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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 10, 2000.
REGISTRATION NO. 333- --
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
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REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VOICESTREAM WIRELESS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 4812 91-1983600
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBERS) IDENTIFICATION NO.)
</TABLE>
3650 131ST AVENUE S.E.
BELLEVUE, WASHINGTON 98006
(425) 653-4600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ALAN R. BENDER, ESQ.
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
VOICESTREAM WIRELESS HOLDING CORPORATION
3650 131ST AVENUE S.E.
BELLEVUE, WASHINGTON 98006
(425) 653-4600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
WITH COPIES TO:
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G. SCOTT GREENBURG, ESQ. BARRY A. ADELMAN, ESQ.
MATTHEW S. TOPHAM, ESQ. D. ROGER GLENN, ESQ.
PRESTON GATES & ELLIS LLP FRIEDMAN KAPLAN & SEILER LLP
5000 COLUMBIA CENTER 875 THIRD AVENUE
701 5TH AVENUE NEW YORK, NEW YORK 10022
SEATTLE, WASHINGTON 98104
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Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after this registration statement becomes
effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 426(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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PROPOSED PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PRICE(1) PRICE REGISTRATION FEE
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11 1/2% Senior Notes due 2009......... $205,000,000 100% $205,000,000 $54,120
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(1) Estimated solely for purposes of calculating the registration fee.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
SUBJECT TO COMPLETION, DATED APRIL 10, 2000
PROSPECTUS
VOICESTREAM WIRELESS CORPORATION
[VOICESTREAM LOGO]
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OFFER TO EXCHANGE: Our registered 11 1/2% Senior Notes due 2009
for
Omnipoint Corporation's outstanding unregistered notes with
substantially identical terms
</TABLE>
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Holders of Omnipoint's notes who tender to exchange will receive a like
amount of our registered senior notes having substantially identical terms.
Omnipoint became our subsidiary on February 25, 2000.
The exchange and purchase offers we are making will expire at 5:00 p.m.,
New York City time on May , 2000. The new notes we will issue will not trade
on any exchange.
See "Risk Factors" beginning on page 7 to read about risk factors you
should consider in connection with the matters discussed in this prospectus.
NEITHER THE SECURITIES EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES TO BE ISSUED UNDER THIS
PROSPECTUS OR DETERMINED IF THIS PROSPECTUS IS ACCURATE OR ADEQUATE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS APRIL --, 2000.
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TABLE OF CONTENTS
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PAGE
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Where You Can Find More Information... 1
Incorporation of Certain Documents by
Reference........................... 1
Prospectus Summary.................... 2
Risk Factors.......................... 7
The Exchange Offer.................... 14
The Company........................... 19
Ratio of Earnings to Fixed Charges.... 19
Use of Proceeds....................... 20
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Description of The Notes.............. 21
Book-Entry; Delivery and Form......... 47
Certain United States Federal Income
Tax Considerations.................. 48
Plan of Distribution.................. 52
Legal Matters......................... 52
Experts............................... 53
Where to Find More Information........ 53
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We have not authorized any dealer, salesperson or other person to give any
information or to make any representations in connection with the offer
contained herein other than those contained in this prospectus, and, if given or
made, such information or representation must not be relied upon as having been
authorized by the us. This prospectus does not constitute an offer to sell or
the solicitation of an offer to buy to any person in any jurisdiction in which
such offer or solicitation is not authorized or in which the person making such
offer or solicitation is not qualified to do so or to any person to whom it is
unlawful to make such offer or solicitation. Neither the delivery of this
prospectus nor any sale made hereunder shall under any circumstances create an
implication that there has been no change in our business affairs or condition
since the date hereof or that the information contained herein is correct as of
any time subsequent to the date hereof.
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WHERE YOU CAN FIND MORE INFORMATION
We and our subsidiary Omnipoint Corporation are subject to the
informational requirements of the Securities Exchange Act of 1934 and,
therefore, must file periodic reports, proxy statements and other information
with the Securities and Exchange Commission. All such information is available
to the public over the Internet at the SEC's web site at http://www.sec.gov and
may be copied at any of the following public reference facilities:
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Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Judiciary Plaza Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, N.Y. 10048 Suite 1400
Chicago, IL 60661-2511
</TABLE>
Copies of these documents may also be obtained at prescribed rates by writing to
the SEC, Public Reference Section, 450 Fifth Street, N.W., Washington, D.C.
20549.
This prospectus constitutes a part of a registration statement on Form S-4
that we have filed with the SEC under the Securities Act. As permitted by the
rules and regulations of the SEC, this prospectus does not contain all of the
information contained in the registration statement and the exhibits and
schedules thereto. Reference is hereby made to the registration statement and
its exhibits and schedules for further information about us and the securities
offered through this exchange offer. Statements contained in this prospectus
concerning any documents filed as exhibits to the registration statement or
otherwise filed with the SEC are not necessarily complete, and in each statement
a reference is made to the filed document itself. Each statement about a filed
document is qualified in its entirety by this reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them into this prospectus, which means that:
- incorporated documents are considered part of this prospectus; and
- we can disclose important business and financial information about us or
Omnipoint, which is not included in or delivered with this prospectus, to
you by referring you to those other documents.
We incorporate by reference into this prospectus the documents listed
below, as amended and supplemented, and all documents filed by us or Omnipoint
with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 after the date of this prospectus and prior to the date on which the
exchange offer made hereby is consummated:
- our Annual Report on Form 10-K for the fiscal year ended December 31,
1999;
- our Report on Form 8-K dated March 22, 2000; and
- Omnipoint Annual Report on Form 10-K for the fiscal year ended December
31, 1999.
You can obtain any of the filings incorporated by reference into this
document through us or from the SEC through the SEC's web site or at the
addresses listed above. Documents incorporated by reference into this
prospectus, except for any exhibits to those documents that are not expressly
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<PAGE> 5
incorporated by reference into those documents, are available from us without
charge by requesting them in writing or by telephone at the following address
and telephone number:
VoiceStream Wireless Corporation
3650 131st Avenue S.E.
Bellevue, Washington 98006
Attention: Investor Relations
(425) 653-4600
If you request any incorporated documents from us, we will mail them to you
by first-class mail, or by another equally prompt means, within one business day
after we receive your request. In order to obtain timely delivery of these
documents, however, you must make your request no later than five business days
before the expiration date of the exchange offer.
PROSPECTUS SUMMARY
This summary highlights information presented elsewhere in this prospectus
or incorporated by reference into this prospectus. This summary does not contain
all the information that is important to you. We encourage you to read carefully
this entire prospectus, including the "Risk Factors" section, and the documents
we incorporate by reference. All references to "Company," "we" or "our" in this
prospectus refer to VoiceStream Wireless Corporation and its subsidiaries
collectively, unless the context otherwise requires.
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SUMMARY OF TERMS OF THE EXCHANGE OFFER
We will accept for exchange up to $205,000,000 aggregate principal amount
of Omnipoint's outstanding 11 1/2% Senior Notes due 2009 for an equal aggregate
principal amount of our new registered 11 1/2% Senior Notes due 2009. The new
notes will be our obligations entitled to the benefits of the indenture relating
to them.
Background.................... On September 23, 1999, Omnipoint completed a
private placement of $205,000,000 aggregate
principal amount of its 11 1/2% Senior Notes
due 2009. In connection with that private
placement, Omnipoint entered into a
registration rights agreement in which it
agreed to offer to exchange those notes for
registered notes having substantially identical
terms unless we completed our merger with
Omnipoint and offered to exchange our own notes
with substantially identical terms to those
Omnipoint issued in the private placement.
Securities Offered............ We are offering up to $205,000,000 aggregate
principal amount of our 11 1/2% Senior Notes
due 2009, all of which will have been
registered under the Securities Act of 1933.
The terms of our new notes will be identical to
the terms of Omnipoint's outstanding notes for
which they are being exchanged, except for
certain transfer restrictions and registration
rights relating to the outstanding notes and
except that, if the exchange offer is not
completed on or prior to June 30, 2000, the
interest rate borne by the outstanding notes
will increase until the exchange offer is
completed.
The Exchange Offer............ We are offering to accept Omnipoint's
unregistered, outstanding notes in exchange for
our new notes that will have been registered
under the Securities Act of 1933. On or
promptly after the expiration date of the
exchange offers we will issue the new notes to
holders of outstanding notes that wish to
exchange them. The issuance of the new notes
will satisfy Omnipoint's obligation contained
in the registration rights agreement. For
procedures for tendering, see "The Exchange and
Cash Tender Offers and Consent Solicitation."
Expiration of the Exchange
Offers........................ 5:00 p.m., New York City time, on May --, 2000,
unless we extend it.
Tenders; Withdrawal........... You may withdraw your tender of Omnipoint's
outstanding notes at any time before the offer
expires. See "The Exchange Offer." If for any
reason any tendered notes are not accepted for
exchange, they will be returned as soon as
practicable after the expiration or termination
of our exchange offer.
Conditions to the Exchange
Offer......................... Our exchange offer is subject to the condition
that it does not violate applicable law or any
applicable interpretation of the staff of the
commission. There is no guarantee that this
condition will be satisfied. You will have
certain rights against Omnipoint under the
registration rights agreement if neither it
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nor we complete the exchange offers for
Omnipoint's outstanding notes.
Federal Income Tax
Considerations................ The exchange of our new notes for Omnipoint's
outstanding notes pursuant to the exchange
offer will constitute a taxable exchange for
federal income tax purposes. See "Certain
United States Federal Income Tax
Considerations."
Exchange Agent................ HSBC Bank USA is serving as the exchange agent
in connection with the exchange offer.
Use of Proceeds............... We will not receive any cash proceeds from the
issuance of the new notes in connection with
the exchange offer.
Consequences If You Do Not
Exchange Outstanding
Notes....................... Omnipoint's outstanding notes that are not
tendered to us or are not accepted for exchange
will continue to accrue interest, but will not
retain any rights under the registration rights
agreement and will bear legends restricting
their transfer. They may not be offered for
sale or sold except:
- Pursuant to an exemption from the
registration requirements of the Securities
Act of 1933; or
- Pursuant to an effective registration
statement under the Securities Act of 1933.
Omnipoint does not anticipate that it will
register any of its outstanding notes under the
Securities Act of 1933.
SUMMARY DESCRIPTION OF OUR NEW NOTES
Notes Offered................. $205 million in principal amount of our 11 1/2%
Senior Notes Due September 23, 2009. Upon
maturity, we will pay the principal of,
premium, if any, and interest on the senior
notes in immediately available funds.
Maturity Date................. September 23, 2009.
Yield and Interest............ Our notes will bear interest payable
semiannually in arrears, at a rate of 11 1/2%
per annum, on March 15 and September 15 of each
year, commencing March 15, 2000. Interest on
our notes will be deemed to have begun accruing
on the later of March 15, 2000 or the date on
which interest was last paid on the senior
notes.
Ranking....................... Our notes will be senior unsecured obligations
of ours. As such, they:
- will rank equal in right of payment with all
of our other senior unsecured indebtedness,
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- will rank senior in right of payment to all
of our subordinated unsecured indebtedness;
- will rank junior to our secured obligations,
with respect to the assets which are pledged,
and will rank equal to such obligations to
the extent that the pledged assets do not
satisfy the secured obligations; and
- will rank junior to all existing and future
indebtedness and other liabilities of our
subsidiaries. On February 29, 2000, the
aggregate indebtedness and liabilities of our
subsidiaries was approximately $3.3 billion.
The aggregate indebtedness and liabilities of
Aerial Communications, Inc., which we expect
to become a subsidiary of ours, was $411.8
million on December 31, 1999.
Optional Redemption........... We have the option to redeem our notes, in
whole or in part, at any time on or after
September 15, 2004, at the redemption prices
set forth in this prospectus under "Description
of the Notes -- Optional Redemption" plus
accrued and unpaid interest, if any, to the
date of redemption.
In addition:
- On or before September 15, 2002, we have the
option to apply proceeds from qualifying
equity sales to redeem up to 35% of the
originally issued principal amount of the
senior notes at a price of 111.50% of the
principal amount thereof plus accrued and
unpaid interest to the date of redemption
provided that after the redemption at least
65% thirds of the originally issued aggregate
principal amount of the senior notes remains
outstanding.
- We may be required to offer to repurchase the
notes upon the occurrence of a change of
control and a ratings decline or upon certain
asset dispositions.
Sinking Fund.................. The notes will not be entitled to any sinking
fund.
Change of Control............. Upon a change of control and a ratings decline,
we will be required to offer to purchase the
notes for a purchase price in cash equal to
101% of the accreted value or principal amount
at maturity of the notes, as applicable, plus
accrued and unpaid interest. However, we will
not be able to repurchase notes without
obtaining written consents from or repaying the
lenders under our credit facility.
Restrictive Covenants......... The indenture under which we will issue the
notes restrict our (and our subsidiaries')
ability to do the following:
- incur additional indebtedness;
- make payments in respect of securities that
are junior to our notes;
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- allow restrictions on our subsidiaries'
ability to make payments to us;
- cause our subsidiaries to guarantee our debt;
- enter into transactions with affiliates;
- issue capital stock of our subsidiaries;
- grant liens on our property;
- enter into sale and leaseback transactions;
- dispose of significant assets; and
- engage in consolidations, mergers and asset
transfers.
Settlement and Book-Entry
Form.......................... Our notes will be evidenced by a note in global
form which will be deposited with a custodian
for, and registered in the name of the nominee
of, The Depository Trust Company ("DTC") in New
York, New York.
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RISK FACTORS
Before agreeing to accept our new notes, you should carefully consider the
risks described below, in addition to the other information presented in this
prospectus or incorporated by reference into this prospectus. If any of the
following risks actually occur, they could seriously harm our business,
financial condition or results of operations. In such case, you may lose all or
part of your investment.
THE NOTES ARE THE OBLIGATIONS OF A HOLDING COMPANY WHICH HAS NO OPERATIONS AND
DEPENDS ON SUBSIDIARIES FOR CASH, AND ITS SUBSIDIARIES MAY BE LIMITED IN THEIR
ABILITY TO MAKE FUNDS AVAILABLE
Tendering Omnipoint note holders will be exchanging a note that is not
structurally subordinate to the general obligations of Omnipoint for one that
is. As a holding company, we will not hold substantial assets other than our
direct or indirect investments in and advances to our operating subsidiaries.
Consequently, our subsidiaries conduct all of our consolidated operations and
own substantially all of our consolidated assets. Our cash flow and our ability
to meet our debt service obligations on the notes will depend upon the cash flow
of our subsidiaries and the payment of funds by the subsidiaries to us in the
form of loans, equity distributions or otherwise. Our subsidiaries are not
obligated to make funds available to us for payment on the notes or otherwise.
In addition, our subsidiaries' ability to make any loans or distributions to us
will depend on their earnings, the terms of their indebtedness, business and tax
considerations and legal restrictions.
Because of the structure described above, the notes will be subordinate to
all borrowings and liabilities of our subsidiaries. Our lenders under credit
facility and all creditors of any of our subsidiaries will have the right to be
paid before you from any cash received or held by our subsidiaries. In the event
of bankruptcy, liquidation or dissolution of a subsidiary, following payment by
the subsidiary of its liabilities, it may not have sufficient assets remaining
to make any payments to us as a shareholder or otherwise. As of February 29,
2000, the total outstanding indebtedness and liabilities of our subsidiaries was
approximately $3.3 billion. The aggregate liabilities and indebtedness of Aeriel
Communications, Inc., which we expect to become our subsidiary, was $411.8
million on December 31, 1999.
A TENDERING OMNIPOINT NOTEHOLDER WILL BE SUBJECT TO U.S. FEDERAL INCOME TAX
The tendering Omnipoint note holder generally will recognize gain for
federal income equal to the difference between the holder's basis in the
outstanding Omnipoint Notes and the issue price of our Notes. The issue price of
our Notes should be their fair market value on the date of the exchange,
assuming that the Notes are "publicly traded" as defined in applicable Treasury
Regulations.
WE FACE INTENSE COMPETITION FROM OTHER WIRELESS SERVICE PROVIDERS, WHICH COULD
ADVERSELY AFFECT OUR ABILITY TO GROW OUR SUBSCRIBER BASE AND REVENUES
We compete with providers of PCS, cellular and other wireless
communications services. Under the current rules of the FCC, up to seven PCS
licensees and two cellular licensees may operate in each geographic area.
Proposed or future rules may increase the number of licenses available. With so
many companies targeting many of the same customers, competition is intense. We
compete against AT&T Wireless Services, Inc., Bell Atlantic Mobile Systems,
Nextel Communications, Inc., SBC Communications, Sprint Corp. (PCS Group), US
West Wireless LLC and Vodafone AirTouch Cellular Communications, Inc., among
others. Many of these competitors have substantially greater financial resources
than we do, and several operate in multiple segments of the industry. AT&T
Wireless, Nextel and Sprint PCS operate substantially nationwide networks and
Bell Atlantic Mobile
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Systems and Vodafone AirTouch, among others, through joint ventures and
affiliation arrangements, operate or plan to operate substantially nationwide
wireless systems throughout the continental United States. As a result of such
competition, we cannot assure you that we will be able to successfully attract
and retain customers and increase our subscriber base and revenues.
WE HAVE A LIMITED OPERATING HISTORY WITH SUBSTANTIAL OPERATING LOSSES AND
NEGATIVE CASH FLOW, AND WE MAY NOT BECOME PROFITABLE
We were incorporated in June 1999 and have not conducted any activities
other than in connection with our organization and the transactions through
which we became the parent company of VS Washington, Inc. (formerly VoiceStream
Wireless Corporation, a Washington corporation) and Omnipoint on February 25,
2000. On a pro forma basis giving retroactive effect to the Omnipoint merger, we
sustained operating losses of approximately $1.0 billion in 1999, and also on a
pro forma basis as of December 31, 1999, we had an accumulated deficit of $1.1
billion and equity, net of accumulated deficit, of $3.2 billion. We expect
Aerial Communications, Inc. to become our subsidiary. Aerial sustained operating
losses of approximately $210.0 million in 1999. As of December 31, 1999, Aerial
had an accumulated deficit of $800.2 million and equity, net of accumulated
deficit, of $410.6 million. We expect to incur significant operating losses and
to generate negative cash flow from operating activities during the next several
years while we continue to develop and construct our systems and grow our
subscriber base. We cannot assure you that we will achieve or sustain
profitability or positive cash flow from operating activities in the future or
that we will generate sufficient cash flow to service current or future debt
requirements.
OUR SUBSTANTIAL DEBT LIMITS OUR ABILITY TO BORROW ADDITIONAL FUNDS TO FINANCE
OUR GROWTH, CREATES FINANCIAL AND OPERATING RISKS, AND MAKES US VULNERABLE TO
INCREASES IN INTEREST RATES
We are highly leveraged and subject to strict financial limitations because
we have incurred a significant amount of debt in building their systems and
subscriber bases. Our total debt is approximately $4.8 billion. In addition, as
of December 31, 1999, Aerial's total debt was approximately $411.8 million. Our
level of debt, and the incurrence of additional debt in the future, could have
important consequences to you. For example, it could:
- make it more difficult for us to satisfy our obligations with respect to
our existing indebtedness;
- require us to dedicate a substantial portion of our cash flow from
operations to paying principal and interest on our debt, thereby reducing
the availability of our cash flow to fund working capital, capital
expenditures, acquisitions of additional systems and other general
corporate requirements;
- limit our flexibility in reacting to changes in our business and the
wireless industry generally;
- limit our ability to borrow additional funds due to applicable financial
and restrictive covenants in such indebtedness; and
- make us more vulnerable to increases in prevailing interest rates because
certain of our borrowings are and will continue to be at variable rates
of interest.
IF WE CANNOT RAISE SUFFICIENT FUNDS TO MEET OUR SIGNIFICANT FUTURE CAPITAL
REQUIREMENTS, WE WILL NOT BE ABLE TO COMPETE EFFECTIVELY IN THE WIRELESS
COMMUNICATIONS INDUSTRY
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Our systems and the systems of joint ventures in which we are an investor
are not completely built out and do not have nationwide coverage. The build-out
of these systems and the development of new systems will require significant
capital expenditures. We plan to meet our additional capital needs for the
build-out of our systems with the proceeds from credit facilities and other
borrowings, the proceeds from sales of additional debt securities, the sale or
issuance of equity securities, financing arrangements with vendors and through
joint ventures. We cannot guarantee that we will be able to raise sufficient
additional capital on commercially reasonable terms or at all. If we do not
raise sufficient funds, we may delay or abandon some or all of our planned
build-out or expenditures, which could materially limit our ability to compete
in the wireless communications industry.
THERE IS A RISK THAT OUR EXPANSION WILL BE CONSTRAINED BECAUSE OUR ABILITY TO
EXPAND AND PROVIDE SERVICE NATIONALLY IS LIMITED BY OUR ABILITY TO OBTAIN FCC
LICENSES
Even combined with Aerial, we will not have licenses covering the entire
United States. Our ability to expand is limited to those markets where we have
obtained or can obtain licenses with sufficient spectrum to provide PCS service,
or where we can economically become resellers of service. Because there are a
limited number of licenses available, and because resale agreements require
mutual consent of the incumbent PCS license holders, there is a risk that we may
not be able to obtain the licenses we need for expansion.
WE ARE AT RISK OF LOSING COVERAGE IN CERTAIN MARKETS BECAUSE WE HAVE ENTERED
INTO JOINT VENTURES THAT WE DO NOT CONTROL IN AN ATTEMPT TO EXPAND INTO THOSE
MARKETS
When implementing the PCS licensing scheme in the United States, the FCC
adopted rules that granted a narrow category of entities the right to bid for
and own C and F Block licenses. We do not qualify to obtain C and F Block
licenses. In order to continue to expand our system, we obtained 49.9% minority
ownership interests in four joint ventures controlled by Cook Inlet Region,
Inc., each of which qualified to hold licenses that we could not directly hold.
In all markets where the joint ventures operate, including the Philadelphia,
Chicago and Dallas markets, we are at risk because Cook Inlet is in control and
can choose to operate independently of us. If the joint venture entities
determine to operate independently our ability to compete on a national scale
may be adversely affected.
OUR CURRENT AND FUTURE INVESTMENT IN EACH CURRENT JOINT VENTURE IS AT RISK
BECAUSE WE HAVE LIMITED INVESTOR PROTECTIONS, AND WE MAY BE REQUIRED TO RELY ON
ADDITIONAL JOINT VENTURES FOR FURTHER EXPANSION
We do not control, and maintain only limited investor protection rights, in
the four joint venture entities controlled by Cook Inlet Region, Inc. We have
substantial financial commitments to these joint ventures, which must rely on
corresponding financial commitments from Cook Inlet. Also, many of the systems
owned by these joint venture entities have not been built out and the joint
ventures will have substantial capital needs in connection with such build-outs.
We cannot guarantee that these joint venture entities will be able to raise
sufficient capital, whether through bank borrowings or otherwise, to complete
the build-out of their systems. Similarly, due to the licensing restrictions
discussed above, and because of the scarcity of available PCS licenses covering
United States urban markets, we may be required to rely on similar joint
ventures that we do not control for expansion into new markets. We cannot assure
you that we will be able to find acceptable joint venture partners. In the event
that we do find acceptable joint venture partners, due to our lack of control
over these joint ventures, we cannot assure you that they will operate in a
manner that increases the value of our business.
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WE WILL BE SUBJECT TO EXTENSIVE GOVERNMENT REGULATION, ANY CHANGE IN WHICH COULD
AFFECT OUR BUILD-OUT PLAN OR FINANCIAL PERFORMANCE
The licensing, construction, operation, sale and interconnection
arrangements of wireless telecommunications systems are regulated to varying
degrees by the FCC and, depending on the jurisdiction, also may be regulated by
state and local governmental bodies. There can be no assurance that either the
FCC or such state and local agencies will not adopt regulations or take other
actions that would adversely affect our business. We cannot assure you that we
will be able to obtain and retain all necessary governmental authorizations and
permits. Failure to do so could negatively affect our existing operations and
delay or prevent proposed operations.
THE FCC AND OTHER REGULATORY AGENCIES MUST APPROVE THE REORGANIZATION WITH
AERIAL AND COULD DELAY OR REFUSE TO APPROVE THE REORGANIZATION OR IMPOSE
CONDITIONS THAT COULD ADVERSELY AFFECT OUR BUSINESS OR FINANCIAL CONDITION
The Communications Act and FCC rules require the FCC's prior approval of
the transfer of control of Aerial's PCS licenses to us. Completion of the
transactions through which we will become the parent company of Aerial are
conditioned, among other factors, upon grants of the requisite FCC consents
becoming final. A "final" FCC order is one that has not been stayed and is no
longer subject to review by the FCC or the courts because the statutory period
for seeking such review has expired without any request for review or stay
pending. Following the FCC's grant of consent, we cannot assure you that there
will not be any post-grant challenges by private parties or actions by the FCC
or the courts that would delay or prevent finality. Though our board of
directors and Aerial's board of directors, in the exercise of their business
judgment, without seeking stockholder approval, may waive finality as a
condition of closing, we cannot assure you that they will do so. We cannot
assure you that the FCC will grant the applications, that the FCC will grant the
applications without conditions, or that there will be no delay caused by the
filing of a challenge to the transfer and assignment applications. Conditions
imposed on any licenses granted or delays in granting of the licenses could
impair the value of the licenses and reduce the value of our stock, and could
lead to our inability to obtain financing necessary for our growth. If we are
denied a license in a market we will not be able to operate in that market
unless we maintain another license or acquire a new license for that market.
THERE IS A RISK THAT THE JOINT VENTURE ENTITIES IN WHICH WE HOLD INTERESTS COULD
LOSE LICENSES AS A RESULT OF COURT PROCEEDINGS
All C Block licenses held by Cook Inlet entities could be affected by U.S.
Airwaves, Inc. v FCC, which is pending in the U.S. Court of Appeals for the D.C.
Circuit. U.S. Airwaves is seeking judicial review of two orders in the FCC's
rulemaking proceeding on payment financing for PCS licenses. Since these orders
enabled initial C Block licensees to return licenses or modify the conditions of
payment, there is a remote threat that if the orders are reversed, affected
licenses could be returned to the Commission for reauction. Additionally, 25
licenses held by Cook Inlet joint ventures were issued subject to the outcome of
the bankruptcy proceeding of the original licensee, a subsidiary of Pocket
Communications Inc., which was conditionally granted 43 C Block licenses in
1996. Pursuant to an FCC order, the bankruptcy debtors elected to relinquish
certain licenses, which subsequently were reauctioned, and the bankruptcy court
issued an order making the election effective. A secured creditor of the debtors
appealed and, as a result, the bankruptcy court stayed its order. Because the
appeal is still pending there is uncertainty as to the referenced C Block
licenses of the Cook Inlet entities. The district court could order the return
of these licenses to the jurisdiction of the bankruptcy court. In the event that
these licenses are so returned, it is unlikely that the Cook Inlet entities will
be able to recoup any or all of the costs incurred by them in connection with
the
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<PAGE> 14
construction and development of systems related to such licenses. Loss of any
license by any Cook Inlet entity will reduce or eliminate our ability to own
interests in markets where the licenses are lost, thereby reducing our ability
to compete with other national competitors.
THERE IS A RISK THAT WE WILL LOSE LICENSES IF THEY ARE NOT RENEWED BY THE FCC
FCC licenses to provide PCS services are subject to renewal requirements
and to revocation at any time for cause. Our licenses begin to expire in 2004.
We cannot assure you that the FCC will renew our licenses. If we lose a license
for a market we will not be able to operate in that market unless we maintain
another license or acquire a new license for that market.
THERE IS A RISK THAT OUR SUBSIDIARY MAY HAVE TO MAKE SUBSTANTIAL TAX INDEMNITY
PAYMENTS TO WESTERN WIRELESS CORPORATION
In a spin-off transaction effected on May 3, 1999, Western Wireless
distributed its entire 80.1% interest in VS Washington's common stock to its
stockholders. Western Wireless will recognize gain as a result of the spin-off
if the spin-off is considered to be part of a "prohibited plan," which is a plan
or series of related transactions pursuant to which one or more persons acquire,
directly or indirectly, 50% or more of VS Washington's common stock. This is a
risk because VS Washington we agreed to indemnify Western Wireless on an
after-tax basis for any taxes, penalties, and interest and various other
expenses incurred by Western Wireless if it is required to recognize such gain.
Under the Internal Revenue Code, the reorganization and the related transactions
through which we became the parent of VS Washington and Omnipoint, combined with
Hutchison Telecommunications (PCS) USA's acquisition of its existing VS
Washington stock within two years prior to the spin-off, will give rise to a
rebuttable presumption that the spin-off was effected pursuant to a prohibited
plan and, thus, that Western Wireless recognized gain as a result of the
spin-off.
The precise standard that must be met by VS Washington to rebut the
presumption is not presently clear. Thus, counsel is unable to opine on the
issue and there is a risk that VS Washington will be unable to rebut the
presumption. In addition, no matter what the standard is for rebutting the
presumption, there is a risk that the IRS would not agree that any facts that
would be presented by VS Washington would establish that the spin-off was not
effected pursuant to a prohibited plan, and there is a risk that a court would
concur with such an IRS position. As a result, Western Wireless would be
required to recognize gain upon the spin-off and VS Washington would be required
to indemnify Western Wireless on an after-tax basis for its resulting taxes,
penalties, if any, and interest, and various other expenses. We estimate that
the range of VS Washington's indemnity exposure, not including penalties and
interest, is from zero to $400 million. Thus, if VS Washington is required to
make an indemnity payment to Western Wireless, it could have a material adverse
effect on us.
CONCERNS OVER RADIO FREQUENCY EMISSIONS OR OTHER HEALTH AND SAFETY RISKS MAY
DISCOURAGE USE OF WIRELESS SERVICES AND ADVERSELY EFFECT OUR BUSINESS
Media reports have suggested that some radio frequency emissions from
wireless handsets may raise various health concerns, including cancer, and may
interfere with various electronic medical devices, including hearing aids and
pacemakers. Concerns over radio frequency emissions may discourage the use of
wireless handsets, which would adversely affect our business. Negative findings
of studies concerning health and safety risks of wireless handsets could have an
adverse effect on the wireless industry, our business, or the use of GSM
technology. Such findings could lead to governmental regulations that may have
an adverse effect on our business. Several states have proposed or enacted
legislation which would limit or prohibit the use and/or possession of a mobile
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<PAGE> 15
telephone while driving an automobile. If states adopt and strictly enforce such
legislation, it may have an adverse effect on our business.
WE MAY BE UNABLE TO PURCHASE OUR NOTES UPON A CHANGE OF CONTROL
Upon the occurrence of a change of control, you, along with all other
holders of our notes, may require us to repurchase all or a portion of our notes
at 101% of the principal amount (or accreted value in the case of senior
discount notes) of the notes, together with accrued and unpaid interest to the
date of repurchase. If a change of control were to occur, we may not have the
financial resources to repay the notes, our credit facilities and any other
indebtedness that would become payable upon the occurrence of such change of
control. The covenant requiring us to repurchase the notes will, unless consents
of lenders under our credit agreement are obtained, require us to repay all
indebtedness then outstanding under our credit agreement in the event of a
change of control. There can be no assurance that we will have sufficient funds
available at the time of any change of control to make any debt payment
(including repurchase of our notes) required by this covenant. See "Description
of our new Notes -- Repurchase of Notes upon a Change of Control:
THIS PROSPECTUS INCLUDES FORWARD-LOOKING STATEMENTS AND WE CAUTION YOU NOT TO
PLACE UNDUE RELIANCE ON FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this
prospectus contain statements that are not based on historical fact, including
the words "believes," "anticipates," "intends," "expects" and similar words.
These statements constitute "forward-looking statements" within the meaning of
the Private Securities Litigation Reform Act of 1995. Such forward-looking
statements involve known and unknown risks, uncertainties and other factors that
may cause the actual results, events or developments to be significantly
different from any future results, events or developments expressed or implied
by such forward-looking statements. Such factors include, without limitation:
- general economic and business conditions, both nationally and in the
regions in which we operate;
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<PAGE> 16
- technology changes;
- competition;
- changes in business strategy or development plans;
- our high level of debt;
- the ability to attract and retain qualified personnel;
- existing governmental regulations and changes in, or the failure to
comply with, governmental regulations;
- product liability and other claims asserted against us; and
- our ability and the ability of our third-party suppliers to take
corrective action in a timely manner with respect to the year 2000 issue.
Given these uncertainties, we caution you not to place undue reliance on
such forward-looking statements.
13
<PAGE> 17
THE EXCHANGE OFFER
Subject to the terms and conditions in this prospectus and in the
accompanying Letter of Transmittal, we will exchange Omnipoint's outstanding
11 1/2% Senior Notes due 2009 that are properly tendered on or before the
expiration of the offers, and not withdrawn, for our registered new notes having
identical terms. The expiration of the offers is 5:00 p.m., New York City time,
on May --, 2000 unless we extend it.
We may, at any time or from time to time, extend the expiration date, by
giving oral or written notice of such extension in the manner described below.
During any such extension, all outstanding notes previously tendered will remain
subject to the exchange offer and we may accept them for exchange. Any
outstanding notes that we do not accept for exchange for any reason will be
returned to you without cost as promptly as practicable after the expiration or
termination of the exchange offer.
This prospectus, together with the Letter of Transmittal, is first being
sent on or about the date of this prospectus to all holders known to us of
Omnipoint outstanding notes that are the subject of the offer described herein.
Our obligation to accept outstanding notes for exchange or purchase is subject
to certain conditions as set forth below under "-- Certain Conditions to the
Exchange Offer."
Outstanding notes tendered in the exchange offer must be in denominations
of principal amounts of $1,000 and any integral multiples thereof.
For each of our outstanding Omnipoint notes accepted for exchange, the
holder will receive our new note having a principal amount equal to that of the
surrendered outstanding note. The new notes will entitle the holders of the
outstanding Omnipoint notes to receive any interest payment that would have
otherwise been payable thereon. Holders of our outstanding notes that are
accepted for exchange will be deemed to have waived the right to receive any
payment in respect of unpaid interest on those notes that accrued from the last
interest payment date to the date of the issuance of our new notes.
Consequently, holders of outstanding Omnipoint notes who exchange them for our
new notes will receive the same interest payments that they would have received
had they not accepted the exchange offer.
Procedures for Tendering Outstanding Notes
In all cases, issuance of our new notes for outstanding Omnipoint notes
that are accepted for exchange or payment will be made only after timely receipt
by the exchange agent of:
(i) certificates for such outstanding notes or a timely book-entry
confirmation of such outstanding notes into the exchange agent's account at
the book-entry transfer facility;
(ii) a properly completed and duly executed Letter of Transmittal or
an agent's message in lieu thereof; and
(iii) all other required documents.
The term "agent's message" means a message, transmitted by the book-entry
transfer facility to and received by the exchange agent and depository. It forms
a part of a book-entry confirmation, which states that the book-entry transfer
facility has received an express acknowledgment from the tendering participant
stating that the participant has received and agrees to be bound by the Letter
of Transmittal and that we may enforce the Letter of Transmittal against that
participant. THE METHOD OF DELIVERY OF THE OUTSTANDING NOTES, THE LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE
HOLDERS. IF DELIVERY MADE IS BY MAIL, IT IS RECOMMENDED THAT
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<PAGE> 18
REGISTERED MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED, BE USED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE TIMELY DELIVERY. DELIVERY
OF DOCUMENTS TO DTC IN ACCORDANCE WITH ITS PROCEDURES DOES NOT CONSTITUTE
DELIVERY TO THE EXCHANGE AGENT. NO DOCUMENTS SHOULD BE SENT TO US.
Signatures on a Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by one of the following eligible institutions:
- a member firm of a registered national securities exchange or of the
National Association of Securities Dealers, Inc.;
- a commercial bank; or
- a trust company having an office or correspondent in the United States;
unless the notes tendered are tendered:
(i) by a registered holder of the notes who has not completed the box
entitled "Special Issuance Instructions" or "Special Delivery Instructions"
on the Letter of Transmittal; or
(ii) for the account of an eligible institution.
If tendered notes are registered to a person who did not sign the Letter of
Transmittal, they must be endorsed by, or be accompanied by a written transfer
or exchange, duly executed by the registered holder with the signature
guaranteed by an eligible institution and appropriate powers of attorney, signed
exactly as the name of the registered holder appears on the outstanding notes.
All questions of satisfaction of the form of the writing will be determined by
us in our sole discretion.
If the Letter of Transmittal or any outstanding notes or powers of attorney
are signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and unless waived by us,
submit evidence satisfactory to us of their authority to so act with the letter
of transmittal.
We will determine all questions as to the validity, form, eligibility
(including time of receipt), acceptance and withdrawal of the tendered
outstanding notes. Our determination will be final and binding. We reserve the
absolute right to reject any and all tenders of any particular outstanding notes
not properly tendered or not to accept any particular outstanding notes if our
acceptance would, in our opinion or in the opinion of our counsel, be unlawful.
We also reserve the absolute right to waive any defects or irregularities or
conditions of the exchange offers as to any particular outstanding notes either
before or after the expiration date.
Our interpretation of the terms and conditions of the exchange offers
(including the instructions in the Letter of Transmittal) will be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of outstanding notes must be cured within a time period
we determine. Neither we, the exchange agent nor any other person is under any
duty to give notification of defects or irregularities with respect to tenders
of outstanding notes nor shall any of them incur any liability for failure to
give such notification. Any outstanding notes will not be considered to have
been properly tendered until such defects or irregularities have been cured or
waived. Any outstanding notes received by the exchange agent that have not been
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned without cost by the exchange agent and
depository to the tendering holder unless otherwise provided in the Letter of
Transmittal, as soon as practicable following the expiration date.
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<PAGE> 19
In addition, we reserve the right in our sole discretion to:
(i) purchase or make offers for any outstanding notes that remain
outstanding subsequent to the expiration date, or, to terminate the
exchange offers; and
(ii) to the extent permitted by applicable law, purchase outstanding
notes in the open market, in privately negotiated transactions or otherwise
on terms different from the terms of the exchange offers.
Acceptance of Outstanding Notes for Exchange; Delivery of New Notes
Upon satisfaction or waiver of the conditions to the exchange offers, we
will accept, promptly, all outstanding notes properly tendered and will issue
the new notes in exchange. See "-- Certain Conditions to the Exchange Offer."
We are deemed to have accepted properly tendered outstanding notes for
exchange if or when we give oral or written notice of acceptance to the exchange
agent, with written confirmation of any oral notice to follow promptly.
If any tendered notes are not accepted for any reason or if outstanding
notes are submitted for a greater principal amount than the holder desired to
exchange, the unaccepted or non-exchanged outstanding notes will be returned
without expense to the tendering holder (or, in the case of outstanding notes
tendered by book-entry transfer into the exchange agent's account at the
book-entry transfer facility pursuant to the book-entry procedures described
below, the non-exchanged outstanding notes will be credited to an account
maintained with such book-entry transfer facility) as promptly as practicable
after the expiration or termination of the exchange offer.
Book-Entry Transfer
The exchange agent and depository will make a request to establish an
account with respect to the outstanding notes at the book-entry transfer
facility for purposes of the exchange offer within two business days after the
date of this prospectus. Any financial institution that is a participant in the
book-entry transfer facility's systems may make book-entry delivery of
outstanding notes by causing the book-entry transfer facility to transfer the
outstanding notes into the Exchange Agent's account at the book-entry transfer
facility in accordance with the facility's procedures. However, while delivery
of outstanding notes may be effected through book-entry transfer at the
book-entry transfer facility, the Letter of Transmittal (or a facsimile thereof
or an agent's message in lieu thereof), with any required signature guarantees
and any other required documents, must still be transmitted to and received by
the exchange agent at one of the addresses set forth below, under "-- Exchange
Agent" on or before the expiration date or the guaranteed delivery procedures
described below must be complied with.
Guaranteed Delivery Procedures
A holder who wishes to tender outstanding notes; and
(i) the outstanding notes are not immediately available; or
(ii) the outstanding notes, the Letter of Transmittal, or any other
required documents cannot be delivered to the exchange agent and depository
on a timely basis; or
(iii) book-entry transfer of the outstanding note cannot be completed
on a timely basis;
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<PAGE> 20
may effect a tender if:
(a) the tender is made through an institution eligible to guarantee
signature on the Letter of Transmittal; and
(b) before the expiration date, the exchange agent receives from the
eligible institution:
- a properly completed and duly executed Notice of Guaranteed Delivery
(by facsimile transmission, mail or hand delivery) setting forth the
name and address of the holder of the outstanding notes;
- the certificate number or numbers of such outstanding notes and the
principal amount of outstanding notes tendered, stating that the
tender is being made thereby, and guaranteeing that the certificates
for all physically tendered outstanding notes, in proper form for
transfer, or a book-entry confirmation, as the case may be, together
with a properly completed and duly executed Letter of Transmittal (or
a facsimile thereof or an agent's message in lieu thereof) with any
required signature guarantees, and all other documents required by the
Letter of Transmittal are received by the exchange agent within three
New York Stock Exchange trading days after the date of execution of
the Notice of Guaranteed Delivery; and
- the certificates for all physically tendered outstanding notes, in
proper form for transfer, or a book-entry confirmation, as the case
may be, together with a properly completed and duly executed Letter of
transmittal (or a facsimile thereof or an agent's message in lieu
thereof), with any required signature guarantees and any other
documents required by the Letter of Transmittal, that will be
deposited by the eligible institution with the exchange agent within
three New York Stock Exchange trading days after the date of execution
of the Notice of Guaranteed Delivery.
Withdrawal Rights
Except as otherwise provided herein, tendered notes may be withdrawn at any
time prior to the expiration of the offer.
To withdraw a tendered note, a written notice of withdrawal must be timely
received by the exchange agent at its address set forth herein. Any such notice
of withdrawal must:
(i) specify the name of the depositor having tendered the outstanding
note to be withdrawn;
(ii) include a statement that the depositor is withdrawing its
election to have outstanding note exchanged or purchased, and identify the
outstanding note to be withdrawn (including the certificate number or
numbers and principal amount of the outstanding note); and
(iii) where a certificate for the outstanding note has been
transmitted, specify the name in which such outstanding note is registered,
if different from that of the withdrawing holder.
If a certificate for the tendered note has been delivered or otherwise
identified to the exchange agent, then, prior to the release of such
certificates the withdrawing holder must also submit:
(i) the serial number of the particular certificate to be withdrawn;
and
(ii) signed notice of withdrawal with signatures guaranteed by an
eligible institution unless the holder is an eligible institution.
