CC HOLDINGS GS V LLC, CROWN CASTLE GS III CORP. AND EACH OF THE GUARANTORS PARTY HERETO 7.750% SENIOR SECURED NOTES DUE 2017

Exhibit 4.1

 

EXECUTION COPY

 

CC HOLDINGS GS V LLC,

CROWN CASTLE GS III CORP.

AND EACH OF THE GUARANTORS PARTY HERETO

7.750% SENIOR SECURED NOTES DUE 2017

 

INDENTURE

Dated as of April 30, 2009

 

The Bank of New York Mellon Trust Company, N.A.,

as Trustee

 

TABLE OF CONTENTS

 

 

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EXHIBITS

 

 

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INDENTURE, dated as of April 30, 2009, among CC Holdings GS V LLC, a Delaware limited liability company (the “ Issuer ”), Crown Castle GS III Corp., a Delaware corporation (the “ Co-Issuer ,” together with the Issuer, the “ Issuers ”), the Guarantors (as defined herein) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “ Trustee ”).

The Issuer, the Co-Issuer, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of the Notes (as defined herein):

ARTICLE 1

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 end and deposited with, or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.

“ Acceptable Manager ” means (i) Crown Castle USA Inc. or another wholly-owned Subsidiary of the Parent with experience managing properties similar to the Properties or (ii) another management company chosen by the Holders of a majority in principal amount of the outstanding Notes as described in Section 4.19.

“ Additional Notes ” means Additional Notes (other than the Initial Notes) issued from time to time under this Indenture in accordance with Sections 2.02, 2.15 and 4.9 hereof, as part of the same or a different series as the Initial Notes.

“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), 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.

“ Agent ” means any Registrar, co-registrar, Paying Agent or additional paying agent.

“ Annualized Run Rate Net Cash Flow ” means for any Property at any point in time the Annualized Run Rate Revenue for such Property, less the sum of (i) annualized current insurance expenses, real estate and similar taxes (including payments in lieu of taxes), Ground Lease payments (if any) with respect to such Property and amounts payable to any third-party owner under a Site Management Agreement, if applicable, (ii) the trailing twelve (12) month expenses in respect of such Property for maintenance (including Maintenance Capital Expenditures), utility costs (excluding utility costs paid directly by Sprint), licensing and permitting (excluding portfolio support personnel) and (iii) a Management Fee based on the Annualized Run Rate Revenue for such Property. For purposes of clause (ii) of this definition, the calculation of the trailing twelve (12) month expenses shall be based on, at the time of the acquisition of such Property and through the three (3) full months thereafter, the Issuer’s annual consolidated budgeted expenses in respect of such Property for maintenance (including Maintenance Capital Expenditures), utilities, licensing and permitting (excluding portfolio support personnel), and following the first three (3) full months following acquisition of such Property and through the date that the Property is no longer an Unseasoned Property, actual expenses in respect of such Property for maintenance (including Maintenance Capital Expenditures), utilities, licensing and permitting (excluding portfolio support personnel) annualized based upon the number of full calendar months of ownership of such Property.

“ Annualized Run Rate Revenue ” means, at any point in time, the annualized rent payable by tenants for occupancy of a Property at such time.

“ Applicable Premium ” means, with respect to any Note on any redemption or purchase date, the excess of (i) the present value at such redemption or purchase date, as applicable, of (A) the redemption or purchase price of such Note at May 1, 2013 (such redemption or purchase price being set forth in Section 3.07), plus (B) all required interest payments due on such Note through May 1, 2013 (excluding accrued but unpaid interest, if any, to the redemption or purchase date), computed using a discount rate equal to the Treasury Rate on such redemption date plus 50 basis points over (ii) 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 Exchange ” means any transaction in which the Issuer or one of its Subsidiaries exchanges assets for Substitute Assets, cash or Permitted Investments where the Fair Market Value (evidenced by an Officers’ Certificate of the Manager delivered to the Trustee) of the Substitute Assets and cash or Permitted Investments received by the Issuer and its Subsidiaries in such exchange is at least equal to the Fair Market Value (which determination shall be made in the good faith judgment of the Manager) of the assets disposed of in such exchange.

 

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“ Asset Sale ” means the sale, lease, conveyance or other disposition of any assets or rights (including, without limitation, by way of a sale and leaseback), including an Asset Exchange but excluding an Event of Loss.

“ Asset Sale Offer ” has the meaning set forth in Section 4.10.

“ Bankruptcy Code ” means Title 11 of the United States Code, as amended from time to time, and all rules and regulations promulgated thereunder.

“ Board of Directors ” means:

 

(i)

with respect to a corporation, the Board of Directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

 

(ii)

with respect to a partnership, the Board of Directors of the general partner of the partnership;

 

(iii)

with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof or the board of directors of the limited liability company or any committee thereof duly authorized to act on behalf of such board; and

 

(iv)

with respect to any other Person, the board or committee of such Person serving a similar function.

“ Board Resolutions ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Issuers to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.

“ Business Day ” means any day excluding (i) Saturday, (ii) Sunday, (iii) any day which is a legal holiday in the State of New York, the State of Texas or the state in which the Corporate Trust Office of the Trustee is located and (iv) any day on which banking institutions located in such state are generally not open for the conduct of regular business.

“ Capital Expenditures ” means expenditures for capital improvements, repairs or alterations, fixtures, equipment and other capital items (whether paid in cash or property or accrued as liabilities) made by the Issuer or any of its Subsidiaries that, in conformity with GAAP, would be included in the Issuer’s annual consolidated Financial Statements as a capital expenditure.

