<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 4, 2000.
REGISTRATION NO. 333-33168
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-4
------------------------
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
VOICESTREAM WIRELESS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
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 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
</TABLE>
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. [ ]
------------------------
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
PROSPECTUS
VOICESTREAM WIRELESS CORPORATION
[VOICESTREAM LOGO]
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OFFERS TO EXCHANGE: Our registered 10 3/8% Senior Notes due 2009
for
our outstanding unregistered notes with substantially
identical terms
and
our registered 11 7/8% Senior Discount Notes due 2009
for
our outstanding unregistered notes with substantially
identical terms.
</TABLE>
Holders of our outstanding notes will receive a like principal amount of
our new registered notes.
The exchange offer we are making will expire at 5:00 p.m., New York City
time on May 8, 2000. The new notes we will issue will not trade on any exchange.
See "Risk Factors" beginning on page 8 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 5, 2000.
<PAGE> 3
TABLE OF CONTENTS
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Where You Can Find More Information... 1
Incorporation of Certain Documents by
Reference........................... 1
Prospectus Summary.................... 2
Risk Factors.......................... 8
The Exchange Offer.................... 14
The Company........................... 20
Ratio of Earnings to Fixed Charges.... 20
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PAGE
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Use of Proceeds....................... 20
Description of Our New Notes.......... 21
Book-Entry; Delivery and Form......... 55
Certain United States Federal Income
Tax Considerations.................. 56
Plan of Distribution.................. 57
Legal Matters......................... 57
Experts............................... 58
</TABLE>
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 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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<PAGE> 4
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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<S> <C> <C>
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, except where the
reference is to us as the issuer of our notes, our subsidiaries collectively,
unless the context otherwise requires.
2
<PAGE> 6
SUMMARY OF TERMS OF THE EXCHANGE OFFER
We are offering to exchange our new notes for two series of our outstanding
notes -- our 10 3/8% Senior Notes due 2009 and our 11 7/8% Senior Discount Notes
due 2009.
We will accept for exchange up to the entire $1,100,000,000 aggregate
principal amount of our outstanding 10 3/8% Senior Notes due 2009 for an equal
aggregate principal amount of our new registered 10 3/8% Senior Notes due 2009,
and we will accept for exchange up to the entire $720,000,000 aggregate
principal amount at maturity of our outstanding 11 7/8% Senior Discount Notes
due 2009 for an equal aggregate principal amount at maturity of our new
registered 11 7/8% Senior Discount Notes due 2009.
Background.................... On November 9, 1999, we completed a private
placement of $1,100,000,000 aggregate principal
amount of our 10 3/8% Senior Notes due 2009 and
$720,000,000 in aggregate principal amount at
maturity of our 11 7/8% Senior Discount Notes
due 2009. In connection with that private
placement, we entered into a registration
rights agreement in which we agreed, among
other things, to deliver this prospectus to the
holders of our outstanding senior notes and
senior discount notes and to complete this
exchange offer of our new notes for our
outstanding notes.
Securities Offered............ We are offering up to $1,100,000,000 aggregate
principal amount of our 10 3/8% Senior Notes
due November 15, 2009 and up to $720,000,000
aggregate principal amount at maturity of our
11 7/8% Senior Discount Notes due November 15,
2009, all of which will have been registered
under the Securities Act of 1933. The terms of
our new notes will be substantially the same as
the terms of our 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 July 21, 2000, the interest rate on
the outstanding notes will increase until the
exchange offer is completed.
The Exchange Offers........... We are offering to accept our 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 offer we
will issue the new notes to holders of
outstanding notes that wish to exchange them.
The issuance of the new notes will satisfy our
obligation under the registration rights
agreement."
Expiration of the Exchange
Offers........................ 5:00 p.m., New York City time, on May 8, 2000,
unless we extend it.
Tenders; Withdrawal........... You may withdraw your tender of our outstanding
notes at any time before the offer expires." 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.
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<PAGE> 7
Conditions to the Exchange
Offers........................ 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 us under the
registration rights agreement if we fail to
consummate the exchange offer for our
outstanding notes.
Federal Income Tax
Considerations................ The exchange of our new notes for our
outstanding notes pursuant to the exchange
offer should not constitute a taxable exchange
for federal income tax purposes. See "Certain
United States Federal Income Tax
Considerations."
Exchange Agent................ Harris Trust Company of California 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 Our Outstanding
Notes....................... Our 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.
We do not currently plan to register any of our
outstanding notes under the Securities Act of
1933.
SUMMARY DESCRIPTION OF OUR NEW NOTES
Notes Offered
Senior Notes................ $ 1.1 billion in principal amount of 10 3/8%
Senior Notes Due November 15, 2009. Under the
indenture governing the senior notes, we will
be able to issue up to an additional aggregate
principal amount of senior notes of $ 1.1
billion. Upon maturity, we will pay the
principal of, premium, if any, and interest on
the senior notes in immediately available
funds.
Senior Discount Notes....... $720 million in principal amount at maturity of
11 7/8% Senior Discount Notes Due November 15,
2009. Under the indenture governing the senior
discount notes, we will be able to issue up to
an additional aggregate principal amount at
maturity of senior discount notes of $750
million. Upon maturity, we will pay the
principal of, premium, if any, and interest on
the senior discount notes in immediately
available funds.
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Maturity Date
Senior Notes and Senior
Discount Notes.............. November 15, 2009.
Yield and Interest
Senior Notes................ The Senior Notes will bear interest payable
semiannually in arrears, at a rate of 10 3/8%
per annum, on May 15 and November 15 of each
year, commencing May 15, 2000. Interest on the
senior notes issued in the exchange will be
deemed to have begun accruing on November 9,
1999 or the most recent interest payment date
for our outstanding notes.
Senior Discount Notes....... No cash interest will accrue on the senior
discount notes prior to November 15, 2004. The
senior discount notes will fully accrete to
face value on November 15, 2004. From and after
November 15, 2004, the senior discount notes
will bear interest, which will be payable
semiannually in arrears, at a rate of 11 7/8%
per annum, on May 15 and November 15 of each
year, commencing May 15, 2005.
Ranking
Senior Notes and Senior
Discount Notes................ The senior notes and senior discount 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.
The senior notes and senior discount notes
rank equal in right of payment to each other;
- 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 secured,
and will rank equal to such obligations to
the extent that the secured 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.
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<PAGE> 9
Optional Redemption
Senior Notes and Senior
Discount
Notes..................... We have the option to redeem the notes, in
whole or in part, at any time on or after
November 15, 2004 and prior to maturity, at the
redemption prices set forth in this prospectus
under "Description of Our New Notes -- Optional
Redemption" plus accrued and unpaid interest,
if any, to the date of redemption.
In addition:
- On or before November 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 and principal amount at maturity
of the senior discount notes at a price of
110.375% of principal amount of the senior
notes and at 111.875% of the accreted value
of the senior discount notes on the
redemption date provided that after any such
redemption at least 65% of the aggregate
principal amount of the senior notes and
principal amount at maturity of the senior
discount notes remains outstanding.
- If a change of control and a ratings decline
occurs, we will have the right to repurchase
in whole the notes at a redemption price
equal to the greater of (1) 101% of the
principal amount of the senior notes and 101%
of the accreted value of the senior discount
notes, plus accrued and unpaid interest and
(2) the present values of the remaining
scheduled payments of principal and interest
on the notes, 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.
Sinking Fund
Senior Notes and Senior
Discount
Notes..................... Our notes will not be entitled to any sinking
fund.
Change of Control
Senior Notes and Senior
Discount Notes............ 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 of the senior
discount note or of principal amount of the
senior notes 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.
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<PAGE> 10
Certain Covenants
Senior Notes and Senior
Discount Notes............ The indentures under which we will issue the
notes restrict our (and our subsidiaries')
ability to do the following:
- incur additional indebtedness;
- make investments;
- make payments in respect of securities that
are junior to our notes;
- enter into transactions with affiliates;
- issue capital stock of our subsidiaries;
- incur liens on our property;
- enter into sale and leaseback transactions;
- dispose of assets; and
- engage in consolidations, mergers and asset
transfers.
Settlement and Book-Entry Form
Senior Notes and Senior
Discount Notes............ Our notes will be evidenced by a note in global
form for each of the senior notes and the
senior discount notes 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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<PAGE> 11
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
As a holding company, we will not hold substantial assets other than our
direct or indirect investments in and advances to our operating subsidiaries.
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 indebtedness and liabilities of our subsidiaries. Our lenders under our
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 indebtedness and
liabilities of Aerial Communications, Inc., which we expect to become our
subsidiary, was $411.8 million on December 31, 1999.
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 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.
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<PAGE> 12
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 our systems and
subscriber bases. Our total debt on February 29, 2000, was 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
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
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<PAGE> 13
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.
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
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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 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.
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<PAGE> 15
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 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 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 global
system for mobile communications technology, which we employ. 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 telephone while driving an
automobile. If states adopt and strictly enforce such legislation, it may have
an adverse effect on our business.
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<PAGE> 16
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;
- 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; and
- product liability and other claims asserted against us.
Given these uncertainties, we caution you not to place undue reliance on
such forward-looking statements.
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<PAGE> 17
THE EXCHANGE OFFER
Subject to the terms and conditions in this prospectus and in the
accompanying Letter of Transmittal, we will exchange our outstanding 10 3/8%
senior notes due 2009 and our 11 7/8% senior discount notes due 2009 that are
properly tendered on or before the expiration of the offer, and not withdrawn,
for a like principal amount of our registered new notes having terms
substantially identical to the outstanding notes. The expiration of the offer is
5:00 p.m., New York City time, on May 8, 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 of our outstanding
notes that are the subject of the offers described herein. Our obligation to
accept outstanding notes for exchange 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.