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<PAGE> 21
If outstanding notes have been tendered pursuant to the procedure for
book-entry transfer described above, any notice of withdrawal must specify the
name and number of the account at the book-entry transfer facility to be
credited with the withdrawn outstanding notes and otherwise comply with the
procedures of the facility.
We will determine all questions as to the validity, form and eligibility
(including time or receipt) for such withdrawal notices. Our determination shall
be final and binding on all parties.
Any outstanding notes so withdrawn will be considered not to have been
validly tendered for purposes of the exchange offer and no new notes will be
issued or purchase price paid with respect thereto unless the outstanding notes
so withdrawn are validly retendered.
Certain Conditions to the Exchange Offers
The exchange offer is subject only to the condition that they it does not
violate applicable law or any applicable interpretation of the staff of the
commission. We cannot assure you that this condition will be satisfied. Holders
of outstanding notes will have rights against Omnipoint under the registration
rights agreement should we and it fail to consummate the exchange offer for
Omnipoint's outstanding notes.
If we determine that we must terminate the exchange offer, as set forth
above, we may:
refuse to accept any outstanding notes and return any outstanding
notes that have been tendered;
extend the exchange and cash tender offers and retain all outstanding
notes tendered prior to the expiration date; or
waive a termination event with respect to the exchange and cash tender
offer and accept all properly tendered outstanding notes that have not been
withdrawn.
If the waiver would constitute a material change in the exchange and cash
tender offer, we will disclose that change through a supplement to this
prospectus that will be distributed to each registered holder of outstanding
notes. In addition, we will extend the exchange offers for a period of five to
ten business days, depending upon the significance of the waiver and the manner
of disclosure to the registered holders of the outstanding notes, if the
exchange offers would otherwise expire during such period.
Exchange Agent
HSBC Bank USA has been appointed as exchange agent for the exchange offer.
All executed Letters of Transmittal and written notices of withdrawal should be
directed to the exchange agent at one of the addresses set forth below.
Questions and requests for assistance and requests for additional copies of this
prospectus or of the Letter of Transmittal should be directed to the exchange
agent addressed as follows:
By Registered or Certified Mail, Overnight Courier or Hand:
HSBC Bank USA
140 Broadway -- Level A
New York, New York 10005-1180
Attention: Corporation Trust Operations
Facsimile: (212) 658-2292
Telephone: (212) 658-5931
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<PAGE> 22
DELIVERY OF THE LETTER OF TRANSMITTAL OR OF WRITTEN NOTICES OF WITHDRAWAL
TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA
FACSIMILE OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY OF
SUCH LETTER OF TRANSMITTAL.
Fees and Expenses
We will not make any payments to brokers, dealers or other persons
soliciting acceptances of the exchange offer.
The estimated cash expenses to be incurred in connection with the exchange
offer will be paid by us and are estimated to be $500,000.
Transfer Taxes
Holders who tender their outstanding notes for exchange will not be
obligated to pay any transfer taxes in connection with the exchange. However
holders who instruct us to register new notes in the name of, or request that
outstanding notes not tendered or not accepted in the exchange offer be returned
to, a person other than the registered tendering holder will be responsible for
the payment of any applicable transfer tax thereon.
THE COMPANY
We are a leading provider of personal communications services through
technology based on the wireless communications standard known as Global System
for Mobile Communications, commonly known as GSM. Our licenses, together with
licenses held by joint ventures in which we are an investor, cover 17 of the 25
largest markets in the continental United States and over 193 million persons.
Our company was incorporated in June 1999 as a Delaware corporation to act as
the parent company for the business combination of VoiceStream Wireless
Corporation, a Washington corporation ("VoiceStream Washington", now known as VS
Washington, Inc.), Omnipoint and Aerial Communications, Inc., a Delaware
corporation. On February 25, we became the parent company of both VS Washington
and Omnipoint. We are now the successor registrant of VoiceStream Washington.
Our business currently consists of the combined businesses of VS Washington and
Omnipoint and their subsidiaries. The shareholders of Aerial have approved
transactions through which we will also become the parent of Aerial. There can
be no assurance that the Aerial transactions will be completed. Upon completion
of those transactions, we will add the current business of Aerial to our
business. The combined businesses will have licenses that cover 23 of the 25
largest markets in the continental United States and over 222 million persons.
We are organized as a Delaware corporation with our principal executive
offices located at 3650 131st Avenue S.E., Bellevue, WA 98006. Our telephone
number is (425) 653-4600. Our common stock is traded on the Nasdaq Stock Market
under the symbol "VSTR."
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the deficiency of our actual earnings to our
actual fixed charges for the year ended December 31, 1995, 1996, 1997, 1998 and
1999, and the deficiency of our pro forma
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<PAGE> 23
earnings to our pro forma fixed charges for the year ended December 31, 1999,
adjusted to give effect to the mergers with Omnipoint and Aerial as if they
occurred on January 1, 1999.
<TABLE>
<CAPTION>
PRO FORMA ACTUAL
----------- ------------------------------------------------------
1999 1999 1998 1997 1996 1995
----------- --------- --------- --------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
Earnings (Loss)........... $(1,467,555) $(340,569) $(213,049) $(200,258) $(80,179) $(3,525)
Fixed Charges............. 510,119 116,654 43,017 67,557 11,371 603
----------- --------- --------- --------- -------- -------
Deficiency................ $(1,977,674) $(457,223) $(256,066) $(267,815) $(91,550) $(4,128)
=========== ========= ========= ========= ======== =======
</TABLE>
USE OF PROCEEDS
We will not receive any cash proceeds from the issuance of our new notes in
the exchange offer.
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<PAGE> 24
DESCRIPTION OF THE NOTES
The Notes will be issued under an Indenture (the "Indenture") to be entered
into between VoiceStream Wireless Corporation (the "Company"), as issuer, and
HSBC Bank USA, as Trustee (the "Trustee"). The terms of the Indenture will also
be governed by certain provisions contained in the Trust Indenture Act of 1939,
as amended. The following summary contains a description of all of the material
provisions of the Indenture but does not purport to be complete and is subject
to, and is qualified in its entirety by reference to, all the provisions of the
Indenture, including the definitions of certain terms therein. A copy of the
Indenture is available upon request. For definitions of certain capitalized
terms used in the following summary, see "Certain Definitions."
GENERAL
The Notes will be senior, unsecured, general obligations of the Company,
limited to $205 million aggregate principal amount and will mature on September
15, 2009. Interest on the Notes will accrue at the rate of 11.50% per annum from
the date of original issuance or from the most recent interest payment date to
which interest has been paid or provided for, payable semiannually (to Holders
of record at the close of business on the March 1 or September 1 immediately
preceding the interest payment date) on March 15 and September 15 of each year,
commencing March 15, 2000. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
Principal of, premium and interest on the Notes will be payable at the
office or agency of the Company in the Borough of Manhattan, the City of New
York (which initially will be the corporate trust office of the Trustee at 140
Broadway, New York, NY 10005, Attention: Corporate Trust Administration). At the
option of the Company, payment of interest may be made by check mailed to the
address of the Holder as such address appears in the Security Register, provided
that all payments with respect to Global Notes (as defined), and Certificated
Securities (as defined), the Holders of which have given wire transfer
instructions to the Company, will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
The Notes will be issued only in registered form, without coupons, in
denominations of $1,000 and integral multiples thereof.
RANKING
The Indebtedness evidenced by the Notes will rank pari passu in right of
payment with all existing and future unsubordinated indebtedness of the Company
and senior in right of payment to all existing and future subordinated
indebtedness of the Company. The Company is permitted under the Indenture to
secure such indebtedness. The Notes will be effectively subordinated to such
security interests to the extent of such security interests. In addition, all
existing and future liabilities (including trade payables) of the Company's
subsidiaries will be effectively senior to the Notes.
OPTIONAL REDEMPTION
The Notes will be redeemable, at the Company's option, in whole or in part,
at any time or from time to time, on or after September 15, 2004 and prior to
maturity, upon not less than 30 nor more than 60 days' prior notice mailed by
first class mail to each Holder's last address as it appears in the Security
Register, at the redemption prices (expressed in percentages of principal
amount) set forth below, plus accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant regular record date
that is prior to the redemption date to receive interest due
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<PAGE> 25
on an interest payment date), if redeemed during the 12-month period commencing
September 15, of the years set forth below:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
- ---- ----------
<S> <C>
2004........................................................ 105.750%
2005........................................................ 103.833%
2006........................................................ 101.917%
2007 and thereafter......................................... 100.000%
</TABLE>
In addition, at any time prior to September 15, 2002, the Company may
redeem up to 35% of the aggregate principal amount of the Notes originally
issued, at any time as a whole or from time to time in part, with the proceeds
of one or more Public Equity Offerings or sales of Capital Stock (other than
Redeemable Stock) to one or more Strategic Equity Investors, each such Public
Equity Offering or sale to Strategic Equity Investors resulting in Net Cash
Proceeds of $50 million or more, at a redemption price (expressed as a
percentage of principal amount) of 111.50%, provided that after any such
redemption at least 65% of the aggregate principal amount of Notes originally
outstanding remains outstanding and each such redemption is effected not more
than 60 days after the consummation of such Public Equity Offering or sale to
Strategic Equity Investors.
If less than all of the Notes are to be redeemed at any time, the Trustee
will select the Notes, or portions thereof, for redemption in compliance with
the requirements of the principal national securities exchange, if any, on which
the Notes are listed or, if the Notes are not listed on a national securities
exchange, on a pro rata basis, by lot or by such other method as the Trustee in
its sole discretion shall deem to be fair and appropriate, provided that no Note
of $1,000 in principal amount or less shall be redeemed in part. If any Note is
to be redeemed in part only, the notice of redemption relating to such Note
shall state the portion of the principal amount thereof to be redeemed. A new
Note in principal amount equal to the unredeemed portion thereof will be issued
in the name of the Holder thereof upon cancellation of the old Note.
COVENANTS
The Indenture will contain, among others, the following covenants:
LIMITATION ON INDEBTEDNESS
The Company will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (including Acquired Debt), provided,
however, that the Company may Incur Indebtedness and any of its Restricted
Subsidiaries may issue shares of Redeemable Stock if (i) no Default or Event of
Default shall have occurred and be continuing, and (ii)(A) the Consolidated
Leverage Ratio is no greater than 7 to 1, for any Incurrence from the Closing
Date through the fifth anniversary of the Closing Date, or 6 to 1 thereafter or
(B) with respect to Indebtedness Incurred under this clause (B), the aggregate
principal amount of all Indebtedness so Incurred and outstanding is in an
aggregate principal amount that does not exceed 1.4 times the aggregate Net Cash
Proceeds received by the Company after September 23, 1999 from the issuance and
sale (other than to a Subsidiary) of Capital Stock (other than Redeemable
Stock), other than (x) proceeds to the extent relied upon to permit the making
of one or more Restricted Payments in compliance with the "Limitation on
Restricted Payment" covenant and (y) proceeds to the extent relied upon to
permit the making of one or more Permitted Investments pursuant to clause (v) of
the definition of that term.
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Notwithstanding the foregoing, as long as no Default or Event of Default
shall have occurred and be continuing, the Company and (except as specified
below) any Restricted Subsidiary may issue or Incur each and all of the
following: (i) Indebtedness due and owing to government entities in connection
with telecommunications license fees or Indebtedness incurred to finance the
payment of deposits with and license fees to the FCC in connection with FCC
license auctions; (ii) Indebtedness Incurred by the Company or any Restricted
Subsidiary the proceeds of which are (or the credit support provided by any such
Indebtedness is) used to finance the development, construction, expansion or
operation of Telecommunications Assets; (iii) Indebtedness Incurred by the
Company or any Restricted Subsidiary the proceeds of which are (or the credit
support provided by any such Indebtedness is) used to finance the acquisition of
Telecommunications Assets or the Capital Stock of a Telecommunications Business;
(iv) Indebtedness outstanding as of the Closing Date; (v) Indebtedness under one
or more revolving credit or working capital facilities in an aggregate principal
amount outstanding or available at any time not to exceed $500 million; (vi)
Indebtedness owed to the Company or any of its Restricted Subsidiaries, provided
that any subsequent issuance or transfer of any Capital Stock which results in
any such Restricted Subsidiary owed such Indebtedness ceasing to be a Restricted
Subsidiary or any subsequent transfer of such Indebtedness (other than to the
Company or another Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Indebtedness; (vii) Indebtedness issued in
exchange for, or the net proceeds of which are used to refinance or refund, then
outstanding Indebtedness, other than Indebtedness Incurred under clauses (v) and
(viii) of this paragraph, and any refinancings thereof in an amount not to
exceed the amount so refinanced or refunded (plus premiums, accrued interest,
fees and expenses), provided that (x) Indebtedness Incurred to refinance or
refund the Notes or other Indebtedness does not have a higher relative seniority
to the Notes than the Indebtedness being refinanced or refunded, (y) the Average
Life of such new Indebtedness is at least equal to the remaining Average Life of
the Indebtedness to be refinanced or refunded and (z) Indebtedness Incurred to
refinance Indebtedness of the Company may not be Incurred by any Restricted
Subsidiary; (viii) Indebtedness (A) in respect of performance, surety or appeal
bonds provided in the ordinary course of business, (B) under Currency Agreements
and Interest Rate Agreements, provided that such agreements do not increase the
Indebtedness of the obligor outstanding at any time other than as a result of
fluctuation or interest rates or by reason of fees, indemnities and compensation
payable thereunder or (C) arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations Incurred in connection with
the disposition of any business, assets or Restricted Subsidiary of the Company
in a principal amount not to exceed the gross proceeds actually received by the
Company or any Restricted Subsidiary in connection with such disposition; and
(ix) Indebtedness represented by the Notes.
Notwithstanding any other provision of this "Limitation on Indebtedness"
covenant, the maximum amount of Indebtedness that the Company or a Restricted
Subsidiary, may Incur pursuant to this "Limitation on Indebtedness" covenant
shall not be deemed to be exceeded due solely to the result of fluctuations in
the exchange rates of currencies.
For purposes of determining any particular amount of Indebtedness under
this "Limitation on Indebtedness" covenant, (i) Guarantees, Liens or obligations
with respect to letters of credit supporting Indebtedness otherwise included in
the determination of such particular amount shall not be included and (ii) any
Liens granted pursuant to the equal and ratable provisions referred to in the
"Limitation on Liens" covenant described below shall not be treated as
Indebtedness. For purposes of determining compliance with this "Limitation on
Indebtedness" covenant, in the event that an item of Indebtedness meets the
criteria of more than one of the types of Indebtedness described in the above
clauses or would be entitled to be Incurred pursuant to the first paragraph of
this covenant, the Company, in its sole discretion, shall classify, and from
time to time may reclassify (in whole or in part), such item of Indebtedness in
any manner that complies with this covenant. Accrual of interest,
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accretion of accreted value and the payment of interest in kind or the payment
of dividends on Redeemable Stock in kind will not be deemed an Incurrence of
Indebtedness or the issuance of Redeemable Stock for purpose of this covenant.
LIMITATION ON RESTRICTED PAYMENTS
The Company will not, and will not permit any Restricted Subsidiary, to,
directly or indirectly, (i) declare or pay any dividend or make any distribution
on its Capital Stock (other than dividends or distributions payable solely in
shares of its or such Restricted Subsidiary's Capital Stock (other than
Redeemable Stock) or in options, warrants or other rights to acquire such shares
of Capital Stock) held by Persons other than (a) the Company, (b) any of its
Restricted Subsidiaries, or (c) any other shareholder of such Restricted
Subsidiaries (so long as the Company and its Restricted Subsidiaries receive
their pro rata share of such dividend or distribution based on their ownership
of such class or series of such Restricted Subsidiaries Capital Stock on which
such dividend or distribution is being made), (ii) purchase, redeem, retire or
otherwise acquire for value any shares of Capital Stock of the Company or an
Unrestricted Subsidiary (including options, warrants or other rights to acquire
such shares of Capital Stock) held by any Person (other than the Company or a
Restricted Subsidiary), (iii) purchase, redeem, defease, retire or otherwise
acquire for value any Indebtedness subordinate to the Notes prior to any
scheduled maturity, repayment or sinking fund payment, or (iv) make any
Investment, other than a Permitted Investment, in any Person (such payments or
any other actions described in clauses (i) through (iv) being collectively
"Restricted Payments") unless, at the time of, and after giving effect to, the
proposed Restricted Payment: (A) no Default or Event of Default shall have
occurred and be continuing, (B) the Company would be permitted to incur
additional Indebtedness pursuant to the first paragraph of the covenant
"Limitation on Indebtedness" and (C) the aggregate amount expended for all
Restricted Payments (the amount so expended, if other than in cash, to be
determined in good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution) after the date of the Indenture
shall not exceed the sum of (1) the amount by which Consolidated EBITDA exceeds
1.5 times Consolidated Interest Expense for the period from the Closing Date
through the end of the last completed fiscal quarter for which financial
statements are available plus (2) 100% of the aggregate Net Cash Proceeds
received by the Company on or after the Closing Date from the issuance and sale
of its Capital Stock (other than Redeemable Stock) to a Person who is not a
Subsidiary of the Company, or from the issuance to a Person who is not a
Subsidiary of the Company of any options, warrants or other rights to acquire
Capital Stock (other than Redeemable Stock) of the Company, or from the issuance
and sale of convertible debt securities of the Company to the extent converted
into Capital Stock (other than Redeemable Stock of the Company) (except, in any
of the foregoing cases, to the extent such Net Cash Proceeds are used to Incur
Indebtedness pursuant to clause (ii)(B) of the first paragraph of the
"Limitation on Indebtedness" covenant), plus (3) an amount equal to the net
reduction in Investments made by the Company or a Restricted Subsidiary after
the Closing Date in any Person resulting from (x) payments of interest on debt,
dividends, repayment of loans or advances, or other transfers or distributions
of property, in each case to the Company or any Restricted Subsidiary from any
Person, (y) to the extent that an Investment is sold for cash or otherwise
liquidated or repaid for cash, the after-tax cash return of capital with respect
to such Investment (less the cost of disposition, if any) and (z) the
redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary,
provided that in each of the foregoing cases, the aggregate amount of the net
reduction in Investments will not be deemed to exceed the amount of such
Investments previously made by the Company and its Restricted Subsidiaries in
such Person or Unrestricted Subsidiary which were treated as Restricted
Payments.
The foregoing provision shall not be violated by reason of (i) the payment
of any dividend within 60 days after the date of declaration thereof if, at said
date of declaration such payment would
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comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance
or other acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Notes (including, premium, if any, and
accrued and unpaid interest) with the proceeds of, or in exchange for,
Indebtedness incurred under clause (vii) of the second paragraph of the
"Limitation on Indebtedness" covenant; (iii) the repurchase, redemption or other
acquisition of Capital Stock (or any options, warrants or other rights to
acquire, or out of the proceeds of a substantially concurrent offering of,
shares of Capital Stock) of the Company or any Restricted Subsidiary or any
other Person in exchange for shares of Capital Stock (other than Redeemable
Stock) of the Company; (iv) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness of the Company which is
subordinated in right of payment to the Notes in exchange for, or out of the
proceeds of a substantially concurrent offering of shares of the Capital Stock
of the Company (other than Redeemable Stock); (v) payments or distributions to
dissenting stockholders pursuant to applicable law in connection with a
consolidation, merger or transfer of assets that complies with the provisions of
the Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the property and assets of the Company; (vi) the
distribution to shareholders of the Company or any Restricted Subsidiary of
shares of Capital Stock of any Unrestricted Subsidiary or the distribution to
shareholders of the Company of shares of Capital Stock of any Subsidiary holding
only the assets of the Company's technology business, provided that in such
latter case, after giving effect to such transaction on a pro forma basis, (x)
the Company would be permitted to incur additional indebtedness pursuant to the
first paragraph of the covenant "Limitation on Indebtedness" or (y) the
Company's Annualized Consolidated EBITDA would not decrease, provided, further,
in such latter case, that such Subsidiary has working capital not in excess of
$5 million; (vii) the purchase, redemption, acquisition, cancellation or other
retirement for value of shares of Capital Stock of the Company to the extent
required by FCC rules in order to prevent the loss or secure the renewal or
reinstatement of any license or franchise held by the Company or any Restricted
Subsidiary, (viii) the repurchase of Indebtedness subordinated to the Notes at a
purchase price not greater than 101% of the principal (or accreted) amount
thereof, plus accrued and unpaid interest, if any, pursuant to a mandatory offer
to repurchase made after a Change of Control provided that the Company shall
first have made any Offer to Purchase (and repurchased all tendered Notes)
pursuant to the "Repurchase of Notes Upon a Change of Control" covenant; and
(ix) to the extent that Indebtedness Guaranteed pursuant to clause (x) of the
second paragraph of the "Limitation on Debt" covenant has been contributed to
the capital of or loaned to the Company, the payment of dividends or
distributions by the Company in an amount sufficient to repay such Indebtedness
(to the extent of the Guarantee) in accordance with its terms; provided that
except in the case of clause (i) and (ix) of this paragraph no Default or Event
of Default shall have occurred and be continuing or occur as a consequence of
the actions or payments set forth therein. Each Restricted Payment permitted
pursuant to this paragraph (other than the Restricted Payment referred to in
clauses (ii) and (ix) hereof) and each payment pursuant to clause (vi) of the
definition of Permitted Investment shall be included in calculating the
aggregate amount of Restricted Payments for purposes of clause (C) of the first
paragraph of this "Limitation on Restricted Payments."
Any Investment in a Subsidiary that becomes an Unrestricted Subsidiary
shall become a Restricted Payment made on such date in the amount of the greater
of (x) the book value of such Subsidiary on the date such Subsidiary becomes an
Unrestricted Subsidiary and (y) the fair market value of such Subsidiary on such
date as determined (A) in good faith by the Board of Directors if such fair
market value is determined to be less than $10 million and (B) by an investment
banking firm of national standing with high yield underwriting expertise if such
fair market value is determined to be in excess of $10 million. Any Restricted
Payment made by contribution or transfer of assets shall be valued in the amount
of the greater of (x) the book value of such asset on the date of transfer or
(y) the fair market value on such date as determined (A) in good faith by the
Board of Directors if such fair market value is determined to be less than $10
million and (B) by an
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investment banking firm of national standing with high yield underwriting
expertise if such fair market value is determined to be in excess of $10
million.
Not later than the date of making any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which any calculations
required by the "Limitation on Restricted Payments" covenant were computed,
which calculations may be based upon the Company's latest available financial
statements.
LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES
The Company will not, and will not permit any Restricted Subsidiary to
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions permitted by
applicable law on any Capital Stock of such Restricted Subsidiary owned by the
Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to
the Company or any other Restricted Subsidiary, (iii) make loans or advances to
the Company or any other Restricted Subsidiary or (iv) transfer any of its
property or assets to the Company or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions: (i) existing on the Closing Date in the Indenture or any other
agreements in effect on the Closing Date and any extensions, refinancings,
renewals or replacements of such agreements, provided that the encumbrances and
restrictions in any such extensions, refinancings, renewals or replacements are
no less favorable in any material respect to the Holders than those encumbrances
or restrictions that are then in effect and that are being extended, refinanced,
renewed or replaced; (ii) existing under or by reason of applicable law, (iii)
existing with respect to any Person or the property or assets of such Person
acquired by the Company or any Restricted Subsidiary and existing at the time of
such acquisition, which encumbrances or restrictions are not applicable to any
Person or the property or assets of any Person other than such Person or the
property or assets of such Person so acquired; (iv) in the case of clause (iv)
of the first paragraph of this "Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries" covenant, (A) that restrict in a
customary manner the subletting, assignment or transfer of any property or asset
that is a license or contract or (B) existing by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any property
or assets of the Company or any Restricted Subsidiary not otherwise prohibited
by the Indenture; or (v) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock of, or property and assets of
such Restricted Subsidiary.
Nothing contained in this "Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries" covenant shall prevent the
Company or any Restricted Subsidiary from (1) creating, incurring, assuming or
suffering to exist any Liens otherwise permitted in the "Limitation on Liens"
covenant, (2) restricting the sale or other disposition of property or assets of
the Company or any of its Restricted Subsidiaries that secure Indebtedness of
the Company or any of its Restricted Subsidiaries, or (3) restricting the
payment of dividends or distributions or other disposition of property or assets
of or the making of loans by any Restricted Subsidiary in connection with any
financing for the Telecommunications Business of such Restricted Subsidiary,
provided that in the case of clause (3) such restriction may be entered into
only if at such time the total amount, without duplication, of (i) Mirror
Indebtedness owed by Restricted Subsidiaries, less (ii) proceeds of such Mirror
Indebtedness that are invested in another Person, other than (x) Investments in
other Restricted Subsidiaries conducting no operations other than the holding of
government licenses or
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(y) Investments in Mirror Indebtedness of other Restricted Subsidiaries, plus
(iii) capital contributions to the Special Subsidiary, plus (iv) the cash and
Temporary Cash Investments held by the Company (not on a consolidated basis),
equals or exceeds the outstanding principal amount of the Notes and all other
Indebtedness outstanding on the Closing Date that ranks equally with the Notes.
LIMITATION ON TRANSACTIONS WITH STOCKHOLDERS AND AFFILIATES
Except for any agreement entered into on or before the Closing Date, the
Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into, renew or extend any transaction (including, without
limitation, the purchase, sale, lease or exchange of property or assets, or the
rendering of any service) with any holder (or any Affiliate of such holder) of
10% or more of any Voting Stock of the Company or with any Affiliate of the
Company or any Restricted Subsidiary, except upon fair and reasonable terms no
less favorable to the Company or such Restricted Subsidiary than could be
obtained, at the time of such transaction or at the time of the execution of the
agreement providing therefor, in a comparable arm's-length transaction with a
Person that is not such a holder or an Affiliate.
In addition to the foregoing, transactions with any holder (or any
Affiliate of such holder) of 10% or more of any Voting Stock (i) having a fair
market value or involving payments equal to or in excess of $5 million shall be
approved by a majority of the disinterested members of the Board of Directors
and (ii) having a fair market value or involving payments equal to or in excess
of $10 million shall require the Company or a Restricted Subsidiary to deliver
to the Trustee a written opinion of a nationally recognized investment banking
firm stating that the transaction is fair to the Company or such Restricted
Subsidiary from a financial point of view. The foregoing limitation shall not
apply to (i) any transaction between the Company and any of its Restricted
Subsidiaries or between Restricted Subsidiaries; (ii) the payment of reasonable
and customary regular fees to directors of the Company who are not employees of
the Company and any employment agreement entered into by the Company or any
Restricted Subsidiary in the ordinary course of business; (iii) any Restricted
Payments not prohibited by the "Limitation on Restricted Payments" covenant;
(iv) any transaction pursuant to an agreement to which the Company or any
Restricted Subsidiary is a party and in effect on the Closing Date, (v)
commercial or technical agreements customary in the industry (as determined by
the Board of Directors) in which the Company and its Restricted Subsidiaries are
engaged and entered into in the ordinary course of business between the Company
and any joint venture (regardless of organizational form) in which the Company
has a substantial economic interest, (vi) solely with respect to the requirement
that the Company obtain a fairness opinion, Guarantees of Indebtedness pursuant
to clause (x) of the second paragraph of the "Limitation on Indebtedness"
covenant, (vii) loans or advances to officers or employees of the Company or any
of its Restricted Subsidiaries to pay business related travel expenses or
reasonable relocation costs of such officers or employees in connection with
their employment by the Company or any of its Restricted Subsidiaries, and
(viii) payments and other transactions required under or contemplated by any
agreement in effect on the February 25, 2000 and disclosed in the Company's
filings with the Commission before that date (or that were not required to be
disclosed pursuant to the rules and regulations of the Commission) or any
ordinary course commercial agreement in effect at the time an entity becomes a
Restricted Subsidiary or is merged into the Company (and not entered into in
anticipation of such acquisition) or any amendment thereto or replacement of
such agreement so long as any such amendment or replacement is not
disadvantageous to the holders of the Notes in any material respect.
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<PAGE> 31
LIMITATION ON LIENS
The Company will not, and will not permit any Restricted Subsidiary to,
create, incur, assume or suffer to exist any Lien on any of its assets or
properties of any character, or any shares of Capital Stock or Indebtedness of
any Restricted Subsidiary, without making effective provision for all of the
Notes and all other amounts due under the Indenture to be directly secured
equally and ratably with (or, if the obligation or liability to be secured by
such Lien is subordinated in right of payment to the Notes, prior to) the
obligation or liability secured by such Lien. The foregoing limitation does not
apply to (i) Liens existing on the Closing Date; (ii) Liens granted after the
Closing Date on any assets or Capital Stock of the Company or its Restricted
Subsidiaries created in favor of the Holders; (iii) Liens with respect to the
assets of a Restricted Subsidiary granted by such Restricted Subsidiary to the
Company or a Restricted Subsidiary to secure Indebtedness owing to the Company
or such other Restricted Subsidiary, (iv) Liens securing obligations under
revolving credit or working capital facilities under clause (v) of the second
paragraph of the "Limitation on Indebtedness" covenant, provided that the
aggregate amount of Indebtedness secured by any such Liens shall not at any time
exceed the amount of Indebtedness permitted to be Incurred under clause (v) of
the second paragraph of the "Limitation on Indebtedness" covenant; (v) Liens
securing Indebtedness under clauses (i), (ii), (iii) or (x) of the second
paragraph of the "Limitation on Indebtedness" covenant granted on or after the
Closing Date on the Capital Stock or assets of any Restricted Subsidiary,
including any Lien granted in connection with a refinancing thereof; (vi) Liens
on telecommunications licenses securing obligations to government entities;
(vii) Liens on property of a person existing at the time such person is merged
into, or the assets of such person are acquired by, the Company or any
Restricted Subsidiary, provided that such Liens were in existence prior to the
contemplation of such merger or acquisition and do not secure any property or
assets of the Company or any of its Restricted Subsidiaries other than the
property or assets subject to the Liens prior to such merger or acquisition;
(viii) Permitted Liens; or (ix) Liens in addition to those set forth above,
provided that such Liens secure only Indebtedness of the Company and its
Restricted Subsidiaries and, at the time of determination, the aggregate amount
of such Indebtedness then outstanding shall not exceed 5% of the Company's
consolidated total assets as reflected on its most recent publicly available
consolidated balance sheet.
LIMITATION ON SALE-LEASEBACK TRANSACTIONS
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any sale and leaseback transactions (except between or among the
Company and one or more of its direct or indirect wholly owned Restricted
Subsidiaries) unless (A) the Company or that Restricted Subsidiary could have
(x) incurred Indebtedness in an amount equal to the Attributable Debt relating
to such sale and leaseback transaction under the "Limitation on Indebtedness"
covenant and (y) incurred a Lien to secure such Indebtedness under the
"Limitation on Liens" covenant; (B) the gross cash proceeds of that sale and
leaseback transaction are at least equal to the fair market value, as determined
in good faith by the Board of Directors and set forth in an officer's
certificate delivered to the Trustee, of the property that is the subject of the
sale and leaseback transaction; and (z) the Company applies the proceeds of the
sale and leaseback transaction in compliance with the "Limitation on Asset
Sales" covenant.
LIMITATION ON ASSET SALES
The Company will not, and will not permit any Restricted Subsidiary to,
consummate any Asset Sale, unless (i) the consideration received by the Company
or such Restricted Subsidiary is at least equal to the fair market value of the
assets sold or disposed of and (ii) at least 75% of the consideration received
consists of cash or Temporary Cash Investments, provided, however, that the
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amount of (x) any liabilities of the Company or any Restricted Subsidiary that
are assumed by the transferee of any such assets and (y) any notes or other
obligations received by the Company or any such Restricted Subsidiary from such
transferee that are immediately converted by the Company or such Restricted
Subsidiary into cash, shall be deemed to be Temporary Cash Investments (to the
extent of the Temporary Cash Investments received in such conversion) for the
purposes of this clause (ii). In the event and to the extent that the Net Cash
Proceeds received by the Company or any of its Restricted Subsidiaries from one
or more Asset Sales occurring after the Closing Date in any period of twelve
consecutive months exceed $5 million, then the Company shall or shall cause the
relevant Restricted Subsidiary to (1) within twelve months after the date Net
Cash Proceeds so received exceed such an amount (a) apply an amount equal to
such excess Net Cash Proceeds to permanently repay Indebtedness of the Company
or any Restricted Subsidiary or (b) invest an equal amount, or the amount not so
applied pursuant to clause (a) (or enter into a definitive agreement committing
to so invest within twelve months after the date of such agreement), in
Telecommunications Assets (or in a company engaged in a Telecommunications
Business) and/or (2) apply (no later than the end of the twelve-month period
referred to in clause (1)) such excess Net Cash Proceeds (to the extent not
applied pursuant to clause (1)) as provided in the following paragraph of this
"Limitation on Asset Sales" covenant. The amount of such excess Net Cash
Proceeds required to be applied (or to be committed to be applied) during such
twelve month period as set forth in clause (1) of the preceding sentence and not
applied as so required by the end of such period shall constitute "Excess
Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
"Limitation on Asset Sales" covenant equals or exceeds $5 million, the Company
must commence, not later than the fifteenth Business Day of such month, and
consummate an Offer to Purchase from the Holders on a pro rata basis with the
holders of any other Indebtedness of the Company ranking equally with the Notes
and entitled at the time to receive a comparable Offer to Purchase an aggregate
principal amount of Notes and such other Indebtedness equal to the Excess
Proceeds on such date, at a purchase price equal to 100% of the principal amount
of the Notes, plus, in each case accrued interest (if any) to the Payment Date.
Notwithstanding the foregoing, to the extent that any amount of Excess Proceeds
remains after completion of any such Offer to Purchase, the Company may use such
remaining amount for general corporate purposes and the amount of Excess
Proceeds shall be reset to zero.
LIMITATION ON THE ISSUANCE AND SALE OF CAPITAL STOCK OF RESTRICTED
SUBSIDIARIES
The Company (a) will not permit any Restricted Subsidiary to issue any
Capital Stock (other than to the Company or a Restricted Subsidiary) and (b)
will not permit any Person (other than the Company or a Restricted Subsidiary)
to own any Capital Stock of any Restricted Subsidiary, provided, however, that
this covenant will not prohibit (i) the sale or other disposition of all of the
issued and outstanding Capital Stock of any Restricted Subsidiary owned by the
Company or any Restricted Subsidiary in compliance with the other provisions of
the Indenture; (ii) the ownership by directors of director's qualifying shares
of Capital Stock of any Restricted Subsidiary, to the extent mandated by
applicable law; (iii) the ownership of Capital Stock of a Restricted Subsidiary
issued and outstanding either (A) as of the Closing Date or (B) prior to the
time that such Person becomes a Restricted Subsidiary so long as such Capital
Stock was not issued in contemplation of such Person's becoming a Restricted
Subsidiary of the Company or otherwise being acquired by the Company; (iv) the
issuance of Capital Stock of a Restricted Subsidiary pursuant to an employee
stock option plan approved by the Boards of Directors of the Restricted
Subsidiary and the Company; or (v) the issuance or sale of Capital Stock of a
Restricted Subsidiary in a transaction not prohibited by the covenant entitled
"Limitation on Asset Sales", provided that such Restricted Subsidiary will
remain a Restricted Subsidiary, and only if at the time of such sale, the total
amount, without
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duplication, of (i) Mirror Indebtedness owed by Restricted Subsidiaries, less
(ii) proceeds of such Mirror Indebtedness that are invested in another Person,
other than (x) Investments in other Restricted Subsidiaries conducting no
operations other than the holding of government licenses or (y) Investments in
Mirror Indebtedness of other Restricted Subsidiaries, plus (iii) capital
contributions to the Special Subsidiary, plus (iv) the cash and Temporary Cash
Investments held by the Company (not on a consolidated basis), equals or exceeds
the outstanding principal amount of the Notes.
LIMITATION ON GUARANTEES OF INDEBTEDNESS BY RESTRICTED SUBSIDIARIES
The Company will not permit any Restricted Subsidiary to Guarantee or
assume the payment of any Indebtedness of the Company (other than Indebtedness
described in clause (x) of the second paragraph of the "Limitation on
Indebtedness" covenant), unless (i) (A) such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture providing for a
Guarantee of payment of the Notes by such Restricted Subsidiary and (B) with
respect to any Guarantee of Subordinated Indebtedness of the Company by such
Restricted Subsidiary, any such Guarantee shall be subordinated to such
Restricted Subsidiary's Guarantee with respect to the Notes at least to the same
extent as such Subordinated Indebtedness is subordinated to the Notes and (ii)
such Restricted Subsidiary waives any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Guarantee until the Notes have been paid in full. The incurrence by a Restricted
Subsidiary as a primary obligor of any Indebtedness that is guaranteed by the
Company will not be deemed a Guarantee of the Company's Indebtedness for
purposes of this covenant.
Notwithstanding the foregoing, any Guarantee of the relevant Notes or
waiver of rights created pursuant to the provisions described in the foregoing
paragraph will provide by their terms that they will be automatically and
unconditionally released and discharged upon the release by the holders of the
Indebtedness of the Company described in the preceding paragraph of their
Guarantee by such Restricted Subsidiary (including any deemed release upon
payment in full of all obligations under such Indebtedness, except by or as a
result of payment under such Guarantee), at a time when (A) no other
Indebtedness of the Company has been Guaranteed by such Restricted Subsidiary or
(B) the holders of all such other Indebtedness which is Guaranteed by such
Restricted Subsidiary also release their Guarantee by such Restricted Subsidiary
(including any deemed release upon payment in full of all obligations under such
Indebtedness, except by or as a result of payment under such Guarantee).
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company shall not consolidate with, merge with or into, or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to, any Person or permit any
Person to merge with or into the Company unless: (i) the Company shall be the
continuing Person or the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that acquired or leased
such property and assets of the Company shall be a corporation organized and
validly existing under the laws of the United States of America or any
jurisdiction thereof and shall expressly assume by a supplemental indenture,
executed and delivered to the Trustee, all of the obligations of the Company on
all of the Notes and under the Indenture; (ii) immediately after giving effect
to such transaction, no Default or Event of Default shall have occurred and be
continuing; and (iii) immediately after giving effect to such transaction on a
pro forma basis, either (A) the Consolidated Net Worth of the Company or any
entity or person formed by or surviving any such consolidation or merger, or to
which such sale, assignment, transfer, lease,
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conveyance or other disposition will have been made will be at least equal to
the Consolidated Net Worth of the Company before such transaction or (B) the
Company would be able to incur $1.00 of Indebtedness under the first paragraph
of the "Limitation on Indebtedness" covenant.
LIMITATION ON MIRROR INDEBTEDNESS
The Company will not forgive principal of or interest on Mirror
Indebtedness, or reduce the interest payable thereon, unless the remaining
principal amount of Mirror Indebtedness owed by Restricted Subsidiaries to the
Company, plus cash and Temporary Cash Investments held by the Company (not on a
consolidated basis), equals or exceeds the outstanding principal amount of the
Notes. The Company shall not need to maintain Mirror Indebtedness if the
conditions requiring Mirror Indebtedness no longer exist.
COMMISSION REPORTS AND REPORTS TO HOLDERS
The Company shall file with the Commission the annual, quarterly and other
reports and other information required by Section 13(a) or 15(d) of the Exchange
Act, regardless of whether such sections of the Exchange Act are applicable to
the Company. If the Commission will not accept such filings, the Company shall
mail or cause to be mailed copies of such reports to Holders and the Trustee
within 15 days after the date it would have been required to file such reports
with the Commission had it been subject to such sections; provided, however,
that the copies of such reports mailed to Holders may omit exhibits, which the
Company will supply to any Holder at such Holder's request.
REPURCHASE OF NOTES UPON A CHANGE OF CONTROL
The Company shall commence, within 30 days of the occurrence of a Change of
Control Event, and consummate an Offer to Purchase for all Notes then
outstanding, at a purchase price equal to 101% of the principal amount thereof,
plus accrued interest to the Payment Date.
There can be no assurances that the Company will have sufficient funds
available or required consents at the time of any Change of Control Event to
make any debt payment (including repurchases of Notes) required by the foregoing
covenant (as well as may be contained in other securities of the Company which
might be outstanding at the time).
LIMITATION ON ACTIVITIES OF THE SPECIAL SUBSIDIARY
The Company shall not permit the Special Subsidiary to conduct any business
or operations other than the making of Temporary Cash Investments and
investments in Mirror Indebtedness of Restricted Subsidiaries, the holding of
Temporary Cash Investments, Mirror Indebtedness and cash and the payment of
dividends or distributions to the Company. Without limiting the foregoing, the
Company shall not permit the Special Subsidiary to make any Investment (other
than Temporary Cash Investments and investments in Mirror Indebtedness of
Restricted Subsidiaries), make any Restricted Payment, Incur any Indebtedness,
or issue any Equity Interest or Capital Stock except to the Company. The Company
shall not sell any Equity Interest or Capital Stock of the Special Subsidiary or
designate the Special Subsidiary an Unrestricted Subsidiary.
EVENTS OF DEFAULT
The following events will be defined as "Events of Default" in the
Indenture: (a) defaults in the payment of principal of (or premium, if any, on)
any Note when the same becomes due and payable
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at maturity, upon acceleration, redemption or otherwise; (b) defaults in the
payment of interest on any Note when the same becomes due and payable, and such
default continues for a period of 30 days; (c) defaults in the performance or
breach of the provisions of the Indenture applicable to mergers, consolidations
and transfers of all or substantially all of the property and assets of the
Company or the failure to make or consummate an Offer to Purchase in accordance
with the provisions of the "Limitation on Asset Sales" covenant or the
"Repurchase of Notes upon a Change of Control" covenant; (d) defaults in the
performance of or breaches of any covenant or agreement of the Company in the
Indenture or under the Notes (other than a default specified in clause (a), (b)
or (c) above) and such default or breach continues for a period of 30
consecutive days after written notice by the Trustee or the Holders of 25% or
more in aggregate principal amount of the Notes; (e) there occurs with respect
to any issue or issues of Indebtedness of the Company or any Significant
Subsidiary having an outstanding principal amount greater than $10 million in
the aggregate for all such issues of all such Persons, whether such Indebtedness
now exists or shall hereafter be created, (i) an event of default that has
caused the holder thereof to declare such Indebtedness to be due and payable
prior to its Stated Maturity and/or (ii) the failure to make a principal payment
and such defaulted payment shall not have been made, waived or extended within
30 days of such payment default; (f) any final judgment or order (not covered by
insurance or indemnification by a Person other than the Company or a Restricted
Subsidiary, which indemnity party is solvent and has acknowledged
responsibility) (treating any deductibles, self-insurance or retention as not so
covered) for the payment of money greater than $10 million in the aggregate for
all such final judgments or orders shall be rendered against the Company or any
Significant Subsidiary and shall not be paid or discharged or bonded over, and
there shall be any period of 30 consecutive days following entry of the final
judgment or order that causes the aggregate amount for all such final judgments
or orders outstanding and not paid or discharged or bonded over to exceed $10
million during which a stay of enforcement of such final judgment or order by
reason of a pending appeal or otherwise shall not be in effect; (g) a court
having jurisdiction in the premises enters a decree or order for (A) relief in
respect of the Company or any Significant Subsidiary in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (B) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or (h) the Company or any Significant Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any general
assignment for the benefit of creditors.