“ Capital Stock ” means:

 

(i)

in the case of a corporation, corporate stock;

 

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(ii)

in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(iii)

in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

(iv)

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 Management Agreement ” means the Cash Management Agreement dated the date hereof among the Issuer, the Guarantors, the Manager, the Trustee and the bank at which the Lock Box Account is maintained, as such agreement may be amended, extended, renewed, restated, supplemented or otherwise modified (in whole or in part) from time to time in accordance with its terms and this Indenture.

A “ Cash Trap Event ” shall occur as of the last day of any calendar quarter when the Consolidated Fixed Charge Coverage Ratio of the Issuer is equal to or less than 1.35 to 1, and shall continue to exist until such time as the Consolidated Fixed Charge Coverage Ratio of the Issuer exceeds 1.35 to 1 for two (2) consecutive calendar quarters.

“Certificated Notes” means a Note that is in substantially the form attached hereto as Exhibit A and that is not a Global Note.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Co-Issuer ” has the meaning set forth in the preamble.

“Collateral” means all the collateral described in the Security Documents.

“ Commission ” means the Securities and Exchange Commission.

“ Consolidated Fixed Charge Coverage Ratio ” means, at any time of determination, Net Cash Flow divided by the amount of consolidated interest that the Issuer and its Subsidiaries are required to pay on the principal amount of all the Notes during the succeeding twelve (12) months beginning as of the first day immediately following the most recently ending quarter for which quarterly Financial Statements have been required to be delivered (or have been delivered) pursuant to Section 4.03.

 

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“ Consolidated Indebtedness ” means the sum, without duplication, of (i) the total amount of Indebtedness of the Issuer and its Subsidiaries, (ii) the total amount of Indebtedness of any other Person, to the extent that such Indebtedness has been guaranteed by the Issuer or one or more of its Subsidiaries and (iii) the aggregate liquidation value of all Disqualified Stock of the Issuer and its Subsidiaries, in each case, determined on a consolidated basis in accordance with GAAP.

“ Contingent Obligations ” means, with respect to any Person, any direct or indirect liability, contingent or otherwise, of that Person: (i) with respect to any Indebtedness, lease, dividend or other obligation of another if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; (ii) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (iii) under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement designed to protect against fluctuations in interest rates; or (iv) under any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect that Person against fluctuations in currency values. Contingent Obligations shall include (i) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making (other than the Notes), discounting with recourse or sale with recourse by such Person of the obligation of another, (ii) the obligation to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement and (iii) any liability of such Person for the obligations of another through any agreement to purchase, repurchase or otherwise acquire such obligation or any property constituting security therefor, to provide funds for the payment or discharge of such obligation or to maintain the solvency, financial condition or any balance sheet item or level of income of another. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if not a fixed and determined amount, the maximum amount so guaranteed.

“ Corporate Trust Office of the Trustee ” means, solely for purposes of presenting the Notes, The Bank of New York Mellon, as agent, located at 101 Barclay Street, 7 East, New York, New York 10014 and, for all other purposes the office of the Trustee at which any time its corporate trust business shall be administered, which at the date hereof is located at 601 Travis Street, 16th floor, Houston, Texas 77002, Attention: Corporate Trust Services, re: CC Holdings GS V LLC and Crown Castle GS III Corp., or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuers, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Issuers).

“ Covenant Defeasance ” has the meaning set forth in Section 8.03.

 

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“ Custodian ” means the Trustee, as custodian with respect to the Global Notes, or any successor entity thereto.

“ Debt to Net Cash Flow Ratio ” means, as of any date of determination, the ratio of (i) the Consolidated Indebtedness of the Issuer as of such date to (ii) Net Cash Flow as of such date.

“ 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 2.06 hereof, substantially in the form of Exhibit A hereto except that 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.

“ Deposit Account ” has the meaning set forth in the Cash Management Agreement.

“ Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.01 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 91 days after the date on which the Notes mature.

“ Easement Property ” means each Property for which an easement interest has been granted to the Issuer or any of its Subsidiaries by the owner of the applicable fee interest in the such Property.

“ 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).

“ ERISA Legend ” means the legend set forth in Section 2.06(f)(3) hereof.

“ Euroclear ” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.

 

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“ Event of Loss ” means (i) a casualty or loss or (ii) condemnation or taking pursuant to the exercise of eminent domain at any of the Properties.

“ Event of Loss Offer ” has the meaning set forth in Section 4.21.

“ Event of Loss Excess Proceeds ” means the (i) insurance proceeds of any Event of Loss received by the Issuer or its Subsidiaries or (ii) in the case of an Event of Loss involving a condemnation or taking pursuant to the exercise of eminent domain, the proceeds received by the Issuer or its Subsidiaries after payment of all reasonable expenses incurred in the collection thereof.

“ Excess Proceeds ” has the meaning set forth in Section 4.10(d).

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Fair Market Value ” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party.

“ Financial Statements ” means statements of operations and retained earnings, statements of cash flow and balance sheets.

“ Fiscal Year ” means the fiscal year of the Issuer, which at the date hereof ends on December 31.

“ 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 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, as such are in effect on the date of this Indenture.

“ Global Note Legend ” means the legend set forth in Section 2.06(f)(2) hereof, 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 deposited with or on behalf of and registered in the name of the Depository or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4) or 2.06(d) hereof.

 

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“ Government Securities ” means direct obligations of, or obligations guaranteed by, the United States of America, and for payment of which the United States pledges its full faith and credit.

“ Ground Leased Property ” means each Property subject to a Ground Lease from time to time.

