<PAGE>
EXHIBIT 4.1.1
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CRICKET COMMUNICATIONS, INC.
13% SENIOR SECURED PAY-IN-KIND NOTES DUE 2011
------------------------
INDENTURE
DATED AS OF AUGUST 16, 2004
------------------------
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS TRUSTEE
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CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Trust Indenture Act Section
Indenture Section
<S>
<C>
310(a)(1).................................................................
7.10
(a)(2).................................................................
7.10
(a)(3).................................................................
N.A.
(a)(4).................................................................
N.A.
(a)(5).................................................................
7.10
(b)....................................................................
7.10
(c)....................................................................
N.A.
311(a)....................................................................
7.11
(b)....................................................................
7.11
(c)....................................................................
N.A.
312(a)....................................................................
2.05
(b)....................................................................
12.03
(c)....................................................................
12.03
313(a)....................................................................
7.06
(b)(1).................................................................
10.03
(b)(2).................................................................
7.06; 7.07
(c)....................................................................
7.06; 10.03; 12.02
(d)....................................................................
7.06
314(a)....................................................................
4.02;12.02; 12.05
(b)....................................................................
10.02
(c)(1).................................................................
12.04
(c)(2).................................................................
12.04
(c)(3).................................................................
N.A.
(d)....................................................................
10.03; 10.04; 10.05
(e)....................................................................
12.05
(f)....................................................................
N.A.
315(a)....................................................................
7.01
(b)....................................................................
7.05; 12.02
(c)....................................................................
7.01
(d)....................................................................
7.01
(e)....................................................................
6.11
316(a) (last
sentence)....................................................
2.09
(a)(1)(A)..............................................................
6.05
(a)(1)(B)..............................................................
6.04
(a)(2).................................................................
N.A.
(b)....................................................................
6.07
(c)....................................................................
2.12
317(a)(1).................................................................
6.08
(a)(2).................................................................
6.09
(b)....................................................................
2.04
318(a)....................................................................
12.01
(b)....................................................................
N.A.
(c)....................................................................
12.01
</TABLE>
N.A. means not applicable.
* This Cross Reference Table is not part of
the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
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ARTICLE I
Definitions and Incorporation by Reference
1.01.
Definitions.................................................................
1
1.02. Other
Definitions...........................................................
19
1.03. Incorporation by Reference of
Trust Indenture Act........................... 20
1.04. Rules of
Construction.......................................................
20
ARTICLE II
The Notes
2.01. Form and
Dating.............................................................
21
2.02. Execution and
Authentication................................................
22
2.03. Registrar and Paying
Agent..................................................
22
2.04. Paying Agent to Hold Money in
Trust......................................... 23
2.05. Holder
Lists................................................................
23
2.06. Transfer and
Exchange.......................................................
23
2.07. Replacement
Notes...........................................................
28
2.08. Outstanding
Notes...........................................................
28
2.09. Treasury
Notes..............................................................
28
2.10. Temporary
Notes.............................................................
29
2.11.
Cancellation................................................................
29
2.12. Payment of Interest; Defaulted
Interest..................................... 29
ARTICLE III
Redemption
3.01. Notices to
Trustee..........................................................
30
3.02. Selection of Notes To Be
Redeemed........................................... 30
3.03. Notice of
Redemption........................................................
30
3.04. Effect of Notice of
Redemption..............................................
31
3.05. Deposit of Redemption
Price................................................. 31
3.06. Notes Redeemed in
Part......................................................
32
3.07. Optional
Redemption.........................................................
32
ARTICLE IV
Covenants
4.01. Payment of
Notes............................................................
32
4.02. Reports to
Holders..........................................................
33
4.03. Limitation on Indebtedness and
Issuance of Disqualified Stock............... 33
4.04. Limitation on Restricted
Payments........................................... 36
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4.05. Limitation on Dividend and Other
Payment Restrictions
Affecting Restricted
Subsidiaries..................................................
39
4.06. Limitation on Asset
Sales...................................................
40
4.07. Limitation on Transactions with
Affiliates.................................. 41
4.08. Repurchase of Notes at the Option
of the Holder Upon a Change of Control.... 42
4.09. Compliance
Certificate......................................................
43
4.10. Limitation on Issuances of
Guarantees by Restricted Subsidiaries............ 43
4.11. Additional Guarantees and
Liens............................................. 43
4.12. Maintenance of Properties;
Insurance........................................ 45
4.13. Taxes and
Claims............................................................
45
4.14. Limitation on
Liens.........................................................
45
4.15. Sale/Leaseback
Transactions.................................................
45
4.16. Compliance with Laws,
Etc................................................... 46
4.17. Corporate
Existence.........................................................
46
4.18. Impairment of
Rights........................................................
46
4.19. Interests in Non-Owned Real
Property; Cell Tower Leases..................... 47
4.20. Further
Assurances..........................................................
47
ARTICLE V
Successor Company
5.01. When Parent, Company and
Guarantors May Merge or Transfer Assets ........... 47
ARTICLE VI
Events of Defaults and Remedies
6.01. Events of
Default...........................................................
50
6.02.
Acceleration................................................................
51
6.03. Other
Remedies..............................................................
52
6.04. Waiver of Past
Defaults.....................................................
52
6.05. Control by
Majority.........................................................
52
6.06. Limitation on
Suits.........................................................
53
6.07. Rights of Holders to Receive
Payment........................................ 53
6.08. Collection Suit by
Trustee..................................................
53
6.09. Trustee May File Proofs of
Claim............................................ 53
6.10.
Priorities..................................................................
54
6.11. Undertaking for
Costs.......................................................
54
6.12. Waiver of Stay, Extension or Usury
Laws..................................... 54
ARTICLE VII
Trustee
7.01. Duties of
Trustee...........................................................
54
7.02. Rights of
Trustee...........................................................
55
</TABLE>
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<C>
7.03. Individual Rights of
Trustee................................................
56
7.04. Trustee's
Disclaimer........................................................
56
7.05. Notice of
Defaults..........................................................
57
7.06. Reports by Trustee to
Holders............................................... 57
7.07. Compensation and
Indemnity..................................................
57
7.08. Replacement of
Trustee......................................................
58
7.09. Successor Trustee by
Merger.................................................
59
7.10. Eligibility;
Disqualification...............................................
59
7.11. Preferential Collection of Claims
Against the Company....................... 59
ARTICLE VIII
Discharge of Indenture; Defeasance
8.01. Discharge of Liability on Notes;
Defeasance................................. 59
8.02. Conditions to
Defeasance....................................................
60
8.03. Application of Trust
Money..................................................
62
8.04. Repayment to the
Company....................................................
62
8.05. Indemnity for Government
Obligations........................................ 62
8.06.
Reinstatement...............................................................
62
ARTICLE IX
Amendments
9.01. Without Consent of
Holders..................................................
63
9.02. With Consent of
Holders.....................................................
63
9.03. Compliance with Trust Indenture
Act......................................... 64
9.04. Revocation and Effect of Consents
and Waivers............................... 64
9.05. Notation on or Exchange of
Notes............................................ 65
9.06. Trustee to Sign
Amendments..................................................
65
9.07. Payment for
Consent.........................................................
65
ARTICLE X
Collateral and Security
10.01. Security
Documents..........................................................
65
10.02. Recording and
Opinions......................................................
66
10.03. Release of
Collateral.......................................................
67
10.04. Certificates and Opinions of
Counsel........................................ 68
10.05. Certificates of the
Trustee.................................................
68
10.06. Authorization of Actions to Be Taken
by the Trustee Under the
Security
Documents.................................................................
68
10.07. Authorization of Receipt and
Distribution of Funds by the
Trustee Under the Security
Documents...............................................
69
10.08. Termination of Security
Interest............................................ 69
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10.09. Trustee Serving as Collateral Agent;
Amendments or Supplements to, or
Replacements of, the Security
Documents............................................ 69
ARTICLE XI
Guarantees
11.01.
Guarantees..................................................................
70
11.02. Limitation on
Liability.....................................................
72
11.03. Releases of
Guarantees......................................................
72
11.04. Successors and
Assigns......................................................
72
11.05. No
Waiver...................................................................
73
11.06.
Modification................................................................
73
11.07. Execution of Supplemental Indenture
for Future Guarantors................... 73
11.08.
Non-Impairment..............................................................
73
ARTICLE XII
Miscellaneous
12.01. Trust Indenture Act
Controls................................................
73
12.02.
Notices.....................................................................
73
12.03. Communication by Holders with Other
Holders................................. 74
12.04. Certificate and Opinion as to
Conditions Precedent.......................... 74
12.05. Statements Required in Certificate
or Opinion............................... 75
12.06. Rules by Trustee, Paying Agent and
Registrar................................ 75
12.07. Legal
Holidays..............................................................
75
12.08. GOVERNING
LAW...............................................................
75
12.09. No Recourse Against
Others..................................................
75
12.10.
Successors..................................................................
76
12.11. Counterpart
Originals.......................................................
76
12.12. Table of Contents;
Headings.................................................
76
</TABLE>
Exhibit A - Form of Note
Exhibit B - Form of Supplemental
Indenture
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<PAGE>
INDENTURE dated as of August 16, 2004, among CRICKET
COMMUNICATIONS,
INC., a Delaware corporation (the
"Company"), LEAP WIRELESS INTERNATIONAL, INC.,
a Delaware corporation, as guarantor (the
"Parent"), the Guarantors (as defined
herein), and WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking
association, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other
parties
and for the equal and ratable benefit of
the Holders (as defined herein) of (a)
the Company's 13% Senior Secured
Pay-in-Kind Notes due 2011 issued on the date
hereof (the "Original Notes"), and (b) any
PIK Notes (as defined herein) that
may be issued under this Indenture (all
such Notes in clauses (a) and (b) being
referred to collectively as the "Notes").
On the date hereof, $350,000,000 in
aggregate principal amount of Original
Notes will be initially issued. The
Company may issue PIK Notes from time to
time hereunder in payment of interest
on the Notes pursuant to the terms
hereof.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.01. Definitions.