If an Event of Default (other than an Event of Default specified in clause
(g) or (h) above that occurs with respect to the Company) occurs and is
continuing under the Indenture, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding by written notice to
the Company (and to the Trustee if such notice is given by the Holders), may,
and the Trustee at the request of such Holders shall, declare the principal
amount of, premium and accrued interest on the Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal amount of, premium
and accrued interest shall be immediately due and payable. In the event of a
declaration of acceleration because an Event of Default set forth in clause (e)
above has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (e) shall be remedied or cured by the
Company or the relevant Significant Subsidiary or waived by the holders of
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the relevant Indebtedness within 60 days after the declaration of acceleration
with respect thereto. If an Event of Default specified in clause (g) or (h)
above occurs with respect to the Company, the principal amount of, premium and
accrued interest on the Notes then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. The Holders of at least a majority in principal
amount of the outstanding Notes, by written notice to the Company and to the
Trustee may waive all past defaults and rescind and annul a declaration of
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of the principal amount of, premium and interest on the
Notes that have become due solely by such declaration of acceleration have been
cured or waived and (ii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction. For information as to the waiver of
defaults, see "Modification and Waiver."
The Holders of at least a majority in aggregate principal amount of the
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or the Indenture, that may involve the Trustee
in personal liability, or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders of Notes not joining in the giving
of such direction and may take any other action it deems proper that is not
inconsistent with any such direction received from Holders of Notes. A Holder
may not pursue any remedy with respect to the Indenture or the Notes unless: (i)
the Holder gives the Trustee written notice of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of outstanding
Notes make a written request to the Trustee to pursue the remedy, (iii) such
Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense; (iv) the Trustee does not comply with
the request within 60 days after receipt of the request and the offer of
indemnity, and (v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the Trustee a
direction that is inconsistent with the request. However, such limitations do
not apply to the right of any Holder of a Note to receive payment of the
principal amount of, premium or interest on, such Note or to bring suit for the
enforcement of any such payment, on or after the due date expressed in the
Notes, which right shall not be impaired or affected without the consent of the
Holder.
The Indenture will require certain officers of the Company to certify, on
or before a date not more than 90 days after the end of each fiscal year, that a
review has been conducted of the activities of the Company and its Restricted
Subsidiaries and the Company's and its Restricted Subsidiaries' performance
under the Indenture and that the Company has fulfilled all obligations
thereunder, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default and the nature and status thereof. The
Company will also be obligated to notify the Trustee of any default or defaults
in the performance of any covenants or agreements under the Indenture.
DEFEASANCE
Defeasance and Discharge. The Indenture will provide that the Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Notes on the 123rd day after the deposit referred to below, and
the provisions of the Indenture will no longer be in effect with respect to the
Notes (except for, among other matters, certain obligations to register the
transfer or exchange of the Notes, to replace stolen, lost or mutilated Notes,
to maintain paying agencies and to hold monies for payment in trust) if among
other things, (A) the Company has deposited with the Trustee, in trust, money
and/or U.S. Government Obligations that through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay the principal of, premium and accrued interest on
the Notes on the Stated Maturity of such payments in accordance with the terms
of the Indenture and the Notes,
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(B) the Company has delivered to the Trustee (i) either (x) an Opinion of
Counsel to the effect that Holders will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of its option
under this "Defeasance" provision and will be subject to federal income tax on
the same amount and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred, which
Opinion of Counsel must be based upon (and accompanied by a copy of) a ruling of
the Internal Revenue Service to the same effect unless there has been a change
in applicable federal income tax law after the date of the Indenture such that a
ruling is no longer required or (y) a ruling directed to the Trustee received
from the Internal Revenue Service to the same effect as the aforementioned
Opinion of Counsel and (ii) an Opinion of Counsel to the effect that the
creation of the defeasance trust does not violate the Investment Company Act of
1940 and after the passage of 123 days following the deposit, the trust fund
will not be subject to the effect of Section 547 of the United States Bankruptcy
Code or Section 15 of the New York Debtor and Creditor Law, (C) immediately
after giving effect to such deposit on a pro forma basis no Event of Default, or
event that after the giving of notice or lapse of time or both would become an
Event of Default, shall have occurred and be continuing on the date of such
deposit or during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound, and (D) if at such time the Notes are listed on a
national securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Notes will not be delisted as a result
of such deposit, defeasance and discharge.
Defeasance of Covenants. The Indenture further will provide that the
provisions of the Indenture will no longer be in effect with respect to clause
(iii) under "Consolidation, Merger and Sale of Assets" and all the covenants
described herein under "Covenants" upon, among other things, the deposit with
the Trustee, in trust, of money and/or U.S. Government Obligations that through
the payment of interest and principal in respect thereof in accordance with
their terms will provide money in an amount sufficient to pay the principal of,
premium and accrued interest on the Notes on the Stated Maturity of such
payments in accordance with the terms of the Indenture and the Notes, the
satisfaction of the provisions described in clauses (B)(ii), (C) and (D) of the
preceding paragraph and the delivery by the Company to the Trustee of an Opinion
of Counsel to the effect that, among other things, the Holders will not
recognize income gain or loss for federal income tax purposes as a result of
such deposit and defeasance of certain covenants and Events of Default and will
be subject to federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such deposit and defeasance had
not occurred.
Defeasance and Events of Default. In the event the Company exercises its
option to omit compliance with certain covenants and provisions of the Indenture
with respect to the Notes as described in the immediately preceding paragraph
and the Notes are declared due and payable because of the occurrence of an Event
of Default, the amount of money and/or U.S. Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Notes at the time
of their Stated Maturity but may not be sufficient to pay amounts due on the
Notes at the time of the acceleration resulting from such Event of Default.
However, the Company will remain liable for such payments.
MODIFICATION AND WAIVER
Modifications, amendments and waivers of the Indenture may be made by the
Company and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the outstanding Notes; provided,
however, that no such modification or amendment may, without the consent of each
Holder affected thereby, (i) change the Stated Maturity of the principal of, or
any
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installment of interest on, any Note, (ii) reduce the principal amount of, or
premium or interest on any Note, (iii) change the place or currency of payment
of principal of, or premium or interest on any Note, (iv) impair the right to
institute suit for the enforcement of any payment on or after the Stated
Maturity (or, in the case of a redemption, on or after the Redemption Date) of
any Note, (v) reduce the above-stated percentage of outstanding Notes the
consent of whose Holders is necessary to modify or amend the Indenture, (vi)
waive a default in the payment of principal of, premium or interest on the Notes
or (vii) reduce the percentage of aggregate principal amount of outstanding
Notes the consent of whose Holders is necessary for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults.
In addition, the Company and the Trustee may make certain amendments to the
Indenture without notice to or the consent of any Holder, including among other
things, to cure any ambiguity, defect or inconsistency in the Indenture and to
make any change that does not adversely affect the rights of any Holder.
NO PERSONAL LIABILITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS OR
EMPLOYEES
The Indenture provides that no recourse for the payment of the principal of
premium or interest on any of the Notes or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture or in any of the Notes or
because of the creation of any Indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer, director, employee or
controlling person of the Company or of any successor Person thereof. Each
Holder, by accepting the Notes, waives and releases all such liability.
CONCERNING THE TRUSTEE
The Indenture provides that, except during the continuance of a Default,
the Trustee will not be liable, except for the performance of such duties as are
specifically set forth in such Indenture. If an Event of Default has occurred
and is continuing, the Trustee will use the same degree of care and skill in its
exercise as a prudent person would exercise under the circumstances in the
conduct of such person's own affairs.
The Indenture and provisions of the Trust Indenture Act of 1939, as
amended, incorporated by reference therein contain limitations on the rights of
the Trustee, should it become a creditor of the Company, to obtain payment of
claims in certain cases or to realize on certain property received by it in
respect of any such claims, as security or otherwise. The Trustee is permitted
to engage in other transactions provided, however, that if it acquires any
convicting interest, it must eliminate such conflict or resign.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
covenants and other provisions of the Indenture. Reference is made to the
Indenture for the definition of any other capitalized term used herein for which
no definition is provided.
"Acquired Debt" means, with respect to any specified Person, Indebtedness
of any other Person existing at the time such other Person merged with or into
or became a Subsidiary of such specified Person, including Indebtedness incurred
in connection with, or in contemplation of, such other Person merging with or
into or becoming a Subsidiary of such specified Person.
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"Adjusted Consolidated Net Income" means, for any period, the aggregate net
income (or loss) of the Company and its 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 Person (other than net income attributable to a
Restricted Subsidiary) in which any Person (other than the Company or any of its
Restricted Subsidiaries) has a majority interest and the net income of any
Unrestricted Subsidiary, except to the extent of the amount of dividends or
other distributions actually paid to the Company or any of its Restricted
Subsidiaries by such other Person or such Unrestricted Subsidiary during such
period; (ii) 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 permitted by the operation of
the terms of any judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary; (iii) any gains or losses
(on an after-tax basis) attributable to Asset Sales; and (iv) all extraordinary
gains and extraordinary losses.
"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.
"Annualized Consolidated EBITDA" means, with respect to any Person, such
Person's Consolidated EBITDA for the latest two fiscal quarters for which
financial statements are available multiplied by two.
"Asset Acquisition" means (i) an Investment by the Company or any of its
Restricted Subsidiaries in any other Person pursuant to which such Person shall
become a Restricted Subsidiary of the Company or shall be merged into or
consolidated with the Company or any of its Restricted Subsidiaries, provided
that such Person's primary business is a Telecommunication Business or (ii) an
acquisition by the Company or any of its Restricted Subsidiaries of the property
and assets of any Person other than the Company or any of its Restricted
Subsidiaries that constitute all or substantially all of the assets of such
Person or a division or line of business of such Person, provided that the
property and assets acquired are Telecommunications Assets.
"Asset Disposition" means the sale or other disposition by the Company or
any of its Restricted Subsidiaries (other than to the Company or a Restricted
Subsidiary of the Company) of (i) all or substantially all of the Capital Stock
of any Restricted Subsidiary of the Company or (ii) all or substantially all of
the assets that constitute a division or line of business of the Company or any
of its Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition (including by
way of merger, consolidation, and any sale and leaseback transaction) in one
transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person other than the Company or any of its
Restricted Subsidiaries of (i) all or any of the Capital Stock of any Restricted
Subsidiary, (ii) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted Subsidiaries
or (iii) any other property and assets of the Company or any of its Restricted
Subsidiaries disposed of outside the ordinary course of business of the Company
or such Restricted Subsidiary and, in each case, that is not governed by the
provisions of the Indenture applicable to mergers, consolidations and sales of
all or substantially all of the assets of the Company, provided that "Asset
Sale" shall not include (i) sales or other dispositions of inventory,
receivables and other current assets, (ii) Permitted Asset Swaps, (iii)
Restricted Payments permitted by the "Limitation on Restricted Payments"
covenant, (iv) Permitted Investments,
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(v) sales or other dispositions of assets with a fair market value (as certified
in an Officers' Certificate) not in excess of $1 million, (vi) any sale or other
disposition of any or all the Capital Stock of an Unrestricted Subsidiary or
(vii) any sale or other disposition of Temporary Cash Investments or (viii) any
transaction subject to the "Consolidation, Merger and Sale of Assets" covenant.
Additionally, the contribution of Telecommunication Assets to an Unrestricted
Subsidiary whereby the Company or a Restricted Subsidiary receives Capital Stock
of an Unrestricted Subsidiary shall be deemed a Restricted Payment only and
shall not be deemed an Asset Sale.
"Attributable Debt" means in respect of a sale and leaseback transaction,
at the time of determination, the present value of the lessee for the net rental
payments during the remaining term of the lease included in such sale and
leaseback transaction including any period for which such lease has been
extended or may, at the option of the lessor, be extended. Such present value
shall be calculated using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with GAAP.
"Average Life" means, at any date of determination with respect to any
Indebtedness, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then, outstanding
principal amount of such Indebtedness.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participation or other equivalents (however designated, whether
voting or non-voting) in 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.
"Change of Control" means (a) the sale, lease, transfer, conveyance or
other disposition of all or substantially all of the assets of the Company to
any "person" or "group" (within the meaning of Sections 13(d)(3) and 14(d)(2) of
the Exchange Act or any successor provision to either of the foregoing,
including any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act) other
than Existing Shareholders (except in connection with a liquidation or
dissolution of the Company that does not constitute a Change of Control under
clause (b) below), (b) the approval by the requisite shareholders of the Company
of a plan of liquidation or statutory dissolution (which shall not be construed
to include a plan of merger or consolidation) of the Company, Holdings or such
subsidiary of Holdings, as the case may be, unless Existing Shareholders
"beneficially own" (as defined in Rule 13d-3 under the Exchange Act) at least
the same percentage of voting power after the consummation of such plan as
before or otherwise retain the right or ability, by voting power, to control the
Person that acquires the proceeds of such liquidation or dissolution, (c) any
"person" or "group" (within the meaning of Sections 13(d)(3) and 14(d)(2) of the
Exchange Act or any successor provision to either of the foregoing, including
any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other
than Existing Shareholders, becomes the "beneficial owner" (as so defined) of
more than 50% of the total voting power of all classes of the Voting Stock of
the Company and/or warrants or options to acquire such Voting Stock,
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calculated on a fully diluted basis, provided that Existing Shareholders
"beneficially own" (as so defined) in the aggregate a percentage of such Voting
Stock or warrants having a lesser percentage of voting power than such other
"person" or "group" and do not have the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of the
Company's Board of Directors, or (d) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Company's Board
of Directors (together with any new directors whose election or appointment by
such board or whose nomination for election by the stockholders of the Company
was approved by a vote of the Existing Shareholders or a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Company's Board
of Directors then in office.
"Change of Control Event" means the occurrence of both a Change of Control
and a Rating Decline.
"Closing Date" means the date on which the Notes are originally issued
under the Indenture.
"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.
"Consolidated EBITDA" means, for any period, the sum of the amounts for
such period of (i) Adjusted Consolidated Net Income, (ii) Consolidated Interest
Expense, (iii) income taxes, to the extent such amount was deducted in
calculating Adjusted Consolidated Net Income (other than income taxes (x)
(either positive or negative) attributable to extraordinary and nonrecurring
gains or losses or sales of assets and (y) actually payable with respect to such
period), (iv) depreciation expense, to the extent such amount was deducted in
calculating Adjusted Consolidated Net Income, (v) amortization expense, to the
extent such amount was deducted in calculating Adjusted Consolidated Net Income,
and (vi) 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 for the Company and its Restricted Subsidiaries 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
Consolidated EBITDA attributable to such Restricted Subsidiary multiplied by (B)
the quotient of (1) the number of shares of outstanding Common Stock of such
Restricted Subsidiary not owned on the last day of such period by the Company or
any of its Restricted Subsidiaries divided by (2) the total number of shares of
outstanding Common Stock of such Restricted Subsidiary on the last day of such
period.
"Consolidated Interest Expense" means, for any period, the aggregate amount
of interest in respect of Indebtedness (including amortization of original issue
discount on Indebtedness and the interest portion of any deferred payment
obligation, calculated in accordance with the effective interest method of
accounting; all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing; the net costs
associated with Interest Rate Agreements, and Indebtedness that is Guaranteed or
secured by the Company or any of its Restricted Subsidiaries) and all but the
principal component of rentals in respect of Capitalized Leases paid, accrued or
scheduled to be paid or to be accrued by the Company and its Restricted
Subsidiaries during such period; excluding, however, any amount of such interest
of any Restricted Subsidiary to the extent the net income of such Restricted
Subsidiary is excluded in the calculation of Adjusted Consolidated Net Income
pursuant to clause (ii) of the definition thereof (but only in
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the same proportion as the net income of such Restricted Subsidiary is excluded
from the calculation of Adjusted Consolidated Net Income pursuant to clause (ii)
of the definition thereof), all as determined on a consolidated basis (without
taking into account Unrestricted Subsidiaries) in conformity with GAAP.
"Consolidated Leverage Ratio" means, on any date of determination, the
ratio of (i) the aggregate amount of Indebtedness of the Company and its
Restricted Subsidiaries on a consolidated basis as of the end of the two most
recent fiscal quarters for which financial statements of the Company have become
available prior to such date (the "Reference Period") to (ii) the aggregate
amount of Annualized Consolidated EBITDA. In making the foregoing calculation,
(A) Indebtedness shall be calculated after giving pro forma effect to (x) any
Indebtedness (including, if applicable, the Notes) Incurred subsequent to the
end of the Reference Period and on or prior to such date of determination, in
each case as if such Indebtedness had been Incurred and the proceeds thereof had
been applied on the last day of such Reference Period and (y) any Indebtedness
that was outstanding during such Reference Period or thereafter but that is not
outstanding or is to be repaid on such date of determination in each case as if
such Indebtedness was repaid on the last day of such Reference Period; (B) pro
forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any Asset
Disposition) that occurred in such Reference Period or thereafter and on or
prior to such date of determination as if they had occurred and such proceeds
had been applied on the first day of such Reference Period; and (C) pro forma
effect shall be given to asset dispositions and asset acquisitions (including
giving pro forma effect to the application of proceeds of any asset disposition)
that have been made by any Person that has become a Restricted Subsidiary or has
been merged with or into the Company or any Restricted Subsidiary during such
Reference Period or subsequent to such period and on or prior to such date of
determination and that would have constituted Asset Dispositions or Asset
Acquisitions had such transactions occurred when such Person was a Restricted
Subsidiary as if such asset dispositions or asset acquisitions were Asset
Dispositions or Asset Acquisitions that occurred on the first day of such
Reference Period.
"Consolidated Net Worth" means, at any date of determination, stockholders'
equity as set forth on the most recently available consolidated balance sheet,
whether quarterly or annual, of the Company and its Restricted Subsidiaries,
less any amounts attributable to Redeemable Stock or any equity security
convertible into or exchangeable for Indebtedness, the cost of treasury stock
and the principal amount of any promissory notes receivable from the sale of the
Capital Stock of the Company or any of its Restricted Subsidiaries, each item to
be determined in conformity with GAAP.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Existing Shareholders" means (i) Douglas G. Smith, Madison Dearborn
Capital Partners, L.P., Allen & Company Incorporated and Chatterjee Management
Company and their respective Affiliates at the Closing Date and (ii) any wholly
owned Subsidiary of the Company, Hutchison Whampoa, John W. Stanton and
Providence Equity Partners Inc., and, in each case above, their respective
Affiliates as of February 25, 2000.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the date of the Indenture, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
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<PAGE> 43
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.
"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, 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 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.
"Holder" means the registered holder of any Note.
"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 the acquisition of more
than 50% of the Capital Stock of any Person; 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), (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 of such Person,
(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) the maximum
fixed redemption price of Redeemable Stock of such Person at the time of
determination, provided, however, if such Redeemable Stock is not permitted to
be redeemed at the date of determination, the price shall be the book value of
such Redeemable Stock and (ix) Acquired Debt. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving
rise to the obligation, provided (i) that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the face amount of such
Indebtedness and (ii) that Indebtedness shall not include any liability for
federal, state, local or other taxes. Notwithstanding the foregoing, solely for
purposes of clause (iv) of the second paragraph of the "Limitation on
Indebtedness" covenant, in the case of a revolving credit or other similar
facility, the total amount of funds outstanding at the Closing Date shall be
deemed to include the total amount of committed funds available on the Closing
Date; provided, that, the Company from time to time may designate less than all
of the committed borrowing capacity under such revolving credit or similar
facilities as being outstanding under such clause (iv), it being understood that
if the Company designates a lesser amount, it may not subsequently redesignate a
greater amount under that clause (iv).
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"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, option or future contract 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 Company or its 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, debentures or other
similar instruments issued by, such Person (whether purchased or acquired from
the issuer or from a third party) and shall include the designation of a
Restricted Subsidiary as an Unrestricted Subsidiary.
"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, any sale with recourse
against the seller or any Affiliate of the seller, or any agreement to give any
security interest).
"Mirror Indebtedness" means Indebtedness, which may be subordinated in
right of payment to Indebtedness of the Restricted Subsidiaries permitted to be
Incurred pursuant to the "Limitation on Indebtedness" covenant, in the form of
either (i) a demand note or (ii) a term note having a final maturity no later
than the final maturity of the Notes, in each case owed by a Restricted
Subsidiary to the Company or another Restricted Subsidiary having interest
payment or accrual dates and an interest rate (whether current pay or accrual)
equal to, or more frequent than or greater than, the Notes.
"Moody's" means Moody's Investors Services, Inc. or any successor to the
rating agency business thereof.
"Net Cash Proceeds" means (a) with respect to any Asset Sale, the proceeds
of such Asset Sale in the form of cash or Temporary Cash Investments net of (i)
brokerage commissions and other fees and expenses (including fees and expenses
of counsel and investment bankers) related to such Asset Sale, (ii) provisions
for all taxes (whether or not paid or payable) as a result of such Asset Sale
without regard to the consolidated results of operations of the Company and its
Subsidiaries, taken as a whole, (iii) payments made to repay Indebtedness or any
other obligation outstanding at the time of such Asset Sale that either (A) is
secured by a Lien on the property or assets sold or (B) is required to be paid
as a result of such sale and (iv) appropriate amounts to be provided by the
Company or any Restricted Subsidiary of the Company 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
(b) 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 Company or any Restricted Subsidiary of the Company)
and proceeds from the conversion of other 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.
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"Offer to Purchase" means an offer by the Company to purchase Notes from
the Holders 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 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 and each new Note issued shall be in a principal amount
of $1,000 or integral multiples thereof. On the Payment Date, the Company shall
(i) accept for payment on a pro rata basis Notes or portions thereof tendered
pursuant to an Offer to Purchase; (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so
accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes
or portions thereof so accepted together with an Officers' 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
the unpurchased portion of the Note surrendered, provided that each Note
purchased and each new Note issued shall be in a principal amount of $1,000 or
integral multiples thereof. 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-l 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.
"Permitted Asset Swaps" means any exchange of Telecommunications Assets by
the Company or a Restricted Subsidiary of the Company where the Company and/or
its Restricted Subsidiaries receive aggregate consideration consisting of
Telecommunications Assets, cash and other assets (or any combination thereof)
having an aggregate value at least equal to the fair market value of the
Telecommunications Assets being disposed of by the Company or such Restricted
Subsidiary (as determined by the Board of Directors whose good faith
determination shall be conclusive and evidenced by the Board of Resolution);
provided that (i) at least 75% of the consideration received in such Permitted
Asset Swap that does not consist of Telecommunications Assets shall be in the
form of cash or Temporary Cash Investments and (ii) 100% of the consideration
received in such transaction that does not consist of Telecommunications Assets
shall be treated as having been received in an Asset Sale otherwise permitted
by, but subject to, the terms of the "Limitations on Asset Sales" covenant.
"Permitted Investment" means (i) an Investment in the Company or a
Restricted Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary or be merged or consolidated with or
into or transfer or convey all or substantially all its assets to, the
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Company or a Restricted Subsidiary; provided that such Person's primary business
is a Telecommunications Business; (ii) a Temporary Cash Investment; (iii) stock,
obligations or securities received in satisfaction of judgments; (iv) any
repurchase of stock, stock options, or warrants from employees pursuant to
agreements entered by the Company or any Restricted Subsidiary for consideration
not to exceed $2 million in any fiscal year; (v) any Investment, together with
all other Investments under this clause (v), less any previous Investments in
Persons pursuant to this clause (v) who subsequently become Restricted
Subsidiaries, not to exceed two times the Net Cash Proceeds received by the
Company after September 23, 1999 from the issuance and sale of its Capital Stock
(other than (A) Redeemable Stock, and (B) Preferred Stock that provides for the
payment of dividends in cash and (C) other than Net Cash Proceeds to the extent
used to Incur Indebtedness pursuant to clause (ii)(B) of the first paragraph of
the "Limitation on Indebtedness" covenant) to a Person that is not a Subsidiary
of the Company, in a Person in a Telecommunications Business; (vi) the CIRI
Transactions; (vii) any Investment in any Person to the extent such Investment
represents the non-cash portion of the consideration received in an Asset Sale
as permitted by the "Limitation on Asset Sales" covenant or in a Permitted Asset
Swap, (viii) Investments (including acquisitions of other Telecommunications
Businesses) made with Capital Stock or options, warrants or rights to acquire
Capital Stock, (ix) customary loans and advances made in the ordinary course of
business to officers, directors or employees of the Company or any of its
Restricted Subsidiaries for travel, entertainment, and moving and relocation
expenses; (x) any Investments outstanding as of the Closing Date; and (xi) any
Investment or Investments not to exceed $50 million in the aggregate.
"Permitted Liens" means (i) Liens for taxes, assessments, governmental
charges or claims 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, (ii) statutory 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 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 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 Company or any of its Restricted Subsidiaries; (vi)
Liens (including extensions and renewals thereof) upon real or personal
property, provided that (a) such Lien is created solely for the purpose of
securing Indebtedness Incurred in accordance with "Limitation on Indebtedness"
covenant described above (1) to finance the cost (including the cost of
improvement or construction) of the item of property or assets subject thereto
and such Lien 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 (2) to refinance any Indebtedness previously
so secured, (b) the principal amount of the Indebtedness secured by such Lien
does not exceed 100% of such cost, and (c) 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) leases or subleases granted to others that do
not materially interfere with the ordinary course of business of the Company and
its Restricted Subsidiaries, taken as a whole; (viii) Liens encumbering property
or assets under construction arising from progress or partial payments by a
customer of the Company or its Restricted Subsidiaries relating to such property
or assets; (ix) any interest or title of a lessor in the property subject to any
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<PAGE> 47
Capitalized Lease or operating lease; (x) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xi) Liens in favor of
the Company or any Restricted Subsidiary, (xii) Liens arising from the rendering
of a final judgment or order against the Company or any Restricted Subsidiary of
the Company that does not give rise to an Event of Default; (xiii) Liens
securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and the
products and proceeds thereof, (xiv) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; (xv) Liens encumbering customary
initial deposits and margin deposits, and other Liens that are either 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 and forward contracts, options, future contracts,
futures options or similar agreements or arrangements designed solely to protect
the Company or any of its Restricted Subsidiaries from fluctuations in interest
rates or the price of commodities; (xvi) Liens arising out of conditional sale,
title retention, consignment or similar arrangements, or the sale of goods
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business in accordance with the past practices of the Company
and its Restricted Subsidiaries prior to the Closing Date; and (xvii) Liens on
or sales of receivables.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Public Equity Offering" means an underwritten public offering by the
Company of primary shares of Common Stock of the Company pursuant to an
effective registration statement under the Securities Act.
"Rating Agency" means each of S&P and Moody's.
"Rating Category" means (i) with respect to S&P, any of the following
categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor
categories) and (ii) with respect to Moody's any of the following categories;
Aaa, Aa, A, Baa, Ba, B, Caa, Ca and C (or equivalent successor categories). In
determining whether the rating of the Notes has decreased by one or more
gradations, gradations within Rating Categories (+ and - for S&P: 1, 2 and 3 for
Moody's) shall be taken into account (e.g. with respect to S&P, a decline in a
rating from BB+ to BB, as well as from BB- to B+, will constitute a decrease of
one gradation).
"Rating Decline" means (i) a decrease of one or more gradations, including
gradations within Rating Categories as well as between Rating Categories, in the
rating of the Notes from the rating previously assigned to the Notes by either
Rating Agency or (ii) a withdrawal of the rating of the Notes by either Rating
Agency; provided that the decrease or withdrawal occurs on, or within 90 days
after, the date of public notice of the occurrence of a Change of Control or of
the intention by the Company to effect a Change of Control, which period shall
be extended so long as the rating of the Notes is under publicly announced
consideration for possible downgrade by either Rating Agency.
"Redeemable 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 Redeemable 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
Redeemable Stock if the
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<PAGE> 48
"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 "Limitation on Asset Sales" and "Repurchase of Notes Upon a Change
of Control" covenants described above and such Capital Stock specifically
provides that such Person will not 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 the "Limitation on Asset Sales" and
"Repurchase of Notes Upon a Change of Control" covenants described above.
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary.
"S&P" means Standard & Poor's Rating Group, a division of McGraw Hill, Inc.
or any successor to the rating agency business thereof.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary of the Company that, together with its Subsidiaries, (i)
for the most recent fiscal year of the Company, accounted for more than 10% of
the consolidated revenues of the Company and its Restricted Subsidiaries or (ii)
as of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Company for such fiscal year.
"Special Subsidiary" means a direct wholly-owned Subsidiary of the Company
designated as such by an officers' certificate, which designation may not be
revoked, and subject to the covenant "Limitation on Activities of the Special
Subsidiary."
"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 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.
"Strategic Equity Investor" means a corporation or other entity with an
equity market capitalization, a net asset value or annual revenues of at least
$2 billion which is a Telecommunications Business.
"Subsidiary" means, with respect to any Person, any corporation.
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Telecommunications Assets" means, with respect to any Person, any asset
that is utilized by such Person, directly or indirectly, for the design,
development, construction, installation, integration, operation, management or
provision of telecommunications equipment, inventory, systems and/or services,
including without limitation, any mobile telephone, PCS, microwave or paging
assets. Telecommunications Assets shall include stock, joint venture or
partnership interests of an entity principally engaged in a Telecommunications
Business.
"Telecommunications Business" means a business primarily involved in the
ownership, design, development, construction, acquisition, installation,
integration, management and/or provision of Telecommunications Assets.
"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 not having a maturity of more that two years from the date of
acquisition, (ii) time deposit accounts, certificates of deposit and money
market deposits
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<PAGE> 49
maturing within 180 days of the date of acquisition thereof issued by a bank or
trust company which is organized under the laws of the United States of America
or any state thereof, and which bank or trust company has capital surplus and
undivided profits aggregating in excess of $50 million and has outstanding debt
which is rated "A" (or such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organizing (as defined in Rule 436
under the Securities Act) or any money-market fund sponsored by a registered
broker dealer or mutual fund distributor, (iii) repurchase obligations with a
term of not more than 30 days for underlying securities of the types described
in clause (ii) above entered into with a bank meeting the qualifications
described in clause (ii) above, (iv) commercial paper maturing not more than 90
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 or any state thereof with a rating at the time as of
which any investment therein is made of "P-1" (or higher) according to Moody's
Investors Service, Inc. or "A-1" (or higher) according to Standard & Poor's
Ratings Group, 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 Standard &
Poor's Ratings Group or Moody's Investors Service, Inc.
"Total Consolidated Indebtedness" means, at any date of determination, an
amount equal to (a) the accreted value of all Indebtedness, in the case of any
Indebtedness issued with original issue discount, plus (b) the principal amount
(or other amount referred to in the definition of Indebtedness) of all other
Indebtedness of the Company and its Restricted Subsidiaries outstanding as of
the date of determination.
"Trade Payables" means any accounts payable or any other indebtedness or
monetary obligation to trade creditors created, assumed or Guaranteed by the
Company or any of its Restricted Subsidiaries arising in the ordinary course of
business in connection with the acquisition of goods or services, except for
payables that are more than 60 days past due and not contested in good faith.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at
the time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Restricted
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of 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 Company or any Restricted Subsidiary, provided that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000 that such designation would be
permitted under the covenant "Limitation on Restricted Payments." The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary of the Company, provided that immediately after giving effect to such
designation (x) the Company could incur $1.00 of additional Indebtedness under
the first paragraph of the covenant "Limitation on Indebtedness" and (y) no
Default or Event of Default shall have occurred and be continuing. Any such
designation by the Board of Directors 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 Officers' Certificate that such designation complied
with the foregoing provisions.
"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.
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<PAGE> 50
BOOK-ENTRY; DELIVERY AND FORM
Our new notes will be represented by one or more permanent global notes in
definitive, fully registered form without interest coupons (each a "Global
Note") and will be deposited with the Trustee as custodian for, and registered
in the name of a nominee of, DTC, ownership of beneficial interests in a Global
Exchange Note will be limited to participants that have accounts with DTC or
persons who hold interests through participants. Ownership of beneficial
interests in a Global Note will be shown on, and the transfer of that ownership
will be effected only through, records maintained by DTC or its nominee (with
respect to interests of participants) and the records of participants (with
respect to interests of persons other than participants). Beneficial owners may
hold their interests in a Restricted Global Note directly through DTC if they
are participants in such system, or indirectly through organization which are
participants in such system.
So long as DTC, or its nominee, is the registered owner or holder of a
Global Note, DTC or such nominee, as the case may be, will be considered the
sole owner or holder of our mew notes represented by such Global Note for all
purposes under our mew notes and the Indentures related thereto. No beneficial
owner of an interest in a Global Note will be able to transfer that interest
except in accordance with DTC's applicable procedures, in addition to those
provided for under the applicable Indenture.
Payments of the principal of, and interest on, a Global Note will be made
to DTC or its nominee, as the case may be, as the registered owner thereof.
Neither we, the trustee nor any paying agent will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Note or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
We expect that DTC or its nominee, upon receipt of any payment of principal
or interest in respect of a Global Note, will credit participant's accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Note as shown on the records of DTC or its
nominee. We also expect that payments by participants to owners of beneficial
interests in such Global Note held through such participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers registered in the names of
nominees for such customers. Such payments will be the responsibility of such
participants.
Transfers between participants in DTC will be effected in the ordinary way
in accordance with DTC rules and will be settled in same-day funds.
We expect that DTC will take any action permitted to be taken by a holder
of our notes (including the presentation of notes for exchange as described
below) only at the direction of one or more participants to whose account the
DTC interests in a Global Note is credited and only in respect of such portion
of the aggregate principal amount of notes as to which such participant or
participant's has or have given such direction. However, if there is an Event of
Default under the notes, DTC will exchange the applicable Global Note for
Certificated Notes, which it will distribute to its participants.
We understand that: DTC is a limited purpose trust company organized under
the laws of the State of New York, a "banking organization" within the meaning
of New York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the Uniform Commercial Code and a "Clearing
Agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. DTC was created to hold securities for its participants and facilitate the
clearance and settlement of securities transactions between participants through
electronic book-entry changes in accounts of its participants, thereby
eliminating the need for physical movement of certificates and
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<PAGE> 51
certain other organizations. Indirect access to the DTC system is available to
others such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a participant, either directly or
indirectly ("indirect participants").
Although DTC is expected to follow the foregoing procedures in order to
facilitate transfers of interests in a Global Note among participants of DTC, it
is under no obligation to perform or continue to perform such procedures, and
such procedures may be discontinued at any time. Neither the Company nor the
Trustee will have any responsibility for the performance by DTC or its
respective participants or indirect participants of its obligations under the
rules and procedures governing its operations.
If DTC at any time unwilling or unable to continue as a depositary for the
Global Notes and successor depositary is not appointed by the Company within 90
days, the Company will issue Certificated Notes.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following discussion summarizes certain United States federal income
tax consequences resulting from the exchange of our new registered notes for
Omnipoint's outstanding notes. It is provided for general informational purposes
only. It is based on the Internal Revenue Code of 1986, as amended (the "Code"),
Treasury Regulations promulgated thereunder, Internal Revenue Service rulings,
and judicial decisions, all as in effect on the date hereof, and all of which
are subject to change, possibly with retroactive effect. The discussion does not
address all of the U.S. federal income tax consequences that may be relevant to
an Omnipoint noteholder in light of the holder's particular tax situation, nor
does it address any aspect of state, local or foreign taxation. The tax
treatment of a holder may vary depending upon its particular circumstances, and
the discussion does not apply to certain holders (including insurance companies,
tax-exempt organizations, banks and other financial institutions, broker-dealers
and foreign corporations) that are members of a class of holders subject to
special rules. The discussion assumes that the outstanding Omnipoint notes are
held as "capital assets" within the meaning of section 1221 of the Code.
EACH HOLDER IS URGED TO CONSULT ITS OWN TAX ADVISOR REGARDING THE TAX
CONSEQUENCES TO IT OF TENDERING OR FAILING TO TENDER OMNIPOINT'S NOTES,
INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL, FOREIGN OR OTHER TAX
LAW.
U.S. FEDERAL INCOME TAXATION OF U.S. HOLDERS
The discussion under this heading, "U.S. Federal Income Taxation of U.S.
Holders," assumes that each holder of Omnipoint notes is a U.S. holder, meaning
a holder of notes that is, for U.S. federal income tax purposes, (i) a citizen
or resident of the United States, (ii) a corporation created or organized in or
under the laws of the United States or any political subdivision thereof, (iii)
an estate the income of which is subject to U.S. federal income taxation
regardless of its source, or (iv) a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more U.S. persons have the authority to control all substantial decisions
of the trust.
TAX CONSEQUENCES OF THE OFFERS TO U.S. HOLDERS
Exchange of Outstanding Omnipoint Notes for our New Registered Notes. The
exchange of an outstanding Omnipoint Note for our new registered Note by a U.S.
holder will constitute a taxable
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<PAGE> 52
exchange. As a result, the U.S. holder generally will recognize ordinary
interest income in an amount equal to the accrued but unpaid interest on the
holder's outstanding Omnipoint Note that has previously been recognized. In
addition, the U.S. holder generally will recognize gain or loss equal to the
difference between (i) its tax basis in its outstanding Omnipoint Note (less any
basis attributable to accrued but unpaid interest), and (ii) the total of the
issue price of our new registered Note (less an amount equal to accrued but
unpaid interest. The issue price of our new registered Notes should equal their
fair market value on the date of the exchange (assuming that they are "publicly
traded" as defined in the applicable Treasury Regulations). Any gain or loss
recognized generally would be capital gain or loss, and would be long-term if
the U.S. holder has held the outstanding Omnipoint note for more than one year
at the time of the exchange. However, a U.S. holder who purchased its
outstanding Omnipoint note for less than its principal amount may recognize
ordinary income rather than capital gain under the "market discount" rules
discussed under the heading "Market Discount" below.
The U.S. holder's tax basis in our new registered Note should equal the
issue price of the note, as set forth in the preceding paragraph, and the U.S.
holder would have a new holding period for such note beginning on the day after
the exchange.
Market Discount. An Omnipoint noteholder that is subject to gain
recognition under any of the rules discussed above and that purchased the
Omnipoint notes for less than their principal amount may recognize ordinary
income rather than capital gain under the market discount rules. Under these
rules, unless the U.S. holder has made an election to include market discount in
income as it accrues, any gain recognized by the U.S. holder will be treated as
ordinary income to the extent of any market discount that has accrued for the
period it has owned the Omnipoint Notes. Market discount generally equals the
excess, if any, of (i) the unpaid principal balance of the Note at the time it
is acquired by the U.S. holder, over (ii) the U.S. holder's tax basis in the
Note immediately after its acquisition (subject to a de minimis exception
pursuant to which market discount is considered to be zero if it is less than
0.25 percent of the unpaid principal balance of the Note multiplied by the
number of complete years to maturity from the date of acquisition). In general,
market discount is treated as accruing over the term of the Note on a
straight-line basis unless the U.S. holder elects to accrue on a constant-yield
basis. If the gain recognized by a U.S. holder is in excess of the accrued
market discount, such excess will generally be treated as capital gain.
TAX CONSEQUENCES FOR A U.S. HOLDER OF HOLDING OUR NEW REGISTERED NOTES
Payment of Interest on Our New Registered Notes. Interest paid or payable
on our new registered notes will be taxable to a U.S. holder as ordinary
interest income, generally at the time it is received or accrued, in accordance
with the holder's regular method of accounting for U.S. federal income tax
purposes.
Possible Original Issue Discount on Our New Registered Notes. Our new
registered notes will be treated as having been issued with original issue
discount ("OID") if, their principal amount is greater than their issue price.
The issue price of our new registered Notes should be their fair market value on
the date of the exchange (assuming they are "publicly traded" as defined in
applicable Treasury Regulations). Any OID on the notes must be accrued over the
term of the notes using a constant-yield method. As a result, a U.S. holder may
have to include OID in income before the cash attributable to such income is
received.
Sale, Exchange or Retirement of Our New Registered Notes. Upon the sale,
exchange, redemption, retirement at maturity or other disposition of our new
registered note, a U.S. holder generally will recognize taxable gain or loss
equal to the difference between the sum of the cash plus the fair market value
of all other property received (other than any amount that is attributable to
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<PAGE> 53
accrued but unpaid interest, which will be treated as ordinary interest income)
and the U.S. holder's tax basis in the note (less any basis attributable to
accrued but unpaid interest). A U.S. holder's tax basis in a note received
pursuant for the offers generally will be as described above, adjusted to
include previous inclusions of OID with respect to the note, if any.
Gain or loss recognized on the disposition of our new registered note
generally will be capital gain or loss and will be long-term capital gain or
loss if, at the time of such disposition, the U.S. holder has held the note for
more than one year. However, a U.S. holder who purchased our Note for less than
its principal amount may recognize ordinary income rather than capital gain
under the "market discount" rules discussed above under the heading "Market
Discount."
U.S. FEDERAL INCOME TAXATION OF FOREIGN HOLDERS
The discussion under this heading, "U.S. Federal Income Taxation of Foreign
Holders," assumes that a holder of Omnipoint notes is a foreign holder, meaning
a holder of a note that is, for U.S. federal income tax purposes, (a) a
nonresident alien individual, (b) a corporation organized or created under
non-U.S. law, (c) an estate that is not taxable in the United States on its
worldwide income, or (d) a trust that either is not subject to primary
supervision over its administration by a U.S. court or not subject to the
control of a U.S. person with respect to all substantial decisions of the trust.
THIS DISCUSSION DOES NOT ADDRESS TAX CONSEQUENCES TO FOREIGN HOLDERS THAT
ARE SUBJECT TO U.S. FEDERAL INCOME TAXATION ON A NET BASIS ON INCOME OR GAIN
REALIZED WITH RESPECT TO A NOTE BECAUSE SUCH INCOME IS EFFECTIVELY CONNECTED
WITH THE CONDUCT OF A U.S. TRADE OR BUSINESS.