“ Ground Leases ” means (i) each sublease with respect to the Sprint Sites and (ii) each ground lease granted to the Issuer or any of its Subsidiaries with respect to the Properties; provided that “Ground Leases” shall not refer to any ground lease where the Issuer or any of its Subsidiaries is the landlord under such lease.

“ Guarantee ” means 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.

“ Guarantors ” means each of the Issuer’s direct and indirect Subsidiaries (other than the Co-Issuer).

“ Holder ” means a Person in whose name a Note is registered.

“Impositions” means (i) all real estate and personal property taxes, and vault charges and all other taxes, levies, assessments and other similar charges, general and special, ordinary and extraordinary, foreseen and unforeseen, of every kind and nature whatsoever (including any payments in lieu of taxes), which at any time prior to, at or after the execution hereof may be assessed, levied or imposed by, in each case, a governmental authority upon any of the Properties or the rents relating thereto or upon the ownership, use, occupancy or enjoyment thereof, and any interest, cost or penalties imposed by such governmental authority with respect to any of the foregoing and (ii) all rent and other amounts payable by the Issuer and its Subsidiaries under each of the Ground Leases. Impositions shall not include (x) any sales or use taxes payable by the Issuer and its Subsidiaries, (y) taxes payable by tenants or guests occupying any portions of the Properties or (z) taxes or other charges payable by any manager of a Property unless such taxes are being paid on behalf of the Issuer or its Subsidiaries.

“ Improvements ” means all buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements of every kind and nature now or hereafter located on the Properties and owned by the applicable Subsidiaries.

 

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“Indebtedness” means, for any Person, without duplication:

 

(i)

all indebtedness of such Person for borrowed money, for amounts drawn under a letter of credit, or for the deferred purchase price of property for which such Person or its assets is liable;

 

(ii)

all unfunded amounts under a loan agreement, letter of credit (unless secured in full by U.S. dollars), or other credit facility for which such Person would be liable if such amounts were advanced thereunder;

 

(iii)

all amounts required to be paid by such Person as a guaranteed payment to partners or a preferred or special dividend, including any mandatory redemption of shares or interests but not any preferred return or special dividend paid solely from, and to the extent of, excess cash flow after the payment of all Operating Expenses, capital improvements and debt service on all Indebtedness;

 

(iv)

all obligations under leases that constitute capital leases for which such Person is liable; and

 

(v)

all obligations of such Person under interest rate swaps, caps, floors, collars and other interest hedge agreements, in each case whether such Person is liable contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which obligations such Person otherwise assures a creditor against loss.

“ Indenture ” means this Indenture, as amended or supplemented from time to time.

“ Independent Director ” means, with respect to any entity, an individual who shall not have been at the time of such individual’s appointment or at any time while serving as a director of such entity, and shall not have been at any time during the preceding five years (i) a stockholder, director (other than as an independent director/ member), Officer, employee, partner, attorney or counsel of such entity or any of its Affiliates (except that such individual may be an independent director of any of its Affiliates) or a direct or indirect legal or beneficial owner in such entity or any of its Affiliates, (ii) a customer, creditor, manager, contractor, supplier or other Person who derives any of its purchases or revenues from its activities with such entity or any of its Affiliates (other than a company that provides professional independent directors and which also may provide other ancillary corporate, partnership, company or trust services to such entity or any of its Affiliates in the ordinary course of their business), (iii) a Person or other entity controlling, directly or indirectly, or under common control with such entity or any of its Affiliates or stockholder, creditor, manager, contractor, partner, customer, employee, officer, director, supplier or other such Person or (iv) a member of the immediate family of such entity or any of its Affiliates or stockholder, director, officer, employee, partner, customer, creditor, manager, contractor, supplier or other such Person. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.

 

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“ Indirect Participant ” means a Person who holds a beneficial interest in a Global Note through a Participant.

“ Initial Notes ” means the first $1,200,000,000 aggregate principal amount of Notes issued under this Indenture on the date hereof.

“ Initial Purchaser ” means Morgan Stanley & Co. Incorporated.

“ Insurance Premiums ” means the annual insurance premiums for the insurance policies required to be maintained by the Issuer and its Subsidiaries with respect to the Properties pursuant to the terms of this Indenture.

“ Investments ” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the forms of direct or indirect loans (including Guarantees of Indebtedness or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), 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.

“ Issue Date ” means the date on which the Initial Notes are originally issued.

“ Issuer ” has the meaning set forth in the preamble.

“ Lease ” means any lease, tenancy, license, assignment and/or other rental or occupancy agreement or other agreement or arrangement (including, without limitation, any and all guaranties of any of the foregoing) heretofore or hereafter entered into affecting the use, enjoyment or occupancy of, or the conduct of any activity upon or in, the Properties or any portion thereof, including any extensions, renewals, modifications or amendments thereof, and including (i) any ground lease where the Issuer or any of its Subsidiaries is the landlord thereunder and (ii) the Sprint Master Lease Agreement with respect to the Towers leased back to Sprint, including the rights and obligations with respect thereto only.

“ Legal Defeasance ” has the meaning set forth in Section 8.02.

“ Lien ” means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind, whether voluntary or involuntary (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest).

 

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“ Lock Box Account ” has the meaning set forth in the Cash Management Agreement.

“ Maintenance Capital Expenditures ” means Capital Expenditures made for the purpose of maintaining the Properties or complying with applicable laws, regulations, ordinances, statutes, codes or rules applicable to the Properties, but shall exclude discretionary expenditures made to acquire fee or easement interests with respect to any Ground Leased Property and non-recurring expenditures made to enhance the Net Cash Flow of a Property.

