange Offer Registration Statement has the meaning set forth in the Registration Rights
Agreement.
Existing Indebtedness means the aggregate amount of Indebtedness of the Parent and its
Restricted Subsidiaries (other than Indebtedness under the Notes) in existence on the Issue Date.
Fair Market Value means the price that would be paid in an arms-length transaction between
an informed and willing seller under no compulsion to sell and an informed and willing buyer under
no compulsion to buy, as determined in good faith by an Officer of the Parent or by the Board of
Directors of the Parent, evidenced by an Officers Certificate or Board Resolution, as applicable.
First Tier Restricted Subsidiary means each Restricted Subsidiary of the Parent (other than
the Company), the Capital Stock of which is held directly by the Parent.
Fixed Charges means, with respect to any specified Person for any period, the sum, without
duplication, of:
(1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to Attributable
Debt, commissions, discounts and other fees and charges incurred in respect of letter of
credit or bankers acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations; plus
(2) the consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person that is Guaranteed by such
Person or any of its Restricted Subsidiaries or secured by a Lien on assets of such Person
or any of its Restricted Subsidiaries whether or not such Guarantee or Lien is called upon;
plus
(4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock of such Person or Disqualified Stock or Preferred
Stock of any of its Restricted Subsidiaries other than dividends on Equity Interests payable
solely in Equity Interests (other than Disqualified Stock) of the Parent or to the Parent or
a Restricted Subsidiary of the Parent, times (b) a fraction, the numerator of which is one
and the denominator of which is one minus the then current combined federal, state and local
statutory tax rate of such Person (if such Person is part of a consolidated group, then such
tax rate shall be computed on a standalone basis for such Person), expressed as a decimal,
in each case, on a consolidated basis and in accordance with GAAP.
12
Foreign Restricted Subsidiary means any Restricted Subsidiary of the Parent that is not a
Domestic Restricted Subsidiary.
Four Quarter Period means, with respect to any specified Transaction Date, the four fiscal
quarters immediately prior to the Transaction Date for which internal financial statements of the
Parent are available.
GAAP means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and in the statements and pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which were in effect on the Issue Date.
Global Note Legend means the legend set forth in Section 2.07(g)(ii), which is required to
be placed on all Global Notes issued under this Indenture.
Global Notes means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes, substantially in the form of Exhibit A hereto, issued in accordance
with Section 2.01, 2.07(b), 2.07(d) or 2.07(f) of this Indenture.
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.
Guarantors means:
(1) the Initial Guarantors; and
(2) any other Subsidiary 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 the Note
Guarantee and this Indenture in accordance with the terms of this Indenture.
Hedging Obligations means, with respect to any specified Person, the obligations of such
Person under:
(1) interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and other agreements or arrangements with respect to interest rates;
(2) commodity swap agreements, commodity option agreements, forward contracts and other
agreements or arrangements with respect to commodity prices; and
13
(3) foreign exchange contracts, currency swap agreements, currency option agreements
and other agreements or arrangements with respect to foreign currency exchange rates.
Holder means a Person in whose name a Note is registered.
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 shall
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 Parent shall be deemed to
be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the
Parent 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) shall be considered an Incurrence of Indebtedness; provided that in each case the amount
thereof is for all other purposes included in the Fixed Charges and Indebtedness of the Parent, or
its Restricted Subsidiaries as accrued.
Indebtedness means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent and without duplication:
(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 bankers 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;
(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.
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
14
assumed by the specified Person), 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. 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 is 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.
Initial Guarantors means the Parent and all Domestic Restricted Subsidiaries existing on
the Issue Date.
Initial Purchasers means Morgan Stanley & Co. Incorporated, Credit Suisse Securities (USA)
LLC, Deutsche Bank Securities Inc. and Goldman, Sachs & Co.
Indenture means this Indenture, as amended or supplemented from time to time.
Indirect Participant means a Person who holds a beneficial interest in a Global Note through
a Participant.
Institutional Accredited Investor means an institution that is an accredited investor as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.
Investment Company Act means the Investment Company Act of 1940, as amended.
Investments means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the form of loans or other extensions of credit
(including Guarantees), advances, capital contributions (by means of any transfer of cash or other
property to others or any payment for property or services for the account or use of others),
purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP.
15
If the Parent or any Restricted Subsidiary of the Parent sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Parent such that, after
giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of
the Parent, the Parent shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of the Investment in such Subsidiary not sold or
disposed of. The acquisition by the Parent or any Restricted Subsidiary of the Parent of a Person
that holds an Investment in a third Person shall be deemed to be an Investment by the Parent or
such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the
Investment held by the acquired Person in such third Person.
Issue Date means the date of original issuance of the Notes under this Indenture.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in The City
of New York or at a place of payment are authorized or required by law, regulation or executive
order to remain closed.
Legended Regulation S Global Note means a global Note in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of
and registered in the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 903 of
Regulation S.
Letter of Transmittal means the letter of transmittal to be prepared by the Company and sent
to all Holders of the Notes for use by such Holders in connection with the Registered Exchange
Offer.
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.
Moodys means Moodys Investors Service, Inc. and its successors.
Net Income means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends, excluding, however:
(1) any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with: (a) any sale of assets outside the ordinary course of
business of such Person; or (b) the disposition of any securities by such Person or any of
its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any
of its Restricted Subsidiaries; and
(2) any extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss.
16
Net Proceeds means the aggregate cash proceeds, including payments in respect of deferred
payment obligations (to the extent corresponding to the principal, but not the interest component,
thereof) received by the Parent or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of (1) the direct costs relating to such
Asset Sale, 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 the
repayment of Indebtedness or other liabilities secured by a Lien on the asset or 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) in the case of any Asset Sale by a Restricted Subsidiary of the Parent, payments to
holders of Equity Interests in such Restricted Subsidiary in such capacity (other than such Equity
Interests held by the Parent or any Restricted Subsidiary thereof) to the extent that such payment
is required to permit the distribution of such proceeds in respect of the Equity Interests in such
Restricted Subsidiary held by the Parent or any Restricted Subsidiary thereof and (6) appropriate
amounts to be provided by the Parent or its Restricted Subsidiaries 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 (6) no longer so
held, shall, in the case of each of subclause (a) and (b), at that time become Net Proceeds.
Non-U.S. Person means a Person who is not a U.S. Person.
Note Guarantee means a Guarantee of the Notes pursuant to this Indenture.
Notes means the 8.875% Senior Notes due 2019 of the Company issued on the date hereof and
any Additional Notes, including any Exchange Notes. The Notes and the Additional Notes, if any,
shall be treated as a single class for all purposes under this Indenture.
Obligations means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.
Offering means the offering of the Notes by the Company.
Offering Memorandum means the offering memorandum of the Company for the offering of the
Notes, dated December 9, 2009.
Officer means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer,
17
the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of
such Person.
Officers Certificate means a certificate signed on behalf of the Company or the Parent, as
the case may be by at least two Officers of the Company or the Parent as the case may be, one of
whom must be the principal executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company or the Parent, as the case may be, that meets the
requirements of Section 12.05.
Opinion of Counsel means an opinion from legal counsel who is reasonably acceptable to the
Trustee (who may be counsel to or an employee of the Parent or any of its Restricted Subsidiaries)
that meets the requirements of Section 12.05.
Parent means NII Holdings, Inc. until a successor replaces it pursuant to Section 5.02
hereof and thereafter means the successor.
Participant means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and with respect to
DTC, shall include Euroclear and Clearstream).
Permitted Business means the telecommunications business and related activities and services
including any business conducted or proposed to be conducted (as described in the Offering
Memorandum) by the Parent and its Restricted Subsidiaries on the Issue Date (which include, without
limitation, the delivery or distribution of wireless telecommunications services (including voice,
data or video services) and the acquisition, holding or exploitation of any license relating to the
delivery of such wireless telecommunications services) and other businesses related, ancillary or
complementary thereto.
Permitted Investments means:
(1) any Investment in the Parent or a Restricted Subsidiary of the Parent;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Parent or any Restricted Subsidiary of the Parent in a
Person, if as a result of such Investment:
|
(a) |
|
such Person becomes a Restricted Subsidiary of
the Parent; or |
|
|
(b) |
|
such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Parent or a Restricted
Subsidiary of the Parent; |
provided that such Persons primary business is a Permitted Business;
(4) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10;
18
(5) Investments acquired as a capital contribution to, or in exchange for, or out of
the net cash proceeds of a substantially concurrent sale (other than to a Restricted
Subsidiary of the Parent) of, Equity Interests (other than Disqualified Stock) of, the
Parent; provided that the amount of any such Equity Interests or net proceeds that are
utilized for any such acquisition or exchange will be excluded pursuant to Section
4.07(a)(3)(ii);
(6) Hedging Obligations that are Incurred for the purpose of fixing, hedging or
swapping interest rate, commodity price or foreign currency exchange rate risk (or to
reverse or amend any such agreements previously made for such purposes), and not for
speculative purposes, and that do not increase the Indebtedness of the obligor outstanding
at any time other than as a result of fluctuations in interest rates, commodity prices or
foreign currency exchange rates or by reason of fees, indemnities and compensation payable
thereunder;
(7) stock, obligations or securities received in satisfaction of judgments;
(8) advances to customers or suppliers in the ordinary course of business that are, in
conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the
balance sheet of the Parent or its Restricted Subsidiaries and endorsements for collection
or deposit arising in the ordinary course of business;
(9) commission, payroll, travel and similar advances to officers and employees of the
Parent or any of its Restricted Subsidiaries that are expected at the time of such advance
ultimately to be recorded as an expense in conformity with GAAP;
(10) loans and advances to employees, officers or directors of the Parent or any of its
Restricted Subsidiaries made in the ordinary course of business, provided that such loans
and advances do not exceed $5.0 million at any one time outstanding;
(11) Investments existing on the Issue Date;
(12) other Investments in any Person primarily engaged in a Permitted Business
including joint ventures and Unrestricted Subsidiaries) having an aggregate Fair Market
Value (measured on the date each such Investment was made and without giving effect to
subsequent changes in value), when taken together with all other outstanding Investments
made pursuant to this clause (12) since August 18, 2009, not to exceed 20% of consolidated
total assets of the Parent (determined as of the end of the most recent fiscal quarter of
the Parent for which internal financial statements of the Parent are available); and
(13) other Investments, having an aggregate Fair Market Value (measured on the date
each such Investment was made and without giving effect to subsequent changes in value),
when taken together with all other outstanding Investments made pursuant to this clause (13)
since August 18, 2009, not to exceed $350.0 million.
19
Permitted Liens means:
(1) Liens on the assets securing Indebtedness Incurred described under Section
4.09(b)(i);
(2) Liens in favor of the Parent, the Company or any Subsidiary Guarantor;
(3) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Parent, the Company or any Subsidiary Guarantor; provided that
such Liens were in existence prior to the contemplation of such merger or consolidation or
other event and do not extend to any assets other than those of the Person that is merged
into or consolidated with the Parent, the Company or the Subsidiary Guarantor, as the case
may be;
(4) Liens on property existing at the time of acquisition thereof by the Parent, the
Company or any Subsidiary Guarantor, 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 the Parent, the Company or such Subsidiary Guarantor;
(5) Liens securing the Notes and any Note Guarantee;
(6) Liens existing on the Issue Date (other than any Liens securing Indebtedness
Incurred under Section 4.09(b)(i)) and any renewals or extension thereof, provided that
property or assets covered thereby is not expanded in connection with such renewal or
extension;
(7) Liens securing Permitted Refinancing Indebtedness; provided that such Liens do not
extend to any property or assets other than the property or assets that secure the
Indebtedness being refinanced;
(8) Liens on property or assets used to defease or to satisfy and discharge
Indebtedness; provided that (a) the Incurrence of such Indebtedness was not prohibited by
this Indenture and (b) such defeasance or satisfaction and discharge is not prohibited by
this Indenture;
(9) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.09(b)(iv); provided that any such Lien (a) covers only the assets acquired,
constructed or improved with such Indebtedness and (b) is created within 365 days of such
acquisition, construction or improvement;
(10) Liens incurred or deposits made in the ordinary course of business in connection
with workers compensation, unemployment insurance or other social security obligations;
(11) Liens, deposits or pledges to secure the performance of bids, tenders, contracts
(other than contracts for the payment of Indebtedness), leases, or other similar obligations
arising in the ordinary course of business;
20
(12) survey exceptions, encumbrances, easements or reservations of, or rights of other
for, rights of way, zoning or other restrictions as to the use of properties, and defects in
title which, in the case of any of the foregoing, were not incurred or created to secure the
payment of Indebtedness, and which in the aggregate do no materially adversely affect the
value of such properties or materially impair the use for the purposes of which such
properties are held by the Parent or any of its Restricted Subsidiaries;
(13) 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;
(14) 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;
(15) Liens in favor of collecting or payor banks having a right of setoff, revocation,
refund or chargeback with respect to money or instruments of the Parent or any Subsidiary
thereof on deposit with or in possession of such bank;
(16) 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);
(17) Liens for taxes, assessments and governmental charges not yet delinquent or being
contested in good faith and for which adequate reserves have been established to the extent
required by GAAP;
(18) Liens arising from precautionary financing statements or similar documents
regarding operating leases or consignments;
(19) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
(20) Liens on cash collateral not in excess of $150 million in the aggregate at any
time securing letters of credit;
(21) carriers, warehousemens, mechanics, landlords, materialmens, repairmens or
other like Liens arising in the ordinary course of business in respect of obligations not
overdue for a period in excess of 60 days or which are being contested in good faith by
appropriate proceedings promptly instituted and diligently prosecuted; provided, however,
that any reserve or other appropriate provision as shall be required to conform with GAAP
will have been made for that reserve or provision.