Exchange of Outstanding Omnipoint Notes Pursuant to the Exchange Offer, and
Sale, Exchange or Retirement of our New Registered Notes. A foreign holder
generally will not be subject to U.S. federal income tax (and generally no tax
will be withheld) with respect to gain realized on the sale or exchange of the
outstanding Omnipoint notes pursuant to the offer, or on the sale, exchange,
redemption, retirement at maturity or other disposition of our new registered
note, unless (a) the foreign holder is an individual who is present in the
United States for a period or periods aggregating 183 or more days in the
taxable year of the disposition and, generally, either has a "tax home" or an
"office or other place of business" in the United States, or (b) the foreign
holder is subject to tax pursuant to the provisions of U.S. federal income tax
law applicable to certain expatriates. In addition, generally no tax will be
withheld from any amount received by a foreign holder pursuant to the exchange
offer that is attributable to accrued but unpaid interest on the holder's
outstanding Omnipoint notes if the holder meets the conditions set forth below
under the heading, "Payment of Interest on Our Registered Notes."
Payment of Interest on Our Registered Notes. Subject to the discussion of
backup withholding below, if you are a foreign holder of our new registered
note, we and our paying agents will not be required to deduct United States
withholding tax from payments of principal, premium, if any, and interest,
including OID if any, on the notes to you if, in the case of interest:
- you do not actually or constructively own 10% or more of the total
combined voting power of all classes of our stock entitled to vote,
- you are not a controlled foreign corporation that is related to us
through stock ownership, and
- you certify to us or a U.S. payor of interest on the notes, under
penalties of perjury, that you are not a beneficial owner of the notes
that is a U.S. holder and provide your name and address, or
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<PAGE> 54
- a non-U.S. securities clearing organization, bank or other financial
institution that holds customers' securities in the ordinary course of
its trade or business and holds the note certifies to us or a U.S. payor
of interest on the notes under penalties of perjury that a similar
statement has been received from you by it or by a similar financial
institution between it and you and furnishes the payor with a copy
thereof.
Further, a new registered note of ours held by an individual who at death
is not a citizen or resident of the United States will not be includible in the
individual's gross estate for United States federal estate tax purposes if:
- the decedent did not actually or constructively own 10% or more of the
total combined voting power of all classes of our stock entitled to vote
at the time of death, and
- the income on the note would not have been effectively connected with a
United States trade or business of the decedent at the same time.
If you receive a payment after December 31, 2000, recently finalized
Treasury Regulations will apply. Under these regulations, after December 31,
2000, you may use an alternative method to satisfy the certification requirement
described above. Additionally, if you are a partner in a foreign partnership,
after December 31, 2000, you (in addition to the foreign partnership) must
provide the certification described above. The IRS will apply a look-through
rule in the case of tiered partnerships.
INFORMATION REPORTING AND BACKUP WITHHOLDING
U.S. HOLDERS
Information Reporting. Information statements will be provided to the IRS
and the U.S. holders whose Omnipoint Notes are exchanged for our new registered
Notes, reporting the payment of the offer consideration (except with respect to
holders that are exempt from the information reporting rules, such as
corporations and tax-exempt organizations).
Backup Withholding and Substitute Form W-9. Under U.S. federal income tax
law, a backup withholding tax equal to 31% of the offer consideration will apply
if a U.S. holder who tenders notes is not exempt from backup withholding and (i)
fails to furnish such holder's taxpayer identification number (which, for an
individual, is his or her Social Security Number) to the Exchange Agent in the
manner required, (ii) furnishes an incorrect TIN and the payor is so notified by
the IRS, (iii) is notified by the IRS that such holder has failed to report
repayments of interest and dividends or (iv) in certain circumstances, fails to
certify, under penalties of perjury, that such holder has not been notified by
the IRS that such holder is subject to backup withholding. Backup withholding is
not an additional tax. Rather, any amounts withheld from a payment to a holder
under the backup withholding rules are allowed as a refund or credit against
such holder's U.S. federal income tax liability, provided that the required
information is furnished to the IRS.
FOREIGN HOLDERS
You are generally exempt from backup withholding and information reporting
with respect to any payments of principal, premium or interest, made by us and
our payors provided that you provide the certification described under the
heading, "U.S. Federal Income Taxation of Foreign Holders -- Payment of Interest
on our New Registered Notes," and provided further that the payor does not have
actual knowledge that you are a U.S. holder. In this regard, you should note the
discussion above under the same heading with respect to the rules under the
final withholding regulations.
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In general, payment of the proceeds from the sale or taxable exchange of
notes to or through a United States office of a broker is subject to both United
States backup withholding and information reporting, unless you are a foreign
holder and certify as to your non-U.S. status under penalties of perjury or
otherwise establish an exemption. Payments of the proceeds from the sale or
taxable exchange by a foreign holder of a note made to or through a foreign
office of a broker will not be subject to information reporting or backup
withholding. However, information reporting, but not backup withholding, may
apply to a payment made outside the United States of the proceeds of a sale or
taxable exchange of a note through an office outside the United States if the
broker is:
- a United States person,
- a controlled foreign corporation for United States tax purposes,
- a foreign person 50% or more of whose gross income is effectively
connected with a United States trade or business for a specified
three-year period, or
- with respect to payments made after December 31, 2000, a foreign
partnership, if at any time during its tax year:
- one or more of its partners are "U.S. persons" (as defined in U.S.
Treasury regulations) who in the aggregate own more than 50% of the
income or capital interest in the partnership, or
- such foreign partnership is engaged in a United States trade or
business,
unless the broker has documentary evidence in its records that you are a
non-U.S. person and does not have actual knowledge that you are a U.S. person,
or you otherwise establish an exemption.
PLAN OF DISTRIBUTION
Notes received by broker-dealers for their own account pursuant to the
exchange offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the notes or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such prevailing
market prices or negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer and/or the
purchasers of any such notes. Any broker-dealer that resells notes that were
received by it for its own account pursuant to the exchange offer and any broker
or dealer that participates in a distribution of such notes may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit on any
such resale of notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
We have agreed to pay all expenses incident to the exchange offer other
than commissions or concessions of any brokers or dealers and will indemnify the
holders of the notes (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.
LEGAL MATTERS
Certain legal matters in connection with the Offering are being passed upon
for the Company by Friedman Kaplan & Seiler LLP, New York, New York.
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EXPERTS
The consolidated financial statements incorporated by reference in this
prospectus and registration statement, as it relates to VoiceStream Wireless
Corporation and Aerial Communications, Inc., have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto, and are included herein in reliance upon the authority of said
firm, as experts in giving said reports.
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended December 31,
1999, have been incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
WHERE TO FIND MORE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act and in accordance therewith files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information filed by the Company with the Commission can be inspected and copied
at the public reference facilities maintained by the Commission and Judiciary
Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the
Commission's regional offices at Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661 and at 7 World Trade Center, Suite
1300, New York, New York 10048. The Commission maintains a World Wide Web site
on the Internet at http://www.sec.gov that contains reports, proxy and
information statements and other information regarding registrants, including
the Company, that file electronically with the Commission. Copies of such
material can also be obtained at prescribed rates upon request from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Information relating to indemnification of directors and officers is
incorporated by reference herein from Item 14 of the Company's Registration
Statement on Form S-1 (No. 33-59630).
ITEM 21. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
2.1(1) Agreement and Plan of Reorganization by and among
VoiceStream Wireless Holding Corporation, Omnipoint
Corporation and VoiceStream Wireless Corporation, dated June
23, 1999.
2.1.1(1) First Amendment to Agreement and Plan of Reorganization by
and among VoiceStream Wireless Holding Corporation,
Omnipoint Corporation and VoiceStream Wireless Corporation,
dated as of December 30, 1999.
2.2(1) Agreement and Plan of Reorganization dated September 17,
1999 among VoiceStream Wireless Corporation, VoiceStream
Wireless Holding Corporation, VoiceStream Subsidiary III
Corporation, Aerial Communications, Inc. and Telephone and
Data Systems, Inc.
3.1(1) Amended and Restated Certificate of Incorporation.
3.2(2) Bylaws of VoiceStream Wireless Corporation.
4.1 Form of Indenture between the registrant and HSBC.
5.1 Opinion of Friedman Kaplan & Seiler.
10.1(3) Agreement and Plan of Distribution between Western Wireless
Corporation and VoiceStream Wireless Corporation, dated
April 9, 1999.
10.2(4) Waiver Agreement by and among Western Wireless Corporation,
Western PCS Corporation and certain of Western Wireless
Corporation's shareholders, dated November 30, 1994.
10.3(4) Western PCS Corporation Series A Preferred Stock Purchase
Agreement among Western Wireless Corporation, Western PCS
Corporation and the Purchasers listed therein, dated April
10, 1995.
10.4(4) PCS 1900 Project and Supply Agreement between Western PCS
Corporation and Northern Telecom Inc., dated June 30, 1995.
10.5(5) Amendment No. 1 to PCS 1900 Supply Agreement between Western
PCS Corporation and Northern Telecom Inc., dated July 25,
1996.
10.6(5) Amendment No. 2 to PCS 1900 Supply Agreement between Western
PCS Corporation and Northern Telecom Inc., dated July 25,
1996.
10.7(6) Amendment No. 3 to PCS Supply Agreement between Western PCS
Corporation and Northern Telecom Inc., dated October 14,
1996.
10.8(7) Amendment Number 4 to PCS 1900 Project and Supply Agreement
by and between Western PCS Corporation and Northern Telecom
Inc., dated March 26, 1998.
10.9(8) Amendment Number 5 to PCS 1900 Project and Supply Agreement
between VoiceStream Wireless Corporation and Northern
Telecom Inc., dated September 17, 1998.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.10(9) Amendment No. 6 to PCS 1900 Project and Supply Agreement by
and between VoiceStream Wireless Corporation and Northern
Telecom Inc.
10.11(10) Amendment No. 7 to PCS 1900 -- Project and Supply Agreement
by and between VoiceStream Wireless Corporation and Northern
Telecom Inc., dated May 14, 1999.
10.12(4) PCS Block "C" Organization and Financing Agreement by and
among Western PCS BTA I Corporation, Western Wireless
Corporation, Cook Inlet PV/SS PCS Partners, L.P., Cook Inlet
Telecommunications, Inc., SSPCS Corporation and Providence
Media Partners L.P., dated as of November 5, 1995.
10.13(4) Limited Partnership Agreement by and between Cook Inlet
PV/SS PCS Partners, L.P. and Western PCS BTA I Corporation,
dated as of November 5, 1995.
10.14(4) First Amendment to Block "C" Organization and Financing
Agreement and Cook Inlet Western Wireless PV/SS PCS, L.P.
Limited Partnership Agreement by and among Western PCS BTA I
Corporation, Western Wireless Corporation, Cook Inlet PV/SS
PCS Partners, L.P., Cook Inlet Telecommunications, Inc.,
SSPCS Corporation and Providence Media Partners L.P., dated
as of April 8, 1996.
10.15(5) Second Amendment to Block "C" Organization and Financing
Agreement and Cook Inlet Western Wireless PV/SS PCS, L.P.
Limited Partnership Agreement by and among Western PCS BTA I
Corporation, Western Wireless Corporation, Cook Inlet PV/SS
PCS Partners, L.P., Cook Inlet Telecommunications, Inc.,
SSPCS Corporation and Providence Media Partners L.P., dated
as of June 27, 1996.
10.16(5) Third Amendment to Block "C" Organization and Financing
Agreement and Cook Inlet Western Wireless PV/SS PCS, L.P.
Limited Partnership Agreement and First Amendment to
Technical Services Agreement by and among Western PCS BTA I
Corporation, Western Wireless Corporation, Cook Inlet PV/SS
PCS Partners, L.P., Cook Inlet Telecommunications, Inc.,
SSPCS Corporation, Providence Media Partners L.P. and Cook
Inlet Western Wireless PV/SS PCS, L.P., dated July 30, 1996.
10.17(4) Asset Purchase Agreement between Western PCS III License
Corporation as Buyer and GTE Mobilnet Incorporated as
Seller, dated January 16, 1996.
10.18(4) Waiver Agreement by and among Western Wireless Corporation,
Western PCS Corporation and certain of Western Wireless
Corporation's shareholders, dated February 15, 1996.
10.19(11) Software License Maintenance and Subscriber Billing Services
Agreement, dated June 1997.
10.20(11) First Amendment to Software License, Maintenance and
Subscriber Billing Services Agreement dated December 1997,
between CSC Intelicom, Inc., and Western Wireless
Corporation.
10.21(12) Iowa Wireless Services, L.P. Limited Partnership Agreement,
dated as of September 30, 1997, by and between INS Wireless,
Inc., as General Partner, and Western PCS I Iowa
Corporation, as Limited Partnership.
10.22(12) Agreement to Form Limited Partnership dated September 30,
1997, by and among Western PCS Iowa Corporation, a Delaware
corporation, INS Wireless, Inc., an Iowa corporation,
Western PCS I Corporation, a Delaware corporation, and Iowa
Network Services, Inc., an Iowa corporation.
</TABLE>
55
<PAGE> 59
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.23(12) Purchase Agreement by and among Western PCS Corporation,
Western Wireless Corporation, Hutchison Telecommunications
Limited and Hutchison Telecommunications PCS (USA) Limited
dated October 14, 1997.
10.24(11) Letter Agreement dated December 16, 1997, between Western
Wireless Corporation and Intelicom Services, Inc. to provide
products and services pursuant to the Software License
Maintenance and Subscriber Billing Services Agreements and
First Amendment thereto.
10.25(12) Services Agreement by and between Western Wireless
Corporation and Western PCS Corporation.
10.26(12) Shareholders Agreement by and among Western Wireless
Corporation, Hutchison Telecommunications PCS (USA) Limited
and Western PCS Corporation, dated February 17, 1998.
10.27(3) Tax Sharing Agreement by and between Western Wireless
Corporation and Western PCS Corporation, dated February 17,
1998. (Contained as an exhibit to the Agreement and Plan of
Distribution).
10.28(3) First Amendment to Tax Sharing Agreement by and between
Western Wireless Corporation and VoiceStream Wireless
Corporation, dated May 3, 1999.
10.29(7) Supply Contract by and between Western PCS Corporation and
Nokia Telecommunications Inc., dated March 9, 1998.
10.30(7) Purchase and Sale Agreement by and between Nokia Mobile
Phones, Inc. and Western PCS Corporation, dated March 9,
1998.
10.31(8) Exchange Rights and Grant Agreement by and among Western PCS
BTA I Corporation, Western Wireless Corporation, Cook Inlet
Telecommunications, Inc. and VoiceStream Wireless
Corporation, dated December 17, 1998.
10.32(8) Exchange Rights and Grant Agreement by and among Western PCS
BTA I Corporation, Western Wireless Corporation, SSPCS
Corporation and VoiceStream Wireless Corporation, dated
January 19, 1999.
10.33(3) Cook Inlet/VoiceStream PCS LLC Limited Liability Company
Agreement by and between Cook Inlet GSM Company and Western
PCS BTA I Corporation, dated February 11, 1999.
10.34(3) Registration Rights Agreement by and among VoiceStream
Wireless Corporation, Hellman & Friedman Capital Partners
II, L.P., H&F Orchard Partners, L.P., H&F International
Partners, L.P., John W. Stanton, Theresa E. Gillespie, PN
Cellular, Inc., Stanton Family Trust, Stanton Communications
Corporation, GS Capital Partners, L.P., The Goldman Sachs
Group, L.P., Bridge Street Fund 1992, L.P., Stone Street
Fund 1992, L.P., and Providence Media Partners L.P., dated
May 3, 1999.
10.35(3) Shareholders Agreement by and among VoiceStream Wireless
Corporation, Western Wireless Corporation, Hutchison
Telecommunications Holdings (USA) Limited and Hutchison
Telecommunications PCS (USA) Limited, dated May 3, 1999.
10.36(3) First Amendment to Shareholders Agreement by and among
VoiceStream Wireless Corporation, Western Wireless
Corporation, Hutchison Telecommunications Holdings (USA)
Limited and Hutchison Telecommunications PCS (USA) Limited
dated.
</TABLE>
56
<PAGE> 60
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.37(9) Indenture by and between VoiceStream Wireless Corporation
and Harris Trust Company, dated May 14, 1999, relating to
12% Series A Senior Debentures due 2011 and 12% Senior
Debentures due 2011.
10.38(13) Purchase Agreement, dated as of June 23, 1999, between
Omnipoint Corporation and Cook Inlet/VS GSM II PCS, LLC.
10.39(13) Purchase Agreement, dated as of June 23, 1999, between
Omnipoint Corporation and Cook Inlet/VS GSM III PCS, LLC.
10.40(13) Stock Subscription Agreement, dated as of June 23, 1999, by
and among VoiceStream Wireless Corporation, Hutchison
Telecommunications Limited and Hutchison Telecommunications
PCS (USA) Limited.
10.41(13) Securities Purchase Agreement, dated as of June 23, 1999, by
and among VoiceStream Wireless Corporation, Hutchison
Communications PCS (USA) Limited and Omnipoint Corporation.
10.42(4) Employment Agreement by and between Robert R. Stapleton and
Western Wireless Corporation, dated March 12, 1996.
10.43(4) Employment Agreement by and between Cregg B. Baumbaugh and
Western Wireless Corporation, dated March 12, 1996.
10.44(14) Employment Agreement by and between Timothy Wong and Western
Wireless Corporation, dated February 10, 1998.
10.45(14) Employment Agreement by and between Robert Dotson and
Western Wireless Corporation, dated February 10, 1998.
10.46(3) Assignment and Assumption Agreement by and between Western
Wireless Corporation and VoiceStream Wireless Corporation
with respect to the Employment Agreement of Robert R.
Stapleton, dated May 3, 1999.
10.47(3) Assignment and Assumption Agreement by and between Western
Wireless Corporation and VoiceStream Wireless Corporation
with respect to the Employment Agreement of Cregg B.
Baumbaugh, dated May 3, 1999.
10.48(3) Assignment and Assumption Agreement by and between Western
Wireless Corporation and VoiceStream Wireless Corporation
with respect to the Employment Agreement of Timothy Wong,
dated May 3, 1999.
10.49(3) Assignment and Assumption Agreement by and between Western
Wireless Corporation and VoiceStream Wireless Corporation
with respect to the Employment Agreement of Robert Dotson,
dated May 3, 1999.
10.50(15) Employment Agreement, dated as of January 1, 1999, by and
between Omnipoint and Douglas G. Smith.
10.51(16) Employment Agreement, effective October 1, 1995, by and
between Omnipoint, Omnipoint Communications Inc. and George
F. Schmitt.
10.52(16) Promissory Note, dated October 1, 1995, by George F.
Schmitt.
10.53(16) Stock Restriction Agreement, dated October 1, 1995, by and
between Omnipoint and George F. Schmitt.
10.54(17) First Amendment to Stock Restriction Agreement, dated as of
June 21, 1999, by and between Omnipoint Communications, Inc.
and George F. Schmitt.
10.55(18) Employment Agreement, dated November 3, 1996, by and between
Omnipoint and Kjell S. Andersson.
</TABLE>
57
<PAGE> 61
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.56(18) Amendment to Employment Agreement dated as of February 24,
1997, between Omnipoint and Kjell S. Andersson.
10.57(18) Promissory Note, dated February 24, 1997, by Kjell S.
Andersson.
10.58(18) Stock Restriction Agreement, dated February 24, 1997, by and
between Omnipoint and Kjell S. Andersson.
10.59(15) Employment Agreement, dated as of April 23, 1999, by and
between Omnipoint and Harry Plonskier.
10.60(16) Amended and Restated Registration Rights Agreement, dated
June 29, 1995, by and among Omnipoint and the parties named
therein.
10.61(16) OEM Supply Agreement for Omnipoint PCS (Personal
Communication Systems) Products, dated September 22, 1994,
by and between Omnipoint and Northern Telecom Inc.
10.62(16) Manufacturing License and Escrow Agreement for Personal
Communication Service Products, dated February 28, 1995, by
and between Omnipoint and Northern Telecom Inc.
10.63(16) Collaborative Development Agreement, dated March 1, 1995, by
and between Omnipoint and Northern Telecom Inc.
10.64(16) Supply Agreement, dated September 22, 1994, by and between
Omnipoint Communications Inc. and Northern Telecom Inc.
10.65(16) Amendment No. 1 to Supply Agreement dated July 21, 1995, by
and between Omnipoint Communications Inc. and Northern
Telecom Inc.
10.66(16) Letter Agreement, dated January 24, 1996, by and between
Omnipoint and Ericsson Inc.
10.67(19) Acquisition Agreement for Ericsson CMS 40 Personal
Communications Systems (PCS) Infrastructure Equipment, dated
as of April 16, 1996, by and between Ericsson Inc. and
Omnipoint Communications.
10.68(19) Acquisition Supply and License Agreement for Omnipoint
Personal Communications Systems (PCS) Infrastructure
Equipment, dated as of April 16, 1996, by and between
Ericsson Inc. and Omnipoint.
10.69(19) Agreement for Purchase and Sale of Ericsson Inc. Masko
Terminal Units, dated as of April 16, 1996, by and between
Ericsson, Inc. and Omnipoint Communications Inc.
10.70(20) Purchase Agreement by and among Omnipoint Corporation,
Donaldson, Lufkin & Jenrette Securities Corporation,
BancAmerica Robertson Stephens, Bear, Stearns & Co., Inc.
and Smith Barney Inc., dated May 1, 1998.
10.71(20) Deposit Agreement by and among Omnipoint Corporation, Marine
Midland Bank, and the Holders from time to time of the
Depositary Shares, dated May 6, 1998.
10.72(20) Deposit Account Agreement by and between Omnipoint
Corporation and The First National Bank of Maryland, dated
May 6, 1998.
10.73(23) Note Purchase Agreement by and among Omnipoint Corporation,
IBJ Schroder Bank & Trust Company, as paying agent, and
certain initial purchasers named therein, dated December 21,
1998.
</TABLE>
58
<PAGE> 62
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.74(2) Securities Purchase Agreement by and among VoiceStream
Wireless Corporation, Hutchison Telecommunications PCS (USA)
Limited and Omnipoint Corporation, dated as of June 23,
1999.
10.75(22) PCS Infrastructure Supply Contract, dated as of March 1,
1996, between Aerial and Nokia Telecommunications, Inc.
10.76(23) Tax Settlement Agreement dated March 12, 1999, by and
between Aerial, Aerial Operating Company, Inc. and Telephone
and Data Systems, Inc.
10.77(24) Stockholder Agreement dated as of September 17, 1999, by and
between Telephone and Data Systems, Inc. and stockholders of
Aerial Communications, Inc., and VoiceStream Wireless
Corporation, and VoiceStream Wireless Holding Corporation.
10.78(24) Indemnity Agreement, dated as of September 17, 1999, among
VoiceStream Wireless Corporation, VoiceStream Wireless
Holding Corporation, Aerial Communications, Inc., Aerial
Operating Company, Inc., and Telephone and Data Systems,
Inc.
10.79(24) Debt/Equity Replacement Agreement dated as of September 17,
1999, made by and among Telephone and Data Systems, Inc.,
Aerial Communications, Inc., Aerial Operating Company, Inc.,
VoiceStream Wireless Corporation, and VoiceStream Wireless
Holding Corporation.
10.80(24) Parent Stockholder Agreement dated as of September 17, 1999,
by and among Aerial Communications, Inc., Telephone and Data
Systems, Inc., VoiceStream Wireless Corporation, VoiceStream
Wireless Holding Corporation and the individuals and
entities set forth on Schedule I thereto.
10.81.1(15) Consent and Amendment dated as of November 12, 1999, by and
among Aerial Communications, Inc., Telephone and Data
Systems, Inc., VoiceStream Wireless Corporation, VoiceStream
Wireless Holding Corporation, and Hellman & Friedman Capital
Partners II, H&F Orchard Partners, L.P., H&F International
Partners, L.P., John W. Stanton, Theresa Gillespie, PN
Cellular, Inc., Stanton Family Trust, Stanton Communications
Corporation, GS Capital Partners, L.P., The Goldman Sachs
Group, Inc., Bridge Street Fund 1992, L.P., Stone Street
Fund 1992, L.P., Providence Media Partners, L.P., Hutchison
Telecommunications Holdings (USA) Limited, and Hutchison
Telecommunications PCS (USA) Limited.
10.82(24) Settlement Agreement and Release, entered into as of
September 17, 1999 by and among Sonera Ltd., Sonera
Corporation U.S., Telephone and Data Systems, Inc., Aerial
Communications, Inc., and Aerial Operating Company, Inc.
10.83(25) Stock Subscription Agreement, dated as of February 11, 2000,
by and among VoiceStream Wireless Corporation and Microcell
Telecommunications Inc.
10.84(26) Shareholders Agreement of Microcell Telecommunications,
dated as of February 11, 2000 by and between VoiceStream
Wireless Corporation and Telesystem Enterprises (T.E.L.)
Ltd.
10.85(26) Credit Agreement dated as of February 25, 2000, by and among
VoiceStream PCS Holdings L.L.C., Omnipoint Finance, L.L.C.,
Chase Securities Inc., Bank of America Securities L.L.C., TD
Securities (USA) Inc., Goldman Sachs Credit Partners L.P.,
Barclays Capital and SG Cowen, Toronto Dominion (Texas) Inc.
12.1(27) Statements re computation of ratios
23.1 Consent of Arthur Andersen LLP (VoiceStream)
</TABLE>
59
<PAGE> 63
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
23.2 Consent of PricewaterhouseCoopers, LLP (Omnipoint)
23.3 Consent of Arthur Andersen LLP (Aerial)
23.4 Consent of Friedman Kaplan & Seiler (included in Exhibit
5.1)
25.1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of HSBC on Form T-1
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees
99.4 Form of Letter to Clients
</TABLE>
- -------------------------
(1) Incorporated by reference to the exhibit filed with the VoiceStream
Wireless Holding Corporation to Registration Statement on Form S-4
(Commission File No. 333-89735), filed January 24, 2000.
(2) Incorporated by reference to the exhibit filed with the VoiceStream
Wireless Holding Corporation Registration Statement on Form S-4 (Commission
File No. 333-89735).
(3) Incorporated by reference to the exhibit filed with VoiceStream Wireless
Corporation Form 10/A, filed with the SEC on April 13, 1999.
(4) Incorporated by reference to the exhibit filed with the Western Wireless
Corporation Registration Statement on Form S-1 (Commission File No.
333-2432), filed with the SEC on March 15, 1996.
(5) Incorporated by reference to the exhibit filed with the Western Wireless
Corporation Registration Statement on Form S-4 (Commission File No.
333-14859), filed with the SEC on October 25, 1996.
(6) Incorporated by reference to the exhibit filed with the Western Wireless
Corporation Annual Report on Form 10-K for the year ended December 31, 1996
(Commission File No. 0-28160), filed with the SEC on March 31, 1997.
(7) Incorporated by reference to the exhibit filed with the Western Wireless
Corporation Form 10-Q/A for the quarter ended June 30, 1998 (Commission
File No. 0-28160), filed with the SEC on August 17, 1998.
(8) Incorporated by reference to the exhibit filed with the VoiceStream
Wireless Corporation Form 10 (Commission File No. 0-25441), filed with the
SEC on February 24, 1999.
(9) Incorporated by reference to the exhibit filed with the VoiceStream
Wireless Corporation Form 8-K, filed with the SEC on May 27, 1999.
(10) Incorporated by reference to the exhibit filed with the VoiceStream
Wireless Corporation Form 10-Q, filed with the SEC on August 9, 1999.
(11) Incorporated by reference to the exhibit filed with the Western Wireless
Corporation Annual Report on Form 10-K for the year ended December 31, 1997
(Commission File No. 0-28160), filed with the SEC on March 27, 1998.
(12) Incorporated by reference to the exhibit filed with the Western Wireless
Corporation Form 10-Q for the quarter ended September 30, 1997 (Commission
File No. 0-28160), filed with the SEC on November 6, 1997.
(13) Incorporated by reference to the exhibit filed with the VoiceStream
Wireless Corporation form 8-K, filed with the SEC on July 7, 1999.
60
<PAGE> 64
(14) Incorporated by reference to the Western Wireless Corporation Form 10-Q for
the quarter ended March 31, 1998 (Commission File No. 0-28160), filed with
the SEC on May, 11, 1998.
(15) Incorporated by reference to the exhibit filed with the VoiceStream
Wireless Holding Corporation Registration Statement on Form S-4 (Commission
File No. 333-89735), filed December 3, 1999.
(16) Incorporated herein by reference to Omnipoint's Registration Statement on
Form S-1 (Commission File No. 33-98360).
(17) Incorporated by reference to the exhibit filed with the VoiceStream
Wireless Holding Corporation Registration Statement on Form S-4 (Commission
File No. 333-89735), filed December 29, 1999.
(18) Incorporated herein by reference to Omnipoint's Annual Report on Form 10-K
for the year ended December 31, 1996.
(19) Incorporated herein by reference to Omnipoint's Current Report on form 8-K,
filed May 3, 1996. Portions of this Exhibit were omitted and filed
separately with the Secretary of the Commission pursuant to Omnipoint's
application requesting confidential treatment under Rule 24b-2 of the
Exchange Act of 1934, filed with the SEC on May 3, 1996.
(20) Incorporated herein by reference to Omnipoint's Quarterly Report on Form
10-Q, filed with the SEC on May 15, 1998.
(21) Incorporated herein by reference to Omnipoint's Current Report on Form 8-K,
filed with the SEC on December 29, 1998.
(22) Incorporated by reference to Exhibit 10.13 to Aerial's Amendment No. 1 to
Form S-1 (Commission File No. 333-1514), filed with the SEC on March 29,
1996.
(23) Incorporated by reference to Exhibit 10.22 to Aerial Annual Report on Form
10-K for the year ended December 31, 1998 (Commission File No. 0-28262),
filed with the SEC on March 31, 1996.
(24) Incorporated herein by reference to the Telephone and Data Systems, Inc.
Form 8-K, filed with the SEC on September 17, 1999.
(25) Incorporated herein by reference to VoiceStream's Form 8-K filed with the
SEC On March 3, 2000.
(26) Incorporated by reference to VocieStream Annual Report on Form 10-K for
1999.
(27) Incorporated by reference to Exhibit 12.1 to Registration Statement of
VoiceStream on Form S-4 filed with the SEC on March 23, 2000 (Commission
File No. 333-33168)
61
<PAGE> 65
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 2 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(c) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated document by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
(d) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(e) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
62
<PAGE> 66
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this to the Registration Statement on Form S-4 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Bellevue, State of Washington, on this 10th day of April, 2000.
VOICESTREAM WIRELESS CORPORATION
By: /s/ CREGG B. BAUMBAUGH
------------------------------------
Cregg B. Baumbaugh
Executive Vice President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints John W. Stanton or Alan R. Bender, or either of
them, his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, from such person and in each person's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, any
registration statement relating to this registration statement under Rule 462
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
/s/ JOHN W. STANTON Chairman of the Board and Chief April 10, 2000
- --------------------------------------------------- Executive Officer (Principal
John W. Stanton Executive Officer)
/s/ ROBERT R. STAPLETON President and Director April 10, 2000
- ---------------------------------------------------
Robert R. Stapleton
/s/ DOUGLAS G. SMITH Vice Chairman and Director April 10, 2000
- ---------------------------------------------------
Douglas G. Smith
/s/ DONALD GUTHRIE Vice Chairman and Director April 10, 2000
- ---------------------------------------------------
Donald Guthrie
</TABLE>
<PAGE> 67
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
/s/ CREGG B. BAUMBAUGH Executive Vice April 10, 2000
- --------------------------------------------------- President -- Finance, Strategy
Cregg B. Baumbaugh and Development (Principal
Financial Officer)
/s/ PATRICIA L. MILLER Vice President and Controller April 10, 2000
- --------------------------------------------------- (Principal Accounting Officer)
Patricia L. Miller
/s/ MITCHELL R. COHEN Director April 10, 2000
- ---------------------------------------------------
Mitchell R. Cohen
/s/ DANIEL J. EVANS Director April 10, 2000
- ---------------------------------------------------
Daniel J. Evans
/s/ RICHARD L. FIELDS Director April 10, 2000
- ---------------------------------------------------
Richard L. Fields
/s/ CANNING K.N. FOK Director April 10, 2000
- ---------------------------------------------------
Canning K.N. Fok
/s/ JONATHAN M. NELSON Director April 10, 2000
- ---------------------------------------------------
Jonathan M. Nelson
/s/ TERENCE M. O'TOOLE Director April 10, 2000
- ---------------------------------------------------
Terence M. O'Toole
/s/ JAMES N. PERRY, JR. Director April 10, 2000
- ---------------------------------------------------
James N. Perry, Jr.
/s/ JAMES J. ROSS Director April 10, 2000
- ---------------------------------------------------
James J. Ross
/s/ HANS SNOOK Director April 10, 2000
- ---------------------------------------------------
Hans Snook
/s/ SUSAN M.F. WOO CHOW Director April 10, 2000
- ---------------------------------------------------
Susan M.F. Woo Chow
</TABLE>
<PAGE> 68
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
/s/ FRANK J. SIXT Director April 10, 2000
- ---------------------------------------------------
Frank J. Sixt
/s/ KAJ-ERIK RELANDER Director April 10, 2000
- ---------------------------------------------------
Kaj-Erik Relander
</TABLE>
<PAGE> 1
EXHIBIT 4.1
VOICESTREAM WIRELESS
as Issuer
and
HSBC BANK USA,
as Trustee
---------------
INDENTURE
Dated as of ____________ __, 2000
---------------
11 1/2% Senior Notes due 2009
<PAGE> 2
CROSSREFERENCE TABLE
<TABLE>
<CAPTION>
TIA SECTIONS INDENTURE SECTIONS
- ------------ ------------------
<S> <C>
Section 310(a)(1)..................................................................7.9
(a)(2)....................................................................7.9
(b)...............................................................7.2; 7.7
Section 311(a)....................................................................7.2
(b)....................................................................7.2
Section 312(a)....................................................................2.3
(b)...................................................................10.2
(c)...................................................................10.2
Section 313(a)....................................................................7.5
(c).........................................................7.4; 7.5; 10.2
(d)....................................................................7.5
Section 314(a)........................................................4.18; 7.4; 10.2
(a)(4).............................................................4.17; 10.2
(c)(1)...................................................................10.3
(c)(2)...................................................................10.3
(e).............................................................4.17; 10.4
Section 315(a)....................................................................7.1
(b)..............................................................7.4; 10.2
(c)....................................................................7.1
(d)....................................................................7.1
(e)...................................................................6.11
Section 316(a)(1)(A)...............................................................6.5
(a)(1)(B)....................................................................6.4
(b)....................................................................6.7
(c)....................................................................9.3
Section 317(a)(1)..................................................................6.8
(a)(2)....................................................................6.9
(b)....................................................................2.4
Section 318(a)...................................................................10.1
(c)...................................................................10.1
</TABLE>
Note: The Cross Reference Table shall not for any purpose be deemed to be a
part of the Indenture.
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE I Definitions and Incorporation by Reference.........................1
Section 1.1 Definitions....................................................1
Section 1.2 Incorporation by Reference of Trust Indenture Act.............21
Section 1.3 Rules of Construction.........................................22
ARTICLE II The Notes.........................................................22
Section 2.1 Form and Dating...............................................22
Section 2.2 Execution, Authentication and Denominations...................23
Section 2.3 Registrar and Paying Agent....................................23
Section 2.4 Paying Agent to Hold Money in Trust...........................24
Section 2.5 Holder Lists..................................................24
Section 2.6 Transfer and Exchange.........................................24
Section 2.7 Replacement Notes.............................................37
Section 2.8 Outstanding Notes.............................................38
Section 2.9 Temporary Notes...............................................39
Section 2.10 Cancellation..................................................39
Section 2.11 CUSIP Numbers.................................................39
Section 2.12 Defaulted Interest............................................39
ARTICLE III Optional Redemption...............................................40
Section 3.1 Right of Redemption...........................................40
Section 3.2 Notices to Trustee............................................40
Section 3.3 Selection of Notes to Be Redeemed.............................41
Section 3.4 Notice of Redemption..........................................41
Section 3.5 Effect of Notice of Redemption................................42
Section 3.6 Deposit of Redemption Price...................................42
Section 3.7 Payment of Notes Called for Redemption........................42
Section 3.8 Notes Redeemed in Part........................................43
ARTICLE IV Covenants.........................................................43
Section 4.1 Payment of Notes..............................................43
Section 4.2 Maintenance of Office or Agency...............................43
Section 4.3 Limitation on Indebtedness....................................44
Section 4.4 Limitation on Restricted Payments.............................46
</TABLE>
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<TABLE>
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Section 4.5 Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.............................48
Section 4.6 Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries.......................................50
Section 4.7 Limitation on Issuances of Guarantees by Restricted
Subsidiaries..................................................50
Section 4.8 Limitation on Transactions with Stockholders and
Affiliates....................................................51
Section 4.9 Limitation on Liens...........................................52
Section 4.10 Limitation on Sale-Leaseback Transactions.....................53
Section 4.11 Limitation on Asset Sales.....................................53
Section 4.12 Repurchase of Notes upon a Change of Control..................54
Section 4.13 Limitation on Use of Proceeds.................................54
Section 4.14 Existence.....................................................54
Section 4.15 Payment of Taxes and Other Claims.............................54
Section 4.16 Maintenance of Properties and Insurance.......................55
Section 4.17 Compliance Certificates.......................................55
Section 4.18 Commission Reports and Reports to Holders.....................56
Section 4.19 Waiver of Stay, Extension or Usury Laws.......................56
Section 4.20 Limitation on Mirror Indebtedness.............................56
Section 4.21 Limitation on Activities of the Special Subsidiary............57
ARTICLE V Successor Corporation.............................................57
Section 5.1 When Company May Merge, Etc...................................57
ARTICLE VI Default and Remedies..............................................57
Section 6.1 Events of Default.............................................57
Section 6.2 Acceleration..................................................59
Section 6.3 Other Remedies................................................59
Section 6.4 Waiver of Past Defaults.......................................60
Section 6.5 Control by Majority...........................................60
Section 6.6 Limitation on Suits...........................................60
Section 6.7 Rights of Holders to Receive Payment..........................60
Section 6.8 Collection Suit by Trustee....................................61
Section 6.9 Trustee May File Proofs of Claim..............................61
</TABLE>
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<TABLE>
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Section 6.10 Priorities....................................................61
Section 6.11 Undertaking for Costs.........................................62
Section 6.12 Restoration of Rights and Remedies............................62
Section 6.13 Rights and Remedies Cumulative................................62
Section 6.14 Delay or Omission Not Waiver..................................62
ARTICLE VII Trustee...........................................................63
Section 7.1 Rights of Trustee.............................................63
Section 7.2 Individual Rights of Trustee..................................65
Section 7.3 Trustee's Disclaimer..........................................65
Section 7.4 Notice of Default.............................................65
Section 7.5 Reports by Trustee to Holders.................................65
Section 7.6 Compensation and Indemnity....................................66
Section 7.7 Replacement of Trustee........................................67
Section 7.8 Successor Trustee by Merger, Etc..............................68
Section 7.9 Eligibility...................................................68
Section 7.10 Money Held in Trust...........................................68
ARTICLE VIII Discharge of Indenture............................................68
Section 8.1 Termination of Company's Obligations..........................68
Section 8.2 Defeasance and Discharge of Indenture.........................69
Section 8.3 Defeasance of Certain Obligations.............................70
Section 8.4 Application of Trust Money....................................71
Section 8.5 Repayment to Company..........................................71
Section 8.6 Reinstatement.................................................72
ARTICLE IX Amendments, Supplements and Waivers...............................72
Section 9.1 Without Consent of Holders....................................72
Section 9.2 With Consent of Holders.......................................72
Section 9.3 Revocation and Effect of Consent..............................73
Section 9.4 Notation on or Exchange of Notes..............................74
Section 9.5 Trustee to Sign Amendments, Etc...............................74
Section 9.6 Conformity with Trust Indenture Act...........................74
ARTICLE X Miscellaneous.....................................................75
Section 10.1 Trust Indenture Act...........................................75
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<TABLE>
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Section 10.2 Notices.......................................................75
Section 10.3 Certificate and Opinion as to Conditions Precedent............76
Section 10.4 Statements Required in Certificate or Opinion.................76
Section 10.5 Acts of Holders...............................................77
Section 10.6 Rules by Trustee, Paying Agent or Registrar...................77
Section 10.7 Payment Date Other Than a Business Day........................77
Section 10.8 Governing Law.................................................77
Section 10.9 No Adverse Interpretation of Other Agreements.................77
Section 10.10 No Recourse Against Others....................................78
Section 10.11 Successors....................................................78
Section 10.12 Duplicate Originals...........................................78
Section 10.13 Separability..................................................78
Section 10.14 Table of Contents, Headings, Etc..............................78
</TABLE>
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INDENTURE, dated as of September 23, 1999, between VOICESTREAM
WIRELESS CORPORATION, a Delaware corporation, as Issuer (the "Company"), and
HSBC BANK USA, a New York banking corporation and trust company, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of up to $205 million aggregate
principal amount of the Company's 11 1/2% Senior Notes due 2009 issuable as
provided in this Indenture. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done, and the
Company has done all things necessary to make the Notes, when executed by the
Company and authenticated and delivered by the Trustee hereunder and duly issued
by the Company, the valid obligations of the Company as hereinafter provided.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act of 1939, as amended, that are required to
be a part of and to govern indentures qualified under the Trust Indenture Act of
1939, as amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders, as follows:
ARTICLE I
Definitions and Incorporation by Reference
Section 1.1 Definitions.
"Acquired Debt" means, with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person.
"Adjusted Consolidated Net Income" means, for any period, the
aggregate net income (or loss) of the Company and its 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 Person (other than net income
attributable to a Restricted Subsidiary) in which any Person (other than the
Company or any of its Restricted Subsidiaries) has a majority interest and the
net income of any Unrestricted Subsidiary, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any of its
Restricted Subsidiaries by such other Person or such Unrestricted Subsidiary
during such period; (ii) the net income of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
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<PAGE> 8
such Restricted Subsidiary of such net income is not at the time 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; (iii) any gains or losses (on an after-tax basis)
attributable to Asset Sales; and (iv) all extraordinary gains and extraordinary
losses.
"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.
"Agent" means any Registrar, Paying Agent, authenticating agent
or co-Registrar.