“ Managed Property ” means each Property (other than an Easement Property, a Ground Leased Property or an Owned Property) at which the Issuer or any of its Subsidiaries is authorized to sublease or otherwise broker space.

“ Management Agreement ” means the management agreement between the Issuer, its Subsidiaries and the Manager described therein dated as of the date hereof, and any management agreement which may hereafter be entered into in accordance with the terms and conditions hereof, pursuant to which any subsequent Manager may hereafter manage one or more of the applicable Properties.

“ Management Fee ” means, with respect to any period, an amount equal to seven and one-half percent (7  ¹ / 2 %) of Operating Revenues of the Issuer and its Subsidiaries, Operating Revenues of any particular Property or Annualized Run Rate Revenue of any particular Property, as applicable, for such period.

“ Manager ” means the manager described in the Management Agreement or an Acceptable Manager as may hereafter be charged with management of one or more of the Properties in accordance with the terms and conditions hereof.

“ Material Adverse Effect ” means (i) a material adverse effect (which may include economic or political events) upon the business, operations or condition (financial or otherwise) of the Issuer and its Subsidiaries (taken as a whole), (ii) the material impairment of the ability of any of the Issuer and its Subsidiaries (taken as a whole) to perform their Obligations under this Indenture or the Security Documents to which they are a party (taken as a whole) or (iii) the material impairment of the ability of the Trustee to enforce or collect from the Issuer any principal or interest or premium, if any, on the Notes as they become due. In determining whether any individual event would result in a Material Adverse Effect, notwithstanding that such event does not of itself have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event and all other then occurring events and existing conditions would result in a Material Adverse Effect.

“ Moody’s ” means Moody’s Investors Services, Inc.

 

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“ Net Cash Flow ” means, without duplication, Net Operating Income for the trailing period of twelve full months ended as of the most recently ended fiscal quarter for which Financial Statements have been required to be delivered (or have been delivered) pursuant to Section 4.03 less the Management Fee for such period; provided that (i) for any period prior to and during the first three (3) full months following acquisition of a Property, Net Cash Flow for such Property shall be equal to the Annualized Run Rate Net Cash Flow of such Property, (ii) following the third full calendar month of ownership of such Property and through the date that the Property ceases to be an Unseasoned Property, Net Cash Flow for such Property shall be equal to the Net Operating Income annualized based upon the number of full calendar months of ownership of such Property, less a Management Fee based on the actual Operating Revenues of such Property, annualized based upon such period of ownership, (iii) in connection with calculating the Consolidated Fixed Charge Coverage Ratio under Section 4.10, Net Cash Flow for such Property shall be equal to the Net Operating Income annualized based upon the most recently ended fiscal quarter for which Financial Statements have been required to be delivered (or have been delivered) pursuant to Section 4.03 immediately prior to the proposed date of termination, less a Management Fee based on the actual Operating Revenues of such Property annualized based upon such period of time and (iv) in connection with calculating the Debt to Net Cash Flow Ratio, Net Cash Flow shall be equal to the Net Operating Income annualized based upon the most recently ended fiscal quarter for which Financial Statements have been required to be delivered (or have been delivered) pursuant to Section 4.03 immediately prior to the proposed issuance of Additional Notes, less a Management Fee based on the actual Operating Revenues annualized based upon such period of time.

“ Net Operating Income ” means, for any period, without duplication, the amount by which Operating Revenues exceed Operating Expenses (excluding Management Fees for such period, interest, income taxes, depreciation, accretion, amortization and other non-cash asset write-down charges); provided that Net Operating Income (i) for any period prior to and during the first three (3) full calendar months following acquisition of any Unseasoned Property for such Property shall be equal to the Annualized Run Rate Revenue of such Property less the sum of (x) annualized current insurance expenses, real estate and similar taxes (including payments in lieu of taxes), ground lease payments (if any), and amounts payable to any third-party owner under a Site Management Agreement, if applicable, with respect to such Property, and (y) the Issuer’s annual budgeted consolidated expenses in respect of such Property, including expenses for maintenance (including Maintenance Capital Expenditures), utilities, licensing, permitting and site management (excluding portfolio support personnel) and (ii) from and after the third (3rd) full calendar month following acquisition of any Unseasoned Property and through the date that the Property ceases to be an Unseasoned Property, shall be equal to the Net Operating Income annualized based upon the number of full calendar months of ownership of such Property.

“Net Proceeds” means (i) the aggregate cash proceeds received by the Issuer or any of its 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) or (ii) in the case of an Asset Exchange constituting an Asset Sale, any cash or Permitted Investments received by the Issuer or any of its Subsidiaries in respect thereof, in each case net of:

 

(i)

the direct costs relating to such Asset Sale or Asset Exchange (including, without limitation, legal, accounting and investment banking fees, and sales commissions) and any relocation expenses incurred as a result thereof;

 

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(ii)

taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements);

 

(iii)

the deduction of appropriate amounts provided by the seller as a reserve in accordance with GAAP against any liabilities associated with the assets disposed of in such Asset Sale and retained by the Issuer or any Subsidiary after such Asset Sale; and

 

(iv)

without duplication, any reserves that the Manager determines in good faith should be made in respect of the sale price of such asset or assets for post closing adjustments;

provided that in the case of any reversal of any reserve referred to in clause (iii) or (iv) above, the amount so reversed shall be deemed to be Net Proceeds from an Asset Sale as of the date of such reversal.