Permitted Refinancing Indebtedness means any Indebtedness of the Parent or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to
21
extend, refinance, renew, replace, defease or refund other Indebtedness of the Parent or any
of its Restricted Subsidiaries (other than intercompany Indebtedness); 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 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 any Note Guarantee, such
Permitted Refinancing Indebtedness has a final maturity date later than the final maturity
date of the Notes and is subordinated in right of payment to the Notes or such Note
Guarantee, 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 Guarantee, such
Permitted Refinancing Indebtedness is pari passu with, or subordinated in right of payment
to, the Notes or such Note Guarantee; and
(5) if the obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is (a) the Parent, such Indebtedness is Incurred by the Parent, (b) the
Company or a Subsidiary Guarantor, such Indebtedness is incurred by the Parent, the Company
or a Subsidiary Guarantor and (c) a Restricted Subsidiary that is not a Subsidiary Guarantor
or the Company, such Indebtedness is Incurred by the Parent or any of its Restricted
Subsidiaries.
Permitted Subordinated Indebtedness means Indebtedness of the Parent, the Company or any
Subsidiary Guarantor that is expressly subordinated in right of payment to the Notes or the Note
Guarantee and 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 upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, or redeemable at the option of the holder thereof, in whole or in part, no earlier
than on or after the date that is one year after the date on which the Notes mature.
Notwithstanding the preceding sentence, any Indebtedness of the Parent, the Company or any
Subsidiary Guarantor that would not constitute Permitted Subordinated Indebtedness solely because
the holders thereof have the right to require the Parent, the Company or any Guarantor to
repurchase such Indebtedness upon the occurrence of a change of control or an asset sale will
nonetheless constitute Permitted Subordinated Indebtedness if the terms of such Indebtedness
provide that the Parent, the Company or the Subsidiary Guarantor, as the case may be, may not
22
repurchase or redeem any such Indebtedness pursuant to such provisions unless such repurchase
or redemption complies with Section 4.07.
Person means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
Preferred Stock means, 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.
Priority Debt means all Secured Indebtedness of the Parent, the Company or any Subsidiary
Guarantor and all Indebtedness of any Restricted Subsidiary of the Parent that is not the Issuer or
a Subsidiary Guarantor, other than (i) the Notes in the event the Notes become secured and (ii)
Secured Indebtedness secured pursuant to Section 4.12 where the Notes are secured on an equal and
ratable or senior basis.
Priority Debt Leverage Ratio means on any Transaction Date, the ratio of:
(1) the aggregate amount of Priority Debt on a consolidated basis outstanding on such
Transaction Date, to
(2) the aggregate amount of Consolidated Cash Flow of the Parent and its Restricted
Subsidiaries for the Four Quarter Period;
In determining the Priority Debt Leverage Ratio:
(A) pro forma effect shall be given to any Indebtedness that is to be incurred or
repaid on the Transaction Date;
(B) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any Asset Disposition)
that occur during the Reference Period as if they had occurred and such proceeds had been
applied on the first day of such Reference Period; and
(C) pro forma effect shall be given to asset dispositions and asset acquisitions
(including giving pro forma effect to the application of proceeds of any asset disposition)
that have been made by any Person that has become a Restricted Subsidiary of the Parent or
has been merged with or into the Parent or any Restricted Subsidiary during such Reference
Period and that would have constituted Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Restricted Subsidiary, as if such asset
dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that
occurred on the first day of such Reference Period.
To the extent that pro forma effect is given to an Asset Acquisition or Asset Disposition,
such pro forma calculation shall be based upon the four full fiscal quarters immediately preceding
the Transaction Date of the Person, or division, operating unit or line of business of the Person,
that is acquired or disposed of for which financial information is
23
available, and Consolidated Cash Flow will be calculated on a pro forma basis in accordance
with Regulation S-X under the Securities Act, but without giving effect to clause (3) of the
proviso set forth in the definition of Consolidated Net Income.
Private Placement Legend means the legend set forth in Section 2.07(g)(i) to be placed on
all Notes issued under this Indenture except where otherwise permitted by the provisions of this
Indenture.
QIB means a qualified institutional buyer as defined in Rule 144A.
Reference Period means, with respect to any specified Transaction Date, the period beginning
on the first day of the Four Quarter Period and ending on such Transaction Date.
Registered Exchange Offer has the meaning set forth in the Registration Rights Agreement.
Registration Rights Agreement means (1) with respect to the Notes issued on the Issue Date,
the Registration Rights Agreement, to be dated the Issue Date, among the Company, the Initial
Guarantors and the Initial Purchaser and (2) with respect to any Additional Notes, any registration
rights agreement among the Company, the Guarantors and the other parties thereto relating to the
registration by the Company and the Guarantors of such Additional Notes under the Securities Act.
Regulation S means Regulation S promulgated under the Securities Act.
Regulation S Global Note means a Legended Regulation S Global Note or a Unlegended
Regulation S Global Note, as appropriate.
Replacement Assets means (1) capital expenditures or other non-current assets that will be
used or useful in a Permitted Business, (2) substantially all the assets of a Permitted Business or
(3) Voting Stock of any Person engaged in a Permitted Business that, when taken together with all
other Voting Stock of such Person owned by the Parent and its Restricted Subsidiaries, constitutes
a majority of the Voting Stock of such Person and such Person shall become on the date of
acquisition thereof a Restricted Subsidiary.
Responsible Officer, when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.
Restricted Definitive Note means a Definitive Note bearing the Private Placement Legend.
Restricted Global Note means a Global Note bearing the Private Placement Legend.
24
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Period means the 40-day restricted period as defined in Regulation S.
Restricted Subsidiary of a Person means any Subsidiary of such Person that is not an
Unrestricted Subsidiary.
Rule 144 means Rule 144 promulgated under the Securities Act.
Rule 144A means Rule 144A promulgated under the Securities Act.
Rule 903 means Rule 903 promulgated under the Securities Act.
Rule 904 means Rule 904 promulgated the Securities Act.
S&P means Standard & Poors, a division of The McGraw-Hill Companies, and its successors.
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.
Secured Indebtedness means any Indebtedness secured by a Lien upon property or assets of the
Parent or any of its Restricted Subsidiaries.
Securities Act means the Securities Act of 1933, as amended.
Shelf Registration Statement means the Shelf Registration Statement as defined in the
Registration Rights Agreement.
Significant Subsidiary means any Subsidiary that would constitute a significant
subsidiary within the meaning of Article 1 of Regulation S-X of the Securities Act.
Stated Maturity means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.
Subsidiary means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more than 50% of the
total voting power of the Voting Stock is at the time owned or controlled,
25
directly or indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are such Person or one or more Subsidiaries of such Person (or any combination
thereof).
Subsidiary Debt Leverage Ratio means on any Transaction Date, the ratio of:
(1) the aggregate amount of Priority Debt and, without duplication, any Indebtedness of
the Company and the Subsidiary Guarantors on a consolidated basis outstanding on such
Transaction Date, to
(2) the aggregate amount of Consolidated Cash Flow of the Parent and its Restricted
Subsidiaries for the Four Quarter Period
In determining the Subsidiary Debt Leverage Ratio:
(1) pro forma effect shall be given to any Indebtedness that is to be incurred or
repaid on the Transaction Date;
(2) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any Asset Disposition)
that occur during the Reference Period as if they had occurred and such proceeds had been
applied on the first day of such Reference Period;
(3) pro forma effect shall be given to asset dispositions and asset acquisitions
including giving pro forma effect to the application of proceeds of any asset disposition)
that have been made by any Person that has become a Restricted Subsidiary of the Parent or
has been merged with or into the Parent or any Restricted Subsidiary during such Reference
Period and that would have constituted Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Restricted Subsidiary, as if such asset
dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that
occurred on the first day of such Reference Period.
To the extent that pro forma effect is given to an Asset Acquisition or Asset Disposition,
such pro forma calculation shall be based upon the four full fiscal quarters immediately preceding
the Transaction Date of the Person, or division, operating unit or line of business of the Person,
that is acquired or disposed of for which financial information is available, and Consolidated Cash
Flow will be calculated on a pro forma basis in accordance with Regulation S-X under the Securities
Act, but without giving effect to clause (3) of the proviso set forth in the definition of
Consolidated Net Income.
Subsidiary Guarantor means any Restricted Subsidiary of the Parent that guarantees the
Companys Obligations under the Notes in accordance with the terms of this Indenture, and its
successors and assigns, until released from its obligations under such Guarantee and this Indenture
in accordance with the terms of this Indenture.
26
TIA means the Trust Indenture Act of 1939, as in effect on the date on which this Indenture
is qualified under the TIA.
Transaction Date means, with respect to the incurrence of any Indebtedness by the Parent or
any of its Restricted Subsidiaries, the date such Indebtedness is to be incurred, with respect to
any Restricted Payment, the date such Restricted Payment is to be made, and with respect to the
incurrence of any Lien by the Parent or any of its Restricted Subsidiaries, the date such Lien is
to be incurred.
Treasury Rate means the yield to maturity at the time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) which has become publicly available at least two Business
Days prior to the date fixed for prepayment (or, if such Statistical Release is no longer
published, any publicly available source for similar market data)) most nearly equal to the then
remaining term of the Notes to December 15, 2014 provided, however, that if the then remaining term
of the Notes to December 15, 2014 is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of
United States Treasury securities for which such yields are given, except that if the then
remaining term of the Notes to December 15, 2014 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant maturity of one year shall
be used.
Trustee means Wilmington Trust Company, until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor serving hereunder.
Unlegended Regulation S Global Note means a permanent global Note in the form of Exhibit A
hereto bearing the Global Note Legend, deposited with or on behalf of and registered in the name of
the Depositary or its nominee and issued upon expiration of the Restricted Period.
Unrestricted Definitive Note means one or more Definitive Notes that do not bear and are not
required to bear the Private Placement Legend.
Unrestricted Global Note means a permanent Global Note substantially in the form of Exhibit
A attached hereto that bears the Global Note Legend and that has the Schedule of Exchanges of
Interests in the Global Note attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes, and that does not bear
the Private Placement Legend.
Unrestricted Subsidiary means any Subsidiary of the Parent (other than the Company) that is
designated by the Board of Directors of the Parent as an Unrestricted Subsidiary pursuant to a
Board Resolution in compliance with Section 4.16 hereof and any Subsidiary of such Subsidiary.
U.S. Person means a U.S. person as defined in Rule 902(k) under the Securities Act.
27
Voting Stock of any Person as of any date means the Capital Stock of such Person that is
ordinarily entitled to vote in the election of the Board of Directors of such Person.
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse between such date and the
making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
Wireless Licenses means broadband personal communications service licenses or other licenses
for the provision of wireless telecommunications services or operation of wireless
telecommunications systems issued from time to time by the applicable government agency or other
authority in the jurisdictions where the Parent and its Restricted Subsidiaries operate.