Terms of Exchange Offer
For each of our outstanding notes accepted for exchange, the holder will
receive a new note having a principal amount or principal amount at maturity in
the case of the senior discount notes, equal to that of our surrendered
outstanding note. Holders of our outstanding notes that are accepted for
exchange will waive the right to receive any interest on those notes that has
accrued since the later of November 9, 1999 (their issuance date) or the most
recent date on which interest was paid. Our new notes issued in exchange will be
deemed to have begun accruing interest on the date from which interest on the
outstanding notes will be waived. Consequently, holders of our outstanding 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 notes that are
accepted for exchange 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. 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
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<PAGE> 18
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 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 they must be accompanied by
appropriate powers of attorney, signed exactly as the name of the registered
holder appears on the outstanding notes. All questions of adequacy 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 offer as to any particular outstanding notes either
before or after the expiration date.
Our interpretation of the terms and conditions of the exchange offer
(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 the defects or irregularities in the tender have
been cured or waived.
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<PAGE> 19
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 to the tendering
holder unless otherwise provided in the Letter of Transmittal, as soon as
practicable following the expiration date.
We reserve the right in our sole discretion:
(i) to terminate the exchange offer;
(ii) to purchase or make offers for any outstanding notes that remain
outstanding subsequent to the expiration date; and
(iii) to the extent permitted by applicable law, to purchase
outstanding notes in the open market, in privately negotiated transactions
or otherwise on terms different from the terms of the exchange offer.
Acceptance of Outstanding Notes for Exchange; Delivery of New Notes
Upon satisfaction or waiver of the conditions to the exchange offer, 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, non-exchanged or unsold portion of 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 unaccepted, non-exchanged or unsold 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 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.
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Guaranteed Delivery Procedures
A holder who wishes to tender outstanding notes, but
(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 on a timely
basis, or
(iii) book-entry transfer of the outstanding notes cannot be completed
on a timely basis,
may effect a tender if:
(a) the tender is made through an institution eligible to guarantee
signatures 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, are 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 exchange 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 the outstanding note exchanged, and identify the
outstanding note to be withdrawn (including the certificate number or
numbers and principal amount of the outstanding note); and
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<PAGE> 21
(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.
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 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 with respect thereto unless the outstanding notes so withdrawn are
validly retendered.
Certain Conditions to the Exchange Offer
The exchange offer are subject to the condition that 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 our
outstanding notes will have rights against us under the registration rights
agreement should we fail to consummate the exchange offer.
If we determine that we may 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 retain all outstanding notes tendered prior
to the expiration date; or
- waive a termination event with respect to the exchange offer and
accept all properly tendered outstanding notes that have not been
withdrawn.
If the waiver would constitute a material change in the exchange 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 offer 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 offer would
otherwise expire during such period.
Exchange Agent
Harris Trust Company of California, the trustee under the indentures
related to our outstanding senior notes and senior discount notes, 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
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<PAGE> 22
requests for additional copies of this prospectus or of the Letter of
Transmittal should be directed to the exchange agent addressed as follows:
By Facsimile:
(212) 701-7636
(212) 701-7640
Attention: Reorganization Department
Confirm by telephone:
(212) 701-7624
By Registered or Certified Mail:
Harris Trust Company of California
c/o Harris Trust Company of New York
Wall Street Station
P.O. Box 1010
New York, NY 10268-1010
Attention: Reorganization Department
By Hand:
Harris Trust Company of California
c/o Harris Trust Company of New York
88 Pine Street
19th Floor
New York, NY 10005
Attention: Reorganization Department
By Overnight Courier:
Harris Trust Company of California
c/o Harris Trust Company of New York
88 Pine Street
19th Floor
New York, NY 10005
Attention: Reorganization Department
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. Holders who
instruct us to register new notes in the name of,
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or request that portions of outstanding notes not tendered or not accepted for
exchange 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 (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. 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. This combined business will have licenses that cover 23 of 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 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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DESCRIPTION OF OUR NEW NOTES
GENERAL
You can find the definitions of certain capitalized terms used in the
following summary under the subheading "-- Certain Definitions".
We will issue the 10 3/8% Senior Notes due 2009 and the 11 7/8% Senior
Discount Notes due 2009 under two separate indentures, each between us and
Harris Trust Company of California, as trustee. The terms of the notes include
those stated in the indentures and those made part of the indentures by
reference to the Trust Indenture Act of 1939, as amended.
The following is a summary of the material provisions of the indentures. It
does not restate the indentures in their entirety. We urge you to read the
indentures, because they, and not this description, define your rights as
holders of notes. Copies of the indentures are available upon request from the
trustee.
Notwithstanding anything herein to the contrary, no provisions of the
indentures shall be violated as a result of the consummation of any of the
transactions contemplated by the Aerial reorganization, nor will the provisions
of the indentures with respect to change of control events or requiring certain
actions with respect to proceeds for Asset Dispositions be applicable to any
such transaction.
BRIEF DESCRIPTION OF THE NOTES
The Senior Notes:
- will be, upon issuance, general obligations of ours;
- rank equal in right of payment with all of our other senior unsecured
Indebtedness, including the Senior Discount Notes;
- rank senior in right of payment to all of our subordinated unsecured
Indebtedness;
- rank junior to secured obligations of ours, with respect to the assets
which are secured, and will rank equal to such obligations to the extent
that the secured assets do not satisfy the secured obligations;
- rank junior to all existing and future Indebtedness and other liabilities
of our subsidiaries, which amounted to approximately $3.3 billion at
February 29, 2000.
- accrue interest from November 9, 1999 at a rate of 10 3/8%, which is
payable semi-annually commencing May 15, 2000; and
- mature on November 15, 2009.
The Senior Discount Notes:
- will be, upon issuance, general obligations of ours;
- rank equal in right of payment with all of our other senior unsecured
Indebtedness, including the Senior Notes;
- rank senior in right of payment to all of our subordinated unsecured
Indebtedness;
- rank junior to secured obligations of ours, with respect to the assets
which are secured, and will rank equal to such obligations to the extent
that the secured assets do not satisfy the secured obligations;
- rank junior to all existing and future Indebtedness and other liabilities
of our subsidiaries, which amounted to approximately $3.3 billion on
February 29, 2000.
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- accrete in value, from November 9, 1999 through November 15, 2004, to
their principal amount at maturity;
- accrue interest from November 15, 2004 at a rate of 11 7/8%, which is
payable semi-annually commencing May 15, 2005; and
- mature on November 15, 2009.
We will offer to repurchase notes under circumstances described in the
indentures upon:
- a Change of Control Triggering Event; or
- an Asset Disposition by us or any of our Restricted Subsidiaries.
We may repurchase all notes upon a Change of Control Triggering Event.
The indentures governing the notes also contain the following covenants:
- restrictions on incurrence of consolidated indebtedness;
- restrictions on Restricted Payments;
- restrictions on dividend and other payment restrictions affecting
Subsidiaries;
- limitation on issuances and sales of Capital Stock of Restricted
Subsidiaries;
- restrictions on transactions with Affiliates;
- restrictions on Liens;
- restrictions on sale and leaseback transactions;
- undertaking to deliver reports; and
- restrictions on merger, consolidation or sales of assets.
Our operations are conducted through Subsidiaries and, therefore, depend on
the cash flow of Subsidiaries to meet our obligations, including obligations
under the notes. Our Subsidiaries, including Omnipoint and its Subsidiaries will
not be guarantors of the notes and the notes will be structurally subordinated
to all indebtedness, including all borrowings, of those Subsidiaries. Our right
to receive assets of any Subsidiaries upon the liquidation or reorganization of
those Subsidiaries (and the consequent right of the holders of the notes to
participate in those assets) will be legally subordinated to the claims of that
Subsidiary's creditors, except to the extent that we are recognized as a
creditor of that Subsidiary. If we are recognized as a creditor of a Subsidiary,
our claims would still be subordinate in right of payment to any security in the
assets of that Subsidiary and any indebtedness of that Subsidiary senior to that
held by us. See "Risk Factors -- 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".
As of the date of the indentures, all of our Subsidiaries will be
Restricted Subsidiaries and assuming completion of the Aerial reorganization,
Aerial and all of its Subsidiaries will be Restricted Subsidiaries. However,
under certain circumstances, we will each be able to designate current or future
Subsidiaries as Unrestricted Subsidiaries. Unrestricted Subsidiaries will not be
subject to many of the restrictive covenants set forth in the indentures.
22
<PAGE> 26
PRINCIPAL, MATURITY AND INTEREST
SENIOR NOTES
We will issue Senior Notes with an aggregate principal amount of up to $1.1
billion. The indenture governing the Senior Notes will allow us to issue
additional Senior Notes. These additional Senior Notes will be limited to an
aggregate principal amount of up to $1.1 billion. The issuance of any of those
additional Senior Notes will be subject to our ability to incur Indebtedness
under the covenant described under "-- Covenants -- Limitation on Consolidated
Indebtedness" and similar restrictions in the instruments governing our other
Indebtedness. Any such additional Senior Notes will be treated as part of the
same class and series as the Senior Notes issued in the offering for purposes of
voting under the indenture governing the Senior Notes. The Senior Notes will
mature on November 15, 2009. We will issue the Senior Notes in denominations of
$1,000 and integral multiples of $1,000.
Interest on the Senior Notes will accrue at the rate of 10 3/8% per annum
and will be payable in U.S. dollars semiannually in arrears on May 15 and
November 15, commencing on May 15, 2000. The Issuers will make each interest
payment to holders of record on the immediately preceding May 1 and November 1.