"Annualized Consolidated EBITDA" means, with respect to any
Person, such Person's Consolidated EBITDA for the latest two fiscal quarters for
which financial statements are available multiplied by two.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"Asset Acquisition" means (i) an Investment by the Company or any
of its Restricted Subsidiaries in any other Person pursuant to which such Person
shall become a Restricted Subsidiary of the Company or shall be merged into or
consolidated with the Company or any of its Restricted Subsidiaries, provided
that such Person's primary business is a Telecommunications Business or (ii) an
acquisition by the Company or any of its Restricted Subsidiaries of the property
and assets of any Person other than the Company or any of its Restricted
Subsidiaries that constitute all or substantially all of the assets of such
Person or a division or line of business of such Person, provided that the
property and assets acquired are Telecommunications Assets.
"Asset Disposition" means the sale or other disposition by the
Company or any of its Restricted Subsidiaries (other than to the Company or a
Restricted Subsidiary of the Company) of (i) all or substantially all of the
Capital Stock of any Restricted Subsidiary of the Company or (ii) all or
substantially all of the assets that constitute a division or line of business
of the Company or any of its Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation, and any sale and leaseback
transaction) in one transaction or a series of related transactions by the
Company or any of its Restricted Subsidiaries to any Person other than the
Company or any of its Restricted Subsidiaries of (i) all or any of the Capital
Stock of any Restricted Subsidiary, (ii) all or substantially all of the
property and assets of an operating unit or business of the Company or any of
its Restricted Subsidiaries or (iii) any other property
2
<PAGE> 9
and assets of the Company or any of its Restricted Subsidiaries disposed of
outside the ordinary course of business of the Company or such Restricted
Subsidiary and, in each case, that is not governed by the provisions of this
Indenture applicable to mergers, consolidations and sales of all or
substantially all of the assets of the Company, provided that "Asset Sale" shall
not include (i) sales or other dispositions of inventory, receivables and other
current assets, (ii) Permitted Asset Swaps, (iii) Restricted Payments permitted
by Section 4.4, (iv) Permitted Investments, (v) sales or other dispositions of
assets with a fair market value (as certified in an Officers' Certificate) not
in excess of $1 million, (vi) any sale or other disposition of any or all the
Capital Stock of an Unrestricted Subsidiary, (vii) any sale or other disposition
of Temporary Cash Investments or (viii) any transaction subject to Section 5.1.
Additionally, the contribution of Telecommunications Assets to an Unrestricted
Subsidiary whereby the Company or a Restricted Subsidiary receives Capital Stock
of an Unrestricted Subsidiary shall be deemed a Restricted Payment only and
shall not be deemed an Asset Sale.
"Attributable Debt" means in respect of a sale and leaseback
transaction, at the time of determination, the present value of the lessee for
the net rental payments during the remaining term of the lease included in such
sale and leaseback transaction including any period for which such lease has
been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Authentication Order" has the meaning provided in Section
2.2(c).
"Average Life" means, at any date of determination with respect
to any Indebtedness, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Board of Directors" means the Board of Directors of the Company
or any committee of such Board of Directors duly authorized to act under this
Indenture.
"Board Resolution" means a copy of a resolution, certified by the
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in The City of New York, or in the city of the
Corporate Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participation or other equivalents (however designated,
whether voting or nonvoting) in equity of such Person, whether now outstanding
or issued after the Closing Date, including, without limitation, all Common
Stock and Preferred Stock.
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"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.
"Cedel" means Cedel Bank, S.A.
"Change of Control" means (a) the sale, lease, transfer,
conveyance or other disposition of all or substantially all of the assets of the
Company to any "person" or "group" (within the meaning of Sections 13(d)(3) and
14(d)(2) of the Exchange Act or any successor provision to either of the
foregoing, including any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act) other than Existing Shareholders (except in connection with a
liquidation or dissolution of the Company that does not constitute a Change of
Control under clause (b) below), (b) the approval by the requisite shareholders
of the Company of a plan of liquidation or statutory dissolution (which shall
not be construed to include a plan of merger or consolidation) of the Company,
Holdings or such Subsidiary of Holdings, as the case may be, unless Existing
Shareholders "beneficially own" (as defined in Rule 13d-3 under the Exchange
Act) at least the same percentage of voting power after the consummation of such
plan as before or otherwise retain the right or ability, by voting power, to
control the Person that acquires the proceeds of such liquidation or
dissolution, (c) any "person" or "group" (within the meaning of Sections
13(d)(3) and 14(d)(2) of the Exchange Act or any successor provision to either
of the foregoing, including any group acting for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under
the Exchange Act), other than Existing Shareholders, becomes the "beneficial
owner" (as so defined) of more than 50% of the total voting power of all classes
of the Voting Stock of the Company and/or warrants or options to acquire such
Voting Stock, calculated on a fully diluted basis, provided that Existing
Shareholders "beneficially own" (as so defined) in the aggregate a percentage of
such Voting Stock or warrants having a lesser percentage of voting power than
such other "person" or "group" and do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority of
the Company's Board of Directors, or (d) during any period of two consecutive
years, individuals who at the beginning of such period constituted the Company's
Board of Directors (together with any new directors whose election or
appointment by such board or whose nomination for election by the stockholders
of the Company was approved by a vote of the Existing Shareholders or a majority
of the directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Company's Board
of Directors then in office. Notwithstanding anything herein to the contrary,
the pledge of (but not the foreclosure upon) the Capital Stock of the Company or
any of its Restricted Subsidiaries to secure a Guarantee entered into pursuant
to clause (x) of the second paragraph of Section 4.3 shall not be deemed to
constitute a Change of Control.
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<PAGE> 11
"Change of Control Event" means the occurrence of both a Change
of Control and a Rating Decline.
"CIRI Transactions" means the transactions contemplated by the
Purchase Agreement, dated as of June 23, 1999, between the Company and Cook
Inlet/VoiceStream GSM II PCS, LLC, a Delaware limited liability company, and the
Purchase Agreement, dated as of June 23, 1999, between the Company and Cook
Inlet/VoiceStream GSM III PCS, LLC , a Delaware limited liability company, each
as described in the Offering Memorandum.
"Closing Date" means the date on which the Notes are originally
issued hereunder.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participation or other equivalents (however designated,
whether voting or nonvoting) 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 this Indenture until a
successor replaces it pursuant to Article V of this Indenture and thereafter
means the successor.
"Company Order" means a written request or order signed in the
name of the Company (i) by its Chairman, a Vice Chairman, its President, its
Chief Financial Officer or a Vice President and (ii) by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to
the Trustee; provided, however, that such written request or order may be signed
by any two of the Persons listed in clause (i) above in lieu of being signed by
one of such Persons listed in such clause (i) and one of the officers listed in
clause (ii) above.
"Consolidated EBITDA" means, for any period, the sum of the
amounts for such period of (i) Adjusted Consolidated Net Income, (ii)
Consolidated Interest Expense, (iii) income taxes, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income (other than income
taxes (x) (either positive or negative) attributable to extraordinary and
nonrecurring gains or losses or sales of assets and (y) actually payable with
respect to such period), (iv) depreciation expense, to the extent such amount
was deducted in calculating Adjusted Consolidated Net Income, (v) amortization
expense, to the extent such amount was deducted in calculating Adjusted
Consolidated Net Income, and (vi) 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 for the Company and its Restricted
Subsidiaries 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
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<PAGE> 12
to (A) the amount of Consolidated EBITDA attributable to such Restricted
Subsidiary multiplied by (B) the quotient of (1) the number of shares of
outstanding Common Stock of such Restricted Subsidiary not owned on the last day
of such period by the Company or any of its Restricted Subsidiaries divided by
(2) the total number of shares of outstanding Common Stock of such Restricted
Subsidiary on the last day of such period.
"Consolidated Interest Expense" means, for any period, the
aggregate amount of interest in respect of Indebtedness (including amortization
of original issue discount on Indebtedness and the interest portion of any
deferred payment obligation, calculated in accordance with the effective
interest method of accounting; all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing; the net costs associated with Interest Rate Agreements, and
Indebtedness that is Guaranteed or secured by the Company or any of its
Restricted Subsidiaries) and all but the principal component of rentals in
respect of Capitalized Leases paid, accrued or scheduled to be paid or to be
accrued by the Company and its Restricted Subsidiaries during such period;
excluding, however, any amount of such interest of any Restricted Subsidiary to
the extent the net income of such Restricted Subsidiary is excluded in the
calculation of Adjusted Consolidated Net Income pursuant to clause (ii) of the
definition thereof (but only in the same proportion as the net income of such
Restricted Subsidiary is excluded from the calculation of Adjusted Consolidated
Net Income pursuant to clause (ii) of the definition thereof), all as determined
on a consolidated basis (without taking into account Unrestricted Subsidiaries)
in conformity with GAAP.
"Consolidated Leverage Ratio" means, on any date of
determination, the ratio of (i) the aggregate amount of Indebtedness of the
Company and its Restricted Subsidiaries on a consolidated basis as of the end of
the two most recent fiscal quarters for which financial statements of the
Company have become available prior to such date (the "Reference Period") to
(ii) the aggregate amount of Annualized Consolidated EBITDA. In making the
foregoing calculation, (A) Indebtedness shall be calculated after giving pro
forma effect to (x) any Indebtedness (including, if applicable, the Notes)
Incurred subsequent to the end of the Reference Period and on or prior to such
date of determination, in each case as if such Indebtedness had been Incurred
and the proceeds thereof had been applied on the last day of such Reference
Period and (y) any Indebtedness that was outstanding during such Reference
Period or thereafter but that is not outstanding or is to be repaid on such date
in each case as if such Indebtedness was repaid on the last day of such
Reference Period; (B) pro forma effect shall be given to Asset Dispositions and
Asset Acquisitions (including giving pro forma effect to the application of
proceeds of any Asset Disposition) that occurred in such Reference Period or
thereafter and on or prior to such date of determination as if they had occurred
and such proceeds had been applied on the first day of such Reference Period;
and (C) pro forma effect shall be given to asset dispositions and asset
acquisitions (including giving pro forma effect to the application of proceeds
of any asset disposition) that have been made by any Person that has become a
Restricted Subsidiary or has been merged with or into the Company or any
Restricted Subsidiary during such Reference Period or subsequent to such period
and on or prior to such date and that would have constituted Asset Dispositions
or Asset Acquisitions had such transactions occurred when such Person was a
Restricted Subsidiary as if such asset dispositions
6
<PAGE> 13
or asset acquisitions were Asset Dispositions or Asset Acquisitions that
occurred on the first day of such Reference Period.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the most recently available consolidated
balance sheet, whether quarterly or annual, of the Company and its Restricted
Subsidiaries, less any amounts attributable to Redeemable Stock or any equity
security convertible into or exchangeable for Indebtedness, the cost of treasury
stock and the principal amount of any promissory notes receivable from the sale
of the Capital Stock of the Company or any of its Restricted Subsidiaries, each
item to be determined in conformity with GAAP.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 140 Broadway, New York, New York 10005, Attention: Corporate Trust
Administration.
"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
Global Notes, or any successor entity thereto.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.6 hereof, in
substantially 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 Global Notes issuable or
issued in whole or in part, the Person specified in Section 2.3 hereof as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Rule 903(b)(2) of Regulation S.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear systems.
"Event of Default" has the meaning provided in Section 6.1.
"Excess Proceeds" has the meaning provided in Section 4.11.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
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<PAGE> 14
"Existing Shareholders" means (i) Douglas G. Smith, Madison
Dearborn Capital Partners, L.P., Allen & Company Incorporated and Chatterjee
Management Company and their respective Affiliates at the Closing Date and (ii)
any Wholly Owned Subsidiary of the Company, Hutchison Whampoa, John W. Stanton
and Providence Equity Partners Inc., and, in each case above, their respective
Affiliates as of February 25, 2000.
"FCC" means the Federal Communications Commission.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the date hereof, 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.
"Global Note Legend" means the legend set forth in Section
2.6(g), which is required to be placed on all Global Notes issued under this
Indenture.
"Global Notes" means, individually and collectively, each of the
Global Notes, substantially in the form of Exhibit A hereto issued in accordance
with Article 2 hereof.
"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, 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 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.
"Holder" means the registered holder of any Note.
"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 the
acquisition of more than 50% of the Capital Stock of any Person; 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
8
<PAGE> 15
reimbursement obligations with respect thereto), (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 of such Person,
(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) the maximum
fixed redemption price of Redeemable Stock of such Person at the time of
determination, provided, however, if such Redeemable Stock is not permitted to
be redeemed at the date of determination, the price shall be the book value of
such Redeemable Stock and (ix) Acquired Debt. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving
rise to the obligation, provided (i) that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the face amount of such
Indebtedness and (ii) that Indebtedness shall not include any liability for
federal, state, local or other taxes. Notwithstanding the foregoing, solely for
purposes of clause (iv) of the second paragraph of Section 4.3, in the case of a
revolving credit or other similar facility, the total amount of funds
outstanding at the Closing Date shall be deemed to include the total amount of
committed funds available on the Closing Date; provided, that, the Company from
time to time may designate less than all of the committed borrowing capacity
under such revolving credit or similar facilities as being outstanding under
such clause (iv), it being understood that if the Company designates a lesser
amount, it may not subsequently redesignate a greater amount under that clause
(iv).
"Indenture" means this Indenture as originally executed or as it
may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Interest Payment Date" means each semiannual interest payment
date on March 15 and September 15 of each year, commencing March 15, 2000.
"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, option or future contract 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 Company or its 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
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any purchase or acquisition of Capital Stock, bonds, notes, debentures or other
similar instruments issued by, such Person (whether purchased or acquired from
the issuer or from a third party) and shall include the designation of a
Restricted Subsidiary as an Unrestricted Subsidiary.
"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, any sale with recourse against the seller or any Affiliate of the
seller, or any agreement to give any security interest).
"Mirror Indebtedness" means Indebtedness, which may be
subordinated in right of payment to Indebtedness of the Restricted Subsidiaries
permitted to be Incurred pursuant to Section 4.3, in the form of either (i) a
demand note or (ii) a term note having a final maturity no later than the final
maturity of the Notes, in each case owed by a Restricted Subsidiary to the
Company or another Restricted Subsidiary having interest payment or accrual
dates and an interest rate (whether current pay or accrual) equal to, or more
frequent than or greater than, the Notes.
"Moody's" means Moody's Investors Services, Inc. or any successor
to the rating agency business thereof.
"Net Cash Proceeds" means (a) with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or Temporary Cash Investments
net of (i) brokerage commissions and other fees and expenses (including fees and
expenses of counsel and investment bankers) related to such Asset Sale, (ii)
provisions for all taxes (whether or not paid or payable) as a result of such
Asset Sale without regard to the consolidated results of operations of the
Company and its Subsidiaries, taken as a whole, (iii) payments made to repay
Indebtedness or any other obligation outstanding at the time of such Asset Sale
that either (A) is secured by a Lien on the property or assets sold or (B) is
required to be paid as a result of such sale and (iv) appropriate amounts to be
provided by the Company or any Restricted Subsidiary of the Company 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 (b) 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 Company or any Restricted
Subsidiary of the Company) and proceeds from the conversion of other 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.
"Non - U.S. Person" means a Person who is not a U.S. Person.
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"Notes" means, the Notes that are issued pursuant to this
Indenture.
"Offer to Purchase" means an offer by the Company to purchase
Notes from the Holders 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 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 and each new Note issued shall be in a principal amount
of $1,000 or integral multiples thereof. On the Payment Date, the Company shall
(i) accept for payment on a pro rata basis Notes or portions thereof tendered
pursuant to an Offer to Purchase; (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so
accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes
or portions thereof so accepted together with an Officers' 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
the unpurchased portion of the Note surrendered, provided that each Note
purchased and each new Note issued shall be in a principal amount of $1,000 or
integral multiples thereof. 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-l 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.
"Officer" means with respect to the Company, the Chairman of the
Board, the President, any Vice President, the Chief Financial Officer, the
Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary.
"Officers' Certificate" means a certificate signed by two
Officers and delivered to the Trustee. Each Officers' Certificate (other than
certificates provided pursuant to TIA Section 314(a)(4)) shall include the
statements provided for in TIA Section 314(e).
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<PAGE> 18
"Opinion of Counsel" means a written opinion signed by legal
counsel who is acceptable to the Trustee and delivered to the Trustee. Such
counsel may be an employee of or counsel to the Company or the Trustee. Each
such Opinion of Counsel shall include the statements provided for in TIA Section
314(e). Opinions of Counsel required to be delivered may have qualifications
customary for opinions of the type required.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively, and, with respect to the Depository Trust Company, shall include
Euroclear and Cedel.
"Paying Agent" has the meaning provided in Section 2.3, except
that, for the purposes of Article VIII, the Paying Agent shall not be the
Company or a Subsidiary of the Company or an Affiliate of any of them. The term
"Paying Agent" includes any additional Paying Agent.
"Permitted Asset Swaps" means any exchange of Telecommunications
Assets by the Company or a Restricted Subsidiary of the Company where the
Company and/or its Restricted Subsidiaries receive aggregate consideration
consisting of Telecommunications Assets, cash and other assets (or any
combination thereof) having an aggregate value at least equal to the fair market
value of the Telecommunications Assets being disposed of by the Company or such
Restricted Subsidiary (as determined by the Board of Directors whose good faith
determination shall be conclusive and evidenced by the Board of Resolution);
provided that (i) at least 75% of the consideration received in such Permitted
Asset Swap that does not consist of Telecommunications Assets shall be in the
form of cash or Temporary Cash Investments and (ii) 100% of the consideration
received in such transaction that does not consist of Telecommunications Assets
shall be treated as having been received in an Asset Sale otherwise permitted
by, but subject to, the terms of Section 4.11.
"Permitted Investment" means (i) an Investment in the Company or
a Restricted Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary or be merged or consolidated with or
into or transfer or convey all or substantially all its assets to, the Company
or a Restricted Subsidiary; provided that such Person's primary business is a
Telecommunications Business; (ii) a Temporary Cash Investment; (iii) stock,
obligations or securities received in satisfaction of judgments; (iv) any
repurchase of stock, stock options, or warrants from employees pursuant to
agreements entered by the Company or any Restricted Subsidiary for consideration
not to exceed $2 million in any fiscal year; (v) any Investment, together with
all other Investments under this clause (v), less any previous Investments in
Persons pursuant to this clause (v) who subsequently become Restricted
Subsidiaries, not to exceed two times the Net Cash Proceeds received by the
Company after September 23, 1999 from the issuance and sale of its Capital Stock
(other than (A) Redeemable Stock, and (B) Preferred Stock that provides for the
payment of dividends in cash and (C) other than Net Cash Proceeds to the extent
used to Incur Indebtedness pursuant to clause (ii)(B) of the first paragraph of
Section 4.3) to a Person that is not a Subsidiary of the Company, in a Person in
a Telecommunications Business; (vi) the CIRI Transactions; (vii) any Investment
in any Person to the extent such Investment represents the non-cash portion of
the consideration received in an
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<PAGE> 19
Asset Sale as permitted by Section 4.11 or in a Permitted Asset Swap, (viii)
Investments (including acquisitions of other Telecommunications Businesses) made
with Capital Stock or options, warrants or rights to acquire Capital Stock, (ix)
customary loans and advances made in the ordinary course of business to
officers, directors or employees of the Company or any of its Restricted
Subsidiaries for travel, entertainment, and moving and relocation expenses; (x)
any Investments outstanding as of the Closing Date; and (xi) any Investment or
Investments not to exceed $50 million in the aggregate.
"Permitted Liens" means (i) Liens for taxes, assessments,
governmental charges or claims 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, (ii) statutory 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 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 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 Company or any of its
Restricted Subsidiaries; (vi) Liens (including extensions and renewals thereof)
upon real or personal property; provided that (a) such Lien is created solely
for the purpose of securing Indebtedness Incurred in accordance with Section 4.3
(1) to finance the cost (including the cost of improvement or construction) of
the item of property or assets subject thereto and such Lien 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 (2) to refinance any Indebtedness previously so secured, (b) the
principal amount of the Indebtedness secured by such Lien does not exceed 100%
of such cost, and (c) 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) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and its Restricted
Subsidiaries, taken as a whole; (viii) Liens encumbering property or assets
under construction arising from progress or partial payments by a customer of
the Company or its Restricted Subsidiaries relating to such property or assets;
(ix) any interest or title of a lessor in the property subject to any
Capitalized Lease or operating lease; (x) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xi) Liens in favor of
the Company or any Restricted Subsidiary; (xii) Liens arising from the rendering
of a final judgment or order against the Company or any Restricted Subsidiary of
the Company that does not give rise to an Event of Default; (xiii) Liens
securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and the
products and
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<PAGE> 20
proceeds thereof; (xiv) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of goods; (xv) Liens encumbering customary initial deposits
and margin deposits, and other Liens that are either 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 and forward contracts, options, future contracts, futures
options or similar agreements or arrangements designed solely to protect the
Company or any of its Restricted Subsidiaries from fluctuations in interest
rates or the price of commodities; (xvi) Liens arising out of conditional sale,
title retention, consignment or similar arrangements, or the sale of goods
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business in accordance with the past practices of the Company
and its Restricted Subsidiaries prior to the Closing Date; and (xvii) Liens on
or sales of receivables.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participation or other equivalents (however designated,
whether voting or nonvoting) 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 or preference stock.
"principal" of a debt security, including the Notes, means the
principal amount due on the Stated Maturity as shown on such debt security.
"Public Equity Offering" means an underwritten public offering by
the Company of primary shares of Common Stock of the Company pursuant to an
effective registration statement under the Securities Act.
"Rating Agency" means each of S&P and Moody's.
"Rating Category" means (i) with respect to S&P, any of the
following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent
successor categories) and (ii) with respect to Moody's any of the following
categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca and C (or equivalent successor
categories). In determining whether the rating of the Notes has decreased by one
or more gradations, gradations within Rating Categories (+ and -- for S&P: 1, 2
and 3 for Moody's) shall be taken into account (e.g., with respect to S&P, a
decline in a rating from BB+ to BB, as well as from BB-- to B+, will constitute
a decrease of one gradation).
"Rating Decline" means (i) a decrease of one or more gradations,
including gradations within Rating Categories as well as between Rating
Categories, in the rating of the Notes from the rating previously assigned to
the Notes by either Rating Agency or (ii) a withdrawal of the rating of the
Notes by either Rating Agency; provided that the decrease or withdrawal occurs
on, or within 90 days after, the date of public notice of the occurrence of a
Change of Control or of the intention by the Company to effect a Change of
Control, which
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<PAGE> 21
period shall be extended so long as the rating of the Notes is under publicly
announced consideration for possible downgrade by either Rating Agency.
"Redeemable 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 an 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 Redeemable 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
Redeemable Stock if the "asset sale" or "change of control" provisions
applicable to such Capital Sock are no more favorable to the holders of such
Capital Stock than the provisions contained in Sections 4.11 and 4.12 and such
Capital Stock specifically provides that such Person will not 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
4.11 and 4.12.
"Redemption Date", when used with respect to any Note to be
redeemed, means that date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which such Note is to be redeemed pursuant to this
Indenture.
"Registrar" has the meaning provided in Section 2.3.
"Regular Record Date" for the interest payable on any Interest
Payment Date means March 1 or September 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Payments" has the meaning provided in Section 4.4.
"Restricted Subsidiary" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"S&P" means Standard & Poor's Rating Group, a division of McGraw
Hill, Inc., or any successor to the rating agency business thereof.
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<PAGE> 22
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" has the meaning provided in Section 2.3.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary of the Company that, together with its Subsidiaries, (i)
for the most recent fiscal year of the Company, accounted for more than 10% of
the consolidated revenues of the Company and its Restricted Subsidiaries or (ii)
as of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Company for such fiscal year.
"Special Subsidiary" means a direct Wholly Owned Subsidiary of
the Company designated as such by an Officers' Certificate, which designation
may not be revoked, and subject to Section 4.20.
"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 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.
"Strategic Equity Investor" means a corporation or other entity
with an equity market capitalization, a net asset value or annual revenues of at
least $2 billion which is a Telecommunications Business.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Telecommunications Assets" means, with respect to any Person,
any asset that is utilized by such Person, directly or indirectly, for the
design, development, construction, installation, integration, operation,
management or provision of telecommunications equipment, inventory, systems
and/or services, including without limitation, any mobile telephone, PCS,
microwave or paging assets. Telecommunications Assets shall include stock, joint
venture or partnership interests of an entity principally engaged in a
Telecommunications Business.
"Telecommunications Business" means a business primarily involved
in the ownership, design, development, construction, acquisition, installation,
integration, management and/or provision of Telecommunications Assets.
"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 not having a maturity of more than two years from the date
of acquisition, (ii) time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition thereof
issued by a
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bank or trust company which is organized under the laws of the United States of
America or any state thereof, and which bank or trust company has capital
surplus and undivided profits aggregating in excess of $50 million and has
outstanding debt which is rated "A" (or such similar equivalent rating) or
higher by at least one nationally recognized statistical rating organizing (as
defined in Rule 436 under the Securities Act) or any money market fund sponsored
by a registered broker dealer or mutual fund distributor, (iii) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (ii) above entered into with a bank meeting the
qualifications described in clause (ii) above, (iv) commercial paper maturing
not more than 90 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 or any state thereof 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" or "Trust Indenture Act" means the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa - 77bbb), as in effect on the date
this Indenture was executed, except as provided in Section 9.6; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "TIA" or "Trust Indenture Act" shall mean, to the extent required by such
amendment, the Trust Indenture Act of 1939, as so amended.
"Total Consolidated Indebtedness" means, at any date of
determination, an amount equal to (a) the accreted value of all Indebtedness, in
the case of any Indebtedness issued with original issue discount, plus (b) the
principal amount (or other amount referred to in the definition of Indebtedness)
of all other Indebtedness of the Company and its Restricted Subsidiaries
outstanding as of the date of determination.
"Trade Payables" means any accounts payable or any other
indebtedness or monetary obligation to trade creditors created, assumed or
Guaranteed by the Company or any of its Restricted Subsidiaries arising in the
ordinary course of business in connection with the acquisition of goods or
services, except for payables that are more than 60 days past due and not
contested in good faith.
"Trustee" means the party named as such in the first paragraph of
this Indenture until a successor replaces it in accordance with the provisions
of Article VII of this Indenture and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Reform Act
of 1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in
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the manner provided below and (ii) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Restricted Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary of 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 Company or any Restricted
Subsidiary, provided that either (A) the Subsidiary to be so designated has
total assets of $1,000 or less or (B) if such Subsidiary has assets greater than
$1,000 that such designation would be permitted under Section 4.4. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary of the Company, provided that immediately after giving effect to such
designation (x) the Company could incur $1.00 of additional Indebtedness under
the first paragraph of Section 4.3 and (y) no Default or Event of Default shall
have occurred and be continuing. Any such designation by the Board of Director
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 Officers'
Certificate that such designation complied with the foregoing provisions.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the Notes, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"U.S. Person" means a U.S. person as defined in Rule 902(k) under
the Securities Act.
"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.
Section 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made
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<PAGE> 25
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder or a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
Section 1.3 Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words
in the plural include the singular;
(v) provisions apply to successive events and
transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(vii) all references to Sections or Articles refer to
Sections or Articles of this Indenture unless otherwise indicated.
ARTICLE II
The Notes
Section 2.1 Form and Dating. (a) The Notes and the Trustee's certificate
of authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
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are hereby expressly made, a part of this Indenture, and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Note issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.6 hereof.
(c) Euroclear and Cedel Procedures Applicable. The provisions of
the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel shall be applicable to transfers of beneficial
interests in Global Notes that are held by Participants through Euroclear or
Cedel.
Section 2.2 Execution, Authentication and Denominations. (a) Two
Officers shall sign the Notes for the Company by manual or facsimile signature.
The Company's seal may be reproduced on the Notes and may be in facsimile form.
(b) 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.
(c) A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the Company signed
by at least one Officer (an "Authentication Order"), authenticate up to
$205,000,000 in aggregate principal amount of Notes for original issue. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount except as provided in Section 2.7 hereof.
(e) 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
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<PAGE> 27
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Holders or an Affiliate of the Company.
Section 2.3 Registrar and Paying Agent.
(a) The Company shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange (the "Security Register"). 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. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes and as agent for service of notice and demands. At the option of the
Company, payment of interest may be made by check mailed to the address of the
Holders as such address appears in the Security Register.
Section 2.4 Paying Agent to Hold Money in Trust. Not later than each due
date of the principal, premium and interest on any Notes, the Company shall
deposit with the Paying Agent money in immediately available funds sufficient to
pay such principal, premium and interest so becoming due. The Company shall
require each Paying Agent other than the Trustee to agree in writing that such
Paying Agent shall hold in trust for the benefit of the Holders or the Trustee
all money held by the Paying Agent for the payment of principal of, premium and
interest on the Notes (whether such money has been paid to it by the Company or
any other obligor on the Notes), and such Paying Agent shall promptly notify the
Trustee of any default by the Company (or any other obligor on the Notes) in
making any such payment. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and account for any funds disbursed, and
the Trustee may at any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing so,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money so paid over to the Trustee. If the Company or a
Subsidiary Acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
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<PAGE> 28
Section 2.5 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 or such shorter time as the Trustee may allow, as the Trustee
may reasonably require of the names and addresses of the Holders of Notes and
the Company shall otherwise comply with TIA Section 312(a).
Section 2.6 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
shall be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the 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 Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee. Upon the occurrence of either of the preceding events in (i) or (ii)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.6, 2.7 or 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.6(a), although beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.6(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Transfers of beneficial interests
in the Global Notes also shall require compliance with either subparagraph (i)
or (ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any 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 2.6(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not
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<PAGE> 29
subject to Section 2.6(b)(i) above, the transferor of such beneficial interest
must deliver to the Registrar either (A) (1) a written order from a Participant
or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be credited
a beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a written order
from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause to
be issued a Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange referred
to in (B)(1) above. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this Indenture and
the Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to Section
2.6(h) hereof.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Global Notes and beneficial interests therein shall be
exchangeable for Definitive Notes if (i) the Depositary (x) notifies the Company
that it is unwilling or unable to continue as depositary for the Global Notes
and the Company thereupon fails to appoint a successor depositary or (y) has
ceased to be a clearing agency registered under the Exchange Act and the Company
fails to appoint a successor, (ii) the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of the Definitive Notes
or (iii) there shall have occurred and be continuing a Default with respect to
the Notes. In all cases, Definitive Notes delivered in exchange for any Global
Note or beneficial interests therein shall be registered in the names, and
issued in any approved denominations, requested by or on behalf of the
Depositary (in accordance with the Applicable Procedures). In such event, the
Trustee shall cause the Global Notes to be canceled accordingly pursuant to
Section 2.10 hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued
in exchange for a beneficial interest pursuant to this Section 2.6(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.
(i) A Holder of a Definitive Note may exchange such Note
for a beneficial interest in a Global Note or transfer such Definitive Notes to
a Person who takes delivery thereof in the form of a beneficial interest in a
Global Note at any time. Upon receipt of a request for such an exchange or the
registration of such a transfer, the Trustee shall cancel the applicable
Definitive Note and increase or cause to be increased the aggregate principal
amount of one of the Global Notes.
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If any such exchange or registration of transfer from a
Definitive Note to a beneficial interest is effected pursuant to subparagraphs
(ii)(B), (ii)(D) or (iii) above at a time when a Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Global Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.6(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 his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.6(e).
(i) A Holder of Unrestricted Definitive Notes may transfer
such Notes to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer, the
Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) [Reserved]
(g) Legends. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF OMNIPOINT
CORPORATION.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
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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."
(h) Cancellation or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.10 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.9,
3.8, 4.11, 4.12 and 9.4 hereof).
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(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.3 hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part 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 and interest on such
Notes and for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.2 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted pursuant to this Section 2.6 to effect a
registration of transfer or exchange may be submitted by facsimile.
Section 2.7 Replacement Notes. If a mutilated Note is surrendered to the
Trustee or if the Holder claims that the Note has been lost, destroyed or
wrongfully taken, then, in the absence of notice to the Company or the Trustee
that such Note has been acquired by a protected purchaser, the Company shall
issue and the Trustee shall authenticate a replacement Note of like tenor and
principal amount; provided that the requirements of this Section 2.7 are met. If
required by the Trustee or the Company, an indemnity bond must be furnished that
is sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee or any Agent from any loss that any of them may suffer if a
Note is replaced. The Company may charge such Holder for the expenses of the
Company and the Trustee in replacing a Note. In case any such mutilated, lost,
destroyed or wrongfully taken Note has become or is about to become due and
payable, the Company in its discretion may pay such Note instead of issuing a
new Note in replacement thereof.
Every replacement Note is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
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The provisions of this Section 2.7 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies against the
Company and the Trustee with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Notes.
Section 2.8 Outstanding Notes. Notes outstanding at any time are all
Notes that have been authenticated by the Trustee, except for those cancelled by
it, those delivered to it for cancellation, those reductions in the interest in
a Global Note effected by the Trustee in accordance with the provisions hereof,
and those described in this Section 2.8 as not outstanding.
If a Note is replaced pursuant to Section 2.7, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to each of them that the replaced Note is held by a protected
purchaser.
If the Paying Agent (other than the Company or an Affiliate of
the Company) holds on a Redemption Date or the maturity date money sufficient to
pay Notes payable on that date, then on and after that date such Notes cease to
be outstanding and interest on them shall cease to accrue.
Notes, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Article VIII) in
the necessary amount shall have been deposited in trust with the Trustee or with
any Paying Agent (other than the Company) or shall have been set aside,
segregated and held in trust by the Company for the Holders of such Notes (if
the Company shall act as its own Paying Agent), on and after that time shall
cease to be outstanding and, in the case of redemption, interest on such Notes
shall cease to accrue, provided that if such Notes, or portions thereof, are to
be redeemed prior to the maturity thereof, notice of such redemption shall have
been given as herein provided, or provision satisfactory to the Trustee shall
have been made for giving such notice.
A Note does not cease to be outstanding because the Company or
one of its Affiliates holds such Note, provided, however, that, in determining
whether the Holders of the requisite principal amount of the outstanding Notes
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Notes owned by the Company or any other obligor upon the Notes
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be outstanding, except that in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which a Responsible Officer of
the Trustee has actual knowledge to be so owned shall be so disregarded. Notes
so owned which have been pledged in good faith may be regarded as outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or of such
other obligor.
Section 2.9 Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of definitive Notes
but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officer or Officers executing
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<PAGE> 34
the temporary Notes, as evidenced by the execution of such temporary Notes. If
temporary Notes are issued, the Company will cause definitive Notes to be
prepared without unreasonable delay. After the preparation of definitive Notes,
the temporary Notes shall be exchangeable for definitive Notes upon surrender of
the temporary Notes at the office or agency of the Company designated for such
purpose pursuant to Section 4.2, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Notes the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall be entitled to the same benefits under this
Indenture as definitive Notes.
Section 2.10 Cancellation. The Company at any time may deliver, or cause
to be delivered, Notes to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered to them for
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 destroy them in accordance with its normal procedure.
Section 2.11 CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and the Company and the Trustee
shall use CUSIP numbers in notices of redemption or exchange as a convenience to
Holders; provided that any such notice shall state that no representation is
made as to the correctness of such CUSIP numbers either as printed on the Notes
or as contained in any notice of redemption or exchange and that reliance may be
placed only on the other identification numbers printed on the Notes; and
provided further that failure to use CUSIP numbers in any notice of redemption
or exchange shall not affect the validity or sufficiency of such notice. The
Company shall promptly notify the Trustee of any change in CUSIP numbers.
Section 2.12 Defaulted Interest. If the Company defaults in a payment of
interest on the Notes, it shall pay, or shall deposit with the Paying Agent
money in immediately available funds sufficient to pay the defaulted interest,
plus (to the extent lawful) any interest payable on the defaulted interest, to
the Persons who are Holders on a subsequent special record date. A special
record date, as used in this Section 2.12 with respect to the payment of any
defaulted interest, shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before the subsequent special record date, the
Company shall mail to each Holder and to the Trustee a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest to be paid.
ARTICLE III
Optional Redemption
Section 3.1 Right of Redemption. (a) The Notes will be redeemable, at
the Company's option, in whole or in part, at any time or from time to time, on
or after September 15, 2004 and prior to maturity, upon not less than 30 nor
more than 60 days' prior notice mailed
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<PAGE> 35
by first class mail to each Holder's last address as it appears in the Security
Register, at the Redemption Prices (expressed in percentages of principal
amount) set forth below, plus accrued and unpaid interest, to the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date that is prior to the Redemption Date to receive interest due on an Interest
Payment Date), if redeemed during the 12 month period commencing September 15,
of the years set forth below:
<TABLE>
<CAPTION>
Redemption
Year Price
---- -----------
<S> <C>
2004 105.750%
2005 103.833%
2006 101.917%
2007 and thereafter 100.000%
</TABLE>
(a) In addition, at any time prior to September 15, 2002, the
Company may redeem up to 35% of the aggregate principal amount of the Notes
originally issued, at any time as a whole or from time to time in part, with the
proceeds of one or more Public Equity Offerings or sales of Capital Stock (other
than Redeemable Stock) to one or more Strategic Equity Investors, each such
Public Equity Offering or sale to Strategic Equity Investors resulting in Net
Cash Proceeds of $50 million or more, at a redemption price (expressed as a
percentage of principal amount) of 111.50%, plus accrued and unpaid interest to
the Redemption Date, provided that after any such redemption at least 65% of the
aggregate principal amount of Notes originally outstanding remains outstanding
and each such redemption is effected not more than 60 days after the
consummation of such Public Equity Offering or sale to Strategic Equity
Investors.
Section 3.2 Notices to Trustee. If the Company elects to redeem Notes
pursuant to Section 3.1, it shall notify the Trustee in writing of the
Redemption Date, the principal amount of Notes to be redeemed and the clause of
this Indenture pursuant to which the redemption shall occur.
The Company shall give each notice provided for in this Section
3.2 in an Officers' Certificate at least 45 days before the Redemption Date
(unless a shorter period shall be satisfactory to the Trustee).
Section 3.3 Selection of Notes to Be Redeemed. If less than all of the
Notes are to be redeemed at any time, the Trustee will select the Notes, or
portions thereof, for redemption in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed
or, if the Notes are not listed on a national securities exchange, on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate; provided that no Note of $1,000 in
principal amount or less shall be redeemed in part.
The Trustee shall make the selection from the Notes outstanding
and not previously called for redemption. Notes in denominations of $1,000 in
principal amount may
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only be redeemed in whole. The Trustee may select for redemption portions (equal
to $1,000 in principal amount or any integral multiple thereof) of Notes that
have denominations larger than $1,000 in principal amount. 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 and the
Registrar promptly in writing of the Notes or portions of Notes to be called for
redemption.
Section 3.4 Notice of Redemption. At least 30 days but not more than 60
days before a Redemption Date, the Company shall mail or cause to be mailed a
notice of redemption by first class mail to each Holder whose Notes are to be
redeemed.
The notice shall identify the Notes to be redeemed and shall
state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered
to the Paying Agent in order to collect the Redemption Price;
(v) that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the Holders is to
receive payment of the Redemption Price plus accrued and unpaid interest, to the
Redemption Date upon surrender of the Notes to the Paying Agent;
(vi) that, if any Note is being redeemed in part, the
portion of the principal amount (equal to $1,000 in principal amount at Stated
Maturity or any integral multiple thereof) of such Note to be redeemed and that,
on and after the Redemption Date, upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion thereof will be
reissued;
(vii) that, if any Note contains a CUSIP number as
provided in Section 2.10, no representation is being made as to the correctness
of the CUSIP number either as printed on the Notes or as contained in the notice
of redemption and that reliance may be placed only on the other identification
numbers printed on the Notes; and
(viii) the aggregate principal amount of Notes being
redeemed.
At the Company's request (which request may be revoked by the
Company at any time prior to the time at which the Trustee shall have given such
notice to the Holders), made in writing to the Trustee at least 45 days (or such
shorter period as shall be satisfactory to the Trustee) before a Redemption
Date, the Trustee shall give the notice of redemption in the name and at the
expense of the Company. If, however, the Company gives such notice to the
Holders,
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the Company shall concurrently deliver to the Trustee an Officers' Certificate
stating that such notice has been given.
Section 3.5 Effect of Notice of Redemption. Once notice of redemption is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender of any Notes to the Paying
Agent, such Notes shall be paid at the Redemption Price, plus accrued and unpaid
interest to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed,
whether or not the Holder receives the notice. In any event, failure to give
such notice, or any defect therein, shall not affect the validity of the
proceedings for the redemption of Notes held by Holders to whom such notice was
properly given.
Section 3.6 Deposit of Redemption Price. On or prior to 10:00 a.m. New
York City time on any Redemption Date, the Company shall deposit with the Paying
Agent (or, if the Company is acting as its own Paying Agent, shall segregate and
hold in trust as provided in Section 2.4) money in immediately available funds
sufficient to pay the Redemption Price of and accrued and unpaid interest, on
all Notes to be redeemed on that date other than Notes or portions thereof
called for redemption on that date that have been delivered by the Company to
the Trustee for cancellation.
Section 3.7 Payment of Notes Called for Redemption. If notice of
redemption has been given in the manner provided under Section 3.4, the Notes or
portion of Notes specified in such notice to be redeemed shall become due and
payable on the Redemption Date at the Redemption Price stated therein, together
with accrued and unpaid interest to such Redemption Date, and on and after such
date (unless the Company shall default in the payment of such Notes at the
Redemption Price and accrued and unpaid interest to the Redemption Date, in
which case the principal, until paid, shall bear interest from the Redemption
Date at the rate prescribed in the Notes shall continue to accrue), such Notes
shall cease to accrue interest . Upon surrender of any Note for redemption in
accordance with a notice of redemption, such Note shall be paid and redeemed by
the Company at the Redemption Price, together with accrued and unpaid interest
to the Redemption Date; provided that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
registered as such at the close of business on the relevant Regular Record Date;
provided, further, that if a Redemption Date is after a Regular Record Date and
on or prior to the relevant Interest Payment Date, the accrued interest will be
payable to the Holder of the redeemed Notes registered on the relevant Regular
Record Date.
Section 3.8 Notes Redeemed in Part. Upon surrender of any Note that is
redeemed in part, the Trustee shall authenticate for the Holder a new Note equal
in principal amount to the unredeemed portion of such surrendered Note.