Section 1.02. Other Definitions.
|
|
|
|
|
Defined |
|
|
in |
Term |
|
Section |
Affiliate Transaction |
|
4.11 |
Asset Sale Offer |
|
4.10 |
Authentication Order |
|
2.02 |
Automatic Exchange |
|
2.07 |
Automatic Exchange Date |
|
2.07 |
Automatic Exchange Notice |
|
2.07 |
Automatic Exchange Notice Date |
|
2.07 |
Change of Control Offer |
|
4.14 |
Change of Control Payment |
|
4.14 |
Change of Control Payment Date |
|
4.14 |
Covenant Defeasance |
|
8.03 |
Covenant Suspension Event |
|
4.15 |
DTC |
|
2.01 |
Event of Default |
|
6.01 |
Excess Proceeds |
|
4.10 |
Excess Proceeds Trigger Date |
|
4.10 |
Legal Defeasance |
|
8.02 |
Offer Amount |
|
3.08 |
Offer Period |
|
3.08 |
Offshore transaction |
|
2.07 |
Paying Agent |
|
2.04 |
28
|
|
|
|
|
Defined |
|
|
in |
Term |
|
Section |
Payment Default |
|
6.01 |
Permitted Debt |
|
4.09 |
Purchase Date |
|
3.08 |
Registrar |
|
2.04 |
Related Proceedings |
|
12.09 |
Repurchase Offer |
|
3.08 |
Restricted Payments |
|
4.07 |
Specified Courts |
|
12.09 |
Suspension Period |
|
4.15 |
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
indenture securities means the Notes;
indenture security Holder means a Holder of a Note;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes means the Company and any successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by Commission rule under the TIA have the meanings so assigned to
them.
Section 1.04. Rules of Construction.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(iii) or is not exclusive;
29
(iv) words in the singular include the plural, and in the plural include the singular;
(v) provisions apply to successive events and transactions; and
(vi) references to sections of or rules under the Securities Act shall be deemed to
include substitute, replacement of successor sections or rules adopted by the Commission
from time to time.
ARTICLE TWO
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustees certificate of authentication shall be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The
Notes shall be issued in registered, global form without interest coupons and only shall be in
minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof; provided that
Notes may be issuable in denominations less than $1,000 solely to the extent necessary to
accommodate book-entry positions created in such amounts by The Depository Trust Company (DTC).
The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A
attached hereto (and shall include the Global Note Legend thereon and the Schedule of Exchanges of
Interests in the Global Note attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon
and without the Schedule of Exchanges of Interests in the Global Note attached thereto). 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 principal amount of outstanding Notes from time
to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in
the aggregate principal 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 2.07
hereof.
(c) Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for DTC,
and registered in the name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or
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Clearstream, duly executed by the Company and authenticated by the Trustee as hereinafter
provided. Following the termination of the Restricted Period, beneficial interests in the Legended
Regulation S Global Note may be exchanged for beneficial interests in Unlegended Regulation S
Global Notes pursuant to the Applicable Procedures. The aggregate principal amount of the
Regulation S Global Notes may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depositary or its nominee, as the case may be, in connection
with transfers of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of the Operating
Procedures of the Euroclear System and Terms and Conditions Governing Use of Euroclear and the
General Terms and Conditions of Cedel Bank and Customer Handbook of Clearstream shall be
applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by
Participants through Euroclear or Clearstream.
Section 2.02. Execution and Authentication.
Two Officers of the Company shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of the Trustee. Such
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
The aggregate principal amount of Notes which may be authenticated and delivered under this
Indenture is unlimited. The Company may, subject to Article Four of this Indenture and applicable
law, issue Additional Notes under this Indenture, including Exchange Notes. 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.
The Trustee shall, upon a written order of the Company signed by two Officers of the Company
(an Authentication Order), authenticate Notes for original issue on the date hereof of $800.0
million. At any time and from time to time after the execution of this Indenture, the Trustee
shall, upon receipt of an Authentication Order, authenticate Notes for original issue in aggregate
principal amount specified in such Authentication Order. The Authentication Order shall specify
the amount of Notes to be authenticated and the date on which the Notes are to be authenticated.
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 has the same rights as an Agent to deal with Holders or an Affiliate of
the Company.
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Section 2.03. Methods of Receiving Payments on the Notes.
If a Holder has given wire transfer instructions to the Company, the Company shall pay, or
cause the Paying Agent to pay, all principal, interest and premium and Additional Interest, if any,
on that Holders Notes in accordance with those instructions. All other payments on Notes shall be
made at the office or agency of the Paying Agent and Registrar unless the Company elects to make
interest payments by check mailed to the Holders at their addresses set forth in the register of
Holders.
Section 2.04. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (Registrar) and an office or agency where Notes may be
presented for payment (Paying Agent). The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term Registrar includes any co-registrar and the term Paying
Agent includes any additional paying agent. The Company may change any Paying Agent or Registrar
without prior notice to any Holder. The Company shall notify the Trustee in writing of the name
and address of any Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Parent or
any of its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints DTC to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to
act as Custodian with respect to the Global Notes.
Section 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium or Additional Interest, if any, or interest
on the Notes, and shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or one of its Subsidiaries) shall have no further liability for the money. If the Company
or one of its Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the
Notes.
Section 2.06. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise
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comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall furnish to
the Trustee at least seven Business Days before each interest payment date and at such other times
as the Trustee may request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes and the Company shall
otherwise comply with TIA § 312(a).
Section 2.07. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes are exchangeable
by the Company for Definitive Notes if (i) DTC (A) notifies the Company that it is unwilling or
unable to continue as Depositary for the Global Notes and the Company fails to appoint a successor
Depositary or that it (B) has ceased to be a clearing agency registered under the Exchange Act and
the Company fails to appoint a successor Depositary; (ii) the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of Definitive Notes; provided that in no
event shall the Legended Regulation S Global Note be exchanged by the Company for Definitive Notes
prior to the expiration of the Restricted Period; or (iii) there shall have occurred and be
continuing a Default or Event of Default with respect to the Notes. Upon the occurrence of any of
the preceding events in (i), (ii) or (iii) above, Definitive Notes shall be issued in such names as
the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.08 and 2.11 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this
Section 2.07 or Section 2.08 or 2.11 hereof, shall be authenticated and delivered in the form of,
and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.07(a); however, beneficial interests in a Global Note may be transferred
and exchanged as provided in Section 2.07(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Legended Regulation S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than the Initial Purchasers). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who
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take delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note. No written orders or instructions shall be required to be delivered to the Registrar
to effect the transfers described in this Section 2.07(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.07(b)(i) above, the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2) instructions given
in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above; provided that in no event shall Definitive Notes be issued upon
the transfer or exchange of beneficial interests in the Legended Regulation S Global Note
prior to the expiration of the Restricted Period. Upon consummation of a Registered
Exchange Offer by the Company in accordance with Section 2.07(f) hereof, the requirements of
this Section 2.07(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder
of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests in Global Notes contained
in this Indenture and the Notes or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount at maturity of the relevant Global Notes pursuant
to Section 2.07(i) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.07(b)(ii) above and the Registrar
receives the following:
(A) if the transferee shall take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof; and
(B) if the transferee shall take delivery in the form of a beneficial interest
in a Legended Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in item
(2) thereof.
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(iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in the Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any Holder thereof for a beneficial interest
in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.07(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the Registered Exchange
Offer in accordance with the Registration Rights Agreement and the Holder of the
beneficial interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a Person participating in the distribution of the
Exchange Notes or (2) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(2) if the Holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
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aggregate principal amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.
(v) Automatic Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. Upon the Companys satisfaction that
the Private Placement Legend shall no longer be required in order to maintain compliance
with the Securities Act, beneficial interests in a Restricted Global Note may be
automatically exchanged into beneficial interests in an Unrestricted Global Note without any
action required by or on behalf of the Holder (the Automatic Exchange) at any time on or
after the date that is the 366th calendar day after (A) with respect to the Notes issued on
the Issue Date, the Issue Date or (B) with respect to Additional Notes, if any, the issue
date of such Additional Notes, or, in each case, if such day is not a Business Day, on the
next succeeding Business Day (the Automatic Exchange Date). Upon the Companys
satisfaction that the Private Placement Legend shall no longer be required in order to
maintain compliance with the Securities Act, the Company may pursuant to the Applicable
Procedures (i) provide written notice to DTC at least 15 calendar days prior to the
Automatic Exchange Date, instructing DTC to direct the Depositary to exchange all of the
outstanding beneficial interests in a particular Restricted Global Note to the Unrestricted
Global Note, which the Company shall have previously otherwise made eligible for exchange
with the DTC, (ii) provide prior written notice (the Automatic Exchange Notice) to each
Holder at such Holders address appearing in the register of Holders at least 15 calendar
days prior to the Automatic Exchange Date (the Automatic Exchange Notice Date), which
notice must include (w) the Automatic Exchange Date, (x) the section of the Indenture
pursuant to which the Automatic Exchange shall occur, (y) the CUSIP number of the
Restricted Global Note from which such Holders beneficial interests will be transferred and
the (z) CUSIP number of the Unrestricted Global Note into which such Holders beneficial
interests will be transferred, and (iii) on or prior to the Automatic Exchange Date, deliver
to the Trustee for authentication one or more Unrestricted Global Notes, duly executed by
the Company, in an aggregate principal amount equal to the aggregate principal amount of
Restricted Global Notes to be exchanged. At the Companys request on no less than 5 calendar
days notice prior to the Automatic Exchange Notice Date, the Trustee shall deliver, in the
Companys name and at its expense, the Automatic Exchange Notice to each Holder at such
Holders address appearing in the register of Holders. Notwithstanding anything to the
contrary in this Section 2.07, during the 15 day period prior to the Automatic Exchange
Date, no transfers or exchanges other than pursuant to this Section 2.07(b)(v) shall be
permitted without the prior written consent of the Company. As a condition to any Automatic
Exchange, the Company shall provide, and the Trustee shall be entitled to rely upon, an
Officers Certificate in form reasonably acceptable to the Trustee to the effect that the
Automatic Exchange shall be effected in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend shall no
longer be required in order to maintain compliance with the Securities Act and that the
aggregate principal amount of the particular Restricted Global Note is to be transferred to
the particular Unrestricted Global Note by adjustment made on the records of the Trustee, as
custodian for the Depositary to reflect the Automatic Exchange. Upon such exchange of
beneficial interests pursuant to this Section 2.07(b)(v), the aggregate principal amount of
the Global Notes shall be
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increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, to reflect the relevant increase or decrease in
the principal amount of such Global Note resulting from the applicable exchange. The Restricted Global Note
from which beneficial interests are transferred pursuant to an Automatic Exchange shall be
canceled following the Automatic Exchange.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any Holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the Holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than that listed in subparagraph (B) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)(b) thereof,
if applicable; or
(D) if such beneficial interest is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.07(i) hereof, and the Company shall execute and
the Trustee shall authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this Section 2.07(c) shall
be registered in such name or names and in such authorized denomination or denominations as
the Holder of such beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a
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beneficial interest in a Restricted Global Note pursuant to this Section 2.07(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. A
beneficial interest in the Legended Regulation S Global Note may not be exchanged for a
Definitive Note or transferred to a Person who takes delivery thereof in the form of a
Definitive Note prior to the expiration of the Restricted Period, except in the case of a
transfer pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.
A Holder of a beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the Registered Exchange
Offer in accordance with the Registration Rights Agreement and the Holder of such
beneficial interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
Person participating in the distribution of the Exchange Notes or (2) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Definitive Note
that does not bear the Private Placement Legend, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(2) if the Holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive Note that does not bear
the Private Placement Legend, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
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transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes. If any Holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.07(b)(ii) hereof, the Trustee shall
cause the aggregate principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.07(i) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.07(c)(iv) shall be registered in such name or names and
in such authorized denomination or denominations as the Holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.07(c)(iv) shall not bear the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If
any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to exchange such
Note for a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item (2)(b)
thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (2) thereof; or
(D) if such Restricted Definitive Note is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
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the Trustee shall cancel the Restricted Definitive Note, and increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global
Note, and in the case of clause (C) above, the Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the Registered Exchange
Offer in accordance with the Registration Rights Agreement and the Holder, in the
case of an exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Person participating in the
distribution of the Exchange Notes or (2) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of a beneficial interest in the Unrestricted Global Note, a certificate from
such Holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar and the Company to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.07(d)(ii),
the Trustee shall cancel the Unrestricted Definitive Notes and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global Note.