“ Non-U.S. Person ” means a Person who is not a U.S. Person.

“ Note Guarantee ” means the Guarantee by each Guarantor of the Issuers’ Obligations under this Indenture and the Notes, executed pursuant to the provisions of this Indenture.

“ Notes ” means the Notes issued under this Indenture. The Initial Notes and the Additional Notes, whether or not of the same series or CUSIP number, shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.

“ Obligations ” all obligations, liabilities and Indebtedness of every nature to be paid or performed by the Issuers and the Guarantors under this Indenture, the Notes, the Note Guarantees and the Security Documents, including principal, premium, if any, and interest on the Notes, and all fees, costs and expenses, and other sums now or hereafter owing, due or payable and whether before or after the filing of a proceeding under the Bankruptcy Code by or against any of the Issuers or the Guarantors, and the performance of all other terms, conditions and covenants under this Indenture, the Notes, the Note Guarantees and the Security Documents.

“ Offering Memorandum ” means the Offering Memorandum, dated April 15, 2009, with respect to the offer and sale of the Initial Notes.

 

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“ Officer ” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Executive Vice Chairman, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.

“ Officers’ Certificate ” means, with respect to any Person, a certificate signed on behalf of such Person by two Officers of such Person.

“ Operating Budget ” means the Issuer’s budget setting forth the Manager’s best estimate, after due consideration, of all consolidated operating expenses and any other expenses for such period.

“ Operating Expenses ” means, for any period, without duplication, (i) all direct costs and expenses of operating and maintaining the Properties determined in accordance with GAAP, including, without limitation, Impositions, Insurance Premiums, repair and maintenance costs, (ii) Management Fees based on Operating Revenues for such period and (iii) all Maintenance Capital Expenditures related to the Properties. Operating Expenses shall exclude (1) principal, interest and premium, if any, payments on any Indebtedness of the Issuer and its Subsidiaries, and fees and expenses due and payable to or for the benefit of the lender under any such Indebtedness (including, without limitation, all loan servicing fees and expenses), (2) any expense paid by a tenant that would otherwise be an Operating Expense, utilities paid directly by Sprint, and maintenance costs which are the obligation of a Person other than the Issuer or its Subsidiaries, (3) Capital Expenditures (other than Maintenance Capital Expenditures), tenant improvement allowances and leasing commissions, if any, any payment or expense for which the Issuer or its Subsidiaries was or is to be reimbursed from proceeds of insurance or by any third party, any fees or expenses paid to any partner or member of the Issuer or its Subsidiaries for services provided to the Issuer or any of its Subsidiaries, (4) any non-cash charges such as depreciation, amortization, accretion and other asset write-down charges, (5) the cost of portfolio support personnel provided by a manager of such Property to perform site visits, (6) the impact on rent expense of accounting for ground and other site leases with fixed escalators on a straight-line basis as required under SFAS 13, (7) federal, state or local income taxes or legal and other professional fees unrelated to the operation of the Properties and (8) discretionary expenditures made to acquire fee or easement interests with respect to any Ground Leased Property, or non-recurring expenditures made to enhance the Net Cash Flow of a Property.

“ Operating Revenues ” means, without duplication, all revenues of the Issuer and its Subsidiaries from operations or, with respect to any particular Property, all revenues of the Issuer and its Subsidiaries from the operation of such Property or otherwise allocable to such Property, in each case determined in accordance with GAAP and including, without limitation, all revenues from the leasing, subleasing, licensing, concessions or other grant of the right of the possession, use or occupancy of all or any portion of the Properties or personalty located thereon, or rendering of service by the Issuer or any of its Subsidiaries, proceeds from rental or business interruption insurance relating to business interruption or loss of income for the period in question and any other items of revenue which would be included in operating revenues under

 

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GAAP; but excluding the impact on revenues of accounting for leases with fixed escalators as required by SFAS 13, proceeds from abatements, reductions or refunds of real estate or personal property taxes relating to the Properties, dividends on insurance policies relating to the Properties, condemnation proceeds arising from a temporary taking of all or a part of any Properties, security and other deposits until they are forfeited by the depositor, advance rentals until they are earned, proceeds from a sale, financing or other disposition of the Properties or any part thereof or interest therein and other non-recurring revenues as determined by the Manager, insurance proceeds (other than proceeds from rental or business interruption insurance), other condemnation proceeds, capital contributions or loans to the Issuer or any of its Subsidiaries.

“ Opinion of Counsel ” means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 14.05 hereof. The counsel may be an employee of or counsel to the Parent, any Subsidiary of the Parent or the Trustee.

“ Owned Property ” means real estate owned in fee by the Issuer or any of its Subsidiaries, together with any fixtures and appurtenances thereon.

“ Parent ” means Crown Castle International Corp., a Delaware corporation, and its successors.