"Adjusted Consolidated Net Income" means, for any period, the
aggregate consolidated net income (or loss)
of the Parent, the Company and the
Restricted Subsidiaries for such period
determined in conformity with GAAP;
provided that the following items shall be
excluded in computing Adjusted
Consolidated Net Income (without
duplication):
(i) the net income of any other Person that is not a Restricted
Subsidiary, except to the extent of the
amount of dividends or other
distributions actually paid to the Parent,
the Company or any of the Restricted
Subsidiaries by such other Person during
such period;
(ii) solely for the purposes of calculating the amount of
Restricted
Payments that may be made pursuant to
Section 4.04(a)(4)(C) (and in such case,
except to the extent includable pursuant to
clause (i) above), the net income
(or loss) of any other Person accrued prior
to the date it becomes a Restricted
Subsidiary or is merged into or
consolidated with the Parent, the Company or any
of the Restricted Subsidiaries or all or
substantially all of the property and
assets of the other Person are acquired by
the Parent, the Company or any of the
Restricted Subsidiaries;
(iii) the net income of any Restricted Subsidiary to the extent
that
the declaration or payment of dividends or
similar distributions by such
Restricted Subsidiary of such net income is
not at the time of determination
permitted by the operation of the terms of
its charter or any agreement,
instrument, judgment, decree, order,
statute, rule or governmental regulation
applicable to such Restricted
Subsidiary;
(iv) any gains or losses (on an after-tax basis) attributable
to
sales of assets of the Parent, the Company
or any of the Restricted Subsidiaries
other than in the ordinary course of
business;
<PAGE>
(v) solely for purposes of calculating the amount of Restricted
Payments that may be made pursuant to
Section 4.04(a)(4)(C), any amount paid or
accrued as dividends on Preferred Stock of
the Parent, the Company or any of the
Restricted Subsidiaries owned by Persons
other than the Parent, the Company or
any of the Restricted Subsidiaries;
(vi) all extraordinary gains and extraordinary losses,
including
charges resulting from impairments of
indefinite-lived or long-lived assets of
the Parent, the Company or any of the
Restricted Subsidiaries;
(vii) any compensation expense paid or payable solely with
Capital
Stock (other than Disqualified Stock) of
the Parent or any options, warrants or
other rights to acquire Capital Stock
(other than Disqualified Stock) of the
Parent; and
(viii) the cumulative effect of a change in accounting
principles.
"Adjusted Consolidated Net Tangible Assets" means the total
amount
of assets of the Parent, the Company and
the Restricted Subsidiaries (less
applicable depreciation, amortization and
other valuation reserves), excluding
write-ups of capital assets (other than
write-ups of tangible assets in
connection with accounting for acquisitions
made in conformity with GAAP), after
deducting therefrom (i) all current
liabilities of the Parent, the Company and
the Restricted Subsidiaries (excluding
intercompany items) and (ii) all
goodwill, trade names, trademarks, patents,
copyrights, organizational and
developmental expenses, unamortized debt
discount and expense, unamortized
deferred charges and other like intangibles
(other than FCC license acquisition
costs), all as set forth on the most recent
quarterly or annual consolidated
balance sheet information of the Parent,
the Company and the Restricted
Subsidiaries, prepared in conformity with
GAAP.
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling,
controlled by, or under direct or indirect
common control with, such Person. For
purposes of this definition, "control"
(including, with correlative meanings, the
terms "controlling," "controlled by"
and "under common control with"), as
applied to any Person, means the
possession, directly or indirectly, of the
power to direct or cause the
direction of the management and policies of
such Person, whether through the
ownership of voting securities, by contract
or otherwise. For purposes of
Section 4.07 only, "Affiliate" shall also
mean any beneficial owner of shares
representing more than 10% of the total
voting power of the Voting Stock (on a
fully diluted basis) of the Parent or the
Company or of rights or warrants to
purchase such Voting Stock (whether or not
currently exercisable) and any Person
who would be an Affiliate of any such
beneficial owner pursuant to the first
sentence hereof.
"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 that apply to
such transfer or exchange.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation
or Sale/Leaseback Transaction) in one
transaction or a series of related
transactions by the Parent, the Company or
any of the Restricted Subsidiaries to any
Person (other than the Parent, the
Company or any of the Restricted
Subsidiaries) of (i) all or any of the
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<PAGE>
Capital Stock of the Company or any
Restricted Subsidiary, (ii) all or
substantially all of the property and
assets of an operating unit or business of
the Parent, the Company or any of the
Restricted Subsidiaries or (iii) any other
property and assets of the Parent, the
Company or any of the Restricted
Subsidiaries outside the ordinary course of
business of the Parent, the Company
or such Restricted Subsidiary and, in each
case, that is not governed by the
provisions of Section 5.01; provided that
"Asset Sale" shall not include (a)
sales or other dispositions of inventory in
the ordinary course of business, (b)
sales, transfers or other dispositions of
assets constituting a Restricted
Payment permitted to be made under Section
4.04, (c) sales or other dispositions
of assets or Capital Stock by the Parent,
the Company or a Restricted Subsidiary
to the Parent, the Company or another
Restricted Subsidiary, (d) sales or other
dispositions of assets, not to exceed $25.0
million in fair market value in any
calendar year, for consideration at least
equal to the fair market value of the
assets sold or disposed of (as determined
in good faith by the Board of
Directors of the Parent, whose good faith
determination shall be conclusive and
evidenced by a Board Resolution), provided
that at least 75% of the fair market
value of the consideration received (as
determined in good faith by the Board of
Directors of the Parent, whose good faith
determination shall be conclusive and
evidenced by a Board Resolution) consists
of property or assets (other than
current assets) of a nature or type that
are used in a business, or a company
having property or assets or engaged in a
business, similar or related to the
nature or type of the property or assets
of, or business of, the Parent, the
Company and the Restricted Subsidiaries, or
(e) sales or other dispositions of
obsolete or excess assets with a fair
market value not in excess of $5.0 million
per calendar year (as certified in an
Officer's Certificate). Notwithstanding
the foregoing, the sale, lease, conveyance
or other disposition of all or
substantially all of the assets of the
Company and its Subsidiaries taken as a
whole will be governed by the provisions of
Sections 4.08 and/or 5.01 and not by
the provisions of Section 4.06.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the
present value (discounted at the
interest rate implicit in such transaction,
determined in accordance with GAAP)
of the total obligations of the lessee for
rental payments during the remaining
term of the lease included in such
Sale/Leaseback Transaction (including any
period for which such lease has been
extended or may be, at the option of the
lessor, extended).
"Average Life" means, at any date of determination with respect
to
any Indebtedness, the quotient obtained by
dividing (i) the sum of the products
of (a) the number of years from such date
of determination to the dates of each
successive scheduled principal payment of
such Indebtedness and (b) the amount
of such principal payment by (ii) the sum
of all such principal payments.
"Board of Directors" means the board of directors (for a
corporation) or similar governing body (for
other entities) of a Person, or any
committee thereof duly authorized to act on
behalf of such Board of Directors.
"Board Resolution" means a copy of a resolution certified by a
secretary or assistant secretary of a
Person to have been duly adopted by the
Board of Directors of such Person and to be
in full force and effect on the date
of such certification and delivered to the
Trustee.
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<PAGE>
"Business Day" means each day which is not a Legal Holiday.
"Capital Expenditures" means any expense or charge incurred by
a
Person that would be classified under GAAP
as a capital expenditure.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other
equivalents (however designated,
whether voting or non-voting) in the equity
of such Person, whether now
outstanding or issued after the Closing
Date, including, without limitation, all
Common Stock and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease
of
any property (whether real, personal or
mixed) of which the discounted present
value of the rental obligations of such
Person as lessee in conformity with
GAAP, is required to be capitalized on the
balance sheet of such Person.
"Capitalized Lease Obligations" means the discounted present
value
of the rental obligations under a
Capitalized Lease.
"Cash Equivalents" means:
(i) United States dollars;
(ii) securities issued or directly and fully guaranteed or
insured
by the United States government or any
agency or instrumentality of the United
States government (provided that the full
faith and credit of the United States
is pledged in support of those securities)
having maturities of not more than
six months from the date of
acquisition;
(iii) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the
date of acquisition, bankers'
acceptances with maturities not exceeding
six months and overnight bank
deposits, in each case, with any domestic
commercial bank having capital and
surplus in excess of $250.0 million and a
Thomson Bank Watch Rating of "B" or
better;
(iv) repurchase obligations with a term of not more than seven
days
for underlying securities of the types
described in clauses (ii) and (iii) above
entered into with any financial institution
meeting the qualifications specified
in clause (iii) above;
(v) commercial paper having the highest rating obtainable from
Moody's Investors Service, Inc. or Standard
& Poor's Corporation and, in each
case, maturing within six months after the
date of acquisition; and
(vi) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds
described in clauses (i) through (v) of
this definition.
"Change of Control" means such time as (i) a "person" or
"group"
(within the meaning of Section 13(d) or
14(d)(2) under the Exchange Act) becomes
the ultimate "beneficial owner" (as defined
in Rule 13d-3 under the Exchange
Act) of more than 35% of the total
voting
-4-
<PAGE>
power of the Voting Stock of the Parent or
the Company on a fully diluted basis;
or (ii) individuals who on the Closing Date
constitute the Board of Directors of
the Parent or the Company (together with
any new directors whose election by
such Board of Directors or whose nomination
for election by the Parent's or the
Company's stockholders, as applicable, was
approved by a vote of at least a
majority of the members of the Board of
Directors of the Parent or the Company,
as applicable, then in office who either
were members of the Board of Directors
of the Parent or the Company, as
applicable, on the Closing Date or whose
election or nomination for election was
previously so approved) cease for any
reason to constitute a majority of the
members of the Board of Directors of the
Parent or the Company, as applicable, then
in office; or (ii) the Company ceases
to be a Subsidiary of the Parent.
"Closing Date" means the date of this Indenture, on which date
the
Original Notes were originally issued
hereunder.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all property and assets of the Company or
any
Guarantor with respect to which from time
to time a Lien is granted as security
for the Notes or the Guarantees pursuant to
the applicable Security Documents.
"Collateral Agent" means Wells Fargo Bank, National Association,
in
its capacity as collateral agent under the
Security Documents, or any successor
thereto.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other
equivalents (however designated,
whether voting or non-voting) of such
Person's equity, other than Preferred
Stock of such Person, whether now
outstanding or issued after the Closing Date,
including without limitation, all series
and classes of such common stock.