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(iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global
Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holders compliance with the provisions of this Section 2.07(e), the
Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this Section
2.07(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer shall be made pursuant to Rule 144A under the Securities
Act, then the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) [INTENTIONALLY OMITTED]; and
(C) if the transfer shall be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Registered Exchange
Offer in accordance with the Registration Rights Agreement and the
41
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
Person participating in the distribution of the Exchange Notes or (2) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to the Company to the
effect that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the Securities
Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such
a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Registered Exchange Offer. Upon the occurrence of a Registered Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Trustee shall authenticate (i) one or
more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of
the beneficial interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not participating in a
distribution of the Exchange Notes and (y) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Registered Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted Definitive Notes
accepted for exchange in the Registered Exchange Offer.
42
Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company shall execute and the Trustee shall authenticate and deliver to the Persons designated by the Holders of Restricted Global Notes so accepted Unrestricted Global Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture.
(i) Private Placement Legend. Except as permitted below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD 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, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN
INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a) (1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT), OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE AND THE
GUARANTEES ENDORSED HEREON IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144 UNDER
THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE
TRANSFER THIS NOTE AND THE GUARANTEES ENDORSED HEREON, EXCEPT (A) TO NII HOLDINGS, INC., NII
CAPITAL CORP. OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO NII HOLDINGS, INC., NII CAPITAL CORP. AND THE GUARANTORS THAT SUCH TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS NOTE AND THE GUARANTEES ENDORSED HEREON ARE
43
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON WITHIN THE TIME PERIOD
REFERRED TO IN RULE 144 UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THE NOTES, THE
HOLDER MUST SUBMIT THE CERTIFICATE OF TRANSFER REFERENCED IN THE INDENTURE TO THE TRUSTEE. IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE, NII HOLDINGS, INC., NII CAPITAL CORP. AND THE GUARANTORS SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EACH OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
OFFSHORE TRANSACTION, UNITED STATES, AND U.S. PERSON HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(iv), (b)(v), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)
to this Section 2.07 (and all Notes issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in substantially the
following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
(h) Regulation S Global Note Legend. The Regulation S Global Note shall bear a legend in
substantially the following form:
THE RIGHTS ATTACHING TO THIS GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR
44
DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
(i) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section 2.12 hereof. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who shall take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who shall take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note shall
be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by
the Depositary at the direction of the Trustee to reflect such increase.
(j) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon the Companys order or
at the Registrars request.
(ii) No service charge shall be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.11,
3.06, 3.08, 4.10, 4.14 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of or exchange any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid and legally binding
obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection, (B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part, (C) to register the transfer of or to exchange
45
a Note between a record date and the next succeeding interest payment date or (D) to register the
transfer of or to exchange a Note tendered and not withdrawn in connection with a Change of
Control Offer or an Asset Sale Offer.
(vi) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance
with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel required to be
submitted to the Registrar pursuant to this Section 2.07 to effect a registration of
transfer or exchange may be submitted by facsimile or electronic transmission with the
original to follow by first class mail.
Section 2.08. Replacement Notes.
(a) If any mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if the Trustees requirements are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee
and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
(b) Every replacement Note is an additional obligation of the Company and shall be entitled to
all of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
Section 2.09. Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section 2.10 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note;
however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be
outstanding for purposes of Section 3.07(b) hereof.
(b) If a Note is replaced pursuant to Section 2.08 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide
purchaser.
46
(c) If the principal amount of any Note is considered paid under Section 4.01 hereof, it
ceases to be outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any of the
foregoing) holds, on a redemption date or maturity date, money sufficient to pay
Notes payable on that date, then on and after that date such Notes shall be deemed to be no
longer outstanding and shall cease to accrue interest.
Section 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company or the Parent, or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or the Parent, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Notes that the Trustee knows are so owned shall be so disregarded.
Section 2.11. Temporary Notes.
(a) Until certificates representing Notes are ready for delivery, the Company may prepare and
the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of Definitive Notes but may have variations that
the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes.
(b) Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.
Section 2.12. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled securities in
effect as of the date of such disposition (subject to the record retention requirement of the
Exchange Act). Certification of the disposition of all canceled Notes shall be delivered to the
Company. The Company may not issue new Notes to replace Notes that it has paid or that have been
delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Company shall notify the
47
Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Company shall fix or cause to be fixed each such special record date and
payment date, provided that no such special record date shall be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall deliver or cause to be delivered to Holders
a notice that states the special record date, the related payment date and the amount of such
interest to be paid.
Section 2.14. CUSIP Numbers.
The Company in issuing the Notes may use CUSIP numbers (if then generally in use), and, if
so, the Trustee shall use CUSIP numbers in notices of redemption 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 and that
reliance may be placed only on the other identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE THREE
REDEMPTION AND OFFERS TO
PURCHASE
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it shall furnish to the Trustee, at least 30 days but not more than 60 days
before a redemption date, an Officers Certificate setting forth (i) the clause of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount
of Notes to be redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
(a) If less than all of the Notes are to be redeemed at any time, the Trustee shall select the
Notes for redemption as follows (i) if the Notes are listed on any national securities exchange, in
compliance with the requirements of such principal national securities exchange, or, (ii) if the
Notes are not so listed, on a pro rata basis, subject to adjustments so that no Notes of $2,000 or
less will be redeemed in part.
(b) The Trustee shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the principal amount
thereof to be redeemed. No Notes in amounts of $2,000 or less shall be redeemed in part. Notes
and portions of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000; except
that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided in
the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
48
Section 3.03. Notice of Redemption.
(a) At least 30 days but not more than 60 days before a redemption date, the Company shall
deliver or cause to be delivered, by first class mail or electronic transmission, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Note is being redeemed in part only, the portion of the principal amount
of such Note to be redeemed and that, after the redemption date upon surrender of such Note,
a Note in principal amount equal to the unredeemed portion of the original Note shall be
issued in the name of the Holder thereof upon cancellation of the original Note;
(iv) the name and address of the Paying Agent;
(v) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price and become due on the date fixed for redemption;
(vi) that, unless the Company defaults in making such redemption payment, interest, if
any, on Notes called for redemption ceases to accrue on and after the redemption date;
(vii) the paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and
(viii) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.
(b) At the Companys request, the Trustee shall give the notice of redemption in the Companys
name and at its expense; provided, however, that the Company shall have delivered to the Trustee,
at least 45 days prior to the redemption date, an Officers Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice as provided in the
preceding paragraph. The notice, if delivered in the manner provided herein shall be presumed to
have been given, whether or not the Holder receives such notice.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is delivered in accordance with Section 3.03 hereof, Notes called
for redemption become irrevocably due and payable on the redemption date at the redemption price.
A notice of redemption may not be conditional.
49
Section 3.05. Deposit of Redemption Price.
(a) One Business Day prior to the redemption date, the Company shall deposit with the Trustee
or with the Paying Agent money sufficient to pay the redemption price of and accrued interest and
Additional Interest, if any, on all Notes to be redeemed on that date. The Trustee or the Paying
Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent
by the Company in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
(b) If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be paid to the Person in
whose name such Note was registered at the close of business on such record date. If any Note
called for redemption shall not be so paid upon surrender for redemption because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal,
from the redemption date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender and cancellation of a Note that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered. No Notes in denominations of
$2,000 or less shall be redeemed in part.
Section 3.07. Optional Redemption.
(a) At any time on or after December 15, 2014, the Company may redeem all or a part of the
Notes upon not less than 30 nor more than 60 days prior notice, at the redemption prices set forth
below (expressed as percentages of principal amount), plus accrued and unpaid interest and
Additional Interest, if any, on the Notes to be redeemed to the date of redemption (subject to the
right of Holders on the relevant record date to receive interest due on the related interest
payment date), if redeemed during the twelve-month period beginning on December 15 of the years
indicated below:
|
|
|
|
|
Year |
|
Percentage |
|
2014 |
|
|
104.438 |
% |
2015 |
|
|
102.958 |
% |
2016 |
|
|
101.479 |
% |
2017 and thereafter |
|
|
100.000 |
% |
(b) At any time prior to December 15, 2012, the Company may (on any one or more occasions)
redeem up to 35% of the aggregate principal amount of Notes issued hereunder (including any
Additional Notes) at a redemption price of 108.875% of the principal amount thereof, plus accrued
and unpaid interest and Additional Interest, if any, thereon to the
50
redemption date, with the net cash proceeds of one or more Equity Offerings; provided that (A)
at least 65% of the aggregate principal amount of Notes issued under this Indenture (including any
Additional Notes) remains outstanding immediately after the occurrence of such redemption
(excluding Notes held by the Company and its Affiliates); and (B) the redemption must occur within
180 days of the date of the closing of such Equity Offering.
(c) At any time prior to December 15, 2014, the Company may redeem all or part of the Notes
upon not less than 30 nor more than 60 days prior notice at a redemption price equal to the sum of
(i) 100% of the principal amount thereof, plus (ii) the Applicable Premium as of the date of
redemption, plus, (iii) accrued and unpaid interest and Additional Interest, if any, to the date of
redemption.
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
Section 3.08. Repurchase Offers.
In the event that, pursuant to Section 4.10 or 4.14 hereof, the Company shall be required to
commence an offer to all Holders to purchase their respective Notes (a Repurchase Offer), it
shall follow the procedures specified in such Sections and, to the extent not inconsistent
therewith, the procedures specified below.
The Repurchase Offer shall remain open for a period of no less than 30 days and no more than
60 days following its commencement, 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 shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 or 4.14 hereof (the Offer Amount) or, if less
than the Offer Amount has been tendered, all Notes tendered in response to the Repurchase Offer.
Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
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 shall 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 shall
be payable to Holders who tender Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Company shall send or cause to be sent, by
first class mail or electronic transmission, a notice to the Trustee and each of the Holders. The
notice shall contain all instructions and materials necessary to enable such Holders to tender
Notes pursuant to the Repurchase Offer. The Repurchase Offer shall be made to all Holders. The
notice, which shall govern the terms of the Repurchase Offer, shall state:
(i) that the Repurchase Offer is being made pursuant to this Section 3.08 and Section
4.10 or Section 4.14 hereof, and the length of time the Repurchase Offer shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase Date;
51
(iii) that any Note not tendered or accepted for payment shall continue to accrue
interest and Additional Interest, if any;
(iv) that, unless the Company defaults in making such payment, any Note (or portion
thereof) accepted for payment pursuant to the Repurchase Offer shall cease to accrue
interest and Additional Interest, if any, after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to a Repurchase Offer may
elect to have Notes purchased in principal amounts of $2,000 or on integral multiples of
$1,000 only;
(vi) that Holders electing to have a Note purchased pursuant to any Repurchase Offer
shall be required to surrender the Note, with the form entitled Option of Holder to Elect
Purchase on the reverse of the Note completed, or transfer by book-entry transfer, to the
Company, a 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;
(vii) that Holders shall 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, a telegram, telex, 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;
(viii) that, if the aggregate amount of Notes surrendered by Holders exceeds the Offer
Amount, the Trustee shall, subject in the case of a Repurchase Offer made pursuant to
Section 4.10 to the provisions of Section 4.10, select the Notes to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $2,000 or an integral multiple in excess thereof, shall be
purchased); and
(ix) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).
On the Purchase Date, the Company shall, to the extent lawful, subject to the provisions of
Sections 4.10 and 4.14, accept for payment on a pro rata basis to the extent necessary, the Offer
Amount of Notes (or portions thereof) tendered pursuant to the Repurchase Offer, or if less than
the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee 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 3.08. The Company, the Depositary or the
Paying Agent, as the case may be, shall promptly (but in any case not later than three days after
the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price
of Notes tendered by such Holder, as the case may be, and accepted by the Company for purchase, and
the Company, shall promptly issue a new Note. The Trustee, upon written request from the Company
shall authenticate and mail or deliver such new Note to
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such Holder, in a principal amount at maturity 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
respective Holder thereof. The Company shall publicly announce the results of the Repurchase Offer
on the Purchase Date.