“ 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 Investments” means any one or more of the following obligations or securities acquired at a purchase price of not greater than par (unless cash is deposited into the applicable Sub-Account in the amount by which the purchase price exceeds par), payable on demand or having a maturity date not later than the Business Day immediately prior to the date on which the invested sums are required for payment of an obligation for which the related Sub-Account was created and meeting one of the appropriate standards set forth below:

 

(i)

obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof, provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided , however , that the

 

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Investments described in this clause (i) must (A) have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change, (B) if rated by S&P, not have an “r” highlighter affixed to their rating, (C) if such Investments have a variable rate of interest, have an interest rate tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index and (D) not be subject to liquidation prior to their maturity;

 

(ii)

Federal Housing Administration debentures;

 

(iii)

obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and Notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Student Loan Marketing Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however , that the Investments described in this clause (iii) must (A) have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change, (B) if rated by S&P, not have an “r” highlighter affixed to their rating, (C) if such Investments have a variable rate of interest, have an interest rate tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index and (D) not be subject to liquidation prior to their maturity;

 

(iv)

federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency; provided, however , that the Investments described in this clause (iv) must (A) have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change, (B) if rated by S&P, not have an “r” highlighter affixed to their rating, (C) if such Investments have a variable rate of interest, have an interest rate tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index and (D) not be subject to liquidation prior to their maturity;

 

(v)

fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency); provided, however , that the Investments described in this clause (v) must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, not have a “r” highlighter

 

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affixed to their rating, (C) if such Investments have a variable rate of interest, have an interest rate tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index and (D) not be subject to liquidation prior to their maturity;

 

(vi)

debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency) in its highest long-term unsecured debt rating category; provided , however , that the Investments described in this clause (vi) must (A) have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change, (B) if rated by S&P, not have an “r” highlighter affixed to their rating, (C) if such Investments have a variable rate of interest, have an interest rate tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index and (D) not be subject to liquidation prior to their maturity;

 

(vii)

commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency,) in its highest short-term unsecured debt rating; provided , however , that the Investments described in this clause (vii) must (A) have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change, (B) if rated by S&P, not have a “r” highlighter affixed to their rating, (C) if such Investments have a variable rate of interest, have an interest rate tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index and (D) not be subject to liquidation prior to their maturity; and

 

(viii)

units of taxable money market funds or mutual funds, which funds are regulated investment companies, seek to maintain a constant net asset value per share and have the highest rating from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency) for money market funds or mutual funds.

provided, however , that such instrument continues to qualify as a “cash flow investment” pursuant to Code Section 860G(a)(6) earning a passive return in the nature of interest and no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments or (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment; and provided, further , no obligation or security, other than an obligation or security constituting real estate assets, cash, cash items or Government Securities pursuant to Code Section 856(c)(4)(A), shall be a Permitted Investment if the value of such obligation or security exceeds ten percent (10%) of the total value of the outstanding securities of any one issuer.

 

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“ Person ” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or agency or political subdivision thereof (including any subdivision or ongoing business of any such entity or substantially all of the assets of any such entity, subdivision or business).

“ Private Placement Legend ” means the legend set forth in Section 2.06(f)(1) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.

“ Properties ” means, collectively or individually, the properties (including land and Improvements, and all leaseholds, sub-leaseholds, fee and easements) and all related facilities, owned by the Issuer and its Subsidiaries as of any date of determination.

“ QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

“ Rating Agencies ” means S&P, Moody’s and Fitch, Inc.

“ Regulation S 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, issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.

“ Related Person ” means any Person in which the Issuer or any Subsidiary of the Issuer holds greater than a ten percent (10%) equity interest or any Affiliate of the Issuer or any Subsidiary of the Issuer.

“ Remaining Term ” of each Tenant Lease is that portion of the term of such Tenant Lease that will end on the date that is, in general, the date as of which the Tenant Lease would expire if the Lessee were to provide the required written notice of its intent not to renew such Tenant Lease.

“ Repayment Event Offer ” has the meaning set forth in Section 4.20.

“ Repayment Funds ” has the meaning set forth in Section 4.20.

 

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“ Repayment Period ” will commence as of the last day of any calendar quarter when the Consolidated Fixed Charge Coverage Ratio is equal to or less than 1.20 to 1 and will continue to exist until the Consolidated Fixed Charge Coverage Ratio exceeds 1.20 to 1 as of the last day of any calendar quarter.

“ Responsible Officer ,” 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.

“ 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 under the Securities Act.

“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc.

“ Scheduled Price ” has the meaning set forth in Section 3.07.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Security Documents ” means all security agreements, pledge agreements, collateral assignments, collateral agency agreements, control agreements, cash management agreements, assignment and subordination agreements, or other grants or transfers for security executed and delivered by the Issuers or the Guarantors creating (or purporting to create) a Lien upon collateral for the benefit of the Trustee or to secure the Obligations of the Issuer, the Co-Issuer or any Guarantor, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, form time to time, in accordance with its terms and this Indenture.

 

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“ SFAS 13 ” means Statement of Financial Accounting Standards No. 13 published by the Financial Accounting Standards Board.

“ Site Management Agreements ” means those certain leases, management agreements or similar agreements pursuant to which the Issuer or any of its Subsidiaries are authorized to sublease or otherwise broker space at the Managed Properties.

“ Sprint ” means Sprint Nextel Corporation and the subsidiaries of Sprint that are party to the Sprint Acquisition Documents.

“ Sprint Acquisition ” means the transactions contemplated by the Sprint Acquisition Documents.

“ Sprint Acquisition Documents ” means the Sprint Contribution Agreement and the related assignment and assumption agreements, property use agreements, rescission agreements and Sprint Master Lease Agreements, in each case as amended from time-to-time, and such additional documents as are required to be executed and delivered pursuant to the terms of such documents from time-to-time in connection with the Sprint Acquisition, as same may be assigned or modified from time-to-time.

“ Sprint Contribution Agreement ” means that certain Agreement to Contribute Lease and Sublease dated as of February 14, 2005 among Sprint Corporation, the Sprint subsidiaries named therein and Global Signal Inc., as same may be assigned or modified from time-to-time.