"Company" means the party named as such in the preamble of this
Indenture until a successor replaces it
and, thereafter, means the successor
and, for purposes of any provision
contained herein and required by the TIA,
each other obligor on the indenture
securities.
"Consolidated EBITDA" means, for any period, Adjusted
Consolidated
Net Income for such period plus, to the
extent such amount was deducted in
calculating Adjusted Consolidated Net
Income (i) Consolidated Interest Expense,
(ii) income taxes (other than income taxes
(either positive or negative)
attributable to extraordinary and
non-recurring gains or losses or sales of
assets), (iii) depreciation expense, (iv)
amortization expense, and (v) all
other non-cash items reducing Adjusted
Consolidated Net Income (other than items
that will require cash payments and for
which an accrual or reserve is, or is
required by GAAP to be, made), less all
non-cash items increasing Adjusted
Consolidated Net Income, all as determined
on a consolidated basis in conformity
with GAAP; provided that, if any Restricted
Subsidiary is not a Wholly Owned
Restricted Subsidiary, Consolidated EBITDA
shall be reduced (to the extent not
otherwise reduced in accordance with GAAP)
by an amount equal to (a) the amount
of the Adjusted Consolidated Net Income
attributable to such Restricted
Subsidiary multiplied by (b) the percentage
ownership interest in the income of
such Restricted Subsidiary not owned on the
last day of such period by the
Parent, the Company or any of the
Restricted Subsidiaries.
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"Consolidated Indebtedness" means the consolidated Indebtedness
of
the Parent, the Company and the Restricted
Subsidiaries determined in accordance
with GAAP consistently applied, but not
including consolidation of Indebtedness
of Unrestricted Subsidiaries.
"Consolidated Interest Expense" means, for any period, the
total
consolidated interest expense of the
Parent, the Company and the Restricted
Subsidiaries, plus, to the extent not
included in such interest expense: (i)
interest expense attributable to
Capitalized Lease Obligations and Attributable
Debt; (ii) amortization of debt discount
and debt issuance cost; (iii)
capitalized interest; (iv) non-cash
interest payments; (v) commissions,
discounts and other fees and charges owed
with respect to letters of credit and
bankers' acceptance financing; (vi) net
costs under Interest Rate Agreements
(including amortization of fees); (vii)
dividends in respect of any Disqualified
Stock held by Persons other than the
Parent, the Company or a Restricted
Subsidiary; (viii) interest expense
attributable to deferred payment
obligations; and (ix) interest expense on
Indebtedness of another Person to the
extent that such Indebtedness is guaranteed
by the Parent, the Company or a
Restricted Subsidiary.
"Currency Agreement" means any foreign exchange contract,
currency
swap agreement or other similar agreement
or arrangement.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor
entity thereto.
"Debt to Consolidated EBITDA Ratio" means, as of any date of
determination (the "Calculation Date"), the
ratio of (a) Consolidated
Indebtedness as of the Calculation Date to
(b) Consolidated EBITDA for the four
most recent full fiscal quarters ending
immediately prior to the Calculation
Date and for which financial statements
have been delivered to the Trustee and
the Holders in accordance with Section
4.02, determined on a pro forma basis
after giving effect to all acquisitions or
dispositions of assets made by the
Parent, the Company and any of the
Restricted Subsidiaries from the beginning of
such four-quarter period through and
including such Calculation Date (including
any related financing transactions) as if
such acquisitions and dispositions had
occurred at the beginning of such
four-quarter period. In addition, for purposes
of making the computation referred to
above, (i) acquisitions that have been
made by the Parent, the Company or any of
the Restricted Subsidiaries, including
through mergers or consolidations and
including any related financing
transactions, during the four-quarter
reference period or subsequent to such
reference period and on or prior to the
Calculation Date shall be deemed to have
occurred on the first day of the
four-quarter reference period and Consolidated
EBITDA for such reference period shall be
calculated without giving effect to
clause (viii) of the proviso set forth in
the definition of Adjusted
Consolidated Net Income, and (ii) the
Consolidated EBITDA attributable to
discontinued operations, as determined in
accordance with GAAP, and operations
or businesses disposed of prior to the
Calculation Date, shall be excluded.
"Debt to Consolidated EBITDA less Capital Expenditures Ratio"
means,
as of any date of determination (the
"Calculation Date"), the ratio of (a)
Consolidated Indebtedness as of the
Calculation Date to (b) Consolidated EBITDA
less any Capital Expenditures by the
Parent, the Company and the Restricted
Subsidiaries for the four most recent full
fiscal quarters ending immediately
prior to the Calculation Date and for which
financial statements have been
delivered to the Trustee and the Holders in
accordance with Section 4.02,
determined on a pro
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<PAGE>
forma basis after giving effect to all
acquisitions or dispositions of assets
made by the Parent, the Company and any of
the Restricted Subsidiaries from the
beginning of such four-quarter period
through and including such Calculation
Date (including any related financing
transactions) as if such acquisitions and
dispositions had occurred at the beginning
of such four-quarter period. In
addition, for purposes of making the
computation referred to above, (i)
acquisitions that have been made by the
Parent, the Company or any of the
Restricted Subsidiaries, including through
mergers or consolidations and
including any related financing
transactions, during the four-quarter reference
period or subsequent to such reference
period and on or prior to the Calculation
Date shall be deemed to have occurred on
the first day of the four-quarter
reference period and Consolidated EBITDA
for such reference period shall be
calculated without giving effect to clause
(viii) of the proviso set forth in
the definition of Adjusted Consolidated Net
Income, and (ii) the Consolidated
EBITDA attributable to discontinued
operations, as determined in accordance with
GAAP, and operations or businesses disposed
of prior to the Calculation Date,
shall be excluded.
"Default" means any event that is, or after notice or passage
of
time or both would be, an Event of
Default.
"Definitive Notes" means one or more certificated Notes
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.
"Depositary"
means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person
specified in Section 2.03 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 provisions of this
Indenture.
"Disinterested Director" means, with respect to any
transaction,
including an acquisition of FCC wireless
licenses, a member of the Board of
Directors of the Parent who is not an
officer or employee of the Parent, the
Company or a Subsidiary and would not be a
party to, or have a financial
interest in, such transaction. For purposes
of this definition, no person would
be deemed not to be a Disinterested
Director solely because such person holds
Capital Stock of the Parent.
"Disqualified Stock" means any class or series of Capital Stock
of
any Person that by its terms or otherwise
is (i) required to be redeemed prior
to the Stated Maturity of the Notes, (ii)
redeemable at the option of the Holder
of such class or series of Capital Stock at
any time prior to the Stated
Maturity of the Notes or (iii) convertible
into or exchangeable for Capital
Stock referred to in clause (i) or (ii)
above or Indebtedness having a scheduled
maturity prior to the Stated Maturity of
the Notes; provided that any Capital
Stock that would not constitute
Disqualified Stock but for provisions thereof
giving Holders thereof the right to require
such Person to repurchase or redeem
such Capital Stock upon the occurrence of
an "asset sale" or "change of control"
occurring prior to the Stated Maturity of
the Notes shall not constitute
Disqualified Stock if the "asset sale" or
"change of control" provisions
applicable to such Capital Stock are no
more favorable to the Holders of such
Capital Stock than the provisions contained
in Sections 4.06 and 4.08 and such
Capital Stock specifically provides that
such Person will not
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<PAGE>
repurchase or redeem any such stock
pursuant to such provision prior to the
Company's repurchase of such Notes as are
required to be repurchased pursuant to
Sections 4.06 and 4.08.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"fair market value" means the price that would be paid in an
arm's-length transaction between an
informed and willing seller under no
compulsion to sell and an informed and
willing buyer under no compulsion to buy,
as determined in good faith by the Board of
Directors of the Parent, whose
determination shall be conclusive if
evidenced by a Board Resolution.
"FCC" means the Federal Communications Commission.
"GAAP" means generally accepted accounting principles in the
United
States of America, including, without
limitation, those 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 approved by a significant
segment of the accounting profession,
as in effect from time to time.
"Global Notes" means, individually and collectively, each of
the
permanent global Note substantially in the
form of Exhibit A hereto that bears
the Global Note Legend and that has the
"Schedule of Exchanges of Interests in
the Global Note" attached thereto, and that
is deposited with or on behalf of
and registered in the name of the
Depositary.
"Global Note Legend" means the legend set forth in Section
2.06(f),
which is required to be placed on the
Global Note issued under this Indenture.
"Guarantees" mean any guarantees by the Guarantors of the
Guaranteed
Obligations.
"guarantee" means any obligation, contingent or otherwise, of
any
Person directly or indirectly guaranteeing
any Indebtedness of any other Person
and, without limiting the generality of the
foregoing, any obligation, direct or
indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or
advance or supply funds for the purchase or
payment of) such Indebtedness of
such other Person (whether arising by
virtue of partnership arrangements, or by
agreements to keep-well, to purchase
assets, goods, securities or services
(unless such purchase arrangements are on
arm's length terms and are entered
into in the ordinary course of business),
to take-or-pay, or to maintain
financial statement conditions or
otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee
of such Indebtedness or other
obligation of the payment thereof or to
protect such obligee against loss in
respect thereof (in whole or in part);
provided that the term "guarantee" shall
not include endorsements for collection or
deposit in the ordinary course of
business. The term "guarantee" used as a
verb has a corresponding meaning.
"Guarantor" means the Parent, all Restricted Subsidiaries of
the
Parent (other than the Company), and all
Restricted Subsidiaries of the Company,
each of which shall execute a
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<PAGE>
Guarantee in accordance with the provisions
of this Indenture, and their
respective successors and assigns.
"Hedging Obligations" of any Person means the obligations of
such
Person pursuant to any Interest Rate
Agreement or Currency Agreement.
"Holder" means the Person in whose name a Note is registered on
the
Registrar's books.