The Company shall 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 or regulations are
applicable in connection with the repurchase of the Notes pursuant to a Repurchase Offer and shall
not be deemed to have breached its obligations under Section 3.08, 4.10 or 4.14 by virtue of such
compliance.
Section 3.09. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 11.02 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Notes.
(a) The Company shall pay or cause to be paid the principal of, premium, if any, and interest
on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other than the Company or
one of its Subsidiaries, holds as of 11:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due. The Company shall pay all Additional Interest, if any, in
the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.
(b) The Company shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest, and Additional Interest (without regard to any applicable grace period) at the same rate
to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
(a) The Company shall maintain an office or agency (which may be an office of the Trustee or
an agent of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration
of transfer or for exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company shall
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give prompt written notice to the Trustee of the location, and any change in the location, of
such office or agency. If at any time the 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.
(b) The Company may also from time to time designate one or more other offices or agencies
where the Notes may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such other office or
agency.
(c) The Company hereby designates the Corporate Trust Office of the Trustee as one such office
or agency of the Company in accordance with Section 2.04 of this Indenture.
Section 4.03. Reports.
(a) Each of the Parent and the Company shall furnish to the Trustee and, upon written request,
to beneficial owners and prospective investors, a copy of all of the information and reports
referred to in clauses (i) and (ii) below within the time periods specified in the Commissions
rules and regulations (including all applicable extension periods):
(i) all quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if it were required to file
such Forms, including a Managements Discussion and Analysis of Financial Condition and
Results of Operations and, with respect to the annual information only, a report on the
annual financial statements by its certified independent accountants; and
(ii) all current reports that would be required to be filed with the Commission on Form
8-K if it were required to file such reports.
(b) Whether or not required by the Commission, the Parent and the Company shall comply with
the periodic reporting requirements of the Exchange Act and shall file the reports specified in
clauses (a)(i) and (ii) of this Section 4.03 with the Commission within the time periods specified
above unless the Commission shall not accept such a filing. To the extent such filings are made,
the reports will be deemed to be furnished to the Trustee and the Holders of the Notes. The Parent
and the Company each agrees that it shall not take any action for the purpose of causing the
Commission not to accept any such filings. If, notwithstanding the foregoing, the Commission shall
not accept the Parents or the Companys filings for any reason, the Parent or the Company, as the
case may be, shall post the reports referred to in Section 4.03(a) on its website within the time
periods that would apply if the Parent or the Company were required to file those reports with the
Commission (including all applicable extension periods).
(c) If the Parent has designated any of its Subsidiaries as Unrestricted Subsidiaries, then
the quarterly and annual financial information required by this Section 4.03 shall include a
summary presentation, either on the face of the financial statements or in the footnotes thereto,
or in Managements Discussion and Analysis of Financial Condition and
54
Results of Operations, of the revenues, net income, total assets and total liabilities of the
Parent and its Restricted Subsidiaries separate from the revenues, net income, total assets and
total liabilities of the Unrestricted Subsidiaries of the Parent; provided that the foregoing will
not apply if the Subsidiaries that the Parent has designated as Unrestricted Subsidiaries in the
aggregate do not constitute a Significant Subsidiary as such term is defined under Rule 1-02(w)
of Regulation S-X under the Exchange Act.
(d) The Company and the Guarantors each shall, for so long as any Notes remain outstanding and
each of the Parent and the Company is not required to comply with the periodic reporting
requirements of the Exchange Act, furnish to the Holders and to prospective investors, upon their
written request, the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(e) Notwithstanding the foregoing, so long as the Parent is a Guarantor, the reports,
information and other documents required to be filed and provided by the Company as provided in
this Section 4.03 shall be satisfied by those of Parent, so long as such filings would satisfy the
Commissions requirements.
(f) Notwithstanding anything herein to the contrary, neither the Parent nor the Company shall
be deemed to have failed to comply with any of its obligations hereunder for purposes of Section
6.01(a)(iv) until 120 days after the date any report hereunder is due.
Section 4.04. Compliance Certificate.
(a) The Parent, the Company and each other Guarantor (to the extent that such Guarantor is so
required under the TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal
year, an Officers Certificate stating that a review of the activities of the Parent and its
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Parent has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge, the Parent has kept, observed, performed and
fulfilled its obligations under this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of Default of which he
or she may have knowledge and what action the Parent is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or interest, if any, on the
Notes is prohibited or if such event has occurred, a description of the event and what action the
Parent is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the Public Company
Accounting Oversight Board (United States), the Company shall exercise its commercially reasonable
efforts to ensure that the year-end financial statements delivered pursuant to Section 4.03(a) or
Sections 4.03(e), as applicable, above are accompanied by a written statement of the Companys
independent registered public accounting firm (which shall be a firm of established national
reputation) that in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead
55
them to believe that the Company has violated any financial covenants contained herein that
would be covered by the procedures performed in connection with their audit of such financial
statements or, if any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Parent shall, so long as any of the Notes are outstanding, deliver to the Trustee,
upon becoming aware of any Default or Event of Default, an Officers Certificate specifying such
Default or Event of Default, and in any event, no later than 5 Business Days.
Section 4.05. Taxes.
The Parent shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency,
any taxes, assessments, and governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company and each of 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 wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly
waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.07. Restricted Payments.
(a) The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly:
(i) declare or pay (without duplication) any dividend or make any other payment or
distribution on account of the Parents or any of its Restricted Subsidiaries Equity
Interests (including, without limitation, any payment in connection with any merger or
consolidation involving the Parent or any of its Restricted Subsidiaries) or to the direct
or indirect holders of the Parents or any of its Restricted Subsidiaries Equity Interests
in their capacity as such (other than dividends, payments or distributions (x) payable in
Equity Interests (other than Disqualified Stock) of the Parent or (y) to the Parent or a
Restricted Subsidiary of the Parent);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Parent or any of
its Restricted Subsidiaries) any Equity Interests of the Parent or any Restricted Subsidiary
thereof held by Persons other than the Parent or any of its Restricted Subsidiaries;
56
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note
Guarantee, except (x) a payment of interest or principal at the Stated Maturity thereof or
(y) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation
of satisfying a sinking fund obligation, principal installment or final maturity, in each
case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in
Sections 4.07(a)(i) through (iv) above being collectively referred to as Restricted
Payments),
unless, at the time of and after giving effect to such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof;
(B) the Parent would, at the time of such Restricted Payment and after giving
pro forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable Four Quarter Period, have been permitted to Incur at
least $1.00 of additional Indebtedness pursuant to Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Parent and its Restricted Subsidiaries after August
18, 2009 (excluding Restricted Payments permitted by subclauses 4.07(b)(ii), (iii),
(iv), (v), (vi), (viii) and (ix) below), is less than the sum, without duplication,
of:
(1) 100% of the Consolidated Cash Flow of the Parent for the period
(taken as one accounting period) from July 1, 2009 to the end of the
Parents most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment, minus 1.4
times the Fixed Charges of the Parent for the same period, plus
(2) 100% of the aggregate net proceeds (including (x) cash and Cash
Equivalents and (y) the Fair Market Value of property other than cash and
Cash Equivalents, provided that if the Fair Market Value of such property
exceeds $50.0 million such Fair Market Value shall be determined in good
faith by the Board of Directors of the Parent, whose good faith
determination shall be conclusive and evidenced by a Board Resolution)
received by the Parent since August 18, 2009 as a contribution to its common
equity capital or from the issue or sale of Equity Interests (other than
Disqualified Stock) of the Parent or from the Incurrence of Indebtedness of
the Parent or the Company that has been converted into or exchanged for such
Equity Interests (other than Equity Interests sold to, or Indebtedness held
by, a Subsidiary of the Parent), plus
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(3) with respect to Restricted Investments made by the Parent and its
Restricted Subsidiaries after August 18, 2009, an amount equal to the net
reduction in such Restricted Investments in any Person resulting from
repayments of loans or advances, or other transfers of assets, in each case
to the Parent or any Restricted Subsidiary or from the net cash proceeds
from the sale of any such Restricted Investment (except, in each case, to
the extent any such payment or proceeds are included in the calculation of
Consolidated Cash Flow), from the release of any Guarantee (except to the
extent any amounts are paid under such Guarantee) or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries, not to exceed, in each
case, the amount of Restricted Investments previously made by the Parent or
any Restricted Subsidiary in such Person or Unrestricted Subsidiary after
August 18, 2009.
(b) The preceding provisions shall not prohibit, so long as, in the case of subclauses (v),
(vii) and (ix) below of this Section 4.07(b), no Default has occurred and is continuing or would be
caused thereby:
(i) the payment of any dividend within 60 days after the date of declaration thereof,
if at said date of declaration such payment would have complied with the provisions of this
Indenture;
(ii) the payment of any dividend by a Restricted Subsidiary of the Parent to the
holders of its Common Stock on a pro rata basis;
(iii) the redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Parent, the Company or any Subsidiary Guarantor or of any
Equity Interests of the Parent or any Restricted Subsidiary in exchange for, or out of the
net cash proceeds of a contribution to the common equity of the Parent or a substantially
concurrent sale (other than to a Restricted Subsidiary of the Parent) of, Equity Interests
(other than Disqualified Stock) of the Parent; provided that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from subclause (C)(2) of Section 4.07(a);
(iv) the defeasance, redemption, repurchase or other acquisition of Indebtedness
subordinated to the Notes or any Note Guarantee with the net cash proceeds from an
Incurrence of Permitted Refinancing Indebtedness;
(v) the payment of any dividend or the making of any other payment or distribution on
account of the Parents Equity Interests or the purchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Parent or any Restricted Subsidiary of
the Parent in an aggregate amount not to exceed $100.0 million;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options or
warrants to the extent that such Equity Interests represents all or a portion of the
exercise price thereof;
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(vii) the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Parent held by any current or former employee, consultant or
director of the Parent, or any Restricted Subsidiaries of the Parent pursuant to the terms
of any equity subscription agreement, stock option agreement or similar agreement entered
into in the ordinary course of business; provided that the aggregate of all amounts paid by
the Parent in any calendar year shall not exceed $20.0 million (with unused amounts in any
calendar year being carried over to the next succeeding calendar year; provided, further,
that such amount in any calendar year may be increased by an amount equal to (a) the net
cash proceeds from the sale of Equity Interests of the Parent to current or former members
of management, directors, consultants or employees that occurs after August 18, 2009
(provided that the amount of any such net cash proceeds shall be excluded from subclause
(C)(2) of Section 4.07(a)) plus (b) the net cash proceeds of key man life insurance policies
received by the Parent or its Restricted Subsidiaries after August 18, 2009;
(viii) the purchase, redemption, acquisition, cancellation or other retirement for
value of shares of Capital Stock of the Parent, to the extent necessary, in the good faith
judgment of the Parents Board of Directors, to prevent the loss or secure the renewal or
reinstatement of any license held by the Parent or any of its Restricted Subsidiaries from
any governmental agency; and
(ix) other Restricted Payments in an aggregate amount not to exceed $250.0 million.
The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the
date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued
to or by the Parent or such Subsidiary, as the case may be, pursuant to the Restricted Payment;
provided that if the Fair Market Value exceeds $50.0 million, such Fair Market Value shall be
determined in good faith by the Board of Directors of the Parent evidenced by a Board Resolution.
Not later than the date of making any Restricted Payment under Section 4.07(a) or Section
4.07(b)(ix) above, the Parent shall deliver to the Trustee an Officers Certificate stating that
such Restricted Payment is permitted and setting forth the basis upon which the calculations
required by this Section 4.07 were computed, together with a copy of any opinion or appraisal
required by this Indenture.
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
(a) The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on its Capital Stock (or with respect
to any other interest or participation in, or measured by, its profits) to the Parent or any
of its Restricted Subsidiaries or pay any liabilities owed to the Parent or any of its
Restricted Subsidiaries;
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(ii) make loans or advances to the Parent or any of its Restricted Subsidiaries; or
(iii) sell, lease or transfer any of its properties or assets to the Parent or any of
its Restricted Subsidiaries.