“ Sprint Master Lease Agreement ” means, collectively, (i) the Master Lease and Sublease, dated May 26, 2005, by and among STC One LLC, Sprint Telephony PCS, L.P., Global Signal Acquisitions II, LLC and Global Signal Inc., (ii) the Master Lease and Sublease, dated May 26, 2005, by and among STC Two LLC, SprintCom, Inc., Global Signal Acquisitions II, LLC and Global Signal Inc., (iii) the Master Lease and Sublease, dated May 26, 2005, by and among STC Three LLC, American PCS Communications, LLC, Global Signal Acquisitions II, LLC and Global Signal Inc., (iv) the Master Lease and Sublease, dated May 26, 2005, by and among STC Four LLC, PhillieCo, L.P., Global Signal Acquisitions II, LLC and Global Signal Inc., (v) the Master Lease and Sublease, dated May 26, 2005, by and among STC Five LLC, Sprint Spectrum L.P., Global Signal Acquisitions II, LLC and Global Signal Inc., (vi) the Master Lease and Sublease, dated May 26, 2005, by and among STC Six LLC, Sprint Spectrum, L.P., Global Signal Acquisitions II, LLC and Global Signal Inc., (vii) the other material agreements related to the foregoing, and (viii) any amendments, supplements, modifications, extensions, renewals, restatements or replacements of the foregoing.

 

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“ Sprint Sites ” means the Properties subject to the Sprint Master Lease Agreement.

“ 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.

“ Sub-Accounts ” means, collectively, the Debt Service Sub-Account, the Impositions and Insurance Reserve Sub-Account, the Cash Trap Reserve Sub-Account, the Advance Rents Reserve Sub-Account, the Asset Sales Sub-Account and any other Sub-Accounts of the Lock Box Account which may hereafter be established by the Issuer, the Trustee or the Security Documents.

“ Subsidiary ” means, with respect to any Person:

 

(i)

any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

(ii)

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).

“ Substitute Assets ” means one or more Properties of like kind and quality of the assets that are the subject of an Asset Sale or Event of Loss, as applicable, taking into account such factors as: (i) the percentage of revenues for the replacement Properties that are represented by wireless and investment grade lessees, (ii) if the replacement Properties are subject to a Ground Lease, the term (including all available extensions) from the date of substitution, (iii) the weighted average Remaining Term of the Tenant Leases for the replacement Sites, (iv) the Maintenance Capital Expenditures for the replacement Properties as compared to the Maintenance Capital Expenditures for the replaced Properties and (v) the liabilities (including under environmental laws) of the replacement Properties; provided that such Replacement Properties may not be subject to any Liens other than those securing the Notes or that are permitted under Section 4.12; provided further that when making any determination of the kind and quality of any assets pursuant to this definition, such determination will be made considering all of the Properties subject to a particular Asset Sale or Event of Loss, taken as a whole.

 

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“ Tenant Lease ” shall mean any of the leases, pursuant to which space on the Properties, land, towers, rooftops or other structures is leased by the Issuer and its Subsidiaries to wireless communication companies and other users for placement of such users’ transmission equipment and for other purposes.

“ TIA ” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of this Indenture.

“ Tower ” and “ Towers ” means collectively, or individually, any wireless communications towers owned, leased, operated or managed by the Issuer or any of its Subsidiaries, including any rooftop or other sites owned, leased, operated or managed by the Issuer or any of its Subsidiaries.

“ Treasury Rate ” means, as of any redemption or purchase date, the yield to maturity as of such redemption or purchase date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H. 15 (519) that has become publicly available at least two Business Days prior to the redemption or purchase date (or, if such statistical release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption or purchase date to May 1, 2013; provided , however , that if the period from the redemption or purchase date to May 1, 2013 is not equal to the constant maturity of the 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 period from such date of redemption or purchase to May 1, 2013 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 the party named as such in the preamble to this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

“ Unrestricted Definitive Note ” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.

“ Unrestricted Global Note ” means a Global Note that does not bear and is not required to bear the Private Placement Legend.

“ Unseasoned Property ” means any Property that has been owned by the Issuer or any of its Subsidiaries for less than twelve (12) full calendar months.

 

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“ U.S. Person ” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.

Section 1.02 Other Definitions.

 

Section 1.03 Incorporation by Reference of Trust Indenture Act.

(a) Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture when referred to.

(b) 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 and the Note Guarantees means the Issuers and the Guarantors, respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.

(c) 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.

 

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Section 1.04 Rules of Construction.

Unless the context otherwise requires:

(1) a term has the meaning assigned to it;

(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

(3) “or” is not exclusive;

(4) words in the singular include the plural, and words in the plural include the singular;

(5) “will” shall be interpreted to express a command;

(6) provisions apply to successive events and transactions; and

(7) references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time.

ARTICLE 2

THE NOTES

Section 2.01 Issuance; Form and Dating.

(a) The Notes and the Trustee’s 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, agreements to which the Issuers are subject, if any, or usage ( provided that any such notation, legend or endorsement is in a form acceptable to the Issuers), or as provided herein. Each Note will be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000. The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Issuers, 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.

 

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(b) All of the Notes shall be issued initially in the form of one or more Global Notes, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee as Custodian for the depositary, The Depository Trust Company (“ DTC ”) (such depositary, or any successor thereto, being hereinafter referred to as the “ Depositary ”), and registered in the name of its nominee, Cede & Co., duly executed by the Issuers and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Custodian as hereinafter provided, subject in each case to compliance with the Applicable Procedures.

(c) Notes issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form will be substantially in the form of Exhibit A 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, purchases or conversions of such Notes. Any endorsement of a Global Note to reflect the aggregate principal amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian in accordance with the standing instructions and procedures existing between the Depositary and the Custodian.