"Incur" means, with respect to any Indebtedness, to incur,
create,
issue, assume, guarantee or otherwise
become liable for or with respect to, or
become responsible for, the payment of,
contingently or otherwise, such
Indebtedness, including an "Incurrence" of
Indebtedness by reason of a Person
becoming a Restricted Subsidiary; provided
that neither the accrual of interest
nor the accretion of original issue
discount shall be considered an Incurrence
of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication):
(i) all indebtedness of such Person for borrowed money;
(ii) all obligations of such Person evidenced by bonds,
debentures,
notes or other similar instruments;
(iii) all obligations of such Person in respect of letters of
credit
or other similar instruments (including
reimbursement obligations with respect
thereto), other than standby letters of
credit and performance bonds entered
into in the ordinary course of business of
such Person to the extent such
letters of credit are not drawn upon or, if
drawn upon, to the extent such
drawing is reimbursed no later than the
third Business Day following receipt by
such Person of a demand for
reimbursement;
(iv)
all obligations of such Person to pay the deferred and unpaid
purchase price of property or services,
except Trade Payables;
(v) all Capitalized Lease Obligations and all Attributable
Debt;
(vi) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such
Indebtedness is assumed by such
Person; provided that the amount of such
Indebtedness shall be the lesser of (a)
the fair market value of such asset at such
date of determination and (b) the
amount of such Indebtedness;
(vii) all Indebtedness of other Persons guaranteed by such Person
to
the extent such Indebtedness is guaranteed
by such Person;
(viii) Disqualified Stock; and
(ix) to the extent not otherwise included in this definition,
obligations under Currency Agreements and
Interest Rate Agreements.
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<PAGE>
For purposes of clause (viii), Disqualified Stock shall be valued
at
the maximum fixed redemption, repayment or
repurchase price, which shall be
calculated in accordance with the terms of
such Disqualified Stock as if such
Disqualified Stock were repurchased on any
date on which Indebtedness shall be
required to be determined under this
Indenture; provided, however, that if such
Disqualified Stock is not then permitted to
be redeemed, repaid or repurchased,
the redemption, repayment or repurchase
price shall be the book value of such
Disqualified Stock. The amount of
Indebtedness of any Person at any date shall
be the outstanding balance at such date (or
in the case of a revolving credit or
other similar facility, the total amount of
funds outstanding and/or available
on the date of determination) of all
unconditional obligations as described
above and, with respect to contingent
obligations, the maximum liability upon
the occurrence of the contingency giving
rise to the obligation, provided (1)
that the amount outstanding at any time of
any Indebtedness issued with original
issue discount is the face amount of such
Indebtedness less the unamortized
portion of the original issue discount of
such Indebtedness at the time of its
issuance as determined in conformity with
GAAP, (2) money borrowed at the time
of the Incurrence of any Indebtedness in
order to pre-fund the payment of
interest on such Indebtedness shall be
deemed not to be "Indebtedness" so long
as such money is held to secure the payment
of such interest, (3) contingent
obligations arising in connection with the
acquisition of any business or
Person, based on the future performance of
such business or Person, shall not
constitute Indebtedness except to the
extent such obligations are not paid
within seven Business Days of the date such
contingency is resolved under GAAP
and are recorded as a liability on the
books of the Parent, the Company and
their Subsidiaries and (4) liabilities for
federal, state, local or other taxes
shall not constitute Indebtedness.
"Indenture" means this Indenture as amended or supplemented
from
time to time.
"Indenture Documents" means (a) this Indenture, the Notes and
the
Security Documents and (b) any other
related document or instrument executed and
delivered pursuant to any Indenture
Document described in clause (a) of this
definition evidencing or governing
Obligations.
"Indirect Participant" means a Person who holds a beneficial
interest in the Global Note through a
Participant.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement,
interest rate option agreement,
interest rate swap agreement, interest rate
cap agreement, interest rate collar
agreement, interest rate hedge agreement,
or other similar agreement or
arrangement.
"Investment" in any Person means any direct or indirect
advance,
loan or other extension of credit
(including, without limitation, by way of
guarantee or similar arrangement; but
excluding advances to customers in the
ordinary course of business that are, in
conformity with GAAP, recorded as
accounts receivable on the balance sheet of
the Parent, the Company or the
Restricted Subsidiaries) or capital
contribution to (by means of any transfer of
cash or other property to others or any
payment for property or services for the
account or use of others), or any purchase
or acquisition of Capital Stock,
bonds, notes or other similar instruments
issued by, such Person and shall
include (i) the designation of a Restricted
Subsidiary as an Unrestricted
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<PAGE>
Subsidiary and (ii) the fair market value
of the Capital Stock (or any other
Investment), held by the Parent, the
Company or any of the Restricted
Subsidiaries, of (or in) any Person that
has ceased to be a Restricted
Subsidiary. For purposes of the definition
of "Unrestricted Subsidiary" and
Section 4.04, (a) the amount of or a
reduction in an Investment shall be equal
to the fair market value thereof at the
time such Investment is made or reduced
and (b) in the event the Parent, the
Company or any Restricted Subsidiary makes
an Investment by transferring assets to any
Person and as part of such
transaction receives Net Cash Proceeds, the
amount of such Investment shall be
the fair market value of the assets less
the amount of Net Cash Proceeds so
received, provided that the Net Cash
Proceeds are applied in accordance with
Section 4.06(b)(i) or (ii).
"Leverage Ratios" means the Debt to Consolidated EBITDA Ratio
and
the Debt to Consolidated EBITDA less
Capital Expenditures Ratio.
"Lien" means any mortgage, pledge, security interest,
encumbrance,
lien or charge of any kind (including,
without limitation, any conditional sale
or other title retention agreement or lease
in the nature thereof or any
agreement to give any security
interest).
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Mortgaged Property" includes each parcel of real property and
the
improvements thereto with respect to which
a Mortgage is granted pursuant to
Section 4.11.
"Mortgages" means a mortgage, deed of trust, assignment of
leases
and rents, leasehold mortgage or other
security document granting a Lien on any
Mortgaged Property to secure the
Obligations.
"Net Cash Proceeds" means, (i) with respect to any Asset Sale,
the
proceeds of such Asset Sale in the form of
cash or Cash Equivalents, including
payments in respect of deferred payment
obligations (to the extent corresponding
to the principal, but not interest,
component thereof) when received in the form
of cash or Cash Equivalents (except to the
extent such obligations are financed
or sold with recourse to the Parent, the
Company or any Restricted Subsidiary)
and proceeds from the conversion of other
property received when converted to
cash or Cash Equivalents, net of (a)
brokerage commissions and other fees and
expenses (including fees and expenses of
counsel and investment bankers) related
to such Asset Sale, (b) provisions for all
taxes as a result of such Asset Sale,
(c) payments made to repay Indebtedness
outstanding at the time of such Asset
Sale that is secured by a Lien on the
property or assets sold and (d)
appropriate amounts to be provided by the
Parent, the Company or any Restricted
Subsidiary as a reserve against any
liabilities associated with such Asset Sale,
including, without limitation, pension and
other post-employment benefit
liabilities, liabilities related to
environmental matters and liabilities under
any indemnification obligations associated
with such Asset Sale, all as
determined in conformity with GAAP and (ii)
with respect to any issuance or sale
of Capital Stock, the proceeds of such
issuance or sale in the form of cash or
Cash Equivalents, including payments in
respect of deferred payment obligations
(to the extent corresponding to the
principal, but not interest, component
thereof) when received in the form of cash
or Cash Equivalents (except to the
extent such obligations are financed or
sold with recourse to the Parent, the
Company or any Restricted Subsidiary) and
proceeds from the conversion of other
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<PAGE>
property received when converted to cash or
Cash Equivalents, net of attorney's
fees, accountants' fees, underwriters' or
placement agents' fees, discounts or
commissions and brokerage, consultant and
other fees incurred in connection with
such issuance or sale and net of taxes paid
or payable as a result thereof.
"Notes" means the Notes issued under this Indenture, and
includes
the Original Notes and the PIK Notes.
"Obligations" means all obligations of the Company and the
Guarantors under the Indenture, the Notes
and the other Indenture Documents,
including obligations to the Trustee and
the Collateral Agent whether for
payment of principal of, premium, if any,
or interest on the Notes and all other
monetary obligations of the Company and the
Guarantors under the Indenture, the
Notes and the other Indenture Documents,
whether for fees, expenses,
indemnification or otherwise.
"Offer to Purchase" means an offer by the Company to purchase
Notes
from the Holders under Section 4.06(b) or
4.08(a), which shall be commenced by
mailing a notice to the Trustee and each
Holder stating:
(i) the covenant pursuant to which the offer is being made and
that
all Notes validly tendered will be accepted
for payment on a pro rata basis;
(ii) the purchase price and the date of purchase (which shall be
a
Business Day no earlier than 30 days nor
later than 60 days from the date such
notice is mailed) (the "Payment Date");
(iii) that any Note not tendered will continue to accrue
interest
pursuant to its terms;
(iv) that, unless the Company defaults in the payment of the
purchase price, any Note accepted for
payment pursuant to the Offer to Purchase
shall cease to accrue interest or original
issue discount on and after the
Payment Date;
(v) that Holders electing to have a Note purchased pursuant to
the
Offer to Purchase will be required to
surrender the Note, together with the form
entitled "Option of the Holder to Elect
Purchase" on the reverse side of the
Note completed, to the Paying Agent at the
address specified in the notice prior
to the close of business on the Business
Day immediately preceding the Payment
Date;
(vi) that Holders will be entitled to withdraw their election if
the
Paying Agent receives, not later than the
close of business on the third
Business Day immediately preceding the
Payment Date, a telegram, facsimile
transmission or letter setting forth the
name of such Holder, the principal
amount of Notes delivered for purchase and
a statement that such Holder is
withdrawing his election to have such Notes
purchased; and
(vii) that Holders whose Notes are being purchased only in part
will
be issued new Notes equal in principal
amount to the unpurchased portion of the
Notes surrendered; provided that each Note
purchased shall be in an integral
multiple of $100 of the principal
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<PAGE>
amount at maturity of the Notes and each
new Note issued shall be in a principal
amount at maturity of $100 or integral
multiples thereof.