Cash interest will accrue on the Senior Notes from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
the indenture governing the Senior Notes. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
SENIOR DISCOUNT NOTES
We will issue Senior Discount Notes with an aggregate principal amount at
maturity of $720 million. The indenture governing the Senior Discount Notes will
allow us to issue additional Senior Discount Notes. These additional Senior
Discount Notes will be limited to an aggregate principal amount at maturity of
$750 million. The issuance of any of those additional Senior Discount Notes will
be subject to our ability to incur Indebtedness under the covenant described
under "-- Covenants -- Limitation on Consolidated Indebtedness" and similar
restrictions in the instruments governing our other Indebtedness. Any such
additional Senior Discount Notes will be treated as part of the same class and
series as the Senior Discount Notes issued in the offering for purposes of
voting under the indenture governing the Senior Discount Notes. The Senior
Discount Notes will mature on November 15, 2009. We will issue the Senior
Discount Notes in denominations of $1,000 and integral multiples of $1,000.
No cash interest will accrue on the Senior Discount Notes before November
15, 2004. The Accreted Value of the Senior Discount Notes will accrete
(representing the amortization of original issue discount) between the date of
the indenture governing them and November 15, 2004, on a semiannual bond
equivalent basis using a 360-day year comprised of twelve 30-day months such
that the Accreted Value shall be equal to the full principal amount of the
Senior Discount Notes on November 15, 2004, the Full Accretion Date. Beginning
on November 15, 2004, interest on the Senior Discount Notes will accrue at the
rate of 11 7/8% per annum and will be payable in U.S. dollars semiannually in
arrears on May 15 and November 15, commencing on May 15, 2005. We will make each
interest payment to holders of record on the immediately preceding May 1 and
November 1.
Beginning on November 15, 2004 cash interest will accrue on the Senior
Discount Notes from the most recent date to which interest has been paid or, if
no interest has been paid, from the Full Accretion Date. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
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<PAGE> 27
METHOD OF RECEIVING PAYMENTS ON THE NOTES
If a holder has given wire transfer instructions to us, we will make all
payments of principal, premium and interest, if any, on that holder's notes in
accordance with those instructions. All other payments on the notes will be made
at the office or agency of the paying agent and registrar for the notes within
the City and State of New York unless we elect to make interest payments by
check mailed to the holders at their principal address set forth in the register
of holders.
PAYING AGENT AND REGISTRAR FOR THE NOTES
The trustee under the indentures will initially act as the paying agent and
registrar for the notes. We may change the paying agent or registrar under the
indentures without prior notice to the holders of the notes, and we or any of
our Subsidiaries may act as paying agent or registrar under the indentures.
OPTIONAL REDEMPTION
SENIOR NOTES
Until November 15, 2002, we may on any one or more occasions redeem up to
35% of the aggregate principal amount of the Senior Notes originally issued at a
redemption price of 110.375% of the principal amount thereof with the net cash
proceeds of one or more Public Equity Offerings and/or Strategic Equity
Infusions; provided that:
(1) at least 65% of the aggregate principal amount of Senior Notes
originally issued remains outstanding immediately after such redemption
(excluding Senior Notes held by us or our Subsidiaries); and
(2) the redemption occurs within 60 days of the date of the Public
Equity Offering or Strategic Equity Investment.
Except pursuant to the preceding paragraph and the provisions of the
indenture governing the Senior Notes described under "-- Optional
Redemption -- Change of Control" below, the Senior Notes will not be redeemable
at our option prior to November 15, 2004. After November 15, 2004, we may redeem
all or a part of the Senior Notes upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued interest, if any, on the Senior Notes redeemed to
the applicable redemption date (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period beginning on November 15 of the
years indicated below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2004.............................................. 105.188%
2005.............................................. 103.458%
2006.............................................. 101.729%
2007 and thereafter............................... 100.0%
</TABLE>
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<PAGE> 28
SENIOR DISCOUNT NOTES
Until November 15, 2002, we may on any one or more occasions redeem up to
35% of the aggregate principal amount at maturity of the Senior Discount Notes
originally issued at a redemption price of 111.875% of the Accreted Value
thereof with the net cash proceeds of one or more Public Equity Offerings and/or
Strategic Equity Infusions; provided that:
(1) at least 65% of the aggregate principal amount at maturity of
Senior Discount Notes originally issued remains outstanding immediately
after the occurrence of such redemption (excluding Senior Discount Notes
held by us or our Subsidiaries); and
(2) the redemption occurs within 60 days of the date of the Public
Equity Offering or Strategic Equity Investment.
Except pursuant to the preceding paragraph and the provisions of the
indenture governing the Senior Discount Notes described under "-- Optional
Redemption -- Change of Control" below, the Senior Discount Notes will not be
redeemable at our option prior to November 15, 2004. After November 15, 2004, we
may redeem all or a part of the Senior Discount Notes upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued interest, if any, on the Senior
Discount Notes redeemed to the applicable redemption date (subject to the right
of holders of record on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the 12-month period
beginning on November 15 of the years indicated below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2004.............................................. 105.938%
2005.............................................. 103.958%
2006.............................................. 101.979%
2007 and thereafter............................... 100.0%
</TABLE>
SELECTION AND NOTICE
If less than all the Senior Notes or the Senior Discount Notes, as the case
may be, are to be redeemed at any time, the trustee under the applicable
indenture will select notes for redemption as follows:
(1) if the notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities
exchange, if any, on which the notes are listed; or
(2) if the notes are not listed on any national securities exchange,
on a pro rata basis, by lot or by such method as the trustee shall deem
fair and appropriate.
No notes of $1,000 principal amount at maturity or less will be redeemed in
part. Notices of redemption will be mailed by first class mail at least 30 but
not more than 60 days before the redemption date to each holder of notes to be
redeemed at its registered address. Notices of redemption may not be
conditional.
If any note is to be redeemed in part only, the notice of redemption that
relates to such note shall state the portion of the principal amount of that
note to be redeemed. A new note in principal amount equal to the unredeemed
portion of the original note presented for redemption will be issued in the name
of the holder of such note upon cancellation of the original note. Notes called
for redemption become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue or accrete on notes or portions of
them called for redemption.
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<PAGE> 29
MANDATORY REDEMPTION
We are not required to make mandatory redemption or sinking fund payments
with respect to the notes.
OPTIONAL REDEMPTION -- CHANGE OF CONTROL
If a Change of Control Triggering Event occurs, we will have the right to
repurchase in whole the notes at a redemption price equal to the greater of:
(1) 101% of the aggregate principal amount of the Senior Notes and any
Senior Discount Notes purchased after the Full Accretion Date, plus accrued
and unpaid interest and Special Interest on the notes, if any (subject to
the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date), and 101% of the
Accreted Value of any Senior Discount Notes purchased prior to the Full
Accretion Date; and
(2) the sum of the present values of the remaining scheduled payments
of principal and interest thereon (not including the portion of any such
payments of interest accrued as of the redemption date) discounted to the
redemption date on a semiannual basis at the Adjusted Treasury Rate, plus
accrued and unpaid interest and Special Interest on the notes, if any.
A "Change of Control Triggering Event" will be deemed to have occurred if a
Change of Control and a Rating Decline occur. A"Rating Decline" will be deemed
to have occurred if at any time within the earlier of (1) 90 days after the date
of public notice of a Change of Control, or of our intention or the intention of
any Person to effect a Change of Control and (2) the occurrence of the Change of
Control (which period shall in either event be extended so long as the rating of
either the Senior Notes or the Senior Discount Notes is under publicly announced
consideration for possible downgrade by a Rating Agency), the rating of the
Senior Notes or the Senior Discount Notes is decreased by either Rating Agency
by one or more Gradations and the rating by both Rating Agencies on the Senior
Notes or the Senior Discount Notes following such downgrade is below Investment
Grade.
Within 30 days following any Change of Control Triggering Event, we will
mail a notice to each holder and each holder of our senior Indebtedness
containing similar provisions to those set forth in the indentures describing
the transaction or transactions that constitute the Change of Control Triggering
Event and indicating our intention to repurchase the notes and such other senior
Indebtedness (in which case the provisions of the indentures described under
"-- Repurchase at the Option of Holders -- Change of Control" will not be
applicable) on the Change of Control Payment Date specified in the notice. The
Change of Control Payment Date will be no earlier than 30 days and no later than
60 days from the date the notice is mailed, pursuant to the procedures required
by the indentures and described in such notice.
REPURCHASE AT THE OPTION OF HOLDERS
CHANGE OF CONTROL
If a Change of Control Triggering Event occurs, each holder of notes will
have the right to require us to repurchase all or any part (equal to $1,000 or
an integral multiple of $1,000) of such holder's notes pursuant to an Offer to
Purchase. The offer price in any Offer to Purchase will be payable in cash and
will be 101% of the aggregate principal amount of the Senior Notes and any
Senior Discount Notes repurchased after the Full Accretion Date, plus accrued
and unpaid interest and Special Interest on the notes, if any (subject to the
right of holders of record on the relevant record date to receive interest due
on the relevant interest payment date), to the date of purchase,
26
<PAGE> 30
and 101% of the Accreted Value of any Senior Discount Notes purchased prior to
the Full Accretion Date, plus any accrued and unpaid Special Interest on the
Senior Discount Notes, if any. Within 30 days following any Change of Control
Triggering Event, we will mail a notice to each holder and each holder of senior
indebtedness of the Issuers containing provisions similar to those set forth in
the indentures describing the transaction or transactions that constitute the
Change of Control Triggering Event and offering to repurchase notes and such
other senior Indebtedness on the Change of Control Payment Date specified in the
notice. The Change of Control Payment Date will be no earlier than 30 days and
no later than 60 days from the date the notice is mailed, pursuant to the
procedures required by the indentures and described in such notice.