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ARTICLE IV
Covenants
Section 4.1 Payment of Notes. The Company shall pay the principal of,
premium and interest on the Notes on the dates and in the manner provided in the
Notes and this Indenture. An installment of principal, premium or interest shall
be considered paid on the date due if the Trustee or Paying Agent (other than
the Company, a Subsidiary of the Company, or any Affiliate of any of them) holds
on that date money deposited by the Company in immediately available funds and
designated for and sufficient to pay the installment. As provided in Section
6.9, upon any bankruptcy or reorganization procedure relative to the Company,
the Trustee shall serve as the Paying Agent and conversion agent, if any, for
the Notes.
The Company shall pay interest on overdue principal, premium and
interest on overdue installments of interest, to the extent lawful, at the rate
per annum specified in the Notes.
Section 4.2 Maintenance of Office or Agency. The Company will maintain
an office or agency in the Borough of Manhattan, the City of New York where
Notes may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 10.2.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee as such office of the Company in accordance with Section
2.3 for the purposes described in this Section 4.2.
Section 4.3 Limitation on Indebtedness. (a) The Company will not, and
will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness
(including Acquired Debt), provided, however, that the Company may Incur
Indebtedness and any of its Restricted Subsidiaries may issue shares of
Redeemable Stock if (i) no Default or Event of Default shall have occurred and
be continuing, and (ii) (A) the Consolidated Leverage Ratio is no greater than 7
to 1, for any Incurrence from the Closing Date through the fifth anniversary of
the Closing Date, or 6 to 1 thereafter or (B) with respect to Indebtedness
Incurred under this clause (B), the aggregate principal amount of all
Indebtedness so Incurred and outstanding is in an aggregate principal amount
that does not exceed 1.4 times the aggregate Net Cash Proceeds received by the
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Company after September 23, 1999 from the issuance and sale (other than to a
Subsidiary) of Capital Stock (other than Redeemable Stock), other than (x)
proceeds to the extent relied upon to permit the making of one or more
Restricted Payments in compliance with Section 4.4 and (y) proceeds to the
extent relied upon to permit the making of one or more Permitted Investments
pursuant to clause (v) of the definition of that term.
Notwithstanding the foregoing, as long as no Default or Event of
Default shall have occurred and be continuing, the Company and (except as
specified below) any Restricted Subsidiary may issue or Incur each and all of
the following:
(i) Indebtedness due and owing to government entities in
connection with telecommunications license fees or Indebtedness Incurred to
finance the payment of deposits with and license fees to the FCC in connection
with FCC license auctions;
(ii) Indebtedness Incurred by the Company or any
Restricted Subsidiary the proceeds of which are (or the credit support provided
by any such Indebtedness is) used to finance the development, construction,
expansion or operation of Telecommunications Assets;
(iii) Indebtedness Incurred by the Company or any
Restricted Subsidiary the proceeds of which are (or the credit support provided
by any such Indebtedness is) used to finance the acquisition of
Telecommunications Assets or the Capital Stock of a Telecommunications Business;
(iv) Indebtedness outstanding as of the Closing Date;
(v) Indebtedness under one or more revolving credit or
working capital facilities in an aggregate principal amount outstanding or
available at any time not to exceed $500 million;
(vi) Indebtedness owed to the Company or any of its
Restricted Subsidiaries, provided that any subsequent issuance or transfer of
any Capital Stock which results in any such Restricted Subsidiary owed such
Indebtedness ceasing to be a Restricted Subsidiary or any subsequent transfer of
such Indebtedness (other than to the Company or another Restricted Subsidiary)
shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness;
(vii) Indebtedness issued in exchange for, or the net
proceeds of which are used to refinance or refund, then outstanding
Indebtedness, other than Indebtedness Incurred under clauses (v) and (viii) of
this Section 4.3 and any refinancing thereof in an amount not to exceed the
amount so refinanced or refunded (plus premiums, accrued interest, fees and
expenses), provided that (x) Indebtedness Incurred to refinance or refund the
Notes or other Indebtedness does not have a higher relative seniority to the
Notes than the Indebtedness being refinanced or refunded, (y) the Average Life
of such new Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded and (z) Indebtedness
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Incurred to refinance Indebtedness of the Company may not be Incurred by any
Restricted Subsidiary;
(viii) Indebtedness (A) in respect of performance, surety
or appeal bonds provided in the ordinary course of business, (B) under Currency
Agreements and Interest Rate Agreements, provided that such agreements do not
increase the Indebtedness of the obligor outstanding at any time other than as a
result of fluctuation or interest rates or by reason of fees, indemnities and
compensation payable thereunder or (C) arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations Incurred in
connection with the disposition of any business, assets or Restricted Subsidiary
of the Company in a principal amount not to exceed the gross proceeds actually
received by the Company or any Restricted Subsidiary in connection with such
disposition;
(ix) Indebtedness represented by the Notes.
(b) Notwithstanding any other provision of this Section 4.3, the
maximum amount of Indebtedness that the Company or a Restricted Subsidiary may
Incur pursuant to this Section 4.3 shall not be deemed to be exceeded due solely
to the result of fluctuations in the exchange rates of currencies.
(c) For purposes of determining any particular amount of
Indebtedness under this Section 4.3, (i) Guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included and (ii) any Liens
granted pursuant to the equal and ratable provisions referred to in Section 4.9
below shall not be treated as Indebtedness. For purposes of determining
compliance with this Section 4.3, in the event that an item of Indebtedness
meets the criteria of more than one of the types of Indebtedness described in
this Section 4.3 or would be entitled to be Incurred pursuant to the first
paragraph of Section 4.3(a), the Company, in its sole discretion, shall
classify, and from time to time may reclassify (in whole or in part), such item
of Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses.
(d) Accrual of interest, accretion of accreted value and the
payment of interest in kind or the payment of dividends on Redeemable Stock in
kind will not be deemed an Incurrence of Indebtedness or the issuance of
Redeemable Stock for the purpose of this Section 4.3
Section 4.4 Limitation on Restricted Payments. The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, (i)
declare or pay any dividend or make any distribution on its Capital Stock (other
than dividends or distributions payable solely in shares of its or such
Restricted Subsidiary's Capital Stock (other than Redeemable Stock) or in
options, warrants or other rights to acquire such shares of Capital Stock) held
by Persons other than (a) the Company, (b) any of its Restricted Subsidiaries,
or (c) any other shareholder of such Restricted Subsidiaries (so long as the
Company and its Restricted Subsidiaries receive their pro rata share of such
dividend or distribution based on their ownership of such class or series of
such Restricted Subsidiaries Capital Stock on which such dividend or
distribution is being made), (ii) purchase, redeem, retire or otherwise acquire
for value any shares of Capital Stock of
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the Company or an Unrestricted Subsidiary (including options, warrants or other
rights to acquire such shares of Capital Stock) held by any Person (other than
the Company or a Restricted Subsidiary), (iii) purchase, redeem, defease, retire
or otherwise acquire for value any Indebtedness subordinate to the Notes prior
to any scheduled maturity, repayment or sinking fund payment, or (iv) make any
Investment, other than a Permitted Investment, in any Person (such payments or
any other actions described in clauses (i) through (iv) being collectively
"Restricted Payments") unless, at the time of, and after giving effect to, the
proposed Restricted Payment: (A) no Default or Event of Default shall have
occurred and be continuing, (B) the Company would be permitted to incur
additional indebtedness pursuant to the first paragraph of Section 4.3, and (C)
the aggregate amount expended for all Restricted Payments (the amount so
expended, if other than in cash, to be determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a Board
Resolution) after the date hereof shall not exceed the sum of (1) the amount by
which Consolidated EBITDA exceeds 1.5 times Consolidated Interest Expense for
the period from the Closing Date through the end of the last completed fiscal
quarter for which financial statements are available plus (2) 100% of the
aggregate Net Cash Proceeds received by the Company on or after the Closing Date
from the issuance and sale permitted by this Indenture of its Capital Stock
(other than Redeemable Stock) to a Person who is not a Subsidiary of the
Company, or from the issuance to a Person who is not a Subsidiary of the Company
of any options, warrants or other rights to acquire Capital Stock (other than
Redeemable Stock) of the Company, or from the issuance and sale of convertible
debt securities of the Company to the extent converted into Capital Stock (other
than Redeemable Stock of the Company) (except, in any of the foregoing cases, to
the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to
clause (ii)(B) of the first paragraph of Section 4.3), plus (3) an amount equal
to the net reduction in Investments made by the Company or a Restricted
Subsidiary after the Closing Date in any Person resulting from (x) payments of
interest on debt, dividends, repayment of loans or advances, or other transfers
or distributions of property, in each case to the Company or any Restricted
Subsidiary from any Person, (y) to the extent that an Investment is sold for
cash or otherwise liquidated or repaid for cash, the after-tax cash return of
capital with respect to such Investment (less the cost of disposition, if any)
and (z) the redesignation of any Unrestricted Subsidiary as a Restricted
Subsidiary, provided that in each of the foregoing cases, the aggregate amount
of the net reduction in Investments will not be deemed to exceed the amount of
such Investments previously made by the Company and its Restricted Subsidiaries
in such Person or Unrestricted Subsidiary which were treated as Restricted
Payments.
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the
date of declaration thereof if, at said date of declaration such payment would
comply with the foregoing paragraph;
(ii) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness that is subordinated in
right of payment to the Notes (including, premium if any, and accrued and unpaid
interest) with the proceeds of, or in exchange for, Indebtedness incurred under
clause (vii) of the second paragraph of Section 4.3;
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(iii) the repurchase, redemption or other acquisition of
Capital Stock (or any options, warrants or other rights to acquire, or out of
the proceeds of a substantially concurrent offering of, shares of Capital Stock)
of the Company or any Restricted Subsidiary or any other Person in exchange for
shares of Capital Stock (other than Redeemable Stock) of the Company;
(iv) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness of the Company which is
subordinated in right of payment to the Notes in exchange for, or out of the
proceeds of, a substantially concurrent offering of shares of the Capital Stock
of the Company (other than Redeemable Stock);
(v) payments or distributions to dissenting stockholders
pursuant to applicable law in connection with a consolidation, merger or
transfer of assets that complies with the provisions of this Indenture
applicable to mergers, consolidations and transfers of all or substantially all
of the property and assets of the Company;
(vi) the distribution to shareholders of the Company or
any Restricted Subsidiary of shares of Capital Stock of any Unrestricted
Subsidiary or the distribution to shareholders of the Company of shares of
Capital Stock of any Subsidiary holding only the assets of the Company's
technology business, provided that in such latter case, after giving effect to
such transaction on a pro forma basis, (x) the Company would be permitted to
incur additional indebtedness pursuant to the first paragraph of Section 4.3, or
(y) the Company's Annualized Consolidated EBITDA would not decrease, provided,
further, in such latter case, that such Subsidiary has working capital not in
excess of $5 million;
(vii) the purchase, redemption. acquisition, cancellation
or other retirement for value of shares of Capital Stock of the Company to the
extent required by FCC rules in order to prevent the loss or secure the renewal
or reinstatement of any license or franchise held by the Company or any
Restricted Subsidiary
(viii) the repurchase of Indebtedness subordinated to the
Notes at a purchase price not greater than 101% of the principal (or accreted)
amount thereof, plus accrued and unpaid interest, if any, pursuant to a
mandatory offer to repurchase made after a Change of Control provided that the
Company shall first have made any Offer to Purchase (and repurchased all
tendered Notes) pursuant to Section 4.12; and
(ix) to the extent that Indebtedness Guaranteed pursuant
to clause (x) of the second paragraph of Section 4.3 has been contributed to the
capital of or loaned to the Company, the payment of dividends or distributions
by the Company in an amount sufficient to repay such Indebtedness (to the extent
of the Guarantee) in accordance with its terms; provided that except in the case
of clauses (i) and (ix) of this paragraph no Default or Event of Default shall
have occurred and be continuing or occur as a consequence of the actions or
payments set forth therein. Each Restricted Payment permitted pursuant to this
paragraph (other than the Restricted Payment referred to in clauses (ii) and
(ix) hereof) and each payment pursuant to clause (vi) of the definition of
Permitted Investment shall be included in calculating the
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aggregate amount of Restricted Payments for purposes of clause (C) of the first
paragraph of this Section 4.4.
Any Investment in a Subsidiary that becomes an Unrestricted
Subsidiary shall become a Restricted Payment made on such date in the amount of
the greater of (x) the book value of such Subsidiary on the date such Subsidiary
becomes an Unrestricted Subsidiary and (y) the fair market value of such
Subsidiary on such date as determined (A) in good faith by the Board of
Directors if such fair market value is determined to be less than $10 million
and (B) by an investment banking firm of national standing with high yield
underwriting expertise if such fair market value is determined to be in excess
of $10 million. Any Restricted Payment made by contribution or transfer of
assets shall be valued in the amount of the greater of (x) the book value of
such asset on the date of transfer or (y) the fair market value on such date as
determined (A) in good faith by the Board of Directors if such fair market value
is determined to be less than $10 million and (B) by an investment banking firm
of national standing with high yield underwriting expertise if such fair market
value is determined to be in excess of $10 million.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which any
calculations required by this Section 4.4 were computed, which calculations may
be based upon the Company's latest available financial statements.
Section 4.5 Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Restricted Subsidiary to (i) pay dividends or make any other
distributions permitted by applicable law on any Capital Stock of such
Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(ii) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary, (iii) make loans or advances to the Company or any other Restricted
Subsidiary or (iv) transfer any of its property or assets to the Company or any
other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions:
(i) existing on the Closing Date in this Indenture or any
other agreements in effect on the Closing Date, and any extensions,
refinancings, renewals or replacements of such agreements, provided that the
encumbrances and restrictions in any such extensions, refinancings, renewals or
replacements are no less favorable in any material respect to the Holders than
those encumbrances or restrictions that are then in effect and that are being
extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property
or assets of such Person acquired by the Company or any Restricted Subsidiary
and existing at the time of such acquisition, which encumbrances or restrictions
are not applicable to any Person or the property
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or assets of any Person other than such Person or the property or assets of such
Person so acquired;
(iv) in the case of clause (iv) of the first paragraph of
this Section 4.5, (A) that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is a license or contract or
(B) existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture; or
(v) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock of, or property and assets of
such Restricted Subsidiary.
Nothing contained in this Section 4.5 shall prevent the Company
or any Restricted Subsidiary from (1) creating. incurring, assuming or
suffering to exist any Liens otherwise permitted in Section 4.9, (2)
restricting the sale or other disposition of property or assets of the
Company or any of its Restricted Subsidiaries that secure Indebtedness
of the Company or any of its Restricted Subsidiaries, or (3) restricting
the payment of dividends or distributions or other disposition of
property or assets of or the making of loans by any Restricted
Subsidiary in connection with any financing for the Telecommunications
Business of such Restricted Subsidiary, provided that in the case of
clause (3) such restriction may be entered into only if at such time the
total amount, without duplication, of (i) Mirror Indebtedness owed by
Restricted Subsidiaries, less (ii) proceeds of such Mirror Indebtedness
that are invested in another Person, other than (x) Investments in other
Restricted Subsidiaries conducting no operations other than the holding
of government licenses or (y) Investments in Mirror Indebtedness of
other Restricted Subsidiaries, plus (iii) capital contributions to the
Special Subsidiary, plus (iv) the cash and Temporary Cash Investments
held by the Company (not on a consolidated basis), equals or exceeds the
outstanding principal amount of the Notes and all other Indebtedness
outstanding on the Closing Date that ranks equally with the Notes.
Section 4.6 Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries. The Company (a) will not permit any Restricted
Subsidiary to issue any Capital Stock (other than to the Company or a Restricted
Subsidiary) and (b) will not permit any Person (other than the Company or a
Restricted Subsidiary) to own any Capital Stock of any Restricted Subsidiary,
provided, however, that this Section 4.6 will not prohibit (i) the sale or other
disposition of all of the issued and outstanding Capital Stock of any Restricted
Subsidiary owned by the Company or any Restricted Subsidiary in compliance with
the other provisions of this Indenture; (ii) the ownership by directors of
director's qualifying shares of Capital Stock of any Restricted Subsidiary, to
the extent mandated by applicable law; (iii) the ownership of Capital Stock of a
Restricted Subsidiary issued and outstanding either (A) as of the Closing Date
or (B) prior to the time that such Person becomes a Restricted Subsidiary so
long as such Capital Stock was not issued in contemplation of such Person's
becoming a Restricted Subsidiary of the Company or otherwise being acquired by
the Company; (iv) the issuance of Capital Stock of a Restricted Subsidiary
pursuant to an employee stock option plan approved by the Boards of
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Directors of the Restricted Subsidiary and the Company; or (v) the issuance or
sale of Capital Stock of a Restricted Subsidiary in a transaction not prohibited
by Section 4.11, provided that such Restricted Subsidiary will remain a
Restricted Subsidiary, and only if at the time of such sale, the total amount,
without duplication, of (i) Mirror Indebtedness owed by Restricted Subsidiaries,
less (ii) proceeds of such Mirror Indebtedness that are invested in another
Person, other than (x) Investments in other Restricted Subsidiaries conducting
no operations other than the holding of government licenses or (y) Investments
in Mirror Indebtedness of other Restricted Subsidiaries, plus (iii) capital
contributions to the Special Subsidiary, plus (iv) the cash and Temporary Cash
Investments held by the Company (not on a consolidated basis), equals or exceeds
the outstanding principal amount of the Notes.
Section 4.7 Limitation on Issuances of Guarantees by Restricted
Subsidiaries. The Company will not permit any Restricted Subsidiary to Guarantee
or assume the payment of any Indebtedness of the Company (other than
Indebtedness described in clause (x) of the second paragraph of Section 4.3)
unless (i) (A) such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture providing for a Guarantee of payment of the Notes by such
Restricted Subsidiary and (B) with respect to any Guarantee of Subordinated
Indebtedness of the Company by such Restricted Subsidiary, any such Guarantee
shall be subordinated to such Restricted Subsidiary's Guarantee with respect to
the Notes at least to the same extent as such Subordinated Indebtedness is
subordinated to the Notes and (ii) such Restricted Subsidiary waives any rights
of reimbursement, indemnity or subrogation or any other rights against the
Company or any other Restricted Subsidiary as a result of any payment by such
Restricted Subsidiary under its Guarantee until the Notes have been paid in
full. The incurrence by a Restricted Subsidiary as a primary obligor of any
Indebtedness that is guaranteed by the Company will not be deemed a Guarantee of
the Company's Indebtedness for purposes of this Section 4.7.
Notwithstanding the foregoing, any Guarantee of the Notes or
waiver of rights created pursuant to the provisions described in the foregoing
paragraph will provide by their terms that they will be automatically and
unconditionally released and discharged upon the release by the holders of the
Indebtedness of the Company described in the preceding paragraph of their
Guarantee by such Restricted Subsidiary (including any deemed release upon
payment in full of all obligations under such Indebtedness, except by or as a
result of payment under such Guarantee), at a time when (A) no other
Indebtedness of the Company has been Guaranteed by such Restricted Subsidiary or
(B) the holders of all such other Indebtedness which is Guaranteed by such
Restricted Subsidiary also release their Guarantee by such Restricted Subsidiary
(including any deemed release upon payment in full of all obligations under such
Indebtedness, except by or as a result of payment under such Guarantee).
Section 4.8 Limitation on Transactions with Stockholders and Affiliates.
Except for any agreement entered into on or before the Closing Date, the Company
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into, renew or extend any transaction (including, without
limitation, the purchase, sale, lease or exchange of property or assets, or the
rendering of any service) with any holder (or any Affiliate of such holder) of
10% or more of any Voting Stock of the Company or with any Affiliate of the
Company or any
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Restricted Subsidiary, except upon fair and reasonable terms no less favorable
to the Company or such Restricted Subsidiary than could be obtained, at the time
of such transaction or at the time of the execution of the agreement providing
therefor, in a comparable arm's length transaction with a Person that is not
such a holder or an Affiliate.
In addition to the foregoing, transactions with any holder (or
any Affiliate of such holder) of 10% or more of any Voting Stock (i) having a
fair market value or involving payments equal to or in excess of $5 million
shall be approved by a majority of the disinterested members of the Board of
Directors and (ii) having a fair market value or involving payments equal to or
in excess of $10 million shall require the Company or a Restricted Subsidiary to
deliver to the Trustee a written opinion of a nationally recognized investment
banking firm stating that the transaction is fair to the Company or such
Restricted Subsidiary from a financial point of view. The foregoing limitation
shall not apply to (i) any transaction between the Company and any of its
Restricted Subsidiaries or between Restricted Subsidiaries; (ii) the payment of
reasonable and customary regular fees to directors of the Company who are not
employees of the Company and any employment agreement entered into by the
Company or any Restricted Subsidiary in the ordinary course of business; (iii)
any Restricted Payments not prohibited by Section 4.4; (iv) any transaction
pursuant to an agreement to which the Company or any Restricted Subsidiary is a
party and in effect on the Closing Date; (v) commercial or technical agreements
customary in the industry (as determined by the Board of Directors) in which the
Company and its Restricted Subsidiaries are engaged and entered into in the
ordinary course of business between the Company and any joint venture
(regardless of organizational form) in which the Company has a substantial
economic interest, (vi) solely with respect to the requirement that the Company
obtain a fairness opinion, Guarantees of Indebtedness pursuant to clause (x) of
the second paragraph of Section 4.3, (vii) loans or advances to officers or
employees of the Company or any of its Restricted Subsidiaries to pay business
related travel expenses or reasonable relocation costs of such officers or
employees in connection with their employment by the Company or any of its
Restricted Subsidiaries, and (viii) payments and other transactions required
under or contemplated by any agreement in effect on the Closing Date and
disclosed in the Company's (or its predessor's) filings with the Commission
before the Closing Date (or that were not required to be disclosed therein
pursuant to the rules and regulations of the Commission) or any ordinary course
commercial agreement in effect at the time an entity becomes a Restricted
Subsidiary or is merged into the Company (and not entered into in anticipation
of such acquisition) or any amendment thereto or replacement of such agreement
so long as any such amendment or replacement is not disadvantageous to the
Holders of the Notes in any material respect.
Section 4.9 Limitation on Liens. The Company will not, and will not
permit any Restricted Subsidiary to, create, Incur, assume or suffer to exist
any Lien on any of its assets or properties of any character, or any shares of
Capital Stock or Indebtedness of any Restricted Subsidiary, without making
effective provision for all of the Notes and all other amounts due under this
Indenture to be directly secured equally and ratably with (or, if the obligation
or liability to be secured by such Lien is subordinated in right of payment to
the Notes, prior to) the obligation or liability secured by such Lien.
The foregoing limitation does not apply to:
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(i) Liens existing on the Closing Date;
(ii) Liens granted after the Closing Date on any assets or
Capital Stock of the Company or its Restricted Subsidiaries created in favor of
the Holders;
(iii) Liens with respect to the assets of a Restricted
Subsidiary granted by such Restricted Subsidiary to the Company or a Restricted
Subsidiary to secure Indebtedness owing to the Company or such other Restricted
Subsidiary;
(iv) Liens securing obligations under revolving credit or
working capital facilities under clause (v) of the second paragraph of Section
4.3, provided that the aggregate amount of Indebtedness secured by any such
Liens shall not at any time exceed the amount of Indebtedness permitted to be
Incurred under clause (v) of the second paragraph of Section 4.3;
(v) Liens securing Indebtedness under clauses (i), (ii),
(iii) or (x) of the second paragraph of Section 4.3 granted on or after the
Closing Date on the Capital Stock or assets of any Restricted Subsidiary,
including any Lien granted in connection with a refinancing thereof;
(vi) Liens on telecommunications licenses securing
obligations to government entities;
(vii) Liens on property of a person existing at the time
such person is merged into, or the assets of such person are acquired by, the
Company or any Restricted Subsidiary, provided that such Liens were in existence
prior to the contemplation of such merger or acquisition and do not secure any
property or assets of the Company or any of its Restricted Subsidiaries other
than the property or assets subject to the Liens prior to such merger or
acquisition;
(viii) Permitted Liens; or
(ix) Liens in addition to those set forth above, provided
that such Liens secure only Indebtedness of the Company and its Restricted
Subsidiaries and, at the time of determination, the aggregate amount of such
Indebtedness then outstanding shall not exceed 5% of the Company's consolidated
total assets as reflected on its most recent publicly available consolidated
balance sheet.
Section 4.10 Limitation on Sale-Leaseback Transactions. The Company will
not, and will not permit any Restricted Subsidiary to, enter into any sale and
leaseback transactions (except between or among the Company and one or more of
its direct or indirect Wholly Owned Restricted Subsidiaries) unless (A) the
Company or that Restricted Subsidiary could have (x) incurred Indebtedness in an
amount equal to the Attributable Debt relating to such sale and leaseback
transaction under Section 4.3 and (y) incurred a Lien to secure such
Indebtedness under Section 4.9; (B) the gross cash proceeds of that sale and
leaseback transaction are at least equal to the fair market value, as determined
in good faith by the Board of Directors and set forth
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in an Officer's Certificate delivered to the Trustee, of the property that is
the subject of the sale and leaseback transaction; and (z) the Company applies
the proceeds of the sale and leaseback transaction in compliance with Section
4.11.
Section 4.11 Limitation on Asset Sales. The Company will not, and will
not permit any Restricted Subsidiary to, consummate any Asset Sale, unless (i)
the consideration received by the Company or such Restricted Subsidiary is at
least equal to the fair market value of the assets sold or disposed of and (ii)
at least 75% of the consideration received consists of cash or Temporary Cash
Investments, provided, however, that the amount of (x) any liabilities of the
Company or any Restricted Subsidiary that are assumed by the transferee of any
such assets and (y) any notes or other obligations received by the Company or
any such Restricted Subsidiary from such transferee that are immediately
converted by the Company or such Restricted Subsidiary into cash, shall be
deemed to be Temporary Cash Investments (to the extent of the Temporary Cash
Investments received in such conversion) for the purposes of this clause (ii).
In the event and to the extent that the Net Cash Proceeds received by the
Company or any of its Restricted Subsidiaries from one or more Asset Sales
occurring after the Closing Date in any period of twelve consecutive months
exceed $5 million, then the Company shall or shall cause the relevant Restricted
Subsidiary to (1) within twelve months after the date Net Cash Proceeds so
received exceed such an amount (a) apply an amount equal to such excess Net Cash
Proceeds to permanently repay Indebtedness of the Company or any Restricted
Subsidiary or (b) invest an equal amount, or the amount not so applied pursuant
to clause (a) (or enter into a definitive agreement committing to so invest
within twelve months after the date of such agreement), in Telecommunications
Assets (or in a company engaged in a Telecommunications Business) and/or (2)
apply (no later than the end of the twelve month period referred to in clause
(1)) such excess Net Cash Proceeds (to the extent not applied pursuant to clause
(1)) as provided in the following paragraph of this Section 4.11. The amount of
such excess Net Cash Proceeds required to be applied (or to be committed to be
applied) during such twelve month period as set forth in clause (1) of the
preceding sentence and not applied as so required by the end of such period
shall constitute "Excess Proceeds."
If, as of the first day of any calendar month, the aggregate
amount of Excess Proceeds not theretofore subject to an Offer to Purchase
pursuant to this Section 4.11 equals or exceeds $5 million, the Company must
commence, not later than the fifteenth Business Day of such month, and
consummate an Offer to Purchase from the Holders on a pro rata basis with the
holders of any other Indebtedness of the Company ranking equally with the Notes
and entitled at the time to receive a comparable Offer to Purchase an aggregate
principal amount of Notes and such other Indebtedness equal to the Excess
Proceeds on such date, at a purchase price equal to 100% of the principal amount
of the Notes, plus, in each case accrued interest (if any) to the Payment Date.
Notwithstanding the foregoing, to the extent that any amount of Excess Proceeds
remains after completion of any such Offer to Purchase, the Company may use such
remaining amount for general corporate purposes and the amount of Excess
Proceeds shall be reset to zero.
Section 4.12 Repurchase of Notes upon a Change of Control. The Company
shall commence within 30 days of the occurrence of a Change of Control and
consummate an Offer to
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Purchase for all Notes then outstanding, at a purchase price equal to 101% of
the principal amount thereof, plus accrued interest to the Payment Date.
Section 4.13 [Reserved]
Section 4.14 Existence. Subject to Articles IV and V of this Indenture,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence and the existence of each of its
Restricted Subsidiaries in accordance with the respective organizational
documents of the Company and each such Subsidiary and the rights (whether
pursuant to charter, partnership certificate, agreement, statute or otherwise),
licenses and franchises of the Company and each such Subsidiary; provided that
the Company shall not be required to preserve any such right, license or
franchise, or the existence of any Restricted Subsidiary, if the maintenance or
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries taken as a whole; and provided
further that any Restricted Subsidiary may consolidate with, merge into, or
sell, convey, transfer, lease or otherwise dispose of all or part of its
property and assets to the Company or any Wholly Owned Restricted Subsidiary.
Section 4.15 Payment of Taxes and Other Claims. The Company will pay or
discharge and shall cause each of its Subsidiaries to pay or discharge, or cause
to be paid or discharged, before the same shall become delinquent (i) all
material taxes, assessments and governmental charges levied or imposed upon (a)
the Company or any such Subsidiary, (b) the income or profits of any such
Subsidiary which is a corporation or (c) the property of the Company or any such
Subsidiary and (ii) all material lawful claims for labor, materials and supplies
that, if unpaid, might by law become a lien upon the property of the Company or
any such Subsidiary; provided that the Company shall not be required to pay or
discharge, or cause to be paid or discharged, any such tax, assessment, charge
or claim the amount, applicability or validity of which is being contested in
good faith by appropriate proceedings and for which adequate reserves have been
established.
Section 4.16 Maintenance of Properties and Insurance. The Company will
cause all properties used or useful in the conduct of its business or the
business of any Restricted Subsidiary and material to the Company and its
Restricted Subsidiaries taken as a whole, to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
adequate for the level or stage of the Company's or any Restricted Subsidiary's
business and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided
that nothing in this Section 4.16 shall prevent the Company or any such
Restricted Subsidiary from discontinuing the use, operation or maintenance of
any of such properties or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors or the board of directors
of such Restricted Subsidiary having managerial responsibility for any such
property, desirable in the conduct of the business of the Company or such
Restricted Subsidiary.
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The Company will provide or cause to be provided, for itself and
its Restricted Subsidiaries, insurance against loss or damage of the kinds
customarily insured against by corporations similarly situated and owning like
properties, including, but not limited to, products liability insurance and
public liability insurance, with reputable insurers or with the government of
the United States of America, or an agency or instrumentality thereof, in such
amounts, with such deductibles and by such methods as the Company in good faith
shall determine to be reasonable and appropriate in the circumstances.
Section 4.17 Compliance Certificates. (a) The Company shall deliver to
the Trustee, within 90 days after the end of the last fiscal quarter of each
year, an Officers' Certificate stating whether or not the signers know of any
Default or Event of Default that occurred during such fiscal year. Such
certificate shall comply with the applicable provisions of the TIA. If any of
the signers of the Officers' Certificate have knowledge of such a Default or
Event of Default, the certificate shall describe any such Default or Event of
Default and its status. The first certificate to be delivered pursuant to this
Section 4.17(a) shall be for the first fiscal year ending after the execution of
this Indenture.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of the Company's fiscal year, a certificate signed by the
Company's independent certified public accountants stating (i) that their audit
examination has included a review of the terms of this Indenture and the Notes
as they relate to accounting matters, (ii) that they have read the most recent
Officers' Certificate delivered to the Trustee pursuant to paragraph (a) of this
Section 4.17 and (iii) whether, in connection with their audit examination,
anything came to their attention that caused them to believe that the Company
was not in compliance with any of the terms, covenants, provisions or conditions
of Article IV and Section 5.1 of this Indenture as they pertain to accounting
matters and, if any Default or Event of Default has come to their attention,
specifying the nature and period of existence thereof; provided that such
independent certified public accountants shall not be liable in respect of such
statement by reason of any failure to obtain knowledge of any such Default or
Event of Default that would not be disclosed in the course of an audit
examination conducted in accordance with generally accepted auditing standards
in effect at the date of such examination.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and which action the Company is taking or proposes
to take with respect thereto.
Section 4.18 Commission Reports and Reports to Holders. The Company
shall file with the Commission the annual, quarterly and other reports and other
information required by Section 13(a) or 15(d) of the Exchange Act, regardless
of whether such sections of the Exchange Act are applicable to the Company. If
the Commission will not accept such filings, the Company shall mail or cause to
be mailed copies of such reports to Holders and the Trustee within 15 days after
the date it would have been required to file such reports with the Commission
had it been subject to such sections; provided, however, that the copies of such
reports mailed to Holders may omit exhibits, which the Company will supply to
any Holder at such Holder's request.
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Section 4.19 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the covenants
or the performance of this Indenture; and (to the extent that it may lawfully do
so) the Company hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 4.20 Limitation on Mirror Indebtedness. The Company will not
forgive principal of or interest on Mirror Indebtedness, or reduce the interest
payable thereon, unless the remaining principal amount of Mirror Indebtedness
owed by Restricted Subsidiaries to the Company, plus cash and Temporary Cash
Investments held by the Company (not on a consolidated basis), equals or exceeds
the outstanding principal amount of the Notes. The Company shall not need to
maintain Mirror Indebtedness if the conditions requiring Mirror Indebtedness no
longer exist.
Section 4.21 Limitation on Activities of the Special Subsidiary. The
Company shall not permit the Special Subsidiary to conduct any business or
operations other than the making of Temporary Cash Investments and investments
in Mirror Indebtedness of Restricted Subsidiaries, the holding of Temporary Cash
Investments, Mirror Indebtedness and cash and payment of dividends or
distributions to the Company. Without limiting the foregoing, the Company shall
not permit the Special Subsidiary to make any Investment (other than Temporary
Cash Investments and investments in Mirror Indebtedness of Restricted
Subsidiaries), make any Restricted Payment, Incur any Indebtedness, or issue any
Equity Interest or Capital Stock except to the Company. The Company shall not
sell any Equity Interest or Capital Stock of the Special Subsidiary or designate
the Special Subsidiary an Unrestricted Subsidiary.
ARTICLE V
Successor Corporation
Section 5.1 When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an entirety in one transaction or a series of related
transactions) to, any Person or permit any Person to merge with or into the
Company unless: (i) the Company shall be the continuing Person or the Person (if
other than the Company) formed by such consolidation or into which the Company
is merged or that acquired or leased such property and assets of the Company
shall be a corporation organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and shall expressly assume
by a supplemental indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Notes and under this Indenture; (ii)
immediately after giving effect to such transaction, no Default or Event of
Default shall have
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occurred and be continuing; (iii) immediately after giving effect to such
transaction on a pro forma basis, either (A) the Consolidated Net Worth of the
Company or any entity or Person formed by or surviving any such consolidation or
merger, or to which such sale, assignment, transfer, lease, conveyance or other
disposition will have been made will be at least equal to the Consolidated Net
Worth of the Company before such transaction or (B) the Company would be able to
incur $1.00 of Indebtedness under the first paragraph of Section 4.3; and (iv)
the Company shall have furnished to the Trustee an Officers' Certificate and an
Opinion of Counsel, each to the effect that such and the supplemental indenture
(if any) comply with this Section 5.1.
ARTICLE VI
Default and Remedies
Section 6.1 Events of Default. An "Event of Default" shall occur with
respect to the Notes if:
(a) defaults in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at Stated Maturity, upon
acceleration, redemption or otherwise;
(b) defaults in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30 days;
(c) defaults in the performance or breach of the provisions of
Article V hereof or the failure to make or consummate an Offer to Purchase in
accordance with Section 4.11 or Section 4.12;
(d) defaults in the performance of or breaches of any covenant or
agreement of the Company in this Indenture or under the Notes (other than a
default specified in clause (a), (b) or (c) of this Section 6.1) and such
default or breach continues for a period of 30 consecutive days after written
notice to the Company by the Trustee or to the Company and the Trustee by the
Holders of 25% or more in aggregate principal amount of the Notes;
(e) there occurs with respect to any issue or issues of
Indebtedness of the Company or any Significant Subsidiary having an outstanding
principal amount greater than $10 million in the aggregate for all such issues
of all such Persons, whether such Indebtedness now exists or shall hereafter be
created, (A) an event of default that has caused the holder thereof to declare
such Indebtedness to be due and payable prior to its Stated Maturity and/or (B)
the failure to make a principal payment and such defaulted payment shall not
have been made, waived or extended within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance or
indemnification by a Person other than the Company or a Restricted Subsidiary,
which indemnity party is solvent and has acknowledged responsibility) (treating
any deductibles, self-insurance or retention as not so covered) for the payment
of money greater than $10 million in the aggregate for all such final judgments
or orders shall be rendered against the Company or any Significant Subsidiary
and
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shall not be paid or discharged or bonded over, and there shall be any period of
30 consecutive days following entry of the final judgment or order that causes
the aggregate amount for all such final judgments or orders outstanding and not
paid or discharged or bonded over to exceed $10 million during which a stay of
enforcement of such final judgment or order by reason of a pending appeal or
otherwise shall not be in effect;
(g) a court having jurisdiction in the premises enters a decree
or order for (A) relief in respect of the Company or any Significant Subsidiary
in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Company or any Significant Subsidiary or for all or substantially all of the
property and assets of the Company or any Significant Subsidiary or (C) the
winding up or liquidation of the affairs of the Company or any Significant
Subsidiary and, in each case, such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(h) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consents to the entry of an order for relief in
an involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) effects any general assignment for the benefit of
creditors.
Section 6.2 Acceleration. If an Event of Default (other than an Event of
Default specified in clause (g) or (h) of Section 6.1 that occurs with respect
to the Company) occurs and is continuing under this Indenture, the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding by written notice to the Company (and to the Trustee if such notice
is given by the Holders), may, and the Trustee at the request of such Holders
shall, declare the principal amount of, premium and accrued interest on the
Notes to be immediately due and payable. Upon a declaration of acceleration,
such principal amount of, premium and accrued interest shall be immediately due
and payable. In the event of a declaration of acceleration because an Event of
Default set forth in clause (e) of Section 6.1 has occurred and is continuing,
such declaration of acceleration shall be automatically rescinded and annulled
if the event of default triggering such Event of Default pursuant to clause (e)
shall be remedied or cured by the Company or the relevant Significant Subsidiary
or waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default
specified in clause (g) or (h) of this Section 6.2 occurs with respect to the
Company, the principal amount of, premium and accrued interest on the Notes then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration, but before
a judgment or decree for the payment of the money due has been obtained by the
Trustee, the Holders of at least a majority in principal amount of the
outstanding Notes, by written notice to the Company and to the Trustee may waive
all past Defaults and rescind and annul such declaration of
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acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of the principal amount of, premium and interest on the
Notes that have become due solely by such declaration of acceleration have been
cured or waived and (ii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction.
Section 6.3 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium or interest on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding.
Section 6.4 Waiver of Past Defaults. Subject to Section 6.2, 6.7 and
9.2, the Holders of at least a majority in aggregate principal amount of the
outstanding Notes, by notice to the Trustee, may waive an existing Default or
Event of Default and its consequences, except a Default in the payment of
principal of, premium or interest on any Note as specified in clause (a) or (b)
of Section 6.1 (including in connection with an Offer to Purchase) or in respect
of a covenant or provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Note affected. Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereto.
Section 6.5 Control by Majority. The Holders of at least a majority in
aggregate principal amount of the outstanding Notes, by notice to the Trustee,
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee; provided that the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability, or that the Trustee determines in good faith may
be unduly prejudicial to the rights of Holders not joining in the giving of such
direction; and provided further that the Trustee may take any other action it
deems proper that is not inconsistent with any directions received from Holders
of Notes pursuant to this Section 6.5.
Section 6.6 Limitation on Suits. A Holder may not institute any
proceedings, judicial or otherwise, with respect to this Indenture or the Notes,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) such Holder has previously given to the Trustee
written notice of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal
amount of outstanding Notes have made a written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
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(iii) such Holder or Holders have offered the Trustee
indemnity reasonably satisfactory to the Trustee against any costs, liabilities
or expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority
in aggregate principal amount of the outstanding Notes have not given the
Trustee a direction that is inconsistent with such written request.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive
payment of the principal of, premium or interest on such Holder's Note on or
after the respective due dates expressed on such Note (including in a notice
with respect to an Offer to Purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default in
payment of principal, premium or interest specified in clause (a) or (b) of
Section 6.1 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor of the Notes for the whole amount of principal, premium and accrued
interest remaining unpaid, together with interest on overdue principal, premium
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate specified in the Notes, and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and all other amounts due to the
Trustee pursuant to Section 7.6 hereof.
Section 6.9 Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.6)
and the Holders allowed in any judicial proceedings relative to the Company (or
any other obligor of the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies, securities or other
property payable or deliverable upon conversion or exchange of the Notes or upon
any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee under Section 7.6. Nothing herein contained shall be deemed to empower
the Trustee to authorize or consent to, or accept or adopt on behalf of any
Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights
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of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any money pursuant to
this Article VI, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.6,
including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the
reasonable costs and expenses of collection;
Second: to Holders for amounts then due and unpaid for
principal amount of, premium and interest on the Notes in respect
of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for
principal, premium and interest, respectively; and
Third: to the Company or any other obligors of the Notes,
as their interests may appear, or as a court of competent
jurisdiction may direct.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
Section 6.11 Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 of this Indenture, or a suit
by Holders of more than 10% in principal amount of the outstanding Notes.
Section 6.12 Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then, and in
every case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Section 6.13 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Notes in Section 2.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The
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assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 6.14 Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article VI or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE VII
Trustee
Section 7.1 Rights of Trustee. (a) Except during the continuance of an
Event of Default,
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth and correctness of the statements and
certificates or opinions furnished to it and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a
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majority in aggregate principal amount of the outstanding Notes, relating to the
time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Notes.
(d) Subject to TIA Sections 315(a) through (d):
(i) the Trustee may rely upon any document believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document;
(ii) before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 10.4. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(iv) the Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized or within
its rights or powers; provided that the Trustee's conduct does not constitute
negligence or bad faith;
(v) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it;
(vi) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed), may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(vii) the Trustee may consult with counsel and the advice
of such counsel or any opinion of counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(viii) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
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investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney;
(ix) the Trustee may execute any of the trusts or powers
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(x) the Trustee may conclusively rely as to the identity
and addresses of Holders and other matters contained therein on the Security
Register maintained by the Registrar pursuant to Section 2.3 hereof and shall
not be affected by notice to the contrary; and
(xi) unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
Section 7.2 Individual Rights of Trustee. The Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not the Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to TIA Sections 310(b) and 311.