On the Payment Date, the Company shall: (a) accept for payment on
a
pro rata basis Notes or portions thereof
validly tendered pursuant to an Offer
to Purchase; (b) deposit with the Paying
Agent money sufficient to pay the
purchase price of all Notes or portions
thereof so accepted; and (c) deliver, or
cause to be delivered, to the Trustee all
Notes or portions thereof so accepted
together with an Officer's Certificate
specifying the Notes or portions thereof
accepted for payment by the Company. The
Paying Agent shall promptly mail to the
Holders of Notes so accepted payment in an
amount equal to the purchase price,
and the Trustee shall promptly authenticate
and mail to such Holders a new Note
equal in principal amount to any
unpurchased portion of the Note surrendered;
provided that each Note purchased shall be
in an integral multiple of $100 of
the principal amount at maturity of the
Notes and each new Note issued shall be
in a principal amount at maturity of $100
or integral multiples thereof. If,
pursuant to an Offer to Purchase, a Note is
purchased on or after an interest
record date but on or prior to the related
interest payment date, then any
accrued and unpaid interest shall be paid
to the Person in whose name such Note
was registered at the close of business on
such record date. The Parent and the
Company will publicly announce the results
of an Offer to Purchase as soon as
practicable after the Payment Date. The
Trustee shall act as the Paying Agent
for an Offer to Purchase. The Company will
comply with Rule 14e-1 under the
Exchange Act and any other securities laws
and regulations thereunder to the
extent such laws and regulations are
applicable, in the event that the Company
is required to repurchase Notes pursuant to
an Offer to Purchase. To the extent
that the provisions of any applicable
federal or state securities laws or
regulations conflict with the provision of
this Indenture relating to an Offer
to Purchase, the Company will comply with
such laws or regulations and will not
be deemed to have breached such provisions
of this Indenture by virtue thereof.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the
President, any Vice President, the
Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of
the Company. "Officer" of a Guarantor has a
correlative meaning.
"Officer's Certificate" of any Person means a certificate signed
on
behalf of such Person by the principal
executive officer, the principal
accounting officer or the principal
financial officer of such Person.
"Opinion of Counsel" means a written opinion (subject to
customary
assumptions and exclusions) from legal
counsel who is reasonably acceptable to
the Trustee. The counsel may be an employee
of or counsel to the Company, a
Guarantor or the Trustee.
"Original Notes" means the $350,000,000 original principal amount
of
13% Senior Secured Pay-in-Kind Notes due
2011, issued on the Closing Date under
the terms of this Indenture.
"Parent" means the party named as such in the preamble of this
Indenture until a successor replaces it
and, thereafter, means the successor.
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<PAGE>
"Participant" means, with respect to the Depositary, a Person
who
has an account with the Depositary.
"Permitted Investment" means:
(i) an Investment in the Company, any Restricted Subsidiary or
a
Person that, as a result of such Investment
becomes a Restricted Subsidiary,
provided that such Person's primary
business is related, ancillary or
complementary to the businesses of the
Parent, the Company and the Restricted
Subsidiaries on the date of such
Investment;
(ii) Temporary Cash Investments;
(iii) payroll, travel and similar advances in the ordinary course
of
business to cover matters that are expected
at the time of such advances
ultimately to be treated as expenses in
accordance with GAAP that do not in the
aggregate exceed $3.0 million at any time
outstanding;
(iv) stock, obligations or securities received in satisfaction
of
judgments;
(v) Investments in prepaid expenses, negotiable instruments held
for
collection, and lease, utility and worker's
compensation, performance and other
similar deposits made in the ordinary
course of business;
(vi) Interest Rate Agreements and Currency Agreements designed
solely to protect the Parent, the Company
and the Restricted Subsidiaries
against fluctuations in interest rates or
foreign currency exchange rates;
(vii) loans or advances to officers or employees of the Parent,
the
Company or any Restricted Subsidiary that
do not in the aggregate exceed $1.0
million at any time outstanding;
(viii) Investments existing on the Closing Date;
(ix) Investments made as a result of the receipt of non-cash
consideration from an Asset Sale that was
made in compliance with Section 4.06;
and
(x) Investments in securities received in satisfaction of
accounts
receivable pursuant to any plan of
reorganization or similar arrangement upon
the bankruptcy of the obligor on such
accounts receivable.
"Permitted Liens" means:
(i) Liens for taxes, assessments, governmental charges or
claims
that are not yet due and payable or that
are being contested in good faith by
appropriate legal proceedings promptly
instituted and diligently conducted and
for which a reserve or other appropriate
provision, if any, as shall be required
in conformity with GAAP shall have been
made;
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<PAGE>
(ii) statutory and common law Liens of landlords and carriers,
warehousemen, mechanics, suppliers,
materialmen, repairmen or other similar
Liens arising in the ordinary course of
business and with respect to amounts not
yet delinquent or being contested in good
faith by appropriate legal proceedings
promptly instituted and diligently
conducted and for which a reserve or other
appropriate provision, if any, as shall be
required in conformity with GAAP
shall have been made;
(iii) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of
business in connection with workers'
compensation, unemployment insurance and
other types of social security;
(iv) Liens incurred or deposits made (including deposits made to
the
FCC) to secure the performance of tenders,
bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety
and appeal bonds, government
contracts, performance and return-of-money
bonds and other obligations of a
similar nature incurred in the ordinary
course of business (exclusive of
obligations for the payment of borrowed
money);
(v) easements, rights-of-way, municipal and zoning ordinances
and
similar charges, encumbrances, title
defects or other irregularities that do not
materially interfere with the ordinary
course of business of the Parent, the
Company or any of the Restricted
Subsidiaries;
(vi) Liens (including extensions and renewals thereof and
including
any interest or title of a lessor in the
property subject to any Capitalized
Lease) upon real or personal property
acquired after the Closing Date; provided
that (a) such Lien is created solely for
the purpose of securing Indebtedness
(including any Capitalized Lease) Incurred,
in accordance with clause (v) of the
definition of Permitted Debt, and is
created prior to, at the time of or within
six months after the later of the
acquisition, the completion of construction or
the commencement of full operation of such
property or is granted to secure
indebtedness incurred to Refinance any
Indebtedness previously so secured, and
(b) any such Lien shall not extend to or
cover any property or assets other than
such item of property or assets and any
improvements on such item;
(vii) any interest or title of a lessor in the property subject
to
any operating lease;
(viii) Liens on property of any Person existing at the time
such
Person becomes, or becomes a part of, any
Restricted Subsidiary; provided that
such Liens were not created or incurred in
connection with, or in contemplation
of, such Person becoming a Restricted
Subsidiary and do not extend to or cover
any property or assets of the Parent, the
Company or any Restricted Subsidiary
other than the property or assets
acquired;
(ix) Liens in favor of the Parent, the Company or any
Restricted
Subsidiary;
(x) Liens arising from the rendering of a final judgment or
order
against the Parent, the Company or any
Restricted Subsidiary that does not give
rise to an Event of Default;
(xi) Liens arising by reason of deposits necessary to obtain
standby
letters of credit in the ordinary course of
business (including deposits
necessary to obtain standby letters of
credit);
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<PAGE>
(xii) Liens in favor of customs and revenue authorities arising as
a
matter of law to secure payment of customs
duties not yet due and payable in
connection with the importation of
goods;
(xiii) Liens encumbering customary initial deposits and margin
deposits, and other Liens that are within
the general parameters customary in
the industry and incurred in the ordinary
course of business, in each case,
securing Indebtedness under Interest Rate
Agreements and Currency Agreements
designed solely to protect the Parent, the
Company or any of the Restricted
Subsidiaries from fluctuations in interest
rates or foreign currency exchange
rates;
(xiv) Liens on wireless licenses issued by the FCC to secure
obligations in favor of the FCC;
(xv) Liens existing on the Closing Date;
(xvi) Liens on any assets or Capital Stock of the Parent, the
Company or the Restricted Subsidiaries
created in favor of the Holders; and
(xvii) Liens securing Indebtedness which is Incurred to
Refinance
secured Indebtedness which is permitted to
be Incurred under Section
4.03(b)(ii); provided that such Liens do
not extend to or cover any property or
assets of the Parent, the Company or any
Restricted Subsidiary other than the
property or assets securing the
Indebtedness being Refinanced; and provided
further, that if the property or assets
securing the Indebtedness being
Refinanced consist of one or more FCC
wireless licenses, such Liens may also
extend to or cover the outstanding Capital
Stock of one or more corporations
that (A) own such licenses and (B) do not
own any other material assets.
"Person" means any individual, corporation, partnership,
limited
liability company, joint venture,
association, joint-stock company, trust,
unincorporated organization, government or
any agency or political subdivision
thereof or any other entity.
"PIK Notes" means any 13% Senior Secured Pay-in-Kind Notes due
2011,
issued in lieu of cash payment of interest
on the Notes under the terms of this
Indenture.
"Pledge Agreement" means the Pledge Agreement dated August 16,
2004
among the Company, the Grantors (as defined
therein) and the Collateral Agent.
"Preferred Stock" means, with respect to any Person, any and
all
shares, interests, participations or other
equivalents (however designated,
whether voting or non-voting) of such
Person's preferred or preference equity,
whether now outstanding or issued after the
Closing Date, including, without
limitation, all series and classes of such
preferred stock or preference stock.
"Qualified Proceeds" means the Net Cash Proceeds received by
the
Parent on or after the Closing Date from
the issuance and sale of its Capital
Stock (other than Disqualified Stock) to a
Person that is not a Subsidiary of
the Parent.
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<PAGE>
"Refinance" means, in respect of any Indebtedness, to
refinance,
extend, renew, refund, repay, prepay,
redeem, defease or retire, or to issue
other Indebtedness in exchange or
replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have
correlative meanings.
"Restricted Subsidiary" means any Subsidiary of the Parent
(other
than the Company) or the Company other than
an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by
the Parent, the Company or a
Restricted Subsidiary whereby the Parent,
the Company or a Restricted Subsidiary
transfers such property to a Person and the
Parent, the Company or a Restricted
Subsidiary leases it from such Person,
other than leases between the Company and
a Wholly Owned Restricted Subsidiary or
between Wholly Owned Restricted
Subsidiaries.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement dated August
16,
2004, among the Company, the Grantors (as
defined therein) and the Collateral
Agent.
"Security Documents" means the Security Agreement, the Pledge
Agreement, the Mortgages and any other
document or instrument pursuant to which
a Lien is granted by the Company or any
Guarantor to secure any Obligations or
under which rights or remedies with respect
to such Lien are governed, as such
agreements may be amended, modified or
supplemented from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of
the
McGraw-Hill Companies.