On the Change of Control Payment Date, we will, to the extent lawful:
(1) accept for payment all notes or portions of notes properly
tendered pursuant to the Offer to Purchase;
(2) deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all notes or portions of notes properly
tendered; and
(3) deliver or cause to be delivered to the trustee the notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of notes or portions of the notes being purchased by us.
The paying agent will promptly mail to each holder of notes properly
tendered the Change of Control Payment for such notes, and the trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to
each holder a new note equal in principal amount to unpurchased portion of the
notes surrendered, if any; provided that the new note will be in a principal
amount of $1,000 or an integral multiple of $1,000.
The Change of Control Triggering Event provisions described above will be
applicable whether or not any other provisions of the indentures are applicable.
We will comply with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations to the extent those laws and
regulations are applicable to any Offer to Purchase.
Subject to the limitations discussed below, we could, in the future, enter
into certain transactions, including acquisitions, refinancings or other
recapitalizations, that would not constitute a Change of Control under the
indentures, but that could increase the amount of Indebtedness outstanding at
such time or otherwise affect our capital structure. The Aerial merger will not
be a Change of Control. Certain restrictions on our ability to incur additional
Indebtedness are contained in the covenants described under
"-- Covenants -- Limitation on Consolidated Indebtedness,"
"-- Covenants -- Limitation on Liens" and "-- Certain Covenants -- Limitation on
Sale and Leaseback Transactions". Such restrictions can only be waived with the
consent of the holders of a majority in principal amount of the notes then
outstanding. Except for the limitations contained in the covenants, however, the
indentures will not contain any covenants or provisions that may afford holders
of the notes protection in the event of certain highly leveraged transactions.
Our credit facility limits our access to the cash flow of our Subsidiaries
and will, therefore, restrict our ability to purchase any notes. Our Credit
Facility also provides that the occurrence of certain change of control events
constitutes a default under the Credit Facility. In the event that a Change of
Control Triggering Event occurs at a time when our Subsidiaries are prohibited
from making distributions to us to purchase notes, and assuming the Aerial
reorganization is completed, Aerial Subsidiaries will be prohibited from making
distributions to Aerial, thus restricting our ability to purchase notes, we
could cause those Subsidiaries to seek the consent of the lenders under the
credit facility to allow the distributions or could attempt to refinance the
Credit Facility. If we do not
27
<PAGE> 31
obtain a consent or repay such borrowings, we will remain prohibited from
purchasing notes. In that case, our failure to purchase tendered notes would
constitute an Event of Default under the indentures which would, in turn,
constitute a default under the Credit Facility. Future Indebtedness may also
contain prohibitions on the occurrence of certain events that would constitute a
Change of Control or require such future Indebtedness to be repurchased if a
Change of Control occurs. Moreover, the exercise by the holders of their right
to require us to repurchase the notes could cause a default under such
Indebtedness, even if the Change of Control itself does not, due to the
financial effect of such repurchase on us. Finally, our ability to pay cash to
the holders of notes following the occurrence of a Change of Control Triggering
Event may be limited by our then-existing financial resources, including our
ability to access the cash flow of our Subsidiaries, including any Subsidiaries
of Aerial that become Subsidiaries upon completion of the Aerial reorganization.
See "Risk Factors -- 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". There can be no assurance
that sufficient funds will be available when necessary to make any required
repurchases.
The provision under either indenture relating to our obligation to make an
offer to repurchase the notes as a result of a Change of Control Triggering
Event may be waived or modified with the written consent of the holders of a
majority in principal amount of our senior notes, or principal amount at
maturity of our senior discount notes.
The definition of Change of Control includes a phrase relating to the sale,
transfer or other conveyance of "all or substantially all" of our assets on a
consolidated basis. Although there is a developing body of case law interpreting
the phrase "substantially all," there is no precise established definition of
the phrase under applicable law. Accordingly, the ability of a holder of notes
to require us to repurchase the notes as a result of a sale, transfer or other
conveyance of less than all of our assets to another Person or group may be
uncertain.
ASSET DISPOSITION
We and our respective Restricted Subsidiaries will not consummate an Asset
Disposition unless:
(1) we (or the Restricted Subsidiary, as the case may be) receive
consideration at the time of such Asset Disposition at least equal to the
Fair Market Value of the assets issued or sold or otherwise disposed of;
and
(2) at least 75% of the consideration received in such Asset
Disposition by us or such Restricted Subsidiary is in the form of cash or
readily marketable cash equivalents, the assumption of Indebtedness of ours
or any Restricted Subsidiary or assets of a Telecommunications Business.
Within the applicable time period specified below, we or the Restricted
Subsidiary may apply Net Available Proceeds from an Asset Disposition to:
(1) invest in assets of a Telecommunications Business or in a Person
engaged in a Telecommunications Business; or
(2) permanently repay any of our Indebtedness or any Indebtedness of a
Restricted Subsidiary.
Any Net Available Proceeds from Asset Dispositions that are not applied or
invested in accordance with the preceding paragraph within 365 days from the
date of such Asset Disposition, or within 18 months of such Asset Disposition if
we or a Restricted Subsidiary has entered into a
28
<PAGE> 32
binding agreement to invest in such assets or Person, will be deemed to
constitute Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds
$10 million (taking into account income earned on such Excess Proceeds), we will
be required to make an Offer to Purchase to all holders of notes and all holders
of our other senior Indebtedness containing provisions similar to those set
forth in the indentures, on a pro rata basis according to principal amount, to
purchase the maximum principal amount (or accreted value, as applicable) of
notes and our other senior Indebtedness that may be purchased out of the Excess
Proceeds. The offer price in any Offer to Purchase will be payable in cash and
will be 100% of the principal amount of the Senior Notes and any Senior Discount
Notes purchased after the Full Accretion Date, plus accrued and unpaid interest
to the date of purchase, or 100% of the Accreted Value of the Senior Discount
Notes purchased prior to the Full Accretion Date, in each case plus any accrued
but unpaid Special Interest to but excluding the date of purchase. In the case
of any other senior Indebtedness, the offer price will be 100% of the principal
amount (or accreted value, as applicable) of the Indebtedness plus accrued and
unpaid interest thereon, if any, to the date of purchase. If the aggregate
principal amount of notes and our other senior Indebtedness surrendered for
purchase by holders exceeds the amount of Excess Proceeds, then the notes and
our other senior Indebtedness will be purchased pro rata according to the
outstanding principal amount of such notes and our other senior Indebtedness
with such adjustments as may be deemed appropriate by us so that only notes in
denominations of $1,000 or integral multiples thereof shall be purchased. To the
extent that any portion of the amount of Net Available Proceeds remains after
compliance with the preceding sentence and provided that all holders of notes
and other senior Indebtedness have been given the opportunity to tender their
notes or other senior Indebtedness for purchase pursuant to the Offer to
Purchase, we or the Restricted Subsidiary may use the remaining amount at their
own discretion.
COVENANTS
LIMITATION ON CONSOLIDATED INDEBTEDNESS
We and our respective Restricted Subsidiaries will not, incur any
Indebtedness unless our Indebtedness to EBITDA Ratio, after giving pro forma
effect thereto, is less than
<TABLE>
<CAPTION>
FOR THE PERIOD RATIO
-------------- -------------
<S> <C>
Prior to December 31, 2005.................................. 8.0 to 1; and
Thereafter.................................................. 7 to 1
</TABLE>
Furthermore, the first paragraph of this covenant will not prohibit the
incurrence of any of the following items of Indebtedness:
(1) Indebtedness of ours or any of our Restricted Subsidiaries, as the
case may be, that is outstanding or committed at the time of the issuance
of the notes;
(2) Indebtedness of ours or any of our Restricted Subsidiaries, as the
case may be, that is incurred under our Credit Facility;
(3) Telecommunications Indebtedness;
(4) the incurrence by us or any of our Restricted Subsidiaries of
Acquired Indebtedness in connection with the acquisition of assets or a new
Subsidiary and the incurrence by our Restricted Subsidiaries of
Indebtedness as a result of the designation of an Unrestricted Subsidiary
as a Restricted Subsidiary; provided that, in the case of any such
incurrence of Acquired Indebtedness, such Acquired Indebtedness was
incurred by the prior owner of such assets or such Restricted Subsidiary
prior to such acquisition by us or one of our Restricted Subsidiaries and
was not incurred in connection with, or in contemplation of, the
acquisition by
29
<PAGE> 33
us or one of our Restricted Subsidiaries; and provided further that, in the
case of any incurrence pursuant to this clause (4), as a result of such
acquisition by us or one of our Restricted Subsidiaries, we and our
respective Restricted Subsidiaries would be permitted to incur an
additional $1.00 of Indebtedness pursuant to the first paragraph of this
covenant, as applicable;
(5) the incurrence by us or any of our Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations, mortgage financings
or purchase money obligations, in each case incurred for the purpose of
financing all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used in our business or the
business of such Restricted Subsidiary, in an aggregate principal amount,
including all Indebtedness incurred to refund, refinance or replace any
other Indebtedness incurred pursuant to this clause (5), not to exceed $25
million at any one time outstanding;
(6) Indebtedness of ours or any of our Restricted Subsidiaries owing
to us or any of our Restricted Subsidiaries;
(7) Indebtedness of ours or any of our Restricted Subsidiaries to
renew, extend, refinance or refund any Indebtedness of ours or any of our
Restricted Subsidiaries outstanding or committed on the date of renewal,
extension, refinancing or refunding other than Indebtedness incurred
pursuant to clause (2) or (6); provided, however, that such Indebtedness
does not exceed the principal amount of outstanding or committed
Indebtedness so renewed, extended, refinanced or refunded plus financing
fees and other expenses (including make-whole or other repurchase payments
or premiums) associated therewith; provided, further, that
(a) such renewing, extending, refinancing or refunding Indebtedness
has a final maturity date the same as or later than the final maturity
date of the Indebtedness being renewed, extended, refinanced or
refunded;
(b) in the case of any refinancing or refunding of Indebtedness
pari passu to the notes, the refinancing or refunding Indebtedness is
made pari passu or subordinated to the notes and, in the case of any
refinancing or refunding of Indebtedness subordinated to the notes, the
refinancing or refunding Indebtedness is made subordinate to the notes
to substantially the same extent as the Indebtedness refinanced or
refunded; and
(c) such renewing, extending, refinancing or refunding Indebtedness
shall have an average life equal to or longer than the life of the
Indebtedness being renewed, extended, refinanced or refunded;
(8) any Guarantee by any Restricted Subsidiary of any Indebtedness
incurred under the Credit Facility in compliance with this paragraph;
(9) Indebtedness of ours or any of our Restricted Subsidiaries under
(or constituting reimbursement obligations with respect to) letters of
credit, performance or surety bonds or similar instruments issued in the
ordinary course of a Telecommunications Business, including letters of
credit in respect of workers' compensation claims or self-insurance,
provided, however, that upon the drawing of any such letter of credit or
other instrument, such obligations are reimbursed within 90 days following
such drawing;
(10) Indebtedness arising from agreements providing for
indemnification, purchase price adjustments or similar obligations, or from
guarantees of letters of credit, surety bonds or performance bonds securing
any obligation of ours or any of our Restricted Subsidiaries pursuant to
such agreements, in any case incurred in connection with the disposition of
any business, assets or Restricted Subsidiary of ours (other than
guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary of ours for
30
<PAGE> 34
the purpose of financing such acquisition), in an amount not to exceed the
gross proceeds actually received by us or any Restricted Subsidiary in
connection with such disposition;
(11) Indebtedness incurred by us or any of our Restricted Subsidiaries
under Interest Rate Agreements or Currency Protection Agreements to hedge
permitted Indebtedness;
(12) Indebtedness of Omnipoint, Aerial or any of their respective
Subsidiaries that is outstanding or committed at November 9, 1999;
(13) Indebtedness under the notes;
(14) Indebtedness due and owing to governmental entities in connection
with telecommunications license fees or indebtedness incurred to finance
the payment of deposits with and licensing fees to the FCC in connection
with FCC license auctions;
(15) Indebtedness of ours or any of our Restricted Subsidiaries, other
than Indebtedness permitted pursuant to clauses (1) through (14) above,
which, together with any other outstanding Indebtedness incurred pursuant
to this clause (15), does not exceed $50 million at any time outstanding or
committed.