(d) Members of, or participants in, the Depositary shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary or under any Global Note, and the Depositary (including, for this purpose, its nominee) may be treated by the Issuers, the Trustee and any agent of the Issuers or the Trustee as the absolute owner and Holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (i) prevent the Issuers, the Trustee or any agent of the Issuers or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or (ii) impair, as between the Depositary and the members of, or participants in, the Depositary, the operation of customary practices governing the exercise of the rights of a Holder of any Note.

(e) 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 Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by Participants through Euroclear or Clearstream.

 

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Section 2.02 Execution and Authentication.

(a) At least one Officer shall sign the Notes for each of the Issuers by manual or facsimile signature. Typographic and other minor defects in any facsimile signature shall not affect the validity or enforceability of any Note which has been authenticated and delivered by the Trustee.

(b) If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.

(c) A Note shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

(d) The Trustee will, upon receipt of a written order of the Issuers signed by two Officers for each of the Issuers (an “ Authentication Order ”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Issuers pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.

(e) The Trustee may appoint an authenticating agent acceptable to the Issuers to authenticate the Notes. Unless limited by the terms of such appointment, 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 any Registrar, Paying Agent or agent for service of notices and demands.

Section 2.03 Registrar and Paying Agent.

(a) The Issuers shall maintain an office or agency where the Notes may be presented for registration of transfer or for exchange (the “ 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 Issuers 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 Issuers may change any Paying Agent or Registrar without notice to any Holder. The Issuers shall notify the Trustee in writing of the name and address of any agent not a party to this Indenture. If the Issuers fail to appoint or maintain another entity as the Registrar or Paying Agent, the Trustee shall act as such. The Issuers or any of their Subsidiaries may act as Paying Agent or Registrar.

 

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(b) The Issuers initially appoint the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Notes.

Section 2.04 Maintenance of Office or Agency; Paying Agent to Hold Money in Trust.

(a) The Issuers shall maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate 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 Issuers in respect of the Notes and this Indenture may be served. Such office shall initially be the Corporate Office of the Trustee.

(b) Without limiting Section 4.07, the Issuers 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 the Holders or the Trustee all money held by the Paying Agent for the payment of principal of, or premium, if any, or interest on the Notes, and shall notify the Trustee of any Default by the Issuers 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 Issuers 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 Issuer or a Subsidiary of the Issuer) shall have no further liability for the money. If the Issuer or a Subsidiary of the Issuer 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 Issuer or any Subsidiary of the Issuer, the Trustee shall serve as Paying Agent for the Notes.

Section 2.05 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 Holders and shall otherwise comply with TIA §312(a). If the Trustee is not the Registrar, the Issuers shall furnish to the Trustee at least 10 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 Holders, and the Issuers shall otherwise comply with TIA §312(a).

Section 2.06 Transfer and Exchange.

(a) Transfer and Exchange of Global Notes . A Global Note may not be transferred except as a whole 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 will be exchanged by the Issuers for Definitive Notes if:

(1) the Issuers deliver to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuers within 120 days after the date of such notice from the Depositary;

 

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(2) the Issuers in their sole discretion determine that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and deliver a written notice to such effect to the Trustee; or

(3) there has occurred and is continuing a Default or Event of Default with respect to the Notes.

Upon the occurrence of any of the preceding events in clauses (1), (2) or (3) 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 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.10 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 2.06(a), however , beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(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 will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will 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 will require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

(1) 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 40 day restricted period set forth in Regulation S, transfers of beneficial interests in the 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 Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who 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 2.06(b)(1).

 

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(2) 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 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either:

(A) both:

 

(i)

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

 

(ii)

instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or

(B) both:

 

(i)

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

 

 

(ii)

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.

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 of the relevant Global Note(s) pursuant to Section 2.06(g) hereof.

(3) 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 2.06(b)(2) above and the Registrar receives the following:

(A) if the transferee will 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

 

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(B) if the transferee will take delivery in the form of a beneficial interest in the 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.

(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an 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 2.06(b)(2) above and the Registrar receives the following:

(A) 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

(B) 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, 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 this clause (4) at a time when an Unrestricted Global Note has not yet been issued, the Issuers 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 aggregate principal amount of beneficial interests transferred pursuant to this clause (4).

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.

 

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(c) Transfer or Exchange of Beneficial Interests for Definitive Notes .

(1) 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, 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 a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof; or

(E) if such beneficial interest is being transferred to one of the Issuers or any of the Issuer’s Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof;

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Issuers shall execute and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, 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 2.06(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 beneficial

 

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interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

(2) 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 the Registrar receives the following:

(A) if the Holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or

(B) 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 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 clause (2), 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.

(3) 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 2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Issuers will execute and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will 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 2.06(c)(3) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will 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 2.06(c)(3) will not bear the Private Placement Legend.

 

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(d) Transfer and Exchange of Definitive Notes for Beneficial Interests .

(1) 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, 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, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof; or

(E) if such Restricted Definitive Note is being transferred to one of the Issuers or any of the Issuer’s Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof;

the Trustee will cancel the Restricted Definitive Note, 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.

 

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(2) 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 the Registrar receives the following:

(A) if the Holder of such 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

(B) if the Holder of such 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 clause (2), 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.

Upon satisfaction of the conditions of this Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.

(3) 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 will 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 (2)(B), 2(D) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Issuers will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.

 

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(e) Transfer and Exchange of Definitive Notes for Definitive Notes . Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to suc