"Stated Maturity" means, (i) with respect to any debt security,
the
date specified in such debt security as the
fixed date on which the final
installment of principal of such debt
security is due and payable and (ii) with
respect to any scheduled installment of
principal of, premium, if any, or
interest on any debt security, the date
specified in such debt security as the
fixed date on which such installment is due
and payable.
"Subsidiary" means, with respect to any Person, any
corporation,
association or other business entity of
which more than 50% of the voting power
of the outstanding Voting Stock is owned,
directly or indirectly, by such Person
and one or more other Subsidiaries of such
Person.
"Temporary Cash Investment" means any of the following:
(i) direct obligations of the United States of America or any
agency
thereof or obligations fully and
unconditionally guaranteed by the United States
of America or any agency thereof, in each
case maturing within one year after
the date of acquisition;
(ii) demand deposit accounts, time deposit accounts, certificates
of
deposit and money market deposits maturing
within 180 days of the date of
acquisition thereof issued by
-17-
<PAGE>
a bank or trust company which is organized
under the laws of the United States
of America, any state thereof or any
foreign country recognized by the United
States, and which bank or trust company has
capital, surplus and undivided
profits aggregating in excess of $50
million (or the foreign currency equivalent
thereof) and has outstanding debt which is
rated "A" (or such similar equivalent
rating) or higher by at least one
nationally recognized statistical rating
organization (as defined in Rule 436 under
the Securities Act) or any
moneymarket fund sponsored by a registered
broker dealer or mutual fund
distribution;
(iii) repurchase obligations with a term of not more than 30
days
for underlying securities of the types
described in clause (i) above entered
into with a bank meeting the qualifications
described in clause (ii) above;
(iv) commercial paper, maturing not more than 270 days after
the
date of acquisition, issued by a
corporation (other than an Affiliate of the
Company) organized and in existence under
the laws of the United States of
America, any state thereof or any foreign
country recognized by the United
States of America with a rating at the time
as of which any investment therein
is made of "P-1" (or higher) according to
Moody's or "A-1" (or higher) according
to S&P; and
(v) securities with maturities of six months or less from the
date
of acquisition issued or fully and
unconditionally guaranteed by any state,
commonwealth or territory of the United
States of America, or by any political
subdivision or taxing authority thereof,
and rated at least "A" by S&P or
Moody's.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on
which this Indenture is qualified
under the TIA.
"Trade Payables" means, with respect to any Person, any
accounts
payable or any other indebtedness or
monetary obligation to trade creditors
created, assumed or guaranteed by such
Person or any of its Subsidiaries arising
in the ordinary course of business in
connection with the acquisition of goods
or services.
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by the Parent, the Company or
any of the Restricted Subsidiaries,
the date such Indebtedness is to be
Incurred and, with respect to any Restricted
Payment, the date such Restricted Payment
is to be made.
"Trustee" means the party named as such in the preamble of this
Indenture until a successor replaces it in
accordance with the applicable
provisions of this Indenture and,
thereafter, means the successor.
"Trust Officer" means any vice president, assistant vice
president
or trust officer of the Trustee assigned by
the Trustee to administer its
corporate trust matters.
"Unrestricted Subsidiary" means (i) each of Leap Wireless
Mexico
S.A. de C.V., formed under the laws of
Mexico, and Orrengrove Investments
Limited, formed under the laws of Cyprus;
(ii) any Subsidiary of the Parent or
the Company that at the time of
determination shall be designated an
Unrestricted Subsidiary by the Board of
Directors of the Parent or the Company,
-18-
<PAGE>
as applicable, in the manner provided below
and (iii) any Subsidiary of an
Unrestricted Subsidiary. The Board of
Directors of the Parent or the Company may
designate any Restricted Subsidiary
(including any newly acquired or newly
formed Subsidiary of the Parent or the
Company) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital
Stock of, or owns or holds any Lien on
any property of, the Parent, the Company or
any Restricted Subsidiary; provided
that (a) any guarantee by the Parent, the
Company or any Restricted Subsidiary
of any Indebtedness of the Subsidiary being
so designated shall be deemed an
"Incurrence" of such Indebtedness and an
"Investment" by the Parent, the Company
or such Restricted Subsidiary (or both, if
applicable) at the time of such
designation; (b) either (1) the Subsidiary
to be so designated has total assets
of $1,000 or less or (2) if such Subsidiary
has assets greater than $1,000, such
designation would be permitted under
Section 4.04 and (c) if applicable, the
Incurrence of Indebtedness and the
Investment referred to in clause (a) of this
proviso would be permitted under Sections
4.03 and 4.04. The Board of Directors
of the Parent or the Company may designate
any Unrestricted Subsidiary to be a
Restricted Subsidiary, provided that
immediately after giving effect to such
designation (x) all Liens and Indebtedness
of such Unrestricted Subsidiary
outstanding immediately after such
designation would, if Incurred at such time,
have been permitted to be Incurred (and
shall be deemed to have been Incurred)
for all purposes of this Indenture and (y)
no Default or Event of Default shall
have occurred and be continuing. Any such
designation by the Board of Directors
of the Parent or the Company shall be
evidenced to the Trustee by promptly
filing with the Trustee a copy of the Board
Resolution giving effect to such
designation and an Officer's Certificate
certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership
interest in such obligations) of the
United States of America (including any
agency or instrumentality thereof) for
the payment of which full faith and credit
of the United States of America is
pledged and which are not callable at the
Parent's or the Company's option.
"Voting Stock" means with respect to any Person, Capital Stock
of
any class or kind ordinarily having the
power to vote for the election of
directors, managers or other voting members
of the governing body of such
Person.
"Wholly Owned" means, with respect to any Subsidiary of any
Person,
the ownership of all of the outstanding
Capital Stock of such Subsidiary (other
than any director's qualifying shares or
Investments by foreign nationals
mandated by applicable law) by such Person
or one or more Wholly Owned
Subsidiaries of such Person.
1.02. Other Definitions. The following terms have the
definitions
set forth in the Sections listed below.
<TABLE>
<CAPTION>
Defined in
Term
Section
----
----------
<S>
<C>
"Affiliate
Transaction"...........................
4.07(a)
"Asset Sale
Offer"................................
4.06(b)
"Authentication
Order"............................ 2.02
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Defined in
Term
Section
----
----------
<S>
<C>
"Change of Control Offer"
........................
4.08(b)
"covenant defeasance
option"......................
8.01(b)
"DTC"
............................................
2.03
"Event of Default"
...............................
6.01
"Excess Proceeds"
................................
4.06(b)
"Guaranteed Indebtedness"
........................
4.10
"Guaranteed Obligations"
......................... 11.01
"incorporated provision"
......................... 12.01
"legal defeasance option"
........................
8.01(b)
"Legal Holiday"
.................................. 12.07
"MD&A"
...........................................
4.02
"Notice of Default"
..............................
6.01
"Paying Agent"
...................................
2.03
"Permitted Debt"
.................................
4.03(b)
"Registrar"
......................................
2.03
"Restricted Payments"
............................
4.04(a)
</TABLE>
1.03 Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory
provisions of the TIA, which are
incorporated by reference in and made a
part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes and the Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, the
Guarantors and any other obligor on the
indenture securities.
All other TIA terms used in this Indenture
that are defined by the TIA, defined
by TIA reference to another statute or
defined by Commission rule have the
meanings assigned to them by such
definitions.
1.04 Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
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<PAGE>
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the
singular include the plural and words in the plural
include the singular;
(f) the principal amount of any noninterest bearing or other
discount security at any date shall be the
principal amount thereof that would
be shown on a balance sheet of the issuer
dated such date prepared in accordance
with GAAP;
(g) the principal amount of any Preferred Stock shall be (i)
the
maximum liquidation value of such Preferred
Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price
with respect to such Preferred Stock,
whichever is greater;
(h) "will" shall be interpreted to express a command;
(i) 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; and
(j) references to Sections and Articles are to Sections and
Articles
of this Indenture unless otherwise
specified.
ARTICLE II
THE NOTES
2.01 Form and Dating.
(a) General. 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
or usage. Each Note shall be dated the date
of its authentication. The Notes
shall be issued only in registered form
without coupons. Original Notes shall be
issued only in minimum denominations of
$100 and larger integral multiples of
$100. Any Note issued thereafter (including
on any exchange or transfer or any
issuance of PIK Notes in accordance with
Section 2.12) shall be issued only in
minimum denominations of $100 and larger
integral multiples of $100.
The terms and provisions contained in the Notes shall
constitute,
and are hereby expressly made, a part of
this Indenture and the Company, the
Guarantors and the Trustee, by their
execution and delivery of this Indenture,
expressly agree to such terms and
provisions and to be bound thereby. However,
to the extent any provision of any Note
conflicts with the express provisions of
this Indenture, the provisions of this
Indenture shall govern and be
controlling.
(b) Global Note. The Note issued in global form shall 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
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<PAGE>
shall be issued 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). The
Global Note shall represent such of
the outstanding Notes as shall be specified
therein and shall provide that it
represents the aggregate principal amount
at maturity of outstanding Notes from
time to time endorsed thereon and that the
aggregate principal amount at
maturity of outstanding Notes represented
thereby may be increased through the
issuance of PIK Notes as provided herein
and may from time to time be reduced or
increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement
of the Global Note to reflect the amount of
any increase or decrease in the
aggregate principal amount at maturity of
outstanding Notes represented thereby
shall be made by the Trustee or the
Custodian in accordance with the terms
hereof and of the Global Note as to
increases due to the issuance of PIK Notes
and otherwise in accordance with
instructions given by the Holder thereof as
required by Section 2.06.
2.02 Execution and Authentication. One Officer shall sign the
Notes
for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated,
the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. Such signature
shall be conclusive evidence that the
Note has been authenticated under this
Indenture.
The Trustee shall, upon a written order of the Company signed by
one
Officer of the Company (an "Authentication
Order"), authenticate the Notes for
original issue of up to $350,000,000
aggregate principal amount at maturity, and
may thereafter authenticate PIK Notes
issuable pursuant to the terms hereof. The
aggregate principal amount at maturity of
Notes outstanding at any time may not
exceed such amount except as provided in
Section 2.07.