Notwithstanding the foregoing, the maximum amount of Indebtedness that we
or any of our Restricted Subsidiaries may incur 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 the
foregoing clauses, (1) 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 (2) any Liens granted pursuant
to the equal and ratable provisions described below shall not be treated as
Indebtedness. For purposes of determining compliance with the Indebtedness
incurrence restriction, 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, we may be, in its respective sole discretion shall classify such item
of Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses.
LIMITATION ON RESTRICTED PAYMENTS
We and our Restricted Subsidiaries will not make any Restricted Payment
unless after giving effect to that Restricted Payment:
(1) no Event of Default or event which with notice or lapse of time or
both would become an Event of Default has occurred or is continuing;
(2) we would be permitted to incur an additional $1.00 of Indebtedness
pursuant to the first paragraph of the covenant described under
"-- Limitation on Consolidated Indebtedness"; and
(3) the total of all Restricted Payments made on or after the date of
the indentures is less than or equal to the sum of:
(a) Cumulative EBITDA less 1.6 times Cumulative Interest Expense;
(b) 100% of the aggregate Net Cash Proceeds received by us since
the date of the indentures from the issue or sale of our Equity
Interests or of our debt securities that have been converted into such
Capital Stock (other than to a Restricted Subsidiary);
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(c) an amount equal to the net reduction in Investments made by us
or our Restricted Subsidiary subsequent to the date of the indentures in
any Person resulting from:
(A) payments of interest on debt, dividends, repayment of loans
or advances, or other transfers or distributions of property, in each
case to an Issuer or any Restricted Subsidiary from any Person;
(B) to the extent that any 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
(C) the redesignation of any Unrestricted Subsidiary as a
Restricted Subsidiary, in which case such aggregate amount of the net
reduction in Investments will not exceed the amount of such
Investments previously made by us and our respective Restricted
Subsidiaries in such Person or Unrestricted Subsidiary, as the case
may be, which were treated as Restricted Payments; and
(d) $50 million.
So long as no Event of Default or event which with notice or lapse of time
or both would become an Event of Default has occurred and is continuing (other
than in the case of clause (2) below), the preceding provisions will not
prohibit:
(1) the payment of any dividend within 60 days after declaration
thereof if at the declaration date such payment would have complied with
the foregoing provision;
(2) the redemption, repurchase or other acquisition or retirement for
value of any our Indebtedness subordinated to the notes in exchange for or
out of the proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary) of our Equity Interests, or from the incurrence of
Indebtedness pursuant to a refinancing permitted under the provision of the
indentures described under clause (7) of "-- Limitation on Consolidated
Indebtedness";
(3) the repurchase, redemption or other acquisition or retirement for
value of our Equity in exchange for or out of the proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary) of
our Equity Interests (other than Disqualified Stock);
(4) the repurchase, redemption or other acquisition of our Equity
Interests held by any of our or our subsidiaries' present or former
employees, officers or directors; provided that the aggregate price paid
for all such repurchased, redeemed or otherwise acquired Equity Interests
shall not exceed $2.0 million in any fiscal year;
(5) the repurchase, redemption or other acquisition or retirement for
value of our Equity Interests to the extent necessary in the good faith
judgment of the Board of Directors evidenced by a Board Resolution
delivered to the trustee to prevent the loss or secure the renewal or
reinstatement of any material license or franchise held by us or any
Restricted Subsidiary from any government agency;
(6) the repurchase of Indebtedness subordinated to the notes at a
purchase price not greater than 101% of the principal amount thereof (plus
accrued and unpaid interest) pursuant to a mandatory offer to repurchase
made after a Change of Control Triggering Event, provided that we first
make an Offer to Purchase the notes (and repurchase all tendered notes)
under the indentures pursuant to the provisions of the indentures described
under "-- Repurchases at the Option of Holders -- Change of Control";
(7) Permitted Investments; and
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(8) 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 indentures applicable to
mergers, consolidations and transfers of all or substantially all of the
property and assets of an Issuer.
LIMITATIONS CONCERNING DISTRIBUTIONS AND TRANSFERS BY RESTRICTED SUBSIDIARIES
We and our Restricted Subsidiaries will not create or otherwise cause or
suffer to exist or become effective any consensual restriction or prohibition on
the ability of any Restricted Subsidiary to:
(1) pay dividends on, or make other distributions in respect of, its
Capital Stock, or any other ownership interest or participation in, or
measured by, its profits, to us or any of our Restricted Subsidiaries or
pay any Indebtedness or other obligation owed to us or any Restricted
Subsidiary;
(2) make any loans or advances to us or any of our Restricted
Subsidiaries; or
(3) transfer any of its property or assets to us or any of our
Restricted Subsidiaries.
However, the preceding restrictions will not apply to encumbrances or
restrictions existing under or by reason of:
(1) any agreement in effect on the date of the indentures;
(2) an agreement relating to any Indebtedness of such Restricted
Subsidiary which was outstanding or committed prior to the date on which
such Restricted Subsidiary was acquired by us other than in anticipation of
becoming a Restricted Subsidiary;
(3) an agreement described in (1), (2) or (4) of this paragraph
effecting a renewal, extension, refinancing or refunding of any existing
agreement, provided, however, that the provisions contained in such
renewal, extension, refinancing or refunding agreement relating to such
encumbrance or restriction are no more restrictive in any material respect
than the provisions contained in the agreement the subject thereof;
(4) an agreement entered into after the date of the indentures
relating to any Indebtedness the incurrence of which is permitted under the
indentures, provided, however, that the provisions contained in such
agreement relating to such encumbrance or restriction are either no more
restrictive in any material respect than those contained in the indentures
or no more restrictive in any material respect than those contained in the
credit facility;
(5) an agreement by which we or any of our Restricted Subsidiaries
obtain financing, provided that (A) such restriction is not materially more
restrictive than customary provisions in comparable financing agreements
and (B) our management determines that at the time such agreement is
entered into such restriction will not materially impair our ability to
make payments on the notes, such determination to be confirmed by an
Officers' Certificate delivered to the trustee;
(6) applicable law;
(7) customary provisions restricting subletting or assignment of
property subject to any lease governing any leasehold interest of any of
our Restricted Subsidiary;
(8) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the type referred to in
clause (3) of the preceding paragraph;
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(9) restrictions of the type referred to in clause (3) of the
preceding paragraph contained in security agreements securing Indebtedness
of ours or a Restricted Subsidiary of ours to the extent that such Liens
were otherwise incurred in accordance with the covenant described under
"-- Limitation on Liens" and restrict the transfer of the collateral
subject to such agreements without restricting the transfer of other
property; or
(10) 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, a Restricted Subsidiary of ours.
Nothing contained in the foregoing clauses shall prevent us or any of our
Restricted Subsidiaries from (1) creating, incurring, assuming or suffering to
exist any Liens otherwise permitted under the indentures or (2) restricting the
sale or other disposition of property or assets of ours or any of our Restricted
Subsidiaries that secure Indebtedness of ours or any of our Restricted
Subsidiaries.
LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES
We and our Restricted Subsidiaries will not, transfer, convey, sell, lease
or otherwise dispose of any Capital Stock of such Restricted Subsidiary or any
other Restricted Subsidiary to any Person other than us or a Restricted
Subsidiary; and will not permit any Restricted Subsidiary to issue shares of its
Capital Stock or securities convertible into, or warrants, rights or options, to
subscribe for or purchase shares of, its Capital Stock to any Person other than
us or a Restricted Subsidiary, unless, in each such case:
(1) immediately after giving effect to such issuance or sale, such
Restricted Subsidiary would no longer constitute a Restricted Subsidiary
and any Investment in such Person remaining after giving effect to such
issuance or sale would have been permitted to be made under the provision
of the indentures described under "-- Limitation on Restricted Payments";
or
(2) if such sale or disposition is effected in accordance with the
terms of the provision of the indentures described under "-- Repurchase at
the Option of Holders -- Asset Dispositions".
The foregoing shall not prohibit the issuance of Capital Stock of our
Restricted Subsidiary pursuant to an employee stock option plan approved by the
Boards of Directors of the Restricted Subsidiary and us.
LIMITATIONS ON TRANSACTIONS WITH AFFILIATES AND RELATED PERSONS
We and our respective Restricted Subsidiaries will not enter into any
transaction involving aggregate consideration in excess of $5 million,
including, without limitation, any purchase, sale, lease or exchange of property
or the rendering of any service, with or to any Affiliate or Related Person
(other than a Restricted Subsidiary) (each of the foregoing, an "Affiliate
Transaction"), unless our management determines (which determination will be
evidenced by an Officers' Certificate) that:
(1) such transaction is in the best interests of ours or such
Restricted Subsidiary; and
(2) such transaction is on terms that are no less favorable to ours or
a Restricted Subsidiary than those which might be obtained in arm's length
transactions with a third party at the time.
In the event that any transaction contemplated by the preceding paragraph
involves aggregate consideration in excess of $10 million, a determination by a
majority of the disinterested members of
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our Board of Directors (which determination shall be evidenced by a Board
Resolution) will be required with respect to clause (1) and (2) above.
Notwithstanding the foregoing, the following items will not be deemed to be
Affiliate Transactions:
(1) transactions between or among us and/or our Restricted
Subsidiaries (other than a Restricted Subsidiary in which an Affiliate or
Related Person of ours, other than a Wholly Owned Restricted Subsidiary,
owns any Capital Stock or any option, warrant or other right to purchase
Capital Stock);
(2) customary payment of compensation to employees, officers or
consultants in the ordinary course of business and payment of reasonable
directors' fees and customary indemnification and insurance arrangements in
favor of directors, regardless of affiliation with us;
(3) Restricted Payments that are permitted by the provision of the
indentures described above under the caption "-- Limitation on Restricted
Payments";
(4) payments and other transactions required under or contemplated by
any agreement in effect on the date of the indentures and disclosed in our
Form 10/A filed with the SEC on April 13, 1999, our Form 10-Q for the
quarter ended June 30, 1999, our current reports on Form 8-K filed prior to
October 15, 1999 (or not required to be disclosed therein pursuant to the
rules and regulations of the Commission) and, assuming completion of the
Aerial reorganization, Aerial's Form 10-K for the fiscal year ended
December 31, 1998 and Forms 10-Q and 8-K filed during calendar year 1999
prior to November 4, 1999 (or not required to be disclosed therein pursuant
to the rules and regulations of the Commission), or any agreement in effect
at the time that an entity becomes a Restricted Subsidiary or is merged
into us (and was 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 in any
material respect; and
(5) loans or advances to officers or employees of ours or our
Restricted Subsidiary to pay business related travel expenses or reasonable
relocation costs of such officers or employees in connection with their
employment by us or any of our Restricted Subsidiaries.
LIMITATION ON LIENS
We and our Restricted Subsidiaries will not incur or suffer to exist any
Lien on or with respect to any property or assets now owned or hereafter
acquired to secure any Indebtedness without making, or causing such Restricted
Subsidiary to make, effective provision for securing the notes:
(1) equally and ratably with such Indebtedness as to such property for
so long as such Indebtedness will be so secured; or
(2) in the event such Indebtedness is Indebtedness of over which is
subordinate in right of payment to the notes, prior to such Indebtedness as
to such property for so long as such Indebtedness will be so secured.
The foregoing restrictions will not apply to the following Permitted Liens:
(1) Liens existing in respect of any Indebtedness that exists on the
date of the indentures or is outstanding or permitted under our Credit
Facility;
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(2) Liens in favor of us or a Wholly Owned Restricted Subsidiary of
ours on the assets or Capital Stock of another Wholly Owned Restricted
Subsidiary of ours;
(3) Liens to secure Indebtedness outstanding or committed for the
purpose of financing all or any part of the purchase price or the cost of
construction or improvement of the equipment or other property subject to
such Liens; provided, however, that:
(a) the principal amount of any Indebtedness secured by such a Lien
does not exceed 100% of such purchase price or cost;
(b) such Lien does not extend to or cover any other property other
than such item of property or any improvements on such item; and
(c) the incurrence of such Indebtedness is otherwise permitted by
the indenture;
(4) Liens on property existing immediately prior to the time of
acquisition thereof (and not incurred in anticipation of the financing of
such acquisition);
(5) Liens to secure Indebtedness to extend, renew, refinance or refund
(or successive extensions, renewals, refinancings or refundings), in whole
or in part, Indebtedness secured by any Lien referred to in the foregoing
clauses (1), (3) and (4) so long as such Lien does not extend to any other
property and the principal amount of Indebtedness so secured is not
increased except as otherwise permitted under the provision of the
indentures described under clause (2) or (7) of "-- Limitation on
Consolidated Indebtedness";
(6) Liens securing any Indebtedness of any of the Restricted
Subsidiaries of ours that was permitted by the terms of the indentures to
be incurred;
(7) Liens on any Capital Stock of any Unrestricted Subsidiary of ours
securing Indebtedness of such Subsidiary that is Non-Recourse Indebtedness;
(8) Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business (other than obligations for the
payment of money);
(9) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted;
provided that any reserve or other appropriate provision as shall be
required in conformity with generally accepted accounting principles shall
have been made therefor;
(10) Carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
in respect of obligations that are not yet due, are bonded or are being
contested in good faith by appropriate proceedings if adequate reserves
with respect thereto are maintained on our books or our Restricted
Subsidiary, as the case may be, in conformity with generally accepted
accounting principles; and
(11) Liens securing Interest Rate Agreements entered into in the
ordinary course of business on any property also securing the permitted
Indebtedness to which such Interest Rate Agreements relate.
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LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
We and our Restricted Subsidiaries will not enter into any Sale and
Leaseback Transaction with respect to any property of ours or any of our
Restricted Subsidiaries (other than a Sale and Leaseback Transaction between us
or a Restricted Subsidiary or any of them).
The preceding covenant will not prohibit us or any of our Restricted
Subsidiaries from entering into a Sale and Leaseback Transaction if:
(1) we and our respective Restricted Subsidiaries would be entitled to
create or incur a Lien to secure Indebtedness pursuant to the provision in
the indenture described under "-- Limitation on Liens" equal in amount to
the Attributable Value of the Sale and Leaseback Transaction without
equally and ratably securing the notes; and
(2) the Sale and Leaseback Transaction is treated as an Asset
Disposition and the provision in the indentures described under
"-- Repurchase at the Option of Holders -- Asset Disposition" is satisfied
with respect to such Sale and Leaseback Transaction.
PROVISION OF FINANCIAL INFORMATION
Whether or not required by the SEC, so long as any notes are outstanding,
we will file with the Commission the annual reports, quarterly reports and other
documents which we would have been required to file with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provision thereto if we were so
required, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which we would have been
required so to file such documents if we were so required.
In addition, whether or not required by the SEC, so long as any notes are
outstanding, we will furnish to the holders of notes and the trustee within 15
days of each Required Filing Date copies of the annual reports, quarterly
reports and other documents which we file with the Commission pursuant to such
Section 13(a) or 15(d) or any successor provision thereto or would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) or
any successor provisions thereto if we were required to be subject to such
Sections. If filing such documents by us, with the Commission is not permitted
under the Securities Exchange Act of 1934, we will promptly upon written request
supply copies of such documents to any prospective holder.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
We will not consolidate with or merge into any Person or permit any other
Person to consolidate with or merge into us, or transfer, sell, convey or lease
or otherwise dispose of all or substantially all of our assets to, any Person
unless:
(1) (a) we are the surviving entity or (b) if such we are not the
surviving entity then the successor or transferee is a corporation
organized under the laws of the United States, any state thereof or the
District of Columbia and assumes all our obligations under the notes and
the indentures,
(2) after giving effect to such transaction, no Event of Default or
event which with notice or lapse of time would become an Event of Default
has occurred,
(3) (a) immediately after giving effect to such transaction, we would
be permitted to incur at least $1.00 of additional Indebtedness pursuant to
the provision of the indenture described in the first paragraph under
"-- Limitation on Consolidated Indebtedness" or (b) after giving effect
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to such transaction the Indebtedness to EBITDA Ratio is not higher than the
Indebtedness to EBITDA Ratio prior to giving effect to such transaction;
and
(4) an Officers' Certificate and an Opinion of Counsel covering such
conditions shall be delivered to the trustee.