(b) However, the preceding restrictions shall not apply to encumbrances or restrictions:
(i) existing under, by reason of or with respect to Existing Indebtedness or any other
agreements in effect on the Issue Date and any amendments, modifications, restatements,
renewals, extensions, supplements, refundings, replacements or refinancings thereof,
provided that the encumbrances and restrictions in any such amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacements or refinancings,
in the good faith judgment of the Board of Directors of the Parent, whose judgment shall be
conclusively binding and evidenced by a Board Resolution, either (i) are not materially more
restrictive, taken as a whole, than those contained in Existing Indebtedness or such other
agreements, as the case may be, as in effect on the Issue Date or (ii) will not materially
affect the Companys ability to pay the interest or principal, when due, on the Notes;
(ii) set forth in this Indenture and the Notes and the Note Guarantees;
(iii) existing under, by reason of or with respect to applicable law, rule, regulation
or order;
(iv) with respect to any Person or the property or assets of a Person acquired by the
Parent or any of its Restricted Subsidiaries existing at the time of such acquisition and
not incurred in connection with or in contemplation of such acquisition, which encumbrance
or restriction is not applicable to any Person or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired and any
amendments, modifications, restatements, renewals, extensions, supplements, refundings,
replacements or refinancings thereof, provided that the encumbrances and restrictions in any
such amendments, modifications, restatements, renewals, extensions, supplements, refundings,
replacements or refinancings, in the good faith judgment of the Board of Directors of the
Parent, whose judgment shall be binding and evidenced by a Board Resolution, either (i) are
not materially more restrictive, taken as a whole, than those in effect on the date of the
acquisition or (ii) will not materially affect the Companys ability to pay the interest or
principal, when due, on the Notes;
(v) in the case of Section 4.08(a)(iii):
(A) that restrict in a customary manner the subletting, assignment or transfer
of any property or asset that is a lease, license, conveyance or contract or similar
property or asset,
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(B) existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the Parent or any
Restricted Subsidiary thereof not otherwise prohibited by this Indenture, or
(C) arising or agreed to in the ordinary course of business, not relating to
any Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Parent or any Restricted Subsidiary thereof
in any manner material to the Parent or any Restricted Subsidiary thereof;
(vi) existing under, by reason of or with respect to any agreement for the sale or
other disposition of all or substantially all of the Capital Stock of, or property and
assets of, a Restricted Subsidiary that restrict distributions by that Restricted Subsidiary
pending such sale or other disposition;
(vii) existing under restrictions on cash or other deposits or net worth imposed by
customers or required by insurance, surety or bonding companies, in each case, under
contracts entered into in the ordinary course of business;
(viii) existing under, by reason of or with respect to provisions with respect to the
disposition or distribution of assets or property, in each case contained in joint venture
agreements and which the Board of Directors of the Parent determines in good faith shall not
adversely affect the Companys ability to make payments of principal or interest payments on
the Notes; and
(ix) encumbrances and restrictions in other Indebtedness incurred in compliance with
Section 4.09; provided that such encumbrances and restrictions, taken as a whole, in the
good faith judgment of the Parents Board of Directors, whose judgment shall be binding and
evidenced by a Board Resolution, either (x) are no more materially restrictive with respect
to such encumbrances and restrictions than those contained in the existing agreements
referenced in clauses (i) and (ii) of this Section 4.08(b) or (y) are ordinary and customary
for Indebtedness of that type at such time and will not materially affect the Companys
ability to pay the interest or principal, when due, on the Notes.
Section 4.09. Incurrence of Indebtedness.
(a) The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, Incur any Indebtedness; provided, however, that the Parent, the Company, any
Subsidiary Guarantor or any Foreign Restricted Subsidiary that is not a Subsidiary Guarantor may
Incur Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt
and application of the proceeds therefrom, the Consolidated Leverage Ratio would be less than 5.25
to 1, and if (A) such Indebtedness is to be Incurred by the Company or any Subsidiary Guarantor,
the Subsidiary Debt Leverage Ratio would be less than 3.5 to 1 or (B) such Indebtedness is to be
Incurred by a Foreign Restricted Subsidiary that is not a Subsidiary Guarantor, the Priority Debt
Leverage Ratio would be less than 2.5 to 1.
(b) Section 4.09(a) shall not prohibit the Incurrence of any of the following items of
Indebtedness (collectively, Permitted Debt):
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(i) the Incurrence by the Parent, the Company, any Subsidiary Guarantor or any Foreign
Restricted Subsidiary of Indebtedness under Credit Facilities in an aggregate amount at any
one time outstanding pursuant to this clause (i), including all Permitted Refinancing
Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to
this clause (i), not to exceed $500.0 million, less the aggregate amount of all Net Proceeds
of Asset Sales applied by the Parent, the Company, any Subsidiary Guarantor or any Foreign
Restricted Subsidiary to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the Incurrence of Existing Indebtedness;
(iii) the Incurrence by the Parent, the Company and the Subsidiary Guarantors of
Indebtedness represented by the Notes and the related Note Guarantees to be issued on the
Issue Date;
(iv) the Incurrence by the Parent, the Company or any Restricted Subsidiary of
Indebtedness represented by Capital Lease Obligations, mortgage financings, Attributable
Debt, purchase money obligations or other obligations, in each case, Incurred for the
purpose of financing all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment (including acquisition of Capital Stock of a
Person that becomes a Restricted Subsidiary to the extent of the Fair Market Value of the
property, plant or equipment of such Person) used in the business of the Parent or such
Restricted Subsidiary, in an aggregate amount, including all Permitted Refinancing
Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to
this clause (iv), not to exceed $350.0 million at any time outstanding;
(v) the Incurrence by the Parent or any Restricted Subsidiary of the Parent of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to
refund, refinance, replace, defease or discharge Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be Incurred under Sections 4.09(a) or
4.09(b) (i), (ii), (iii), (iv), (v), (xii), (xiii), (xv) or (xvi);
(vi) the Incurrence by the Parent or any of its Restricted Subsidiaries of intercompany
Indebtedness owing to or held by the Parent or any of its Restricted Subsidiaries; provided,
however, that:
(A) if the Parent, the Company or any Subsidiary Guarantor is the obligor on
such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to
the prior payment in full in cash of all Obligations with respect to the Notes, in
the case of the Company, or the Note Guarantee, in the case of the Parent or a
Subsidiary Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Parent or a Restricted
Subsidiary of the Parent and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not the Parent or a Restricted Subsidiary of the
Parent, shall be deemed, in each case, to constitute an Incurrence of such
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Indebtedness by the Parent or such Restricted Subsidiary, as the case may be,
that was not permitted by this clause (vi);
(vii) the Guarantee by the Parent, the Company or any Subsidiary Guarantor of
Indebtedness of the Parent or a Restricted Subsidiary of the Parent that was permitted to be
Incurred by another provision of this Section 4.09 (other than (x) a Guarantee by the
Company or any Subsidiary Guarantor of Existing Indebtedness of the Parent and (y) a
Guarantee by the Company or any Subsidiary Guarantor of Indebtedness of the Parent Incurred
under Section 4.09(a) or in the case of clauses (x) and (y) any refinancings thereof);
provided that if the Indebtedness being Guaranteed is subordinated to or pari passu with the
Notes or any Note Guarantee, then the Guarantee shall be subordinated or pari passu, as
applicable, to the same extent as the Indebtedness guaranteed;
(viii) the Incurrence by the Parent or any of its Restricted Subsidiaries of Hedging
Obligations that are Incurred for the purpose of fixing, hedging or swapping interest rate,
commodity price or foreign currency exchange rate risk (or to reverse or amend any such
agreements previously made for such purposes), and not for speculative purposes, and that do
not increase the Indebtedness of the obligor outstanding at any time other than as a result
of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by
reason of fees, indemnities and compensation payable thereunder;
(ix) the Incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness
arising from agreements providing for indemnification, adjustment of purchase price or
similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Parent or any of its Restricted Subsidiaries pursuant to
such agreements, in any case Incurred in connection with the disposition of any business,
assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any
Person acquiring all or any portion of such business, assets or Restricted Subsidiary for
the purpose of financing such acquisition), so long as the amount (other than with respect
to indemnities relating to tax obligations) does not exceed the gross proceeds actually
received by the Parent or any Restricted Subsidiary thereof in connection with such
disposition;
(x) the Incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or
similar instrument drawn against insufficient funds in the ordinary course of business,
provided, however, that such Indebtedness is extinguished promptly after its Incurrence;
(xi) the Incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness
constituting reimbursement obligations with respect to letters of credit issued in the
ordinary course of business; provided that, upon the drawing of such letters of credit or
the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days
following such drawing or Incurrence;
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(xii) the Incurrence by the Parent, the Company or any Subsidiary Guarantor of
Permitted Subordinated Indebtedness in an aggregate principal amount at any time
outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance
or replace any Indebtedness Incurred pursuant to this clause (xii), not to exceed $500.0
million;
(xiii) the Incurrence by the Parent or any Restricted Subsidiary of Acquired
Indebtedness, provided that immediately after giving effect to such Incurrence on a pro
forma basis, the Consolidated Leverage Ratio and, if the Acquired Indebtedness is to be
Incurred by the Company or any Subsidiary Guarantor, the Subsidiary Debt Leverage Ratio and,
if the Acquired Indebtedness is to be Incurred by a Foreign Restricted Subsidiary that is
not a Subsidiary Guarantor, the Priority Debt Leverage Ratio will not be greater than the
such ratios immediately prior to such Incurrence;
(xiv) the Incurrence by the Parent, the Company or any Subsidiary Guarantor of
Indebtedness to the extent that the net proceeds thereof are promptly deposited to defease
or to satisfy and discharge the Notes;
(xv) the Incurrence by the Parent or any Restricted Subsidiary of Indebtedness in favor
of a governmental entity in connection with the purchase of licenses or other rights to
utilize radio spectrum in an aggregate principal amount at any time outstanding, including
all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any
Indebtedness Incurred pursuant to this clause (xv), not to exceed $300.0 million; or
(xvi) the Incurrence by the Parent, Company or any Subsidiary Guarantor or any of its
Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount at any
time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund,
refinance or replace any Indebtedness Incurred pursuant to this clause (xvi), not to exceed
$250.0 million.
(c) For purposes of determining compliance with this Section 4.09, in the event that any
proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt
described in clauses (i) through (xvi) of Section 4.09(b), or is entitled to be Incurred pursuant
to 4.09(a), the Parent shall be permitted to divide and classify such item of Indebtedness at the
time of its Incurrence in any manner that complies with this Section 4.09 and may later redivide
and/or reclassify all or a portion of such item of Indebtedness in any manner that complies with
this Section 4.09; provided that notwithstanding the foregoing, Indebtedness outstanding under
Credit Facilities on the Issue Date shall be deemed to have been incurred on such date under
Section 4.09(b)(i).
(d) For purposes of determining compliance with any U.S. dollar-denominated restriction on the
incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case
of revolving credit debt; provided that if such Indebtedness is incurred to refinance other
Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable
U.S. dollar-denominated restriction to be exceeded
64
if calculated at the relevant currency exchange rate in effect on the date of such
refinancing, such U.S. dollar-denominated restrictions shall be deemed not to have been exceeded so
long as the principal amount of such refinancing Indebtedness does not exceed the principal amount
of such Indebtedness being refinanced.
(e) The principal amount of any Indebtedness incurred to refinance other Indebtedness, if
incurred in a different currency from the Indebtedness being refinanced, shall be calculated based
on the currency exchange rate applicable to the currencies in which such respective Indebtedness is
denominated that is in effect on the date of such refinancing.
(f) The Company shall not Incur any Indebtedness that is subordinate in right of payment to
any other Indebtedness of the Company unless it is subordinate in right of payment to the Notes to
the same extent. The Parent shall not, and shall not permit any Subsidiary Guarantor to, Incur any
Indebtedness that is subordinate in right of payment to any other Indebtedness of the Parent or
such Subsidiary Guarantor, as the case may be, unless it is subordinate in right of payment to the
relevant Note Guarantee to the same extent. For purposes of the foregoing, no Indebtedness shall
be deemed to be subordinated in right of payment to any other Indebtedness of the Parent, the
Company or any Subsidiary Guarantor, as applicable, solely by reason of any Liens or Guarantees
arising or created in respect thereof or by virtue of the fact that the holders of any Secured
Indebtedness have entered into intercreditor agreements giving one or more of such holders priority
over the other holders in the collateral held by them.