Section 7.3 Trustee's Disclaimer. The Trustee (i) shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, (ii) shall not be accountable for the Company's use
of the proceeds from the Notes, (iii) shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and (iv) shall not be responsible for any statement in this Indenture, including
the recitals contained herein, or in any document issued in connection with the
sale of the Notes or in the Notes other than its certificate of authentication.
Section 7.4 Notice of Default. If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is known to the
Trustee, the Trustee shall mail to each Holder in the manner and to the extent
provided in TIA Section 313(c) notice of the Default or Event of Default within
90 days after it occurs, unless such Default or Event of Default has been cured
or waived; provided, however, that, except in the case of a default in the
payment of the principal of, premium or interest on any Note, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders.
The Trustee shall not be deemed to have knowledge of any Default
or Event of Default except (i) a default described in Section 6.1(a) or (b) so
long as the Trustee is the Paying Agent or (ii) any Default or Event of Default
of which the Trustee shall have received written notification or a Responsible
Officer shall have obtained actual knowledge.
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Section 7.5 Reports by Trustee to Holders. Within 60 days after each
June 30, beginning with June 30, 2000, the Trustee shall mail to each Holder as
provided in TIA Section 313(c) a brief report dated as of such June 30, if
required by TIA Section 313(a).
A copy of each report at the time of its mailing to the Holders
of Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange or of any delisting thereof.
Section 7.6 Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing for its services
hereunder. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, expenses and
advances incurred or made by it in addition to compensation for its services.
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense (including, without limitation,
reasonable attorneys' fees) incurred by it without negligence or bad faith on
its part in connection with the acceptance or administration of this Indenture
and its duties under this Indenture and the Notes, including the costs and
expenses of defending itself against any claim or liability and of complying
with any process served upon it or any of its officers in connection with the
exercise or performance of any of its powers or duties under this Indenture and
the Notes. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay reasonable fees and expenses of such
counsel. The Company need not pay for any settlements made without its consent;
provided that such consent shall not be unreasonably withheld. The Company need
not reimburse any expense or indemnity against any loss or liability incurred by
the Trustee through negligence or bad faith.
The Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee, in its capacity as Trustee, for any
amount owing it pursuant to this Section 7.6, except money or property held in
trust to pay principal of, premium and interest on particular Notes.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (g) or (h) of Section 6.1,
the expenses and the compensation for the services (including the reasonable
fees and expenses of its agents and counsel) will be intended to constitute
expenses of administration under Title 11 of the United States Bankruptcy Code
or any applicable federal or state law for the relief of debtors.
To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under this Section 7.6 out of the estate in
any such proceeding, shall be denied for
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any reason, other than solely because of the misconduct of the Trustee or its
Agents, payment of the same shall be secured by a Lien on, and shall be paid out
of, any and all distributions, dividends, money, securities and other properties
that the Holders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
The provisions of this Section 7.6 shall survive the resignation
or removal of the Trustee and the termination of this Indenture.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.7 Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
7.7.
The Trustee may resign by so notifying the Company in writing at
least 30 days prior to the date of the proposed resignation. The Holders of a
majority in aggregate principal amount of the outstanding Notes may remove the
Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the consent of the Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.9;
(ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of
the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in
the office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in aggregate principal amount of the outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company. If the successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
7.6, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties
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of the Trustee under this Indenture. A successor Trustee shall mail notice of
its succession to each Holder.
If the Trustee fails to comply with Section 7.9, any Holder who
satisfies the requirements of TIA Section 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect provided in this Section.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.7, the Company's obligation under Section 7.6 shall continue for the
benefit of the retiring Trustee.
Section 7.8 Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
Section 7.9 Eligibility. Any Trustee serving hereunder shall be a bank
or trust company, within or without the state, which is authorized by law to
perform all of the duties imposed upon it hereby and which either (i) has a
reported capital and surplus aggregating at least $25,000,000 or (ii) is a
Wholly Owned Subsidiary of a bank, a trust company or a bank holding company
having a reported capital and surplus aggregating at least $25,000,000, and
shall at all times satisfy the requirements of TIA Section 310(a)(1).
Section 7.10 Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article VIII of this Indenture.
ARTICLE VIII
Discharge of Indenture
Section 8.1 Termination of Company's Obligations. Except as otherwise
provided in this Section 8.1, the Company may terminate its obligations under
the Notes and this Indenture if:
(i) all Notes previously authenticated and delivered
(other than destroyed, lost or stolen Notes that have been replaced) have been
delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder; or
(ii) (A) the Notes have become due and payable, mature
within one year or all of them are to be called for redemption within one year
under arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Company irrevocably deposits in trust with the Trustee
during such one-year period, under the terms of an irrevocable
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trust agreement in form and substance satisfactory to the Trustee, as trust
funds solely for the benefit of the Holders for that purpose, money or U.S.
Government Obligations sufficient (in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee), without consideration of any reinvestment of
any interest thereon, to pay principal, premium and interest on the Notes to
maturity or redemption, as the case may be, and to pay all other sums payable by
it hereunder, (C) no Default or Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit, (D) such deposit
will not result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound and (E) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with.
With respect to the foregoing clause (i), the Company's
obligations under Section 7.6 shall survive. With respect to the foregoing
clause (ii), the Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7,
2.12, 4.1, 4.2, 7.6, 7.7, 8.4, 8.5 and 8.6 shall survive until the Notes are no
longer outstanding. Thereafter, only the Company's obligations in Sections 7.6,
8.4, 8.5 and 8.6 shall survive. After any such irrevocable deposit, the Trustee
upon request shall acknowledge in writing the discharge of the Company's
obligations under the Notes and this Indenture except for those surviving
obligations specified in this Section 8.1.
Section 8.2 Defeasance and Discharge of Indenture. The Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Notes on the 123rd day after the date of the deposit referred to
in clause (A) of this Section 8.2, and the provisions of this Indenture will no
longer be in effect with respect to the Notes, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same, except
as to (i) rights of registration of transfer and exchange, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii) the
Company's obligations under Section 4.2, (iv) the rights, obligations and
immunities of the Trustee hereunder and (v) the rights of the Holders as
beneficiaries of this Indenture with respect to the property so deposited with
the Trustee payable to all or any of them, provided that the following
conditions shall have been satisfied:
(A) the Company has deposited with the Trustee,
in trust, money and/or U.S. Government Obligations that through the payment of
interest and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment referred to
in this clause (A), money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee to pay the principal of, premium
and accrued interest on the Notes on the Stated Maturity of such payments in
accordance with the terms of this Indenture and the Notes and shall have
irrevocably instructed the Trustee to apply such money to the payment of such
principal, premium and interest;
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(B) the Company has delivered to the Trustee
(i) either (x) an Opinion of Counsel to the effect that Holders will not
recognize income, gain or loss for federal income tax purposes as a result of
the Company's exercise of its option under this Section 8.2 and will be subject
to federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit, defeasance and discharge had
not occurred, which Opinion of Counsel must be based upon (and accompanied by a
copy of) a ruling of the Internal Revenue Service to the same effect unless
there has been a change in applicable federal income tax law after the date
hereof such that a ruling is no longer required or (y) a ruling directed to the
Trustee received from the Internal Revenue Service to the same effect as the
aforementioned Opinion of Counsel and (ii) an Opinion of Counsel to the effect
that the creation of the defeasance trust does not violate the Investment
Company Act of 1940 and after the passage of 123 days following the deposit, the
trust fund will not be subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law in a case
commenced by or against the Company under either such statute;
(C) immediately after giving effect to such
deposit on a pro forma basis no Event of Default, or event that after the giving
of notice or lapse of time or both would become an Event of Default, shall have
occurred and be continuing on the date of such deposit or during the period
ending on the 123rd day after the date of such deposit, and such deposit shall
not result in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(D) if at such time the Notes are listed on a
national securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Notes will not be delisted as a result
of such deposit, defeasance and discharge; and
(E) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance contemplated
by this Section 8.2 have been complied with.
Section 8.3 Defeasance of Certain Obligations. The Company may omit to
comply with any term, provision or condition set forth in clause (iii) of
Section 5.1 and Sections 4.3 through 4.17, in each case with respect to the
outstanding Notes if:
(i) the Company has deposited with the Trustee, in trust,
money and/or U.S. Government Obligations that through the payment of interest
and principal in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment referred to in this
clause (i), money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee to pay the principal of, premium
and accrued interest on the
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Notes on the Stated Maturity of such payments in accordance with the terms of
this Indenture and the Notes and shall have irrevocably instructed the Trustee
to apply such money to the payment of such principal, premium and interest;
(ii) immediately after giving effect to such deposit on a
pro forma basis no Event of Default, or event that after the giving of notice or
lapse of time or both would become an Event of Default, shall have occurred and
be continuing on the date of such deposit or during the period ending on the
123rd day after the date of such deposit, and such deposit shall not result in a
breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;
(iii) the Company has delivered to the Trustee an Opinion
of Counsel to the effect that (A) the creation of the defeasance trust does not
violate the Investment Company Act of 1940, (B) the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and defeasance of certain obligations and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred and (C) after the
passage of 123 days following the deposit, the trust funds will not be subject
to the effect of Section 547 of the United States Bankruptcy Code or Section 15
of the New York Debtor and Creditor Law in a case commenced by or against the
Company under either such statute;
(iv) at such times the Notes are listed on a national
securities exchange, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Notes will not be delisted as a result of such
deposit, defeasance and discharge; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by this
Section 8.3 have been complied with.
Section 8.4 Application of Trust Money. Subject to Sections 8.5 and 8.6,
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3, as the case
may be, and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Notes and this Indenture to the payment of
principal of, premium and interest on the Notes; but such money need not be
segregated from other funds except to the extent required by law.
Section 8.5 Repayment to Company. Subject to Sections 7.6, 8.1, 8.2 and
8.3, the Trustee and the Paying Agent shall promptly pay to the Company upon
request set forth in an Officers' Certificate any excess money held by them at
any time and thereupon shall be relieved from all liability with respect to such
money. The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal, premium or interest
that remains unclaimed for two years; provided that the Trustee or such Paying
Agent before being required to make any payment may cause to be published at the
expense of the Company once in a newspaper of general circulation in the City of
New York or mail to each
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Holder entitled to such money at such Holder's address (as set forth in the
Security Register) notice that such money remains unclaimed and that after a
date specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
Section 8.6 Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 8.1,
8.2 or 8.3, as the case may be, by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.1, 8.2 or 8.3, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 8.1, 8.2 or 8.3,
as the case may be; provided that, if the Company has made any payment of
principal of, premium or interest on any Notes because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE IX
Amendments, Supplements and Waivers
Section 9.1 Without Consent of Holders. The Company, when authorized by
a Board Resolution of its Board of Directors, and the Trustee may amend or
supplement this Indenture or the Notes without notice to or the consent of any
Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article V;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee;
(5) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(6) to add one or more Subsidiary guarantees on the terms
required by this Indenture; or
(7) to make any change that does not adversely affect the rights
of any Holder.
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Section 9.2 With Consent of Holders. Subject to Sections 6.4 and 6.7 and
without prior notice to the Holders, the Company, when authorized by its Board
of Directors (as evidenced by a Board Resolution), and the Trustee may amend
this Indenture and the Notes with the written consent of the Holders of not less
than a majority of the aggregate principal amount of the Notes then outstanding,
and the Holders of not less than a majority of the aggregate principal amount of
the Notes then outstanding by written notice to the Trustee may waive future
compliance by the Company with any provision of this Indenture or the Notes.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected, an amendment of waiver, including a waiver
pursuant to Section 6.4, may not:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, on Note;
(ii) reduce the principal amount or premium or interest
on, any Note;
(iii) change the place or currency of payment of principal
of, or premium or interest on, any Note;
(iv) impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity (or, in the case of
redemption, on or after the Redemption Date) of any Note;
(v) reduce the above-stated percentage of outstanding
Notes the consent of whose Holders is necessary to modify or amend this
Indenture;
(vi) waive a default in the payment of principal of,
premium or interest on the Notes;
(vii) reduce the percentage of aggregate principal amount
of outstanding Notes the consent of whose Holders is necessary for waiver of
compliance with certain provisions of this Indenture or for waiver of certain
default; or
(viii) modify any of the provisions of this Section 9.2,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each outstanding Note affected thereby.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
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<PAGE> 68
Section 9.3 Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is an continuing consent
by the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the Note of the consenting Holder, even if notation
of the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion of its Note. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
of aggregate principal amount of the outstanding Notes.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such persons continue to
be Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder unless it is of the type described in any of clauses (i)
through (vi) of Section 9.2. In case of an amendment or waiver of the type
described in clauses (i) through (vi) of Section 9.2, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder of a
Note that evidences the same indebtedness as the Note of the consenting Holder.
Section 9.4 Notation on or Exchange of Notes. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee may require the
Holder to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Note about the changed terms and return it to the Holder and the
Trustee may place an appropriate notation on any Note thereafter authenticated.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note shall issue and the Trustee shall authenticate a new Note
that reflects the changed terms. Failure to make the appropriate notation or
issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 9.5 Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, in addition
to the documents required by Section 10.3 hereof, an Opinion of Counsel stating
that the execution of any amendment, supplement or waiver authorized pursuant to
this Article IX is authorized or permitted by this Indenture. Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement or waiver
if the same does not adversely affect the rights of the Trustee. The Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
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<PAGE> 69
Section 9.6 Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article IX shall conform to the requirements
of the TIA as then in effect.
ARTICLE X
Miscellaneous
Section 10.1 Trust Indenture Act. This Indenture is subject to the
provisions of the TIA that are required to be a part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
Section 10.2 Notices. Any notice or communication shall be sufficiently
given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery addressed as follows:
if to the Company:
VoiceStream Wireless Corporation
3650 131st Avenue S.E.
Bellevue, Washington 98006
Fax: (425) 586-8080
Attn: Alan R. Bender, Esq.
with (in the case of any notice under Article VI) a copy to:
(which shall not constitute notice)
Friedman Kaplan & Seiler LLP
875 Third Avenue
New York, NY 10022
Fax: (212) 355-6401
Attention: D. Roger Glenn, Esq.
if to the Trustee:
HSBC Bank USA
140 Broadway, 12th Floor
New York, NY 10005
Fax: (212) 658-6425
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five
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<PAGE> 70
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail (certified or registered, return receipt requested) to its address
shown on the register kept by the Registrar and shall be sufficiently given to
such Holder if so mailed or delivered within the time presented. Any notice or
communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except for a notice to the Trustee, which is deemed given only when received,
and except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided in this Section 10.2, it is duly given, whether
or not the addressee receives it.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 10.3 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate reasonably satisfactory to
the Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(ii) an Opinion of Counsel reasonably satisfactory to the
Trustee stating that, in the opinion of such Counsel, all such conditions
precedent have been complied with.
Section 10.4 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that the person making such certificate or
opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion contained in
such certificate or opinion is based;
(iii) a statement that, in the opinion of such person, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
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<PAGE> 71
(iv) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with, and such other
opinions as the Trustee may reasonably request; provided, however, that, with
respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
Section 10.5 Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(a) The ownership of Notes shall be proved by the Security
Register.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind every
future Holder of the same Note or the Holder of every Note issued upon the
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Note.
Section 10.6 Rules by Trustee, Paying Agent or Registrar. The Trustee
may make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for is functions.
Section 10.7 Payment Date Other Than a Business Day. If an Interest
Payment Date, Redemption Date, Payment Date for an Offer to Purchase, Stated
Maturity or date of maturity of any Note shall not be a Business Day at any
place of payment, then payment of principal of, premium or interest on such
Note, as the case may be, need not be made on such date, but may be made on the
next succeeding Business Day at such place of payment with the same force and
effect as if made on the Interest Payment Date, Payment Date for an Offer to
Purchase, or Redemption Date, or at the Stated Maturity or date of maturity of
such Note; provided that no interest shall accrue for the period from and after
such Interest Payment Date, Payment Date for an Offer to Purchase, Redemption
Date, Stated Maturity or date of maturity, as the case may be.
Section 10.8 Governing Law. This Indenture and the Notes shall be
governed by the laws of the State of New York. The Trustee, the Company and the
Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to this Indenture or
the Notes.
Section 10.9 No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
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<PAGE> 72
Section 10.10 No Recourse Against Others. No recourse for the payment of
the principal of, premium or interest on any of the Notes, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company contained in this Indenture, or
in any of the Notes, or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporator or against any past, present or
future partner, shareholder, other equityholder, officer, director, employee or
controlling person, as such, of the Company or of any successor Person, either
directly or through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and a
consideration for, the execution of this Indenture and the issue of the Notes.
Section 10.11 Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successor.
Section 10.12 Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 10.13 Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.14 Table of Contents, Headings, Etc. The Table of Contents,
Cross Reference Table and headings of the Article and Sections of this Indenture
have been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the date first written above.
VOICESTREAM WIRELESS CORPORATION
as Issuer
-------------------------
Name:
Title
HSBC BANK USA,
as Trustee
-------------------------
Name:
Title:
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<PAGE> 74
Title: EXHIBIT A
[FACE OF NOTE]
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II)
THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.6 OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE
AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF OMNIPOINT CORPORATION.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY 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.
<PAGE> 75
VOICESTREAM WIRELESS CORPORATION
11 1/2% SENIOR NOTES DUE 2009
CUSIP ______
$___________
VOICESTREAM WIRELESS CORPORATION, a Delaware corporation (the
"Company", which term includes any successor under the Indenture hereinafter
referred to), for value received, promises to pay to ________, or its registered
assigns, the principal sum of ________________ Dollars ($______) on September
15, 2009.
Interest Payment Dates: March 15 and September 15, commencing
March 15, 2000.
Regular Record Dates: March 1 and September 1.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-2
<PAGE> 76
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: VOICESTREAM WIRELESS CORPORATION,
as Issuer
By
-------------------------
Name:
Title:
By
-------------------------
Name:
Title:
(Form of Trustee's Certificate of Authentication)
This is one of the 11 1/2% Senior Notes due 2009 described in the
within mentioned Indenture.
HSBC BANK USA,
as Trustee
By
-------------------------
Authorized Signatory
A-3
<PAGE> 77
[REVERSE SIDE OF NOTE]
VOICESTREAM WIRELESS CORPORATION
11 1/2% SENIOR NOTE DUE 2009
(1) Principal and Interest. The Company promises to pay the
principal of this Note on September 15, 2009.
The Company promises to pay interest on the principal amount of
this Note on each Interest Payment Date, as set forth below, at 11 1/2% per
annum until maturity.
Interest will be payable semiannually in arrears (to the holders
of record of the Notes, as reflected in the Security Register at the close of
business on the March 1 or September 1 immediately preceding the Interest
Payment Date) on each Interest Payment Date, commencing March 15, 2000.
Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that, if there is no existing default in the payment of
interest and if this Note is authenticated between a Regular Record Date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such Interest Payment Date. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium and
interest on overdue installments of interest, to the extent lawful, at the rate
borne by the Notes.
(2) Method of Payment. The Company will pay interest (except
defaulted interest) on the principal amount of the Notes as provided above on
each March 15 and September 15 to the Persons who are Holders (as reflected in
the Security Register at the close of business on the March 1 and September 1
immediately preceding the Interest Payment Date), in each case, even if the Note
is cancelled on registration of transfer, registration of exchange, redemption
or repurchase after such Regular Record Date. With respect to the payment of
principal, the Company will make payment to the Holder that surrenders this Note
to a Paying Agent on or after September 15, 2009.
The Company will pay principal, premium and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts at the office or agency of the Company maintained for
such purposes in the Borough of Manhattan, City of New York. The Company, at its
option, may pay principal, premium and interest by its check payable in such
money mailed to a Holder's registered address (as reflected in the Security
Register), provided that payment by wire transfer of immediately available funds
will be required
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with respect to principal, premium and interest on all Global Notes and all
other Notes the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. If an Interest Payment Date is a date other
than a Business Day, payment may be made on the next succeeding day that is a
Business Day with the same force and effect as if made on the day such payment
was due and in the case of such payment no interest shall accrue for the
intervening period.
(3) Paying Agent and Registrar. Initially, the Trustee will act
as authenticating agent, Paying Agent and Registrar. The Company may change any
authenticating agent, Paying Agent or Registrar without notice. The Company, any
Subsidiary or any Affiliate of any of them may act as Paying Agent, Registrar or
co-Registrar.
(4) Indenture; Limitations. The Company issued the Notes under an
Indenture, dated as of _______ __, 2000 (the "Indenture"), between the Company
and HSBC Bank USA, as trustee (the "Trustee"). Capitalized terms herein are used
as defined in the Indenture unless otherwise indicated. Reference is made to the
Indenture and the Trust Indenture Act for a full, complete and detailed
statement of the purposes for which the Notes are issued, the terms on which the
Notes are issued, a description of the security pledged and assigned for payment
of the Notes and the terms, provisions and conditions governing payment of the
Notes and the provisions, among others, with respect to the nature and extent of
the rights, duties and obligations of the Trustee, the Paying Agent, the
Registrar, the authenticating agent, Holders and the Company. The holder of this
Note, by acceptance of this Note, is deemed to have agreed and consented to the
terms and provisions of the Indenture. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. If any provision of this Note conflicts with the Indenture, the
terms of the Indenture control.
The Notes are general unsecured obligations of the Company. The
Indenture limits the original aggregate principal amount of the Notes to
$205,000,000.
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<PAGE> 79
(5) Optional Redemption. The Notes will be redeemable, at the
Company's option, in whole or in part, at any time or from time to time, on or
after September 15, 2004 and prior to maturity, upon not less than 30 nor more
than 60 days' prior notice mailed by first class mail to each Holder's last
address as it appears in the Security Register, at the Redemption Prices
(expressed in percentages of principal amount) set forth below, plus accrued and
unpaid interest to the Redemption Date (subject to the right of Holders of
record on the relevant Regular Record Date that is prior to the Redemption Date
to receive interest due on an Interest Payment Date), if redeemed during the 12
month period commencing September 15, of the years set forth below:
<TABLE>
<CAPTION>
Redemption
Year Price
---- ----------
<S> <C>
2004 105.750%
2005 103.833%
2006 101.917%
2007 and thereafter 100.000%
</TABLE>
In addition, at any time prior to September 15, 2002, the Company
may redeem up to 35% of the aggregate principal amount of the Notes originally
issued, at any time as a whole or from time to time in part, with the proceeds
of one or more Public Equity Offerings or sales of Capital Stock (other than
Redeemable Stock) to one or more Strategic Equity Investors, each such Public
Equity Offering or sale to Strategic Equity Investors resulting in Net Cash
Proceeds of $50 million or more, at a redemption price (expressed as a
percentage of principal amount) of 111.50%, plus accrued and unpaid interest to
the Redemption Date, provided that after any such redemption at least 65% of the
aggregate principal amount of Notes originally outstanding remains outstanding
and each such redemption is effected not more than 60 days after the
consummation of such Public Equity Offering or sale to Strategic Equity
Investors.
If less than all of the Notes are to be redeemed at any time, the
Trustee will select the Notes, or portions thereof, for redemption in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not listed on a national
securities exchange, on a pro rata basis, by lot or by such other method as the
Trustee in its sole discretion shall deem to be fair and appropriate, provided
that no Note of $1,000 in principal amount or less shall be redeemed in part.
Notes in denominations larger than $1,000 may be redeemed in part. If any Note
is to be redeemed in part only, the notice of redemption relating to such Note
shall state the portion of the principal amount thereof to be redeemed. Any
notice mailed as provided herein and in the Indenture will be conclusively
presumed to have been given whether or not actually received by any Holder. On
and after the Redemption Date, interest ceases to accrue on Notes or portions of
Notes called for redemption, unless the Company defaults in the payment of the
Redemption Price. A new Note in original amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Note.
(6) Repurchase upon Change of Control and Asset Sale. The Company
shall commence, within 30 days of the occurrence of a Change of Control Event,
and consummate an Offer to Purchase for all Notes then outstanding at a purchase
price equal to 101% of the principal amount thereof, plus accrued interest to
the Payment Date. The Notes may also be
A-6
<PAGE> 80
subject to an Offer to Purchase in connection with an Asset Sale. Any Note
delivered for payment of a purchase price shall be accompanied by an instrument
in the form of the Option of the Holder to Elect Purchase below.
(7) Denominations; Transfer; Exchange. The Notes are in
registered form without coupons in denominations of $1,000 of principal amount
and multiples of $1,000 in excess thereof. A Holder may register the transfer or
exchange of Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents (including a certificate in the form of the Certificate to be
Delivered upon Exchange or Registration of Transfer of Securities below) and to
pay any taxes, fees and/or other governmental charges required by law or
permitted by the Indenture. The Registrar need not register the transfer or
exchange of any Notes selected for redemption. Also, it need not register the
transfer or exchange of any Notes for a period of 15 days before the day of the
mailing of a notice of redemption of Notes selected for redemption.
(8) Persons Deemed Owners. A Holder shall be treated as the owner
of a Note for all purposes.
(9) Unclaimed Money. If money for the payment of principal,
premium or interest remains unclaimed for two years, the Trustee and the Paying
Agent will pay the money back to the Company at its written request. After that,
Holders entitled to the money must look to the Company for payment, unless
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
(10) Defeasance and Discharge Prior to Redemption or Maturity. If
the Company deposits with the Trustee money or U.S. Government Obligations
sufficient to pay the then outstanding principal of, premium and accrued
interest on the Notes to redemption or maturity, and complies with certain other
provisions of the Indenture relating thereto, (i) the Company will be deemed to
have paid and will be discharged from any and all obligations in respect of the
Notes or (ii) certain provisions set forth in the Indenture will no longer be in
effect with respect to the Notes.
(11) Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding, and any existing default or compliance with any
provision may be waived with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding. Without notice to or the
consent of any Holder, the parties thereto may amend or supplement the Indenture
or the Notes to, among other things, cure any ambiguity, defect or inconsistency
and make any change that does not adversely affect the rights of any Holder.
(12) Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries, among
other things, to (a) Incur additional Indebtedness, (b) make Restricted
Payments, (c) use the proceeds from Asset Sales, (d) suffer to exist
restrictions on the ability of Restricted Subsidiaries to make certain payments
to the Company, (e) issue Capital Stock of Restricted Subsidiaries, (f) engage
in transactions
A-7
<PAGE> 81
with certain stockholders and Affiliates, (g) suffer to exist or incur Liens,
(h) Guarantee Indebtedness of the Company or (i) merge, consolidate or transfer
substantially all of its assets. Within 90 days after the end of the last fiscal
quarter of each year, the Company shall deliver to the Trustee an Officers'
Certificate stating whether or not the signers know of any Default or Event of
Default under such restrictive covenants.
(13) Successor Persons. When a successor Person or other entity
assumes all the obligations of its predecessor under the Notes and the
Indenture, the predecessor Person will be released from those obligations.
(14) Defaults and Remedies. An Event of Default is: (a) defaults
in the payment of principal of (or premium, if any, on) any Note when the same
becomes due and payable at Stated Maturity, upon acceleration, redemption or
otherwise; (b) defaults in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30 days; (c)
defaults in the performance or breach of the provisions of Article V of the
Indenture or the failure to make or consummate an Offer to Purchase in
accordance with Sections 4.11 or 4.12 of the Indenture; (d) defaults in the
performance of or breaches of any covenant or agreement of the Company in the
Indenture or under the Notes (other than a default specified in clause (a), (b)
or (c) above) and such default or breach continues for a period of 30
consecutive days after written notice to the Company by the Trustee or to the
Company and the Trustee by the Holders of 25% or more in aggregate principal
amount of the Notes; (e) there occurs with respect to any issue or issues of
Indebtedness of the Company or any Significant Subsidiary having an outstanding
principal amount greater than $10 million in the aggregate for all such issues
of all such Persons, whether such Indebtedness now exists or shall hereafter be
created, (i) an event of default that has caused the holder thereof to declare
such Indebtedness to be due and payable prior to its Stated Maturity and/or (ii)
the failure to make a principal payment and such defaulted payment shall not
have been made, waived or extended within 30 days of such payment default; (f)
any final judgment or order (not covered by insurance or indemnification by a
Person other than the Company or a Restricted Subsidiary, which indemnity party
is solvent and has acknowledged responsibility) (treating any deductibles,
self-insurance or retention as not so covered) for the payment of money greater
than $10 million in the aggregate for all such final judgments or orders shall
be rendered against the Company or any Significant Subsidiary and shall not be
paid or discharged or bonded over, and there shall be any period of 30
consecutive days following entry of the final judgment or order that causes the
aggregate amount for all such final judgments or orders outstanding and not paid
or discharged or bonded over to exceed $10 million during which a stay of
enforcement of such final judgment or order by reason of a pending appeal or
otherwise shall not be in effect; (g) a court having jurisdiction in the
premises enters a decree or order for (i) relief in respect of the Company or
any Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, (ii)
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (iii) the winding up or liquidation of the affairs of
the Company or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days;
or (h) the Company or any Significant Subsidiary (i) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
A-8
<PAGE> 82
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (iii) effects any general assignment for the benefit
of creditors.
If an Event of Default (other than an Event of Default specified in
clause (g) or (h) above that occurs with respect to the Company) occurs and is
continuing under the Indenture, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding by written notice to
the Company (and to the Trustee if such notice is given by the Holders), may,
and the Trustee at the request of such Holders shall, declare the principal
amount of, premium and accrued interest on the Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal amount of, premium
and accrued interest shall be immediately due and payable. In the event of a
declaration of acceleration because an Event of Default set forth in clause (e)
above has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (e) shall be remedied or cured by the
Company or the relevant Significant Subsidiary or waived by the holders of the
relevant Indebtedness within 60 days after the declaration of acceleration with
respect thereto. If an Event of Default specified in clause (g) or (h) above
occurs with respect to the Company, the principal amount of, premium and accrued
interest on the Notes then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. At any time after such declaration of acceleration,
but before a judgment or decree for the payment of the money due has been
obtained by the Trustee, the Holders of at least a majority in principal amount
of the outstanding Notes, by written notice to the Company and to the Trustee
may waive all past defaults and rescind and annul a declaration of acceleration
and its consequences if (i) all existing Events of Default, other than the
nonpayment of the principal amount of, premium and interest on the Notes that
have become due solely by such declaration of acceleration have been cured or
waived and (ii) the rescission would not conflict with any judgment or decree of
a court of competent jurisdiction.
The Holders of at least a majority in aggregate principal amount of the
outstanding Notes, by notice to the Trustee, may direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee; provided that
the Trustee may refuse to follow any direction that conflicts with law or the
Indenture, that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders of Notes not joining in the giving of such direction; and provided
further, that the Trustee may take any other action it deems proper that is not
inconsistent with any such direction received from Holders of Notes. A Holder
may not pursue any remedy with respect to the Indenture or the Notes unless: (i)
the Holder gives the Trustee written notice of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of outstanding
Notes make a written request to the Trustee to pursue the remedy, (iii) such
Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense; (iv) the Trustee does not comply with
the request within 60 days after receipt of the request and the offer of
indemnity, and (v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the
A-9
<PAGE> 83
Trustee a direction that is inconsistent with the request. However, such
limitations do not apply to the right of any Holder of a Note to receive payment
of the principal amount of, premium or interest on, such Note or to bring suit
for the enforcement of any such payment, on or after the due date expressed in
the Notes, which right shall not be impaired or affected without the consent of
the Holder.
The Indenture requires certain officers of the Company to certify, on or
before a date not more than 90 days after the end of each fiscal year, that a
review has been conducted of the activities of the Company and its Restricted
Subsidiaries and the Company's and its Restricted Subsidiaries' performance
under the Indenture and that the Company has fulfilled all obligations
thereunder, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default and the nature and status thereof. The
Company is also obligated to notify the Trustee of any default or defaults in
the performance of any covenants or agreements under the Indenture.
(15) Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from and perform services for the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates as if it were not the Trustee.
(16) No Recourse Against Others. No incorporator or any past,
present or future partner, shareholder, other equity holder, officer, director,
employee or controlling person as such, of the Company or of any successor
Person shall have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of or by reason of,
such obligations or their creation. Each Holder by accepting a Note expressly
waives and releases all such liability. The waiver and release are a condition
of, and part of the consideration for the issuance of the Notes.
(17) Authentication. This Note shall not be entitled to any right
or benefit under the Indenture, or be valid, or become obligatory for any
purpose, until the Trustee or authenticating agent signs the certificate of
authentication on the other side of this Note.
(18) Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (=
Uniform Gifts to Minors Act).
(19) CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
(20) Governing Law. The Indenture and the Notes shall be governed
by the laws of the State of New York. The Trustee, the Company and the Holders
agree to submit to
A-10
<PAGE> 84
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to the Indenture or the Notes.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to VoiceStream
Wireless Corporation, 3650 131st Avenue S.E., Bellevue, Washington 98006,
Attention: Investor Relations.
A-11
<PAGE> 85
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
- --------------------------------------------------------------------------------
Date:
-------------------
Your Signature:
---------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:
----------------------
A-12
<PAGE> 86
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.11 or 4.12 of the Indenture, check the box below:
[ ] Section 4.11 [ ] Section 4.12
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 4.11 or Section 4.12 of the Indenture, state the
amount you elect to have purchased: $________
Date: Your Signature:
---------- -----------------------------
(Sign exactly as your name appears
on the Note)
Signature Guarantee:
------------------------
Tax Identification No:
----------------------
A-13
<PAGE> 87
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
<TABLE>
<CAPTION>
Principal Amount
Amount of decrease Amount of of this Signature of
in increase in Global Note authorized
Principal Amount Principal Amount following such officer of
of this of this decrease (or Trustee or
Date of Exchange Global Note Global Note increase) Custodian
--------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
A-14
<PAGE> 1
EXHIBIT 5.1
FRIEDMAN KAPLAN & SEILER LLP
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 833-1100
April 10, 2000
VoiceStream Wireless Corporation
3650 131st Avenue S.E.
Bellevue, Washington 98006
Gentlemen:
We have represented VoiceStream Wireless Corporation, a Delaware
corporation (the "Registrant") in connection with its issuance of $205,000,000
in principal amount of its 11 1/2% Senior Notes due 2009 (collectively, the
"Notes"), including the filing of a registration statement on Form S-4 (the
"Registration Statement") with respect thereto. In connection with our
representation we examined originals or copies of corporate documents and
certificates of officers of the Registrant and of officials of the Secretary of
State of the State of Delaware and such other documents as we have in our
judgement deemed necessary. We have assumed the genuineness of documents
submitted to us as originals and the conformity to originals of copies submitted
to us genuine.
Based upon the foregoing, we are of the opinion that the Notes, when issued
in exchange for the presently outstanding notes as described in the Registration
Statement, will be binding obligations of the Registrant.
We hereby consent to the inclusion of our opinion as an exhibit to this
registration statement and to the reference to us in the prospectus contained in
this registration statement.
Friedman Kaplan & Seiler LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm), as it relates to VoiceStream
Wireless Corporation and Subsidiaries, included in or made a part of this
registration statement.
/s/ Arthur Andersen LLP
Seattle, Washington
April 7, 2000
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form S-4 of
VoiceStream Wireless Corporation of our report dated February 21, 2000, except
for Note 21 for which the date is February 25, 2000 relating to the financial
statements, which appears in Omnipoint Corporation's Annual Report on Form 10-K
for the year ended December 31, 1999. We also consent to the incorporation by
reference of our report dated February 21, 2000, except for Note 21 for which
the date is February 25, 2000, relating to our financial statement schedule
which appears in such Annual Report on Form 10-K. We also consent to the
references to us under the heading "Experts" in such Registration Statement.
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
April 10, 2000
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report (and all references to our Firm), as it relates to Aerial Communications,
Inc. and Subsidiaries, included in or made a part of this registration
statement.
/s/ ARTHUR ANDERSEN LLP
Chicago, Illinois
April 10, 2000
<PAGE> 1
EXHIBIT 25.1
CONFORMED COPY
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- --------------------------------------------------------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
HSBC BANK USA
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, NY 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
Warren L. Tischler
Senior Vice President
HSBC Bank USA
140 Broadway
New York, New York 10005-1180
Tel: (212) 658-5167
(Name, address and telephone number of agent for service)
VOICESTREAM WIRELESS CORPORATION
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 4812 91-1983600
(State or other jurisdiction) Primary standard industrial (I.R.S. employer
classification code number) identification No.)
</TABLE>
3650 131ST AVENUE S.E.
BELLEVUE, WASHINGTON 98006
(425) 653-4600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
11 1/2% Senior Notes due 2009
(Title of Indenture Securities)
<PAGE> 2
General
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
<PAGE> 3
Item 16. List of Exhibits
Exhibit
T1A(i) (1) Copy of the Organization Certificate of HSBC Bank
USA.
T1A(ii) (1) Certificate of the State of New York Banking
Department dated December 31, 1993 as to the
authority of HSBC Bank USA to commence business as
amended effective on March 29, 1999.
T1A(iii) Not applicable.
T1A(iv) (1) Copy of the existing By-Laws of HSBC Bank USA as
adopted on January 20, 1994 as amended on October
23, 1997.
T1A(v) Not applicable.
T1A(vi) (2) Consent of HSBC Bank USA required by Section
321(b) of the Trust Indenture Act of 1939.
T1A(vii) Copy of the latest report of condition of the
trustee (September 30, 1999), published pursuant
to law or the requirement of its supervisory or
examining authority.
T1A(viii) Not applicable.
T1A(ix) Not applicable.
(1) Exhibits previously filed with the Securities and Exchange Commission
with registration No. 022-22429 and incorporated herein by reference
thereto.
(2) Exhibit previously filed with the Securities and Exchange Commission
with Registration No. 33-53693 and incorporated herein by reference
thereto.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HSBC Bank USA, a banking corporation and trust company organized under the laws
of the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York on the 7th day of April, 2000.
HSBC BANK USA
By: /s/ Frank J. Godino
-------------------------------
Frank Godino
Vice President
<PAGE> 5
EXHIBIT T1A (vii)
<TABLE>
<S> <C>
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires March 31, 2000
- --------------------------------------------------------------------------------
[1] Please refer to page i, 1
Table of Contents, for
the required disclosure
of estimated burden.
- --------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES--FFIEC 031
REPORT AT THE CLOSE OF BUSINESS SEPTEMBER 30, 1999 (19980930)
-----------
(RCRI 9999)
This report is required by law; 12 U.S.C. Section 324 This report form is to be filed by banks with
(State member banks); 12 U.S.C. Section 1817 (State branches and consolidated subsidiaries in U.S.
nonmember banks); and 12 U.S.C. Section 161 (National territories and possessions, Edge or Agreement
banks). subsidiaries, foreign branches, consolidated foreign
subsidiaries, or International Banking Facilities.
NOTE: The Reports of Condition and Income must be The Reports of Condition and Income are to be
signed by an authorized officer and the Report of prepared in accordance with Federal regulatory
Condition must be attested to by not less than two authority instructions.
directors (trustees) for State nonmember banks and
three directors for State member and National Banks. We, the undersigned directors (trustees), attest to
the correctness of this Report of Condition
I, Gerald A. Ronning, Executive VP & Controller (including the supporting schedules) and declare
--------------------------------------------------- that it has been examined by us and to the best of
Name and Title of Officer Authorized to Sign Report our knowledge and belief has been prepared in
conformance with the instructions issued by the
of the named bank do hereby declare that these appropriate Federal regulatory authority and is true
Reports of Condition and Income (including the and correct.
supporting schedules) have been prepared in
conformance with the instructions issued by the
appropriate Federal regulatory authority and are
true to the best of my knowledge and believe. /s/ Malcolm Burnett
------------------------------------------------------
/s/ Gerald A. Ronning Director (Trustee)
- -------------------------------------------------------
Signature of Officer Authorized to Sign Report /s/ Bernard J. Kennedy
------------------------------------------------------
10/25/99 Director (Trustee)
- -------------------------------------------------------
Date of Signature /s/ Sal H. Alfieri
------------------------------------------------------
Director (Trustee)
- -------------------------------------------------------------------------------------------------------------
SUBMISSION OF REPORTS
Each Bank must prepare its Reports of Condition and For electronic filing assistance, contact EDS Call
Income either: report Services, 2150 N. Prospect Ave., Milwaukee,
WI 53202, telephone (800) 255-1571.
(a) in electronic form and then file the computer
data file directly with the banking agencies' To fulfill the signature and attestation requirement
collection agent, Electronic Data System for the Reports of Condition and Income for this
Corporation (EDS), by modem or computer report date, attach this signature page to the
diskette; or hard-copy f the completed report that the bank
places in its files.
b) in hard-copy (paper) form and arrange for
another party to convert the paper report to
automated for. That party (if other than EDS) must
transmit the bank's computer data file to EDS.