EVENTS OF DEFAULT AND REMEDIES
Each of the following constitutes an Event of Default under the indentures:
(1) failure to pay the principal of the notes when due and payable;
(2) failure for 30 days to pay the interest, if any, on the notes when
due and payable;
(3) failure to perform or comply with the provisions of the indentures
described under "-- Consolidation, Merger, Conveyance, Transfer or Lease";
(4) failure to perform any other covenant or agreement of ours under
the indentures continued for 30 days after written notice to us by the
trustee or holders of at least 25% in aggregate principal amount of
outstanding notes;
(5) default by us or any of our respective Restricted Subsidiaries
under the terms of any instrument evidencing or securing Indebtedness
having an outstanding principal amount in excess of $25 million in the
aggregate, which default results in the acceleration of the payment of such
Indebtedness or constitutes the failure to pay the principal of such
Indebtedness at maturity;
(6) the rendering of a final judgment or judgments against us or any
of our Restricted Subsidiaries in an amount in excess of $25 million which
remains undischarged or unstayed for a period of 60 days after the date on
which the right of appeal has expired; and
(7) certain events of bankruptcy, insolvency or reorganization
described in the indentures affecting either us or a Restricted Subsidiary.
If an Event of Default, other than an event described under (7) above,
occurs and is continuing, either the trustee or the holders of at least 25% in
aggregate principal amount of the notes of either series by notice as provided
in the applicable indenture may declare the principal amount of the notes of
such series to be due and payable immediately; provided, however, that after
such acceleration, but before a judgment or decree based on acceleration, the
holders of a majority in aggregate principal amount of outstanding Notes of such
series may, under certain circumstances, rescind and annul such acceleration if
all Events of Default, other than the nonpayment of accelerated principal of the
Notes, have been cured or waived as provided in the applicable indenture. If an
Event of Default described under (7) above shall occur, the Notes will become
immediately due and payable without any declaration or other act on the part of
the trustee or any holder.
No holder of any Note will have any right to institute any proceeding with
respect to the applicable indenture or for any remedy thereunder, unless such
holder has previously given to the trustee written notice of an Event of Default
and unless the holders of at least 25% in aggregate principal amount of the
outstanding Notes of the applicable series have made written request to the
trustee and the trustee has not received from the holders of a majority in
aggregate principal amount of the outstanding Notes of such series a direction
inconsistent with such request and has failed to institute such proceeding
within 60 days. However, such limitations do not apply to a suit instituted by a
holder of a Note for enforcement of payment of the principal of and premium, if
any, or interest on such Note on or after the respective due dates expressed in
such note. The holders of a majority
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in aggregate principal amount of the notes of the applicable series outstanding
may waive any existing Default except a Default in the payment of interest or
principal (including premium) on the notes.
FORM, DENOMINATION, TRANSFER, EXCHANGE AND BOOK-ENTRY PROCEDURES
The notes will be issued in fully registered form, without interest
coupons, in denominations of $1,000 and any integral multiple thereof. No
service charge will be made for any transfer or exchange of notes, but we may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
CERTAIN DEFINITIONS
"Accreted Value" means, as of any date prior to November 15, 2004, an
amount per $1,000 principal amount at maturity of Senior Discount Notes that is
equal to the sum of;
(1) the initial offering price ($560.61 per $1,000 principal amount at
maturity of Senior Discount Notes) of such Senior Discount Notes; and
(2) the portion of the excess of the principal amount of such Senior
Discount Notes over such initial offering price which shall have been
amortized through such date, such amount to be so amortized on a daily
basis and compounded semi-annually on each May and November at the rate of
11 7/8% per annum from the date of original issue of the Senior Discount
Notes through the date of determination computed on the basis of a 360-day
year of twelve 30-day months, and as of any date on or after November 15,
2004 the principal amount of each Senior Discount Note.
"Acquired Indebtedness" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Subsidiary of such specified
Person, including, without limitation, Indebtedness incurred in connection
with, or in contemplation of, such other Person merging with or into or
becoming a Subsidiary of such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Adjusted Treasury Rate" will be determined on the third business day
preceding any applicable redemption date and is the sum of:
(1) the arithmetic mean of the yields under the heading "Week Ending"
published in the Statistical Release most recently published prior to the
date of determination under the caption "Treasury Constant Maturities" for
the maturity (rounded to the nearest month) corresponding to the remaining
life to maturity, as of the redemption date, of the principal being
redeemed; and
(2) 0.50%;
provided, however, that if no maturity set forth under such heading exactly
corresponds to the maturity of such principal, yields for the two published
maturities most closely corresponding to the maturity of such principal will be
calculated as provided immediately above, and the Adjusted Treasury Rate will be
interpolated or extrapolated from such yields on a straight-line basis, rounding
in each of the relevant periods to the nearest month.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition,
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"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly; whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Restricted Subsidiaries
(including a consolidation or merger or other sale of any such Restricted
Subsidiary with, into or to another Person in a transaction in which such
Restricted Subsidiary ceases to be a Restricted Subsidiary, but excluding a
disposition by a Subsidiary of such Person to such Person or a Wholly Owned
Restricted Subsidiary of such Person or by such Person to a Wholly Owned
Restricted Subsidiary of such Person) of:
(1) shares of Capital Stock (other than directors' qualifying shares)
or other ownership interests of a Subsidiary of such Person;
(2) substantially all of the assets of such Person or any of its
Subsidiaries representing a division or line of business; or
(3) other assets or rights of such Person or any of its Subsidiaries.
Notwithstanding the preceding, the following items shall not be deemed to
be Asset Dispositions:
(1) any single transaction or series of related transactions that (a)
involves assets having a Fair Market Value of less than $15 million; or (b)
results in net proceeds to us or any of our respective Restricted
Subsidiaries of less than $15 million;
(2) a Restricted Payment that is permitted by the covenant described
above under the caption "-- Certain Covenants -- Limitation on Restricted
Payments";
(3) sales or other dispositions of inventory in the ordinary course of
business and of receivables;
(4) substantially simultaneous exchanges by us or any of our
Restricted Subsidiaries of Telecommunications Assets for other
Telecommunications Assets, provided that the Telecommunications Assets
received by us or our Restricted Subsidiary have at least substantially
equal or greater value to us or our Restricted Subsidiary (as determined by
the Board of Directors whose good faith determination shall be conclusive
and evidenced by a Board Resolution);
(5) any sale or other disposition of any or all the Capital Stock of
an Unrestricted Subsidiary; or
(6) any sale or other disposition of Temporary Cash Investments.
Additionally, the contribution of Telecommunications Assets to an Unrestricted
Subsidiary whereby an we or our Restricted Subsidiary receives Capital Stock of
an Unrestricted Subsidiary shall be deemed a Restricted Payment only and shall
not be deemed an Asset Disposition.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the initial term
thereof as determined in accordance with generally accepted account principles,
discounted from the last date of such initial term to the date of determination
at a rate per annum equal to the discount rate which would be applicable to a
Capital Lease Obligation with like term in accordance with generally accepted
accounting principles. The net amount of rent required to be paid under any such
lease for any such period shall be the aggregate amount of rent payable by the
lessee
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with respect to such period after excluding amounts required to be paid on
account of insurance, taxes, assessments, utility, operating and labor costs and
similar charges. In the case of any lease which is terminable by the lessee upon
the payment of penalty, such net amount shall also include the lesser of the
amount of such penalty (in which case no rent shall be considered as required to
be paid under such lease subsequent to the first date upon which it may be so
terminated) or the rent which would otherwise be required to be paid if such
lease is not so terminated. "Attributable Value" means, as to a Capital Lease
Obligation, the principal amount thereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of ours or one of our Subsidiaries, as the case may
be, to have been duly adopted by the Board of Directors, to be in full force and
effect on the date of such certification and delivered to the trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York City, the State of
Washington or the State of California are authorized or obligated by law or
executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay rent
or other payment amounts under a lease of (or other Indebtedness arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted
accounting principles (a "Capital Lease"). The stated maturity of such
obligation shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty. The principal amount of such
obligation shall be the capitalized amount thereof that would appear on the face
of a balance sheet of such Person in accordance with generally accepted
accounting principles.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Change of Control" means
(1) directly or indirectly a sale, transfer or other conveyance of all
or substantially all our assets on a consolidated basis, to any "person" or
"group" (as such terms are used for purposes of Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
whether or not applicable), excluding transfers or conveyances to or among
us or our Wholly Owned Restricted Subsidiaries, as an entirety or
substantially as an entirety in one transaction or series of related
transactions, in each case with the effect that any Person or group of
Persons that, as of the date of the indentures, are not Initial Investors
or Affiliates of the Initial Investors own more than 50% of the total
Voting Power entitled to vote in the election of directors, managers or
trustees of the transferee entity immediately after such transaction;
(2) the adoption of a plan relating to our liquidation or dissolution;
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(3) any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable),
other than the Initial Investors (or any Person or group of Persons that,
at the date of the indentures, are Affiliates of the Initial Investors), is
or becomes the "beneficial owner" (as that term is used in Rules 13d-3 and
13d-5 under the Exchange Act, whether or not applicable, except that a
Person shall be deemed to have "beneficial ownership" of all shares that
any such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
more than 50% of our total Voting Power; or
(4) during any period of 24 consecutive months, individuals who at the
beginning of such period constituted our Board of Directors (together with
any new directors whose election by such Board or whose nomination for
election by the stockholders of the applicable Issuer was approved by a
vote of 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 our Board of Directors then in office.
"Consolidated Income Tax Expense" of any Person means for any period the
provision for income taxes of such Person and its Consolidated Restricted
Subsidiaries for such period.
"Consolidated Indebtedness" of any Person means at any date the
Indebtedness of such Person and its Consolidated Restricted Subsidiaries at such
date.