Section 4.10. Asset Sales.
(a) The Parent shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:
(i) the Parent or such Restricted Subsidiary receives 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
(ii) at least 75% of the consideration therefor received by the Parent or such
Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a
combination thereof. For purposes of this provision, each of the following shall be deemed
to be cash:
(A) any liabilities, as shown on the Parents or such Restricted Subsidiarys
most recent balance sheet, of the Parent or any Restricted Subsidiary (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 Parent or any
Affiliate of the Parent) that are assumed by the transferee of any such assets or
Equity Interests pursuant to a written novation agreement that releases the Parent
or such Restricted Subsidiary from further liability therefor, and
(B) any securities, notes or other obligations received by the Parent or any
such Restricted Subsidiary from such transferee that are (within 60 days of receipt
and subject to ordinary settlement periods) converted by the Parent or such
65
Restricted Subsidiary into cash (to the extent of the cash received in that
conversion).
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Parent or
its Restricted Subsidiaries may apply such Net Proceeds at its option:
(i) to repay, prepay, defease, redeem, purchase or otherwise retire, in whole or in
part, (i) Indebtedness secured by such assets, (ii) unsubordinated Indebtedness of the
Company or any Subsidiary Guarantor or (iii) any Indebtedness of any Restricted Subsidiary
of the Parent that is not a Subsidiary Guarantor or the Company, other than Indebtedness
owed to the Parent or another Restricted Subsidiary and, in each case, if the Indebtedness
repaid is revolving credit Indebtedness to correspondingly reduce commitments with respect
thereto; or
(ii) to purchase Replacement Assets (or enter into a binding agreement to purchase such
Replacement Assets; provided that (i) such purchase is consummated within the later of (x)
180 days after the date such binding agreement is entered into and (y) 365 days after the
receipt of Net Proceeds from such Asset Sale and (ii) if such purchase is not consummated
within the period set forth in subclause (i), the Net Proceeds not so applied shall be
deemed to be Excess Proceeds).
Pending the final application of any such Net Proceeds, the Parent or any of its Restricted
Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture.
(c) On the 365th day after an Asset Sale (or, in the event that a binding agreement
has been entered into as set forth in Section 4.10(b)(ii), the later date set forth in such Section
4.10(b)(ii) or such earlier date, if any, as the Parent determines not to apply the Net Proceeds
relating to such Asset Sale as set forth in Section 4.10(b) (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 Section 4.10(b) (Excess Proceeds)
shall be applied by the Company to make an offer (an Asset Sale Offer) to all Holders of Notes
and all holders of other Indebtedness that is pari passu with the Notes or any Note Guarantee
containing provisions similar to those set forth in this 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 shall be equal to 100% of the principal amount of the Notes and such
other pari passu Indebtedness plus accrued and unpaid interest and Additional Interest, if any, to
the date of purchase, and shall be payable in cash.
(d) The Company may defer the Asset Sale Offer until the aggregate unutilized Excess Proceeds
accrued equals or exceeds $100.0 million, at which time the entire unutilized amount of Excess
Proceeds (not only the amount in excess of $100.0 million) shall be applied as provided in Section
4.10(c). If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent and
its Restricted Subsidiaries may use such Excess Proceeds for any purpose not otherwise prohibited
by this Indenture. If the aggregate principal amount of Notes and such other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the
66
amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall 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
shall no longer be deemed to be Excess Proceeds.
(e) The Company shall 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 or 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 provisions of
Section 3.08 hereof or this Section 4.10, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations under Section 3.08
hereof or this Section 4.10 by virtue of such compliance.
(f) The Company shall not be required to make an Asset Sale Offer as provided in this Section
4.10 if the Parent or any of its Restricted Subsidiaries makes the Asset Sale Offer in the manner,
at the times and otherwise in compliance with the requirements set forth in this Indenture
applicable to an Asset Sale Offer made by the Company and purchases all Notes properly tendered and
not withdrawn under such Asset Sale Offer.
Section 4.11. Transactions with Affiliates.
(a) The Parent shall not, and shall 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:
(i) such Affiliate Transaction is on terms that are no less favorable to the Parent or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
arms-length transaction by the Parent or such Restricted Subsidiary with a Person that is
not an Affiliate of the Parent or any of its Restricted Subsidiaries; and
(ii) the Parent delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $25.0 million, a Board
Resolution set forth in an Officers Certificate certifying that such Affiliate
Transaction or series of related Affiliate Transactions complies with this Section
4.11 and that such Affiliate Transaction or series of related Affiliate Transactions
has been approved by a majority of the disinterested members of the Board of
Directors of the Parent; 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 Parent 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.
67
(b) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall
not be subject to the provisions of Section 4.11(a):
(i) transactions between or among the Parent and/or its Restricted Subsidiaries;
(ii) payment of reasonable and customary compensation to, and reasonable and customary
indemnification and similar payments on behalf of, directors of the Parent;
(iii) Permitted Investments and Restricted Payments that are permitted by the
provisions of Section 4.07 of this Indenture;
(iv) any sale of Equity Interests (other than Disqualified Stock) of the Parent or
receipt of any capital contribution to the Parent from any Affiliate of the Parent;
(v) 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 materially more disadvantageous to the Parent and its Restricted Subsidiaries
than the original agreement or arrangement in existence on the Issue Date;
(vi) any employment, consulting, service or termination agreement or arrangement, or
indemnification arrangements, entered into by the Parent or any of its Restricted
Subsidiaries with current or former directors, officers and employees of the Parent or any
of its Restricted Subsidiaries and the payment of compensation to current or former
directors, officers and employees of the Parent 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, arrangement, plan or payment has been approved by a
majority of the disinterested members of the Board of Directors of the Parent;
(vii) issuances, purchases or repurchases of Notes or other Indebtedness of the Parent
or its Restricted Subsidiaries or solicitations of amendments, waivers or consents in
respect of Notes or such other Indebtedness, so long as such issuance, purchase, repurchase
or solicitation is (i) offered generally to other Holders of the Notes or other Indebtedness
on the same or more favorable terms and (ii) approved by a majority of the disinterested
members of the Board of Directors of the Parent;
(viii) transactions with any Person that is an Affiliate of the Parent solely by reason
of the Parents ownership interest in such Person in the ordinary course of business and
otherwise in compliance with the terms of this Indenture which are fair to the Parent and
its Restricted Subsidiaries, in the reasonable determination of the Parent, or are on terms
at least as favorable as might reasonably have been obtained at such time from an
unaffiliated party; and
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(ix) reasonable and customary payments made for any financial advisory, financing,
underwriting, placement or syndication services approved by the Board of Directors of the
Parent in good faith.
Section 4.12. Liens.
The Parent shall not, and shall not permit the Company or any Subsidiary Guarantor to create,
Incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other
than Permitted Liens) upon any of its property or assets, now owned or hereafter acquired, unless
all payments due under this Indenture and the Notes or the Note Guarantee, as applicable, are
secured on an equal and ratable basis with the obligations so secured (or, in the case of
Indebtedness subordinated to the Notes, prior or senior thereto, with the same relative priority as
the Notes or Note Guarantees shall have with respect to such subordinated Indebtedness) until such
time as such obligations are no longer secured by a Lien.
Section 4.13. Business Activities.
The Parent 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
Parent and its Restricted Subsidiaries taken as a whole. The Parent shall be a holding company
substantially all of the assets of which shall consist of the Capital Stock of its Subsidiaries,
loans to the Company or any Subsidiary Guarantor and cash and Cash Equivalents.
Section 4.14. Offer to Repurchase upon a Change of Control.
(a) If a Change of Control occurs, each Holder of Notes shall have the right to require the
Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess
thereof) of that Holders Notes pursuant to an offer by the Company (a Change of Control Offer).
In the Change of Control Offer, the Company shall offer payment (a Change of Control Payment) in
cash equal to not less than 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest and Additional Interest, if any, thereon, to the date of repurchase
(the Change of Control Payment Date, which date shall be no earlier than the date of such Change
of Control); provided, however, that notwithstanding the occurrence of a Change of Control, the
Company shall not be obligated to purchase the Notes pursuant to this Section 4.14 in the event
that the Company has exercised its right to redeem all the Notes pursuant to Section 3.07. No
later than 30 days following any Change of Control, the Company shall mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control and offering to
repurchase Notes on the Change of Control Payment Date specified in such notice, which date shall
be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant
to the procedures described in Section 3.08.
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(i) accept for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer;
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(ii) deposit with the Paying Agent, prior to 11:00 a.m., New York City time, an amount
equal to the Change of Control Payment in respect of all Notes or portions thereof properly
tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes so accepted together
with an Officers Certificate stating the aggregate principal amount of Notes or portions
thereof being purchased by the Company.
(c) The Paying Agent shall promptly mail or wire transfer to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail
(or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be
in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
(d) The Company shall publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.
(e) Notwithstanding anything to the contrary in this Section 4.14, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.14 and all other provisions of this Indenture applicable
to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not
withdrawn under such Change of Control Offer.
(f) A Change of Control Offer may be made in advance of a Change of Control, and conditioned
upon such Change of Control, if a definitive agreement is in place for the Change of Control at the
time of making of the Change of Control Offer.
Section 4.15. Changes in Covenants When Notes Rated Investment Grade.
(a) If on any date following the Issue Date:
(i) the Notes are rated Baa3 or better by Moodys and BBB- or better by Standard &
Poors (or, if either such entity ceases to rate the Notes for reasons outside of the
control of the Parent or the Company, the equivalent investment grade credit rating from any
other nationally recognized statistical rating organization within the meaning of Section
3(a)(62) under the Exchange Act, selected by the Company as a replacement agency); and
(ii) no Default or Event of Default shall have occurred and be continuing
(collectively, a Covenant Suspension Event),
then, beginning on that day and subject to the provisions of Section 4.15(b), the following
sections shall be suspended:
(i) Section 4.10;
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|
(ii) |
|
Section 4.07; |
|
|
(iii) |
|
Section 4.09; |
|
|
(iv) |
|
Section 4.08; |
|
|
(v) |
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Section 4.11; |
|
|
(vi) |
|
Section 5.01(a)(iii); |
|
|
(vii) |
|
Section 4.16; |
|
|
(viii) |
|
Section 4.18; and |
|
|
(ix) |
|
Section 4.13. |
(b) During any period that the covenants provided in Section 4.15(a) have been suspended (a
Suspension Period), the Parents Board of Directors may not designate any of its Subsidiaries as
Unrestricted Subsidiaries pursuant to Section 4.16 unless such designation would have been
permitted if a Suspension Period had not been in effect at such time.
(c) If the rating assigned by either such rating agency should subsequently decline to below
Baa3 or BBB-, respectively (or if either such agency ceases to rate the Notes, the equivalent
investment grade credit rating from another nationally recognized statistical rating organization),
the sections provided in Section 4.15(a) shall be reinstated as of and from the date of such rating
decline. Calculations under the reinstated Section 4.07 shall be made as if Section 4.07 had been
in effect since the date of this Indenture except that no default shall be deemed to have occurred
solely by reason of a Restricted Payment made while Section 4.07 was suspended. Notwithstanding
the reinstatement of the suspended Sections, no default shall be deemed to have occurred as a
result of a failure to comply with such suspended Sections during any Suspension Period.
(d) The Company shall give prompt written notice of any Covenant Suspension Event and the
termination of any Covenant Suspension Event to the Trustee.
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.
(a) The Board of Directors of the Parent may designate any Restricted Subsidiary of the
Parent, other than the Company, to be an Unrestricted Subsidiary, provided that:
(i) any Guarantee by the Parent 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 Parent or such Restricted Subsidiary (or both, if applicable) at the
time of such designation, and such Incurrence of Indebtedness would be permitted under
Section 4.09;
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(ii) the aggregate Fair Market Value of all outstanding Investments owned by the Parent
and its Restricted Subsidiaries in the Subsidiary being so designated (including any
Guarantee by the Parent or any Restricted Subsidiary thereof of any Indebtedness of such
Subsidiary) and any commitments to make any such Investments shall be deemed to be an
Investment made as of the time of such designation and that such Investment would be
permitted under Section 4.07;
(iii) such Subsidiary does not hold any Liens on any property of the Parent or any
Restricted Subsidiary thereof;
(iv) the Subsidiary being so designated:
(A) is not party to any agreement, contract, arrangement or understanding with
the Parent or any Restricted Subsidiary of the Parent unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Parent or such Restricted Subsidiary than those that could have been obtained at the
time the agreement, contract, arrangement or understanding was entered into from
Persons who are not Affiliates of the Parent (other than any such agreement,
contract, arrangement or understanding permitted under Section 4.11); and
(B) has not Guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Parent or any of its Restricted Subsidiaries,
except to the extent such Guarantee or credit support would be released upon such
designation; and
(v) no Default or Event of Default would be in existence following such designation.