The Trustee may appoint an authenticating agent acceptable to
the
Company to authenticate Notes. An
authenticating agent may authenticate Notes
whenever the Trustee may do so. Each
reference in this Indenture to
authentication by the Trustee includes
authentication by such agent. An
authenticating agent has the same rights as
an Agent to deal with Holders or an
Affiliate of the Company.
2.03. Registrar and Paying Agent. The Company shall maintain in
the
Borough of Manhattan, the City of New York,
an office or agency where Notes may
be presented for registration of transfer
or for exchange ("Registrar") and an
office or agency where Notes may be
presented for payment ("Paying Agent"). The
Registrar shall keep a register of the
Notes and of their transfer and exchange.
The Company may appoint one or more
co-registrars and one or more additional
paying agents. The term "Registrar"
includes any co-registrar and the term
"Paying Agent" includes any additional
paying agent. The Company may change any
Paying Agent or Registrar without notice to
any Holder. The Company shall notify
the Trustee in writing of the name and
address of any Agent not a party to this
Indenture. If the Company fails to appoint
or maintain another entity as
Registrar or Paying Agent, the Trustee
shall act as such to the extent that it
determines that it may do so. The Parent,
the Company or any domestically
incorporated Wholly Owned Restricted
Subsidiary may act as Paying Agent or
Registrar.
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<PAGE>
The Company initially appoints The Depository Trust Company
("DTC")
to act as Depositary with respect to the
Global Note.
The
Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian
with respect to the Notes.
2.04. Paying Agent to Hold Money in Trust. The Company shall
require
each Paying Agent other than the Trustee to
agree in writing that the Paying
Agent will hold in trust for the benefit of
Holders or the Trustee all money
held by the Paying Agent for the payment of
principal, premium, if any, or
interest on the Notes, and will notify the
Trustee in writing of any default by
the Company in making any such payment.
While any such default continues, the
Trustee may require a Paying Agent to pay
all money held by it to the Trustee.
The Company at any time may require a
Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other
than the Parent, the Company, or one of the
Restricted Subsidiaries) shall have
no further liability for the money. If the
Parent, the Company or one of the
Restricted Subsidiaries acts as Paying
Agent, it shall segregate and hold in a
separate trust fund for the benefit of the
Holders all money held by it as
Paying Agent with respect to the Notes.
Upon any bankruptcy or reorganization
proceedings relating to the Parent, the
Company or any Restricted Subsidiary,
the Trustee shall serve as Paying Agent for
the Notes.
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 all Holders and shall
otherwise comply with TIA Section 312(a).
If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at
least seven Business Days before each
interest payment date and at such other
times as the Trustee may request in
writing, a list in such form and as of such
date as the Trustee may reasonably require
of the names and addresses of the
Holders of the Notes and the Company shall
otherwise comply with TIA Section
312(a).
2.06. Transfer and Exchange.
(a) Transfer and Exchange of the Global Note. The Global Note
may
not be transferred as a whole except by the
Depositary to a nominee of the
Depositary, by a nominee of the Depositary
to the Depositary, or to another
nominee of the Depositary, or by the
Depositary or any such nominee to a
successor Depositary or a nominee of such
successor Depositary. The Global Note
will be exchanged by the Company for
Definitive Notes only if (i) the Company
delivers to the Trustee written 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 Company
within 120 days after the date of
such notice from the Depositary; or (ii)
the Company in its sole discretion
determines that the Global Note (in whole
but not in part) should be exchanged
for Definitive Notes and delivers a written
notice to such effect to the
Trustee; or (iii) 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 clause (i), (ii) or (iii) above,
Definitive Notes shall be issued in
such names as the Depositary shall instruct
the Trustee. Every Note
authenticated and delivered in exchange
for, or in lieu of, the Global Note or
any portion thereof, pursuant to this
Section 2.06 or Section 2.07 or 2.10, that
is not a Definitive Note shall be
authenticated and delivered in the form of,
and shall be, the Global Note. The Global
Note may not be exchanged
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<PAGE>
for another Note other than as provided in
this Section 2.06(a); however,
beneficial interests in the Global Note may
be transferred and exchanged as
provided in Section 2.06(b) or (c).
(b) Transfer and Exchange of Beneficial Interests in the Global
Note. The transfer and exchange of
beneficial interests in the Global Note shall
be effected through the Depositary, in
accordance with the provisions of this
Indenture and the Applicable Procedures.
Beneficial interests in the Global Note
shall be subject to restrictions on
transfer comparable to those set forth
herein to the extent required by the
Securities Act. Transfers of beneficial
interests in the Global Note also shall
require compliance with either clause
(i) or (ii) below, as applicable, as well
as one or more of the other following
clauses, as applicable:
(i) Transfer of Beneficial Interests in the Global Note.
Beneficial interests in the Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial
interest in the 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)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in the Global Note. In connection with all transfers and
exchanges
of beneficial interests that are not subject to Section
2.06(b)(i),
the transferor of such beneficial interest must deliver to the
Registrar either (A) both (1) a written order from a Participant
or
an Indirect Participant given to the Depositary in accordance
with
the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in the Global Note in
an
amount equal to the beneficial interest to be transferred or
exchanged; and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or (B)
both
(1) a written order from a Participant or an Indirect
Participant
given to the Depositary in accordance with the Applicable
Procedures
directing the Depositary to cause to be issued a Definitive Note
in
an amount equal to the beneficial interest to be transferred or
exchanged; and (2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose
name
such Definitive Note shall be registered to effect the transfer
or
exchange referred to in clause (1) above. Upon satisfaction of
all
of the requirements for transfer or exchange of beneficial
interests
in the Global Note contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee
shall
adjust the principal amount at maturity of the Global Note
pursuant
to Section 2.06(g).
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes. If any holder of a beneficial
interest in the 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)(ii), the Trustee shall cause the
aggregate principal amount at maturity
of the Global Note to be reduced
accordingly pursuant to Section 2.06(g), and
the Company shall execute and the Trustee
shall authenticate and deliver to the
Person designated in the instructions a
Definitive Note in the appropriate
principal amount at maturity. Any
Definitive Note issued in
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<PAGE>
exchange for a beneficial interest 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.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests. A Holder of a Definitive Note
may exchange such Note for a beneficial
interest in the Global Note or transfer
such Definitive Notes to a Person who
takes delivery thereof in the form of a
beneficial interest in the Global Note
at any time. Upon receipt of a request for
such an exchange or transfer, the
Trustee shall cancel the applicable
Definitive Note and increase or cause to be
increased the aggregate principal amount at
maturity of the Global Note,
pursuant to Section 2.06(g).
(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 shall register the
transfer or exchange of Definitive Notes.
Prior to such registration of transfer
or exchange, the requesting Holder shall
present or surrender to the Registrar
the Definitive Notes duly endorsed or
accompanied by a written instruction of
transfer in form satisfactory to the
Registrar duly executed by such Holder or
by its attorney, duly authorized in
writing. A Holder of Definitive Notes may
transfer such Notes to a Person who takes
delivery thereof in the form of a
Definitive Note. Upon receipt of a request
to register such a transfer, the
Registrar shall register the Definitive
Notes pursuant to the instructions from
the Holder thereof.
(f) Global Note Legend. The Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE
MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION
2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE,
(3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV)
THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE
PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN
DEFINITIVE FORM, THIS NOTE MAY
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NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY
AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER
STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS AGENT
FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS
MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY
BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
&
CO.,
HAS AN INTEREST HEREIN."
(g) Cancellation or Adjustment of the Global Note. At such time
as
all beneficial interests in the Global Note
have been exchanged for Definitive
Notes or the Global Note has been redeemed,
repurchased or canceled in whole and
not in part, the Global Note shall be
returned to or retained and canceled by
the Trustee in accordance with Section
2.11. At any time prior to such
cancellation, if any beneficial interest in
the Global Note is exchanged for or
transferred to a Person who will take
delivery thereof in the form of a
beneficial interest in the Global Note or
for Definitive Notes, the principal
amount at maturity of Notes represented by
the Global Note shall be reduced
accordingly, in the case of an exchange for
Definitive Notes, and an endorsement
shall be made on the Global Note by the
Trustee or by the Depositary in
accordance with applicable procedures to
reflect such exchange or reduction; and
if the beneficial interest is being
exchanged for or transferred to a Person who
will take delivery thereof in the form of a
beneficial interest in the Global
Note, the Global Note shall be increased
accordingly and an endorsement shall be
made on the Global Note by the Trustee or
by the Depositary in accordance with
applicable procedures to reflect such
increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate the
Global
Note and Definitive Notes upon receipt of an Authentication Order
in
accordance with Section 2.02 or at the Registrar's request.
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(ii) No service charge shall be made to a holder of a
beneficial interest in the Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange,
but
the Company may require payment of a sum sufficient to cover
any
transfer tax or similar governmental charge payable in
connection
therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant
to
Sections 2.10, 3.06, 4.06 and 9.05).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole
or
in part, except the unredeemed portion of any Note being redeemed
in
part.
(iv) The Global Note and all Definitive Notes issued upon any
registration of transfer or exchange of the Global Note or
Definitive Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits
under
this Indenture, as the Global Note or Definitive Notes
surrendered
upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a
period
beginning at the opening of business 15 days before the day of
any
selection of Notes for redemption under Section 3.02 and ending
at
the close of business on the day of selection, (B) to register
the
transfer of or to exchange any Note so selected for redemption
in
whole or in part, except the unredeemed portion of any Note
being
redeemed in part or (C) to register the transfer of or to exchange
a
Note between a record date and the next succeeding interest
payment
date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company
may
deem and treat the Person in whose name any Note is registered
as
the absolute owner of such Note for the purpose of receiving
payment
of principal of, premium, if any, and interest on such Notes and
for
all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate the Global Note and
Definitive Notes in accordance with the provisions of Section
2.02.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to
this
Section 2.06 to effect a registration of transfer or exchange may
be
submitted by facsimile.
(ix) Each Holder of a Note agrees to indemnify the Company and
the Trustee to their reasonable satisfaction against any
liability
that may result from the transfer, exchange or assignment of
such
Holder's Note in violation of any provision of this Indenture
or
applicable United States Federal or state securities law.