FDIC Certificate Number 00589
(RCRI 9030)
http://WWW.BANKING.US.HSBC.COM HSBC Bank USA
- ------------------------------------------------------- ------------------------------------------------------
Primary Internet Web Address of Bank Legal Title of Bank (TEXT 9010)
(Home Page), if any (TEXT 4087)
(Example: www.examplebank.com)
Buffalo
------------------------------------------------------
City (TEXT 9130)
N.Y. 14203
------------------------------------------------------
State Abbrev. (TEXT 9200) ZIP Code (TEXT 9220)
Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation,
Office of the Comptroller of the Currency
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
- ---------------------------------------------
FDIC Certificate Number 0 0 5 8 9
- ---------------------------------------------
(RCRI 9030)
- ---------------------------------------------
http://WWW.BANKING.US.HSBC.COM HSBC Bank USA
- --------------------------------------------------------- ------------------------------------------------------
Primary Internet Web Address of Bank (Home Page), Legal Title of Bank (TEXT 9010) if any (TEXT 4087)
(Example: www.examplebank.com)
Buffalo
------------------------------------------------------
City (TEXT 9130)
N.Y. 14203
------------------------------------------------------
State Abbrev. (TEXT 9200) ZIP Code (TEXT 9220)
Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the Comptroller
of the Currency
</TABLE>
<PAGE> 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
HSBC Bank USA of Buffalo
- ----------------------------------------------------
Name of Bank City
in the state of New York, at the close of business September 30, 1999
ASSETS
<TABLE>
<CAPTION>
Thousands of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Non-interest-bearing balances currency and coin $ 866,729
Interest-bearing balances 2,218,984
Held-to-maturity securities --
Available-for-sale securities 3,287,909
Federal funds sold and securities purchased under agreements to resell 2,141,850
Loans and lease financing receivables:
Loans and leases net of unearned income $ 23,445,713
LESS: Allowance for loan and lease losses 358,494
LESS: Allocated transfer risk reserve --
Loans and lease, net of unearned income, allowance, and reserve $ 23,087,219
Trading assets 979,022
Premises and fixed assets (including capitalized leases) 197,729
Other real estate owned 1,875
Investments in unconsolidated subsidiaries and associated companies -
Customers' liability to this bank on acceptances outstanding 207,284
Intangible assets 482,189
Other assets 687,563
Total assets 34,158,353
</TABLE>
<PAGE> 8
LIABILITIES
<TABLE>
<S> <C> <C>
Deposits:
In domestic offices 21,813,324
Non-interest-bearing 2,688,117
Interest-bearing 19,125,207
In foreign offices, Edge and Agreement subsidiaries, and IBFs 6,215,704
Non-interest-bearing --
Interest-bearing 6,215,704
Federal funds purchased and securities sold under agreements to repurchase 1,277,936
Demand notes issued to the U.S. Treasury 81,541
Trading Liabilities 56,045
Other borrowed money (including mortgage indebtedness and obligations
under capitalized leases):
With a remaining maturity of one year or less 721,040
With a remaining maturity of more than one year through three years 65,932
With a remaining maturity of more than three years 236,298
Bank's liability on acceptances executed and outstanding 207,284
Subordinated notes and debentures 698,215
Other liabilities 576,673
Total liabilities 31,949,992
EQUITY CAPITAL
Perpetual preferred stock and related surplus --
Common Stock 205,000
Surplus 1,988,948
Undivided profits and capital reserves 46,167
Net unrealized holding gains (losses) on available-for-sale securities (31,754)
Accumulated net gain (losses) on cash flow hedges --
Cumulative foreign currency translation adjustments --
Total equity capital 2,208,361
Total liabilities and equity capital 34,158,353
</TABLE>
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
TO TENDER TO
VOICESTREAM WIRELESS CORPORATION
11 1/2% SENIOR NOTES DUE 2009
OF OMNIPOINT CORPORATION
PURSUANT TO THE PROSPECTUS
DATED APRIL -- , 2000
Deliver to:
HSBC BANK USA
By Registered or Certified Mail, Overnight Courier or Hand:
HSBC BANK USA
140 Broadway -- Level A
New York, New York 10005-1180
Attn: Corporation Trust Operations
Facsimile: (212) 658-2292
Telephone: (212) 658-5931
Delivery of this Letter of Transmittal to an address, or transmission via
facsimile, other than as set forth above, will not constitute a valid delivery.
<PAGE> 2
The undersigned acknowledges receipt of the prospectus dated the date
hereof constituting the exchange offer (as amended or supplemented from time to
time, the "Prospectus"), of VoiceStream Wireless Corporation, a Delaware
corporation (the "Offeror"), relating to the 11 1/2% Senior Notes due 2009 of
Omnipoint Corporation, a Delaware corporation (the "Notes"), and this Letter of
Transmittal and instructions hereto (the "Letter of Transmittal" and, together
with the Prospectus, the "Offer Documents"), which together constitute the
Offeror's offer (the "Offer") to exchange any and all of the Notes, upon the
terms and subject to the conditions set forth in the Offer Documents. All
capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Statement.
The Offeror is offering to exchange its registered, newly issued notes for
a like principal amount of Notes, which have terms identical to the Offeror's
new notes;
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE CHECKING ANY BOX BELOW
This Letter of Transmittal is to be used by holders of Notes (the
"Holders") if: (i) certificates representing such Notes are to be physically
delivered to HSBC Bank USA as exchange agent (the "Exchange Agent") herewith by
such Holders; (ii) tender of such Notes is to be made by book-entry transfer to
the Exchange Agent's account at The Depository Trust Company ("DTC") (the "Book
Entry Transfer Facility") pursuant to the procedures set forth in the Statement
under the caption "Procedures for Tendering Notes, Book-Entry Delivery
Procedures" by any financial institution that is a participant in DTC and whose
name appears on a security listing as the owner of Notes; or (iii) tender of
such Notes is to be made according to the guaranteed delivery procedures set
forth under "Procedures for Tendering Notes, Guaranteed Delivery," and, in each
case, instructions are not being transmitted through the DTC Automated Tender
Offer Program ("ATOP").
If a Holder desires to tender Notes pursuant to the applicable Offer and
time will not permit this Letter of Transmittal, certificates representing such
Notes and all other required documents to reach the Exchange Agent, or
book-entry procedures cannot be completed at or prior to the Expiration Date,
then such Holder must tender such Notes pursuant to the guaranteed delivery
procedure set forth in the Prospectus under "Procedures for Tendering Notes,
Guaranteed Delivery."
In the event that the Offer is withdrawn or otherwise not completed, no
consideration will be paid or become payable to Holders who have validly
tendered their Notes in connection with such Offer and the tendered Notes will
be returned.
The Offer are made upon the terms and subject to the conditions set forth
in the Prospectus and herein. Holders of all the Notes should carefully review
the information set forth therein and herein.
Your bank or broker can assist you in completing this form. The
instructions included with this Letter of Transmittal must be followed.
Questions and requests for assistance or for additional copies of the Offer
Documents may be directed to the Exchange Agent.
2
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C>
TENDER OF NOTES
[ ] CHECK HERE IF TENDERED NOTES ARE ENCLOSED HEREWITH.
[ ] CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY
THE EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS
IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER NOTES
BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution:
DTC Account Number:
Date Tendered:
Transaction Code Number:
[ ] CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY
SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Holder(s):
Ticket Number (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Eligible Institution that guaranteed delivery:
If delivered by book-entry transfer:
DTC Account Number:
Date Sent:
Transaction Code Number:
</TABLE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
<TABLE>
<CAPTION>
DESCRIPTION OF NOTES TENDERED
NAME(S) AND ADDRESS(ES) OF HOLDER(S)
(PLEASE FILL IN, IF BLANK) CERTIFICATE NUMBERS* PRINCIPAL AMOUNT TENDERED
<S> <C> <C>
* Need not be completed by Holders tendering by book-entry transfer or in accordance with DTC's ATOP
procedure for transfer.
</TABLE>
3
<PAGE> 4
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Offer, the undersigned
hereby tenders to the Offeror the principal amount at maturity of Notes
indicated above. Subject to, and effective upon, the acceptance for exchange of,
and payment for, the Notes tendered with this Letter of Transmittal, the
undersigned hereby sells, assigns and transfers to, or upon the order of, the
Offeror.
The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent the true and lawful agent and attorney-in-fact of the undersigned (with
full knowledge that the Exchange Agent also acts as the agent of the Offeror)
with respect to the Notes, with full power of substitution (such
power-of-attorney being deemed to be an irrevocable power coupled with an
interest) to (i) present such Notes and all evidences of transfer and
authenticity to, or transfer ownership of, such Notes on the account books
maintained by the Book-Entry Transfer Facility to, or upon the order of, the
Offeror, (ii) present such Notes for transfer of ownership on the books of the
relevant security registrar and (iii) receive all benefits and otherwise
exercise all rights of beneficial ownership of such Notes.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Notes tendered
hereby, and that when such Notes are accepted for purchase and payment by the
Offeror, the Offeror will acquire good title thereto, free and clear of all
liens, restrictions, charges and encumbrances and not subject to any adverse
claim or right. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Exchange Agent or by the Offeror to be
necessary or desirable to complete the sale, assignment and transfer of the
Notes tendered hereby. The undersigned understands that the delivery and
surrender of the Notes is not effective, and the risk of loss of the Notes does
not pass to the Exchange Agent, until receipt by the Exchange Agent of this
Letter of Transmittal, or a facsimile hereof, properly completed and duly
executed, together with all accompanying evidences of authority and any other
required documents in form satisfactory to the Offeror. All questions as to the
form of all documents and the validity (including time of receipt) and
acceptance of tenders and withdrawals of Notes will be determined by the
Offeror, in its sole discretion, which determination shall be final and binding.
The undersigned understands that tenders of Notes may be withdrawn by
written notice of withdrawal received by the Exchange Agent at any time at or
prior to 5:00 p.m., New York City time, on the Effective Date, but not
thereafter.
The undersigned understands that in order to be valid, a notice of
withdrawal of Notes must contain the name of the person who tendered the Notes
and the description of the Notes to which it relates, the certificate number or
numbers of such Notes (unless such Notes were tendered by book-entry transfer),
and the aggregate principal amount at maturity represented by such Notes, be
signed by the Holder thereof in the same manner as the original signature on
this Letter of Transmittal by which such Notes were tendered (including any
required signature guarantees) or be accompanied by (x) documents of transfer
sufficient to have the Trustee register the transfer of Notes into the name of
the person withdrawing such Notes and (y) a properly completed irrevocable proxy
that authorizes such person to effect such withdrawal or revocation on behalf of
such Holder, and be received at or prior to 5:00 p.m., New York City time, on
the Effective Date by the Exchange Agent, at its address set forth on the first
page of this Letter of Transmittal.
The undersigned understands that tenders of Notes pursuant to any of the
procedures described in the Prospectus and in the instructions hereto and
acceptance thereof by the Offeror will constitute a binding agreement between
the undersigned and the Offeror upon the terms and subject to the conditions of
the Offers and, if applicable, the Notice of Guaranteed Delivery.
4
<PAGE> 5
For purposes of the Offer, the undersigned understands that the Offeror
will be deemed to have accepted for exchange validly tendered Notes (or
defectively tendered Notes with respect to which the Offeror has waived such
defect), if, as and when the Offeror gives oral (confirmed in writing) or
written notice thereof to the Exchange Agent.
The undersigned understands that, under certain circumstances and subject
to certain conditions of the Offer (each of which the Offeror may waive in its
sole discretion) as set forth in the Prospectus, the Offeror would not be
required to accept for exchange any of the Notes tendered (including any Notes
tendered after the Expiration Date). Any Notes not accepted for purchase will be
returned promptly to the undersigned at the address set forth above (or, in the
case of Notes tendered by book-entry transfer, such Notes will be credited to
the account maintained at DTC from which such Notes were delivered), unless
otherwise indicated herein under "Special Delivery Instructions" below.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall not be affected by, and shall survive, the death or incapacity
of the undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representatives, executors, administrators, successors, assigns, trustees in
bankruptcy and other legal representatives.
Unless otherwise indicated herein under "Special Payment Instructions," the
undersigned hereby requests that any Notes representing principal amounts not
tendered or not accepted for exchange and all notes to be issued by the Offeror
in exchange for tendered Notes be issued in the name(s) of the undersigned (and
in case of Notes tendered by book-entry transfer, by credit to the account at
the Book-Entry Transfer Facility designated above) and delivered to the
undersigned at the address(es) shown above. In the event that the "Special
Payment Instructions" box or the "Special Delivery Instructions" box is, or both
are, completed, the undersigned hereby requests that any notes issued by the
Offeror in exchange for tendered Notes and Notes representing principal amounts
at maturity not tendered or not accepted for purchase be issued in the name(s)
of and delivered to, the person(s) at the address(es) so indicated, as
applicable. The undersigned recognizes that the Offeror has no obligation
pursuant to the "Special Payment Instructions" box or "Special Delivery
Instructions" box to transfer any Notes from the name of the registered
Holder(s) thereof if the Offeror does not accept for purchase any of the
principal amount at maturity of such Notes so tendered.
5
<PAGE> 6
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS OF NOTES
REGARDLESS OF WHETHER NOTES ARE BEING PHYSICALLY DELIVERED HEREWITH)
This Letter of Transmittal must be signed by the registered Holder(s) of
Notes exactly as their name(s) appear(s) on certificate(s) for Notes or, if
tendered by a participant in the Book-Entry Transfer Facility, exactly as such
participant's name appears on a security position listing as the owner of Notes,
or by person(s) authorized to become registered Holder(s) by endorsements on
certificates for Notes or by bond powers transmitted with this Letter of
Transmittal. Endorsements on Notes and signatures on bond powers by registered
Holders not executing this Letter of Transmittal must be guaranteed by an
Eligible Institution. See Instruction 4 below. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact, officer or other person
acting in a fiduciary or representative capacity, such person must set forth his
or her full title below under "Capacity" and submit evidence satisfactory to the
Offeror of such person's authority to so act.
X
------------------------------------------------------------------------------
X
------------------------------------------------------------------------------
SIGNATURE(S) OF REGISTERED HOLDER(S) OR AUTHORIZED SIGNATORY
Dated:
-------------------------------------------------------
Name(s):
------------------------------------------------------------------------
------------------------------------------------------------------------
(PLEASE PRINT)
Capacity:
------------------------------------------------------
Address:
-------------------------------------------------------------------------
-------------------------------------------------------------------------
(INCLUDING ZIP CODE)
Area Code and Telephone No.:
-------------------------------------------------------
Tax Identification or Social Security No.:
-----------------------------------------------
PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN
SIGNATURE GUARANTEE, IF REQUIRED (SEE INSTRUCTION 4 BELOW)
CERTAIN SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION
- --------------------------------------------------------------------------------
(NAME OF ELIGIBLE INSTITUTION GUARANTEEING SIGNATURES)
- --------------------------------------------------------------------------------
(ADDRESS (INCLUDING ZIP CODE) AND TELEPHONE NUMBER (INCLUDING AREA CODE) OF
ELIGIBLE INSTITUTION)
- --------------------------------------------------------------------------------
(AUTHORIZED SIGNATURE)
- --------------------------------------------------------------------------------
(PRINTED NAME)
- --------------------------------------------------------------------------------
(TITLE)
Dated:
- --------------------------------------------- , 2000
6
<PAGE> 7
- ------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 3, 4, 5 AND 7)
To be completed ONLY if certificates for Notes in a principal amount not
tendered or not accepted for exchange or notes of the Offeror issued in
exchange for Notes are to be issued in the name of someone other than the
person or persons whose signature(s) appear(s) within this Letter of
Transmittal, or issued to an address different from that shown in the box
entitled "Description of Notes" within this Letter of Transmittal, or if Notes
tendered by book-entry transfer that are not accepted for purchase are to be
credited to an account maintained at the Book-Entry Transfer Facility other
than the one designated above.
Issue:
Name:
-----------------------------------------------------
(PLEASE PRINT)
Address:
-----------------------------------------------------
-----------------------------------------------------
(ZIP CODE)
-----------------------------------------------------
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9 HEREIN)
Credit unpurchased Notes delivered by book-entry transfer to the Book-Entry
Transfer Facility set forth below:
DTC
-----------------------------------------------------
(DTC ACCOUNT NUMBER)
Number of Account Party:
-----------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3, 4, 5 AND 7)
To be completed ONLY if certificates for Notes in a principal amount not
tendered or not accepted for exchange or notes of the Offeror issued in
exchange for Notes are to be sent to someone other than the person or persons
whose signature(s) appear(s) within this Letter of Transmittal or to an
address different from that shown in the box entitled "Description of Notes"
within this Letter of Transmittal.
Issue:
Name:
-----------------------------------------------------
(PLEASE PRINT)
Address:
-----------------------------------------------------
-----------------------------------------------------
(ZIP CODE)
-----------------------------------------------------
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9 HEREIN)
- ------------------------------------------------------
7
<PAGE> 8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES FOR NOTES OR
BOOK-ENTRY CONFIRMATIONS. To tender Notes in the Offer, physical delivery of
certificates for Notes or a confirmation of any book-entry transfer into the
Exchange Agent's account with a Book-Entry Transfer Facility of Notes tendered
electronically, as well as a properly completed and duly executed copy or
facsimile of this Letter of Transmittal, and any other documents required by
this Letter of Transmittal, must be received by the Exchange Agent at its
address set forth herein prior to the Expiration Date. The method of delivery of
Notes and related Letters of Transmittal, any required signature guarantees and
all other required documents, including delivery through DTC and any acceptance
of an Agent's Message transmitted through ATOP, is at the election and risk of
the person tendering such Notes and delivering such Letters of Transmittal and,
except as otherwise provided in the Letter of Transmittal, delivery will be
deemed made only when actually received by the Exchange Agent.
If delivery is by mail, it is suggested that the Holder use properly
insured, registered mail with return receipt requested, and that the mailing be
made sufficiently in advance of the applicable Expiration Date to permit
delivery to the Exchange Agent prior to such date. No alternative, conditional
or contingent tenders of Notes will be accepted.
To tender Notes that are held through DTC, DTC participants may, in lieu of
physically completing and signing this Letter of Transmittal and delivering it
to the Exchange Agent, electronically transmit their acceptance through ATOP,
and DTC will then edit and verify the acceptance and send an Agent's Message to
the Exchange Agent for its acceptance. Except as otherwise provided below, the
delivery will be deemed made when the Agent's Message is actually received or
confirmed by the Exchange Agent. THIS LETTER OF TRANSMITTAL AND THE NOTES SHOULD
BE SENT ONLY TO THE EXCHANGE AGENT. DELIVERY OF DOCUMENTS TO DTC DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
If a Holder desires to tender Notes pursuant to the Offer and (a)
certificates representing such Notes are not lost but are not immediately
available, (b) time will not permit such Holder's Letter of Transmittal,
certificates representing such Notes and all other required documents to reach
the Exchange Agent on or prior to the Expiration Date, or (c) the procedures for
book-entry transfer cannot be completed on or prior to the Expiration Date, a
tender may be effected if all the following are complied with:
(a) Such tender is made by or through an Eligible Institution;
(b) On or prior to the Expiration Date, the Exchange Agent has
received from such Eligible Institution at one of the addresses of the
Exchange Agent set forth on the back cover of the Prospectus, a properly
completed and validly executed Notice of Guaranteed Delivery (by manually
signed facsimile transmission, mail or hand delivery) in substantially the
form provided with this Prospectus, setting forth the name(s) and
address(es) of the registered Holder(s) and the principal amount at
maturity of Notes being tendered, and stating that the tender is being made
thereby and guaranteeing that, within three New York Stock Exchange
("NYSE") trading days after the date of the Notice of Guaranteed Delivery,
the applicable Letter of Transmittal properly completed and validly
executed (or a manually signed facsimile thereof), together with
certificates representing the Notes (or confirmation of book-entry transfer
of such Notes into the Exchange Agent's account with a Book-Entry Transfer
Facility), and any other documents required by the applicable Letter of
Transmittal and the instructions thereto, will be deposited by such
Eligible Institution with the Exchange Agent; and
8
<PAGE> 9
(c) Such Letter of Transmittal (or a manually signed facsimile
thereof) properly completed and validly executed with any required
signature guarantees, together with certificates for all Notes in proper
form for transfer (or confirmation of book-entry transfer of such Notes
into the Exchange Agent's account with a Book-Entry Transfer Facility), and
any other required documents are received by the Exchange Agent within
three NYSE trading days after the date of such Notice of Guaranteed
Delivery.
2. WITHDRAWAL OF TENDERS. Tenders of Notes may be validly withdrawn at
any time at or prior to 5:00 p.m., New York City time, on the Expiration Date
but not thereafter. In the event of a termination of the Offer the Notes
tendered pursuant to such Offer will be returned promptly to the tendering
Holder.
For a withdrawal of a tender of Notes to be effective, a written,
telegraphic or facsimile transmission notice of withdrawal must be received by
the Exchange Agent at or prior to 5:00 p.m., New York City time, on the
Expiration Date, at its address set forth on the back cover of this Statement.
Any such notice of withdrawal must (i) specify the name of the person who
tendered the Notes to be withdrawn, (ii) contain the description of the Notes to
be withdrawn and identify the certificate number or numbers shown on the
particular certificates evidencing such Notes (unless such Notes were tendered
by book-entry transfer) and the aggregate principal amount at maturity
represented by such Notes and (iii) be signed by the Holder of such Notes in the
same manner as the original signature on the Letter of Transmittal by which such
Notes were tendered (including any required signature guarantees), if any, or be
accompanied by (x) documents of transfer sufficient to have the Trustee register
the transfer of the Notes into the name of the person withdrawing such Notes (y)
a properly completed irrevocable proxy that authorizes such person to effect
such withdrawal or revocation on behalf of such Holder. If the Notes to be
withdrawn have been delivered or otherwise identified to the Exchange Agent, a
signed notice of withdrawal is effective immediately upon written or facsimile
notice of withdrawal even if physical release is not yet effected. The
withdrawal of a tender of Notes may also be effected through a properly
transmitted "Request Message" through ATOP, received by the Exchange Agent at
any time prior to 5:00 p.m., New York City time, on the Effective Date.
Withdrawal of Notes can be accomplished only in accordance with the
foregoing procedures.
3. PARTIAL TENDERS. Tenders of Notes pursuant to the Offers will be
accepted only in respect of principal amounts at maturity equal to $1,000 or
integral multiples thereof. If less than the entire principal amount at maturity
of any Note evidenced by a submitted certificate is tendered, the tendering
Holder must fill in the principal amount tendered in the last column of the box
entitled "Description of Notes" herein. The entire principal amount at maturity
represented by the certificates for all Notes delivered to the Exchange Agent
will be deemed to have been tendered. If the entire principal amount at maturity
of all Notes is not tendered or not accepted for exchange, Notes representing
such untendered amount will be sent (or, if tendered by book-entry transfer,
returned by credit to the account at the Book-Entry Transfer Facility designated
herein) to the Holder unless otherwise provided in the appropriate box on this
Letter of Transmittal (see Instruction 5), promptly after the Notes are accepted
for purchase.
4. SIGNATURES ON THIS LETTER OF TRANSMITTAL; GUARANTEE OF SIGNATURES. If
this Letter of Transmittal is signed by the registered Holder(s) of the Notes
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the certificate(s) without alteration, enlargement or any change
whatsoever. If this Letter of Transmittal is signed by a participant in one of
the Book-Entry Transfer Facilities whose name is shown as the owner of the Notes
tendered hereby, the signature must correspond with the name shown on the
security position listing as the owner of the Notes.
9
<PAGE> 10
If any of the Notes tendered hereby are registered in the name of two or
more Holders, all such Holders must sign the Letter of Transmittal. If any
tendered Notes are registered in different names on several certificates, it
will be necessary to complete, sign and submit as many separate copies of this
Letter of Transmittal and any necessary accompanying documents as there are
different names in which Notes are held.
If this Letter of Transmittal is signed by the Holder, and the certificates
for notes of Offeror issued in exchange for tendered Notes or any Notes tendered
and not accepted for purchase are to be issued (or if any principal amount of
Notes that are not tendered or not accepted for purchase are to be reissued or
returned) to or, if tendered by book-entry transfer, credited to the account at
the Book-Entry Transfer Facility of the Holder, to be made in connection with
the Offer are to be issued to the order of the Holder, then the Holder need not
endorse any certificates for tendered Notes nor provide a separate bond power.
In any other case (including if this Letter of Transmittal is not signed by the
Holder), the Holder must either properly endorse the Notes tendered with this
Letter of Transmittal (executed exactly as the name(s) of the registered
Holder(s) appear(s) on such Notes, and, with respect to a participant in a
Book-Entry Transfer Facility whose name appears on a security position listing
as the owner of Notes, exactly as the name(s) of the participant(s) appear(s) on
such security position listing), with the signature on the endorsement
guaranteed by an Eligible Institution, unless such Notes are executed by an
Eligible Institution.
If this Letter of Transmittal or any Notes are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the
Offeror of their authority so to act must be submitted with this Letter of
Transmittal.
Signatures on all Letters of Transmittal must be guaranteed by a recognized
participant in the Securities Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Program or the Stock Exchange Medallion
Program (a "Medallion Signature Guarantor"), unless the Notes tendered thereby
are tendered (i) by a registered Holder of the Notes (or by a participant in DTC
whose name appears on a security position listing as the owner of such Notes)
who has not completed any of the boxes entitled "Special Payment/Delivery
Instructions" on the Letter of Transmittal, or (ii) for the account of a member
firm of a registered national securities exchange, a member of the National
Association of Securities Dealers, Inc. ("NASD") or a commercial bank or trust
company having an office or correspondent in the United States (each of the
foregoing being referred to as an "Eligible Institution").
5. SPECIAL PAYMENT AND SPECIAL DELIVERY INSTRUCTIONS. Tendering Holders
should indicate in the applicable box or boxes the name and address to which
notes of Offeror issued in exchange for tendered Notes or Notes for principal
amounts tendered and not accepted for purchase to be made in connection with the
Offers are to be issued or sent, if different from the name and address of the
registered Holder signing this Letter of Transmittal. In the case of issuance in
a different name, the taxpayer identification or social security number of the
person named must also be indicated. If no instructions are given, Notes not
tendered or not accepted for purchase will be returned to the registered Holder
of the Notes tendered. Any Holder tendering by book-entry transfer may request
that Notes not tendered or not accepted for purchase be credited to such account
at the Book-Entry Transfer Facility as such Holder may designate under the
caption "Special Payment Instructions." If no such instructions are given, any
such Notes not tendered or not accepted for purchase will be returned by
crediting the account at the Book-Entry Transfer Facility designated above.
6. TAXPAYER IDENTIFICATION NUMBER AND BACKUP WITHHOLDING. Under Federal
income tax law, certain United States Holders whose Notes are accepted for
payment are required to provide the Exchange Agent (as payer) with such United
States Holder's correct taxpayer identification number ("TIN") on the Substitute
Form W-9 (included as part of the Letter of Transmittal). If the
10
<PAGE> 11
United States Holder is an individual, the TIN is his or her social security
number. If the Exchange Agent is not provided with the correct TIN, the United
States Holder may be subject to a $50 penalty imposed by the IRS. In addition,
payments that are made to such Holder may be subject to backup withholding.
Additionally, any United States Holder who has been notified by the IRS that it
has failed to report all interest and dividends required to be shown on its
federal income tax returns will also be subject to backup withholding. Certain
United States Holders (including, among others, corporations) are not subject to
these backup withholding and reporting requirements. If backup withholding
applies, the Exchange Agent is required to withhold 31% of any payment made to
the United States Holder. Backup withholding is not an additional tax; any
amounts so withheld may be credited against the federal income tax liability of
the United States Holder subject to the withholding. If backup withholding
results in an overpayment of U.S. Federal income taxes, a refund may be obtained
from the IRS provided the required information is furnished.
To prevent backup withholding, the United States Holder or other payee is
required to complete the Substitute Form W-9 on this Letter of Transmittal
certifying that the TIN provided on such form is correct and that such Holder or
other payee is not subject to backup withholding. If the Notes are held in more
than one name or are held not in the name of an actual owner, consult the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which number to report.
7. TRANSFER TAXES. The Offeror will pay all transfer taxes applicable to
the purchase and transfer of Notes pursuant to the Offers, except in the case of
deliveries of certificates for Notes for principal amounts at maturity not
tendered or not accepted for payment that are registered or issued in the name
of any person other than the registered Holder of Notes tendered thereby.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the certificates listed in this Letter of
Transmittal.
8. IRREGULARITIES. All questions as to the validity (including time of
receipt) of notices of withdrawal will be determined by the Offeror in the
Offeror's sole discretion (whose determination shall be final and binding). None
of the Offeror, Omnipoint or any other person will be under any duty to give
notification of any defects or irregularities in any notice of withdrawal of
Notes or incur any liability for failure to give any such notification.
9. WAIVER OF CONDITIONS. The Offeror expressly reserves the absolute
right, in its sole discretion, to amend or waive any of the conditions to the
Offers in the case of any Notes tendered in whole or in part, at any time and
from time to time.
10. MUTILATED, LOST, STOLEN OR DESTROYED CERTIFICATES FOR NOTES. Any
Holder whose certificates for Notes have been mutilated, lost, stolen or
destroyed should write to or telephone the Exchange Agent at the address or
telephone number set forth herein.
11. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
may be directed to the Exchange Agent at its address set forth herein or from
the tendering Holder's broker, dealer, commercial bank or trust company.
Additional copies of the Offer Documents may be obtained from the Exchange
Agent.
11
<PAGE> 12
<TABLE>
<C> <S> <C> <C>
PAYER'S NAME:
PART 1 -- PLEASE PROVIDE YOUR TIN IN
THE BOX AT THE RIGHT AND CERTIFY BY --------------------
SIGNING AND DATING BELOW Social Security Number(s)
OR
--------------------
Employer Identification Number
PART 2 -- Certification -- Under penalties of perjury, I certify that (1) The
number shown on this form is my correct Taxpayer Identification Number (or I am
SUBSTITUTE waiting for a number to be issued to me); and (2) I am not subject to backup
FORM W-9 withholding because: (i) I am exempt from backup withholding, (ii) I have not
PAYER'S REQUEST FOR been notified by the Internal Revenue Service (the "IRS") that I am subject to
TAXPAYER IDENTIFICATION backup withholding as a result of a failure to report all interest or dividends
NUMBER ("TIN") or (iii) the IRS has notified me that I am no longer subject to backup
withholding.
CERTIFICATION INSTRUCTIONS. You must cross out item (2) PART 3 --
in Part 2 above if you have been notified by the IRS that Awaiting TIN [ ]
you are subject to backup withholding because of
under-reporting interest or dividends on your tax returns.
However, if after being notified by the IRS that you were
subject to backup withholding you received another
notification from the IRS stating that you are no longer
subject to backup withholding, do not cross out such item
(2).
---------------------------------------- --------------------
SIGNATURE DATE
----------------------------------------
NAME (PLEASE PRINT)
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFERS AND THE
SOLICITATIONS. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF THE SUBSTITUTE FORM W-9.
12
CERTIFICATE OF PERSON AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (a) I have mailed or
delivered an application to receive a taxpayer identification number to
the appropriate Internal Revenue Service Center or Social Security
Administration office or (b) I intend to mail or deliver an application to
receive a taxpayer identification number to the Depositary, 31% of all
reportable payments made to me will be withheld, but I will be refunded if
I provide a certified taxpayer identification number within 60 days.
<TABLE>
<S> <C>
------------------------------ ------------------------------
SIGNATURE DATE
------------------------------
NAME (PLEASE PRINT)
</TABLE>
13
<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
TO TENDER TO
VOICESTREAM WIRELESS CORPORATION
IN RESPECT OF
11 1/2% SENIOR NOTES DUE 2009
OF
OMNIPOINT CORPORATION
PURSUANT TO THE OFFER TO PURCHASE
DATED APRIL --, 2000
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery, or one substantially in the form
hereof, must be used to tender the 11 1/2% Senior Notes due 2009 of Omnipoint
Corporation (the "Notes") pursuant to the Offers (as defined below) of
VoiceStream Wireless Corporation (the "Offeror") if prior to the Expiration Date
(as defined in the Statement) (i) certificates representing Notes are not lost
but are not immediately available, (ii) time will not permit the Letter of
Transmittal, certificates representing Notes and all other required documents to
reach HSBC Bank USA, as exchange agent (the "Exchange Agent") on or prior to the
Expiration Date, or (iii) the procedures for book-entry transfer cannot be
completed on or prior to the Expiration Date, the Holders may effect a tender of
Notes in accordance with the guaranteed delivery procedures set forth in the
Statement under the caption "Procedures for Tendering Notes, Guaranteed
Delivery." This Notice of Guaranteed Delivery may be delivered by mail or
transmitted by telegram or facsimile transmission to the Exchange Agent. All
terms used but not defined herein shall have the meanings assigned to such terms
in the Statement.
The Exchange Agent is:
HSBC BANK USA
By Registered or Certified Mail,
Overnight Courier or Hand:
HSBC Bank USA
140 Broadway -- Level A
New York, New York 10005-1180
Attn: Corporation Trust Operations
Facsimile: (212) 658-2292
Telephone: (212) 658-5931
Delivery of this Notice of Guaranteed Delivery to an address other than as
set forth above, or transmission of instructions via facsimile other than as set
forth above, will not constitute a valid delivery.
The consideration for Notes tendered pursuant to guaranteed delivery
procedures will be the same as that for Notes delivered to the Exchange Agent or
prior to the Expiration Date, even if the Notes to be delivered pursuant to the
guaranteed delivery procedures are not so delivered to the Exchange Agent, and
therefore payment by the Exchange Agent on account of such Notes is not made,
until after the Payment Date.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an "Eligible Institution"
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
Ladies and Gentlemen:
By execution hereof, the undersigned acknowledges receipt of the Prospectus
dated the date hereof (as amended or supplemented from time to time, the
"Prospectus") of VoiceStream Wireless Corporation, a Delaware corporation (the
"Offeror") relating to 11 1/2% Senior Notes due 2009 of Omnipoint Corporation
(collectively, the "Notes"), and the accompanying Letter of Transmittal and
instructions thereto (the "Letter of Transmittal" and, together with the
Prospectus, the "Offer Documents"), which together constitute the Offeror's
<PAGE> 2
offer (the "Offer") to exchange for notes of the Offeror any and all of the
Notes, upon the terms and subject to the conditions set forth in the Prospectus.
Upon the terms and subject to the conditions of the applicable Offers the
undersigned hereby tenders to the Offeror the principal amount at maturity of
Notes indicated below pursuant to the guaranteed delivery procedures described
in the Offer Documents.
In the event of a termination of the Offer, the Notes tendered will be
returned to the tendering Holders promptly (or, in the case of Notes tendered by
book-entry transfer, such Notes will be credited to the account maintained at
DTC from which such Notes were delivered). If the Offeror makes a material
change in the terms of the Offer, the Offeror will disseminate additional
material in respect of such Offer and will extend such Offer, in each case to
the extent required by law.
The undersigned understands that payment by the Exchange Agent for Notes
tendered and accepted for payment pursuant to the Offer will be made only after
receipt by the Exchange Agent of such Notes (or Book-Entry Confirmation of the
transfer of such Notes into the Exchange Agent's account at DTC) and a Letter of
Transmittal (or a facsimile copy thereof) with respect to such Notes properly
completed and duly executed with any required signature guarantees and any other
documents required by the Letter of Transmittal or a properly transmitted
Agent's Message.
All authority conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall survive the death or incapacity of the undersigned and
every obligation of the undersigned under the Letter of Transmittal shall be
binding upon the undersigned's heirs, personal representatives, executors,
administrators, successors, assigns, Trustees in bankruptcy and other legal
representatives.
2
<PAGE> 3
PLEASE SIGN AND COMPLETE
This Notice of Guaranteed Delivery must be signed by the registered
Holder(s) of Notes exactly as their name(s) appear(s) on certificate(s) for
Notes or, if tendered by a participant in the Book-Entry Transfer Facility,
exactly as such participant's name appears on a security position listing as the
owner of Notes, or by person(s) authorized to become registered Holders(s) by
endorsements and documents transmitted with this Notice of Guaranteed Delivery.
If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must set forth his or her name, address and
full title as indicated below and submit evidence satisfactory to the Offeror of
such person's authority so to act.
<TABLE>
<S> <C>
Aggregate Principal Amount at Maturity of Name(s) of Holder(s)
Notes Tendered
Certificate No(s). (if available): Address(es) of Holder(s):
CUSIP No.:
ZIP CODE
Window Ticket No. (if any): Area Code and Tel. No.:
Check box if Notes will be tendered by book- Name(s) of Authorized Signatory:
entry transfer:
[ ] The Depository Trust Company Full Title:
Account Number: Address(es) of Authorized Signatory:
Transaction Code Number: Area Code and Tel. No.:
Dated: Signature(s) of Registered Holder of
Authorized Signatory:
</TABLE>
3
<PAGE> 4
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a bank, broker, dealer, credit union, savings association
or other entity that is a participant in the Securities Transfer Agents
Medallion Program or the Stock Exchange Medallion Program (an "Eligible
Institution"), hereby guarantees to deliver to the Exchange Agent either the
certificates representing the Notes tendered hereby, in proper form for
transfer, or a Book-Entry Confirmation (as defined in the Offer Documents) of a
transfer of such Notes, in any such case together with a properly completed and
duly executed Letter of Transmittal, or a manually signed facsimile thereof,
with any required signature guarantees, and any other documents required by the
Letter of Transmittal within three New York Stock Exchange trading days after
the date hereof.
The Eligible Institution that completes this form must communicate the
Guarantee to the Exchange Agent and must deliver the Letter of Transmittal and
certificates for the Notes to the Exchange Agent within the time period shown
herein. Failure to do so could result in financial loss to such Eligible
Institution.
<TABLE>
<S> <C>
Name of Firm:
(AUTHORIZED SIGNATURE)
Address: Title:
Date:
(ZIP CODE)
Area Code and Tel. No.:
</TABLE>
NOTE: DO NOT SEND NOTES WITH THIS NOTICE. NOTES SHOULD BE SENT TO THE EXCHANGE
AGENT TOGETHER WITH PROPERLY COMPLETED AND DULY EXECUTED LETTER OF
TRANSMITTAL.
4
<PAGE> 1
EXHIBIT 99.3
VOICESTREAM WIRELESS CORPORATION
EXCHANGE OFFER FOR
ANY AND ALL OF THE OUTSTANDING
11 1/2% SENIOR NOTES DUE 2009
OF
OMNIPOINT CORPORATION
April --, 2000
To Brokers, Dealers, Commercial Banks,
Trust Companies and other Nominees:
We are enclosing herewith the materials listed below relating to the offer
(the "Offer") by VoiceStream Wireless Corporation, a Delaware corporation (the
"Offeror"), to exchange its new registered notes for any and all 11 1/2% Senior
Notes due 2009 of Omnipoint Corporation (collectively, the "Notes") upon the
terms and subject to the conditions set forth in the Prospectus dated the date
hereof (as it may be supplemented from time to time, the "Prospectus").
All capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Prospectus.
For your information and for forwarding to your clients, for whom you hold
Notes registered in your name or in the name of your nominee, we are enclosing
the following documents:
1. PROSPECTUS
2. LETTER OF TRANSMITTAL for your use and for the information of your
clients, together with Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9, providing information
relating to backup federal income tax withholding.
3. NOTICE OF GUARANTEED DELIVERY to be used to accept the Offer if the
Notes and all other required documents cannot be delivered to the Exchange
Agent by the Expiration Date.
4. A printed form of a "TO OUR CLIENTS" letter, including a Letter of
Instructions, which may be sent to your clients for whose accounts you hold
Notes registered in your name or in the name of your nominee, with space
provided for obtaining such clients' instructions with regard to the Offer.
This form will enable your clients to tender all Notes.
DTC participants will be able to execute tenders through the DTC Automated
Tender Offer Program.
The Offeror will pay the Exchange Agent reasonable and customary fees for
its services and will reimburse it for its reasonable out-of-pocket expenses in
connection therewith. The Offeror will pay brokerage houses and other
custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of the Prospectus and related documents to
the beneficial owners of Notes. The Offeror will not pay any fees or commissions
to any broker, dealer or other person for soliciting tenders of Notes pursuant
to the Offer.
<PAGE> 2
Any questions or requests for assistance or additional copies of the
Prospectus or the Letter of Transmittal may be directed to the Exchange Agent.
You may also contact your broker, dealer, commercial bank, trust company or
other nominee for assistance concerning the Offer.
Very truly yours,
- --
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF THE OFFEROR, THE EXCHANGE AGENT, THE TRUSTEE
WITH RESPECT TO ANY OF THE NOTES OR OF ANY AFFILIATE OF ANY OF THEM, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR TO MAKE ANY STATEMENT
ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED
DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
2
<PAGE> 1
EXHIBIT 99.4
VOICESTREAM WIRELESS CORPORATION
EXCHANGE OFFER FOR
ANY AND ALL OF THE OUTSTANDING
11 1/2% SENIOR NOTES DUE 2009
OF
OMNIPOINT CORPORATION
April --, 2000
To our Clients:
Enclosed for your consideration is the Prospectus dated the date hereof (as
amended or supplemented from time to time, the "Prospectus") and a form of
Letter of Transmittal (as it may be amended or supplemented from time to time,
the "Letter of Transmittal" and, together with the Prospectus, the "Offer
Documents"), relating to the offer (the "Offer") by VoiceStream Wireless
Corporation, a Delaware corporation (the "Offeror"), to exchange its notes for
any and all of 11 1/2% Senior Notes due 2009 of Omnipoint Corporation
(collectively, the "Notes").
All capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Prospectus.
The materials relating to the Offers are being forwarded to you as the
beneficial owner of Notes carried by us for your account or benefit but not
registered in your name. A tender of any Notes with respect to any such Notes
may only be made by us as registered Holder and pursuant to your instructions.
Therefore, the Offeror urges beneficial owners of Notes registered in the name
of a broker, dealer, commercial bank, trust company or other nominee to contact
such Holder promptly if they wish to tender Notes pursuant to the Offers.
Accordingly, we request instructions as to whether you wish us to tender
any or all of the Notes held by us for your account. We urge you to read
carefully the Prospectus and the related Letter of Transmittal before
instructing us to tender your Notes. Your instructions to us should be forwarded
as promptly as possible in order to permit us to tender Notes on your behalf in
accordance with the provisions of the Offer. The Offer will expire at 5:00 p.m.,
New York City time, on May --, 2000, unless the Expiration Date is extended as
provided in the Prospectus. Tenders of Notes may be withdrawn at any time at or
prior to 5:00 p.m., New York City time, on the Expiration Date.
Your attention is directed to the following:
1. The Offers are related to all outstanding Notes.
2. If you desire to tender any Notes pursuant to the Offer we must
receive your instructions in ample time to permit us to effect a tender of
the Notes on your behalf at or prior to 5:00 p.m., New York City time, on
the Expiration Date.
3. Any transfer taxes incident to the transfer of Notes from the
tendering Holder to the Offeror will be paid by the Offeror, except as
provided in the Prospectus and the instructions to the Letter of
Transmittal.
IF YOU WISH TO HAVE US TENDER ANY OR ALL OF YOUR NOTES HELD BY US FOR YOUR
ACCOUNT OR BENEFIT PURSUANT TO THE OFFERS, PLEASE SO INSTRUCT US BY COMPLETING,
EXECUTING AND RETURNING TO US THE ATTACHED LETTER OF INSTRUCTIONS. The
accompanying Letter of Transmittal is furnished to you for informational
purposes only and may not be used to tender Notes held by us and registered in
our name for your account.
<PAGE> 2
LETTER OF INSTRUCTIONS
The undersigned acknowledge(s) receipt of your letter and the enclosed
material referred to therein relating to the Offer by VoiceStream Wireless
Corporation with respect to 11 1/2 Senior Notes due 2009 of Omnipoint
Corporation (collectively, the "Notes").
This will instruct you to tender the principal amount of Notes indicated
below held by you for the account or benefit of the undersigned, pursuant to the
terms of and conditions set forth in the Prospectus and the related Letter of
Transmittal.
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NOTES WHICH ARE TO BE TENDERED
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