(b) Any designation of a Subsidiary of the Parent 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 Section
4.16(a) and is permitted by this Indenture. If, at any time, any Unrestricted Subsidiary would
fail to meet any of the requirements described in Sections 4.16(a)(iv), 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 Parent 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 Parent shall be in
Default under this Indenture.
(c) The Board of Directors of the Parent may at any time designate any Person that is about to
become a Subsidiary of the Parent as an Unrestricted Subsidiary, and may designate any newly
created Subsidiary as an Unrestricted Subsidiary, if at the time that Subsidiary is created it
contains no assets, other than the de minimis amount of assets then required by law for the
formation of corporations, and Subsidiaries of the Parent that are not designated by the Board of
Directors as Restricted or Unrestricted will be deemed to be Restricted Subsidiaries.
72
(d) The Board of Directors of the Parent may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that:
(i) such designation shall be deemed to be an Incurrence of Indebtedness by a
Restricted Subsidiary of the Parent of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if such Indebtedness is permitted
under Section 4.09;
(ii) all outstanding Investments owned by such Unrestricted Subsidiary shall be deemed
to be made as of the time of such designation and such designation shall only be permitted
if such Investments would be permitted under Section 4.07;
(iii) all Liens upon property or assets of such Unrestricted Subsidiary existing at the
time of such designation would be permitted under Section 4.12; and
(iv) no Default or Event of Default would be in existence following such designation.
Section 4.17. Payments for Consent.
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of
this Indenture or the Notes unless such consideration is offered to be paid and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
Section 4.18. Note Guarantees.
(a) The Parent shall cause each of its First Tier Restricted Subsidiaries and each of its
Domestic Restricted Subsidiaries to Guarantee the payment of the Notes.
(b) The Parent shall not permit any of its Restricted Subsidiaries, directly or indirectly, to
Guarantee or pledge any assets to secure the payment of any other Indebtedness of the Parent, the
Company, or any Subsidiary Guarantor unless such Restricted Subsidiary is the Company or a
Subsidiary Guarantor or simultaneously executes and delivers to the Trustee an Opinion of Counsel
and a supplemental indenture in the form attached hereto as Exhibit F providing for the Guarantee
of the payment of the Notes by such Restricted Subsidiary, which Note Guarantee shall be pari passu
with or, if such other Indebtedness is subordinated to the Notes or any Note Guarantees, senior to
such Subsidiarys Guarantee of such other Indebtedness.
(c) Notwithstanding the preceding paragraph, any Note Guarantee may provide by its terms that
it shall be automatically and unconditionally released and discharged under the circumstances
described under Section 10.05 hereof.
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ARTICLE FIVE
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
(a) The Parent shall not, directly or indirectly: (i) consolidate or merge with or into
another Person (whether or not the Parent is the surviving corporation) or (ii) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the properties and assets of
the Parent and its Restricted Subsidiaries, taken as a whole, in one or more related transactions,
to another Person, unless:
(i) either: (a) the Parent is the surviving corporation; or (b) the Person formed by
or surviving any such consolidation or merger (if other than the Parent) or to which such
sale, assignment, transfer, conveyance or other disposition shall have been made (i) is a
corporation, partnership or limited liability company organized or existing under the laws
of the United States, any state thereof or the District of Columbia and (ii) assumes all the
obligations of the Parent under its Guarantee and this Indenture and the Registration Rights
Agreement, pursuant to agreements reasonably satisfactory to the Trustee;
(ii) immediately after giving effect to such transaction, no Default or Event of
Default exists;
(iii) immediately after giving effect to such transaction on a pro forma basis, (a) the
Parent (or the Person formed by or surviving any such consolidation or merger with the
Parent, if other than the Parent, or the Person to which such sale, assignment, transfer,
conveyance or other disposition shall have been made) shall be permitted to Incur at least
$1.00 of additional Indebtedness pursuant to Section 4.09(a) or (b) the Consolidated
Leverage Ratio for the Parent (or such Person, as the case may be) shall not be greater than
the Consolidated Leverage Ratio for the Parent immediately prior to such transaction;
(iv) each Guarantor, unless such Guarantor is the Person with which the Parent has
entered into a transaction under this Section 5.01, shall have by amendment to its Note
Guarantee confirmed that its Note Guarantee shall apply to the obligations of the Company in
accordance with the Notes and this Indenture; and
(v) such Company or Parent has delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or disposition and such
supplemental indenture, if any, comply with this Indenture.
(b) The Parent and its Restricted Subsidiaries shall not, directly or indirectly, lease all or
substantially all of its and its Restricted Subsidiaries properties or assets taken as a whole, in
one or more related transactions, to any other Person.
(c) Section 5.01(a)(iii) shall not apply to (x) any merger, consolidation or sale, assignment,
transfer, conveyance or other disposition of assets between or among the Parent and
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any of its Restricted Subsidiaries or (y) a merger of the Parent with an Affiliate solely
for the purpose of reincorporating the Parent in another jurisdiction.
(d) The Company shall not, directly or indirectly: (i) consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation) or (ii) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the properties and assets of
the Company and its Restricted Subsidiaries, taken as a whole, in one or more related transactions,
to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default
exists; and
(ii) in the case of a consolidation or merger:
(A) either: (i) the Company is the surviving corporation; or (ii) the Person
formed by or surviving any such consolidation or merger (if other than the Company)
(x) is a corporation, partnership or limited liability company organized or existing
under the laws of the United States, any state thereof or the District of Columbia
and (y) assumes all the obligations of the Company under the Notes, this Indenture
and the Registration Rights Agreement, pursuant to agreements reasonably
satisfactory to the Trustee; provided that in the case where such Person is not a
corporation, a co-obligor of the Notes is a corporation; and
(B) each Guarantor, unless such Guarantor is the Person with which the Company
has consolidated with or merged into, will have by amendment to its Note Guarantee
confirmed that its Note Guarantee will apply to the obligations of the Company in
accordance with the Notes and this Indenture; or
(iii) in the case of a sale, assignment, transfer, conveyance or other disposition of
all or substantially all of the properties and assets of the Company and its Restricted
Subsidiaries, taken as a whole, either:
(A) (i) the Person acquiring the property in any such sale, assignment,
transfer, conveyance or other disposition (x) is a corporation, partnership or
limited liability company organized or existing under the laws of the United States,
any state thereof or the District of Columbia and (y) assumes all the obligations of
the Company under the Notes, this Indenture and the Registration Rights Agreement,
pursuant to agreements reasonably satisfactory to the Trustee; provided that in the
case where such Person is not a corporation, a co-obligor of the Notes is a
corporation; and
(ii) each Guarantor, unless such Guarantor is the Person with which the Company
has consolidated with or merged into, will have by amendment to its Note Guarantee
confirmed that its Note Guarantee will apply to the obligations of the Company in
accordance with the Notes and this Indenture; or
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(B) to the extent such properties and assets constitute all or substantially
all of the properties and assets of the Parent and its Restricted Subsidiaries taken
as a whole, such sale or other disposition complies with Section 4.10.
(e) Upon any consolidation or merger of the Company in accordance with this Section 5.01, or
any sale, assignment, transfer, conveyance or other disposition of all or substantially all of the
assets of the Company in accordance with Section 5.01(d)(iii)(A), the successor corporation formed
by such consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, conveyance or other disposition is made will succeed to, and be substituted
for (so that from and after the date of such consolidation, merger, sale, assignment, conveyance or
other disposition, the provisions of this Indenture referring to the Company will refer instead
to the successor corporation and not to the Company) and may exercise all rights and powers of, the
Company under this Indenture with the same effect as if such successor Person had been named as the
Company in this Indenture.
(f) In the event of any consolidation or merger between the Company and the Parent in
accordance with this Section 5.01, the successor corporation of such transaction (whether the
Company or the Parent) shall be deemed to be the Company for purposes of Section 4.09(a) following
such event.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, conveyance or other
disposition of all or substantially all of the assets of the Parent, in accordance with Section
5.01 hereof, the successor corporation formed by such consolidation or into or with which the
Parent is merged or to which such sale, assignment, transfer, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, conveyance or other disposition, the provisions of this
Indenture referring to the Parent shall refer instead to the successor corporation and not to the
Parent) and may exercise all rights and powers of, the Parent under this Indenture with the same
effect as if such successor Person had been named as the Parent herein.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
(a) Each of the following is an Event of Default:
(i) default for 30 days in the payment when due of interest on, or Additional Interest,
if any, with respect to, the Notes;
(ii) default in payment when due (whether at maturity, upon acceleration, redemption,
required repurchase or otherwise) of the principal of, or premium, if any, on the Notes;
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(iii) failure by the Parent, the Company or any Restricted Subsidiaries of the Parent
for 30 days after written notice to the Parent by the Trustee or the Holders of at least 25%
in aggregate principal amount of Notes then outstanding to comply with Sections 4.10 or 4.14
(in each case other than a failure to purchase Notes which shall constitute an Event of
Default under Section 6.01(a)(ii)) or the failure by the Parent or the Company to comply
with Section 5.01;
(iv) failure by the Parent, the Company or any Restricted Subsidiary of the Parent for
60 days after written notice to the Parent by the Trustee or the Holders of at least 25% in
aggregate principal amount of Notes then outstanding to comply with any of the other
agreements in this Indenture;
(v) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness by the Parent, the Company or
any Restricted Subsidiary that is a Significant Subsidiary of the Parent (or the payment of
which is Guaranteed by the Parent, the Company or any Restricted Subsidiary that is a
Significant Subsidiary of the Parent) whether such Indebtedness or Guarantee now exists, or
is created after the Issue Date, if that default:
(A) is caused by a failure to make any payment when due at the final maturity
of such Indebtedness (a Payment Default); or
(B) results in the acceleration of such Indebtedness prior to its express
maturity,
and, in each case, such default shall not have been rescinded or such Indebtedness shall not
have been discharged within 10 days and the amount of any such Indebtedness, together with
the amount of any other such Indebtedness under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $50.0 million or more;
(vi) failure by the Parent, the Company or any Restricted Subsidiary that is a
Significant Subsidiary of the Parent to pay final judgments (to the extent such judgments
are not paid or covered by insurance provided by a reputable carrier) aggregating in excess
of $50.0 million, which judgments are not paid, discharged or stayed for a period of 60
days;
(vii) except as permitted by this Indenture, any Note Guarantee is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in full force and
effect or any Guarantor, or any Person acting on behalf of any Guarantor, denies or
disaffirms its obligations under its Note Guarantee;
(viii) the Parent, the Company, or any Significant Subsidiary of the Parent, pursuant
to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
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(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) makes a general assignment for the benefit of its creditors, or
(D) generally is not paying its debts as they become due; and
(ix) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(A) is for relief against the Parent, the Company, or any Significant
Subsidiary of the Parent, in an involuntary case,
(B) appoints a custodian of the Parent, the Company, or any Significant
Subsidiary of the Parent or for all or substantially all of the property of the
Parent, the Company, or any Significant Subsidiary of the Parent, or
(C) orders the liquidation of the Parent, the Company, or any Significant
Subsidiary of the Parent;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 6.02. Acceleration.
(a) In the case of an Event of Default specified in Section 6.01(a)(viii) or Section
6.01(a)(ix) hereof, all outstanding Notes shall become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all
the Notes to be due and payable immediately by notice in writing to the Parent specifying the Event
of Default.
Section 6.03. Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, premium, if any, interest, and Additional Interest, if
any, with respect to, 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 of a
Note 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. All remedies are
cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
(a) Holders of a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Trustee may, on behalf of the Holders of all of the
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