(x) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on
transfer imposed under this
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Indenture or under applicable law with respect to any transfer
of
any interest in any Note (including any transfers between or
among
Depositary participants or beneficial owners of interest in the
Global Note) other than to require delivery of such certificates
and
other documentation or evidence as are expressly required by, and
to
do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.07. Replacement Notes. If any mutilated Note is surrendered to
the
Trustee or the Company and the Trustee
receives evidence to its reasonable
satisfaction of the destruction, loss or
theft of any Note, the Company shall
issue and the Trustee, upon receipt of an
Authentication Order, shall
authenticate a replacement Note if the
Trustee's requirements are met. If
required by the Trustee or the Company, an
indemnity bond must be supplied by
the Holder that is sufficient in the
reasonable judgment of the Trustee and the
Company to protect the Company, the
Trustee, any Agent and any authenticating
agent from any loss that any of them may
suffer if a Note is replaced. The
Company may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the
Company
and shall be entitled to all of the
benefits of this Indenture equally and
proportionately with all other Notes duly
issued hereunder.
2.08. Outstanding Notes. The Notes outstanding at any time are
all
the Notes authenticated by the Trustee
except for those canceled by it, those
delivered to it for cancellation, those
reductions in the interest in the Global
Note effected by the Trustee in accordance
with the provisions hereof, and those
described in this Section 2.08 as not
outstanding. Except as set forth in
Section 2.09, a Note does not cease to be
outstanding because the Company or an
Affiliate of the Company holds the
Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives
proof satisfactory to it that the
replaced Note is held by a bona fide
purchaser.
If the principal amount at maturity of any Note is considered
paid
under Section 4.01, it ceases to be
outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Parent, the Company, a
Subsidiary or an Affiliate of any of the
foregoing) holds, by no later than
12:00 noon Eastern Time on a redemption
date or maturity date, money sufficient
to pay Notes payable on that date, and the
Paying Agent is not prohibited from
paying such money to the Holders on that
date pursuant to the terms of this
Indenture, then on and after that date such
Notes shall be deemed to be no
longer outstanding and shall cease to
accrue interest.
2.09. Treasury Notes. In determining whether the Holders of the
required principal amount of Notes have
concurred in any direction, waiver or
consent, Notes owned by the Company or any
Guarantor, or by any Person directly
or indirectly controlling or controlled by
or under direct or indirect common
control with the Company or any Guarantor,
shall be
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considered as though not outstanding,
except that for the purposes of
determining whether the Trustee shall be
protected in relying on any such
direction, waiver or consent, only Notes
that a Responsible Officer of the
Trustee actually knows are so owned shall
be so disregarded.
2.10. Temporary Notes. Until certificates representing Notes
are
ready for delivery, the Company may prepare
and the Trustee, upon receipt of an
Authentication Order, shall authenticate
temporary Notes. Temporary Notes shall
be substantially in the form of
certificated Notes but may have variations that
the Company considers appropriate for
temporary Notes and as shall be reasonably
acceptable to the Trustee. Without
unreasonable delay, the Company shall prepare
and the Trustee shall authenticate
Definitive Notes in exchange for temporary
Notes.
Holders of temporary Notes shall be entitled to all of the
benefits
of this Indenture.
2.11. Cancellation. The Company at any time may deliver Notes to
the
Trustee for cancellation. The Registrar and
Paying Agent shall forward to the
Trustee any Notes surrendered to them for
registration of transfer, exchange or
payment. The Trustee and no one else shall
cancel all Notes surrendered for
registration of transfer, exchange,
payment, replacement or cancellation and
shall dispose of canceled Notes in
accordance with its procedures for the
disposition of canceled securities in
effect as of the date of such disposition
(subject to the record retention
requirement of the Exchange Act). Certification
of the disposition of all canceled Notes
shall be delivered to the Company. The
Company may not issue new Notes to replace
Notes that have redeemed or paid or
that have been delivered to the Trustee for
cancellation.
2.12. Payment of Interest; Defaulted Interest.
(a) Each of the Notes shall bear interest at 13% per annum from
August 16, 2004 or from the most recent
date to which interest has been paid or
duly provided for in accordance with
Section 4.01 or, if no interest has been
paid or duly provided for, from the date of
original issuance, until the
principal amount thereof is paid.
(b) Interest shall be payable in cash, provided that on each of
the
first four regularly scheduled interest
payment dates set forth in the Notes
occurring after the Closing Date, the
Company may, at its option, pay up to 12%
interest by issuing PIK Notes in a
principal amount equal to the amount of
interest not paid in cash on such regularly
scheduled interest payment date. PIK
Notes will be issued in denominations of
$100 principal amount and integral
multiples thereof. The amount of PIK Notes
issued will be rounded down to the
nearest $100, with any fractional amount
paid in cash.
(c) If the Company defaults in a payment of interest on the
Notes
when due, the Company shall pay the
defaulted interest in any lawful manner
plus, to the extent lawful, interest
payable on the defaulted interest, to the
Persons who are Holders on a subsequent
special record date or, in the case of
the payment of non-cash defaulted interest,
to the Persons who are Holders on
the date of such payment, in each case at
the rate provided in the Notes. The
Company shall notify the Trustee in writing
of the amount of defaulted interest
proposed to be
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paid on each Note and the date of the
proposed payment. The Company shall fix or
cause to be fixed each such special record
date and payment date; provided, that
no such special record date shall be less
than 10 days prior to the related
payment date for such defaulted interest.
At least 15 days before the special
record date, the Company (or, upon the
written request of the Company, the
Trustee in the name and at the expense of
the Company) shall mail or cause to be
mailed to Holders a notice that states the
special record date, the related
payment date and the amount of such cash
interest to be paid.
ARTICLE III
REDEMPTION
3.01. Notices to Trustee. If the Company elects to redeem Notes
pursuant to Section 3.07, it shall notify
the Trustee in writing of the
redemption date and the principal amount of
Notes to be redeemed.
The Company shall give each notice to the Trustee provided for
in
this Section 3.01 at least 15 days but not
more than 60 days before the
redemption date unless the Trustee consents
to a shorter period; provided, that
if fewer than all the Notes are to be
redeemed, the Company shall provide to the
Trustee notice of such redemption at least
five Business Days prior to notice of
such redemption being mailed to any Holder.
Such notice shall be accompanied by
an Officer's Certificate from the Company
to the effect that such redemption
will comply with the conditions herein. Any
such notice may be canceled at any
time prior to notice of such redemption
being mailed to any Holder and shall
thereby be void and of no effect.
3.02. Selection of Notes To Be Redeemed. If fewer than all the
Notes
are to be redeemed, the Trustee shall
select the Notes to be redeemed pro rata
or by lot or by a method that the Trustee
in its sole discretion shall deem to
be fair and appropriate. The Trustee shall
make the selection from outstanding
Notes not previously called for redemption.
The Trustee may select for
redemption portions of the principal of
Notes that have denominations larger
than $100. Notes and portions of them the
Trustee selects shall be in amounts of
$100 or a whole multiple of $100.
Provisions of this Indenture that apply to
Notes called for redemption also apply to
portions of Notes called for
redemption. The Trustee shall notify the
Company promptly of the Notes or
portions of Notes to be redeemed.
3.03. Notice of Redemption. (a) At least 15 days but not more
than
60 days before a date for redemption of
Notes, the Company shall mail a notice
of redemption by first-class mail to each
Holder of Notes to be redeemed at such
Holder's registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest
to the redemption date;
(iii) the name and address of the Paying Agent;
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(iv) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Notes are to be
redeemed, the certificate numbers and principal amounts of the
particular Notes to be redeemed;
(vi) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from
making
such payment pursuant to the terms of this Indenture, interest
on
Notes (or portion thereof) called for redemption ceases to accrue
on
and after the redemption date;
(vii) the CUSIP number, if any, printed on the Notes being
redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
(b) At the Company's request, the Trustee shall give the notice
of
redemption in the Company's name and at the
Company's expense. In such event,
the Company shall provide the Trustee with
the information required by this
Section 3.03 at least two (2) Business Days
prior to the date the Trustee is to
give the notice of redemption.
3.04. Effect of Notice of Redemption. Once notice of redemption
is
mailed in accordance with Section 3.03,
Notes called for redemption become due
and payable on the redemption date and at
the redemption price stated in the
notice. Upon surrender to the Paying Agent,
such Notes shall be paid at the
redemption price stated in the notice, plus
accrued interest to the redemption
date; provided, however, that if the
redemption date is after a regular record
date and on or prior to the related
interest payment date, the accrued interest
shall be payable to the Holder of the
redeemed Notes registered on the relevant
record date. Failure to give notice or any
defect in the notice to any Holder
shall not affect the validity of the notice
to any other Holder. A notice of
redemption may not be conditional.
3.05. Deposit of Redemption Price. Prior to 12:00 noon (New
York
time) on the redemption date, the Company
shall deposit with the Paying Agent
(or, if the Parent, the Company or a
Restricted Subsidiary is the Paying Agent,
shall segregate and hold in trust) money
sufficient to pay the redemption price
of and accrued interest on all Notes to be
redeemed on that date other than
Notes or portions of Notes called for
redemption that have been delivered by the
Company to the Trustee for cancellation. On
and after the redemption date,
interest will cease to accrue on Notes or
portions thereof called for redemption
in accordance with Section 2.08. The Paying
Agent shall promptly return to the
Company upon its written request any money
deposited with the Paying Agent by
the Company that is in excess of the
amounts necessary to pay the redemption
price of and accrued interest on all Notes
to be redeemed.
If a Note is redeemed on or after an interest record date but on
or
prior to the related interest payment date,
then any accrued and unpaid interest
shall be paid to the Person in whose name
such Note was registered at the close
of business on such record date. If any
Note called for redemption is not so
paid upon surrender for redemption or
purchase because of the failure of the
Company to comply with the preceding
paragraph, interest shall be paid on the
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unpaid principal, from the redemption until
such principal is paid, and to the
extent lawful on any interest not paid on
such unpaid principal, in each case at
the rate provided in the Notes and in
Section 4.01.
3.06. Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Company shall issue,
and upon receipt of an Authentication
Order, the Trustee shall authenticate for
the Hold