"Consolidated Interest Expense" of any Person means for any period the
interest expense included in an income statement (taking into account the effect
of any Interest Rate Agreements but without deduction of interest income) of
such Person and its Consolidated Restricted Subsidiaries for such period,
including without limitation or duplication (or, to the extent not so included,
with the addition of):
(1) the portion of any rental obligation in respect of any Capital
Lease Obligation allocable to interest expense in accordance with generally
accepted accounting principles;
(2) the amortization of Indebtedness discounts;
(3) any payments or fees with respect to letters of credit, bankers
acceptances or similar facilities;
(4) fees with respect to Interest Rate Agreements;
(5) the portion of any rental obligations in respect of any Sale and
Leaseback Transaction allocable to interest expense (determined as if such
were treated as a Capital Lease Obligation); and
(6) Preferred Stock dividends declared and payable in cash.
"Consolidated Net Income" of any Person means for any period the net income
(or loss) of such Person for such period determined on a consolidated basis in
accordance with generally accepted accounting principles; provided that there
shall be excluded therefrom (to the extent included and without duplication):
(1) the net income (or loss) of any Person acquired by such Person or
a Restricted Subsidiary of such Person after the date of the indenture in a
pooling-of interests transaction for any period prior to the date of such
transaction;
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(2) the net income (or loss) of any Person that is not a Consolidated
Restricted Subsidiary of such Person except to the extent of the amount of
dividends or other distributions actually paid to such Person by such other
Person during such period;
(3) gains or losses from sales of assets other than sales of assets
acquired and held for resale in the ordinary course of business; and
(4) all extraordinary gains and extraordinary losses.
"Consolidated Restricted Subsidiary" of any Person means all other Persons
that would be accounted for as consolidated Persons in such Person's financial
statements in accordance with generally accepted accounting principles other
than Unrestricted Subsidiaries.
"Cumulative EBITDA" means our EBITDA and our Consolidated Restricted
Subsidiaries EBITDA for the period beginning on January 1, 2001 through and
including the end of the last fiscal quarter preceding the date of any proposed
Restricted Payment.
"Cumulative Interest Expense" means the total amount of Consolidated
Interest Expense of ours and our respective Consolidated Restricted Subsidiaries
for the period beginning on January 1, 2001 through and including the end of the
last fiscal quarter preceding the date of any proposed Restricted Payment.
"Currency Protection Agreements" means any currency swap, cap, collar,
floor, caption or swaption agreements, or any similar arrangements designed to
hedge against a risk in the fluctuation of the exchange rate of a currency in
which a payment to be made or received by either Issuer or any of its Restricted
Subsidiaries is denominated, arising at any time between us or any of our
Restricted Subsidiaries, on the one hand, and any Person (other than an
Affiliate of ours or any of our Restricted Subsidiaries), on the other hand, as
such agreement or arrangement may be modified, supplemented and in effect from
time to time.
"Disqualified Stock" of any person means any Capital Stock of such Person
which, by its terms (or by the terms of any security into which it is
convertible of for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of such Person, any
Restricted Subsidiary of such Person or the holder thereof, in whole or in part,
on or prior to the final Stated Maturity of the notes; provided, however, that
any Preferred Stock which would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require us to repurchase
or redeem such Preferred Stock upon the occurrence of a change of control
occurring prior to the final Stated Maturity of the notes shall not constitute
Disqualified Stock if the change of control provisions applicable to such
Preferred Stock specifically provide that we will not repurchase or redeem any
such stock pursuant to such provisions prior to our repurchase of such notes as
are required to be repurchased pursuant to the covenant described under
"-- Change of Control".
"EBITDA" of any Person means for any period the Consolidated Net Income for
such period increased by the sum of:
(1) Consolidated Interest Expense of such Person for such period, plus
(2) Consolidated Income Tax Expense of such Person for such period,
plus
(3) the consolidated depreciation and amortization expense included in
the income statement of such Person and its Consolidated Restricted
Subsidiaries, for such period, plus
(4) all other non-cash charges and expenses that were deducted in
determining Consolidated Net Income for such period,
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minus all non-cash revenues and gains to the extent included in Consolidated Net
Income for such period.
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency, whose debt is rated "A-3" or higher, "A-" or higher or "A-" or
higher according to Moody's Investors Service, Inc., Standard & Poor's Ratings
Group or Duff & Phelps Credit Rating Co. (or such similar equivalent rating by
at least one "nationally recognized statistical rating organization" (as defined
in Rule 436 under the Securities Act) respectively, at the time as of which any
investment or rollover therein is made.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Fair Market Value" means, with respect to any assets or Person, the price
which could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction. Fair Market Value will be
determined:
(1) if such Person or assets has a Fair Market Value of less than $5
million, by our officer and evidenced by an Officers' Certificate, dated
within 30 days of the relevant transaction; or
(2) if such Person or assets has a Fair Market Value in excess of $5
million or more, by a majority of our Board of Directors and evidenced by a
Board Resolution, dated within 30 days of the relevant transaction.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which obligations
or guarantee the full faith and credit of the United States is pledged and which
have a remaining weighted average life to maturity of not more than one year
from the date of Investment therein.
"Gradation" means a gradation within a Rating Category or a change to
another Rating Category, which shall include:
(1) "+" and "-" in the case of S&P's current Rating Categories (e.g.,
a decline from BB+ to BB would constitute a decrease of one gradation);
(2) 1, 2 and 3 in the case of Moody's current Rating Categories (e.g.,
a decline from Ba1 to Ba2 would constitute a decrease of one gradation); or
(3) the equivalent in respect of successor Rating Categories of S&P or
Moody's or Rating Categories used by Rating Agencies other that S&P or
Moody's.
"Guarantee" by any Person mean any obligation, contingent or otherwise, of
such Person guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such Person (1) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness; (2) to purchase property,
securities or services for the purpose of assuring the holder of such
Indebtedness of the payment of such Indebtedness; or (3) to maintain working
capital, equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness; provided, however, that the Guarantee by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"Holder" means a Person in whose name a note is registered in the Security
Register.
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"Indebtedness" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent:
(1) every obligation of such Person for money borrowed;
(2) every obligation of such Person evidenced by bonds, debentures,
notes or similar Instruments;
(3) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person;
(4) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business);
(5) every Capital Lease Obligation of such Person;
(6) the maximum fixed redemption or repurchase price of Redeemable
Stock of such Person at the time of determination;
(7) every obligation to pay rent or other payment amounts of such
Person with respect to any Sale and Leaseback Transaction to which such
Person is a party; and
(8) every obligation of the type referred to in clauses (1) through
(7) of another Person and all dividends of another Person the payment of
which, in either case, such Person has guaranteed or is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness that
does not require current payments of interest; and
(2) the principal amount thereof, together with any interest thereon
that is more than 30 days past due, in the case of any other Indebtedness.
"Indebtedness to EBITDA Ratio" of any Person means at any date the ratio of
Consolidated Indebtedness outstanding on such date to the product calculated by
multiplying the aggregate EBITDA for the first full fiscal quarter immediately
preceding such date by four; provided, however, that, in the event such person
or any of its Restricted Subsidiaries has acquired a Person during or after such
period in a pooling-of-interests transaction, such computation shall be made on
a pro forma basis as if the transaction had taken place on the first day of such
period.
"Investment Grade" means a rating of at least BBB-, in the case of S&P, or
Baa3, in the case of Moody's.
"Initial Investors" means the Hutchison Telecommunications PCS (USA)
Limited and our shareholders that are affiliated with it, John W. Stanton and
shareholders that are affiliated with him and Providence Media Partners.
"Interest Rate Agreements" means any interest rate swap, cap, collar,
floor, caption or swaption agreements, or any similar arrangements designed to
hedge the risk of variable interest rate volatility or to reduce interest costs,
arising at any time between us or any of our Restricted Subsidiaries, on the one
hand, and any Person (other than an Affiliate of ours or any of our Restricted
Subsidiaries), on the other hand, as such agreement or arrangement may be
modified, supplemented and in effect from time to time.
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"Investment" by any Person means any direct or indirect loan, advance or
other extension of credit or capital contribution (by means of transfers of cash
or other property to others or payments for property or services for the account
or use of others, or otherwise) to, or purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities or evidence of Indebtedness issued
by, any other Person, including any payment on a guarantee of any obligation of
such other Person, but shall not include trade accounts receivable in the
ordinary course of business on credit terms made generally available to the
customers of such Person.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than an easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Moody's" means Moody's Investors Service, Inc. or, if Moody's Investors
Service, Inc. shall cease rating debt securities having a maturity at original
issuance of at lest one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, however,
that if Moody's Investors Service, Inc. ceases rating debt securities having a
maturity at original issuance of at least one year and its rating business with
respect thereto shall not have been transferred to any successor Person, then
"Moody's" shall mean any other national recognized rating agency (other than
S&P) that rates debt securities having a maturity at original issuance of at
least one year and that shall have been designated by us, by a written notice
given to the trustee.
"Net Available Proceeds" means the aggregate amount of cash (including any
other consideration that is converted into cash) received by us or any of our
Restricted Subsidiaries in respect of an Asset Disposition, less the sum of:
(1) all fees, commissions and other expenses incurred in connection
with such Asset Disposition, including the amount of income taxes required
to be paid by us or any of our Restricted Subsidiaries in connection
therewith; and
(2) the aggregate amount of cash so received which is used to retire
any existing Indebtedness of us or any of our Restricted Subsidiaries which
is required to be repaid in connection therewith.
"Net Cash Proceeds" from the sale of Equity Interests means the aggregate
amount of cash (including any other consideration that is converted into cash)
received by us or any of our Restricted Subsidiaries in respect of such sale of
Equity Interests, less the sum of:
(1) all fees, commissions and other expenses incurred in connection
with such sale of Equity Interests, including the amount of income taxes
required to be paid by us or any of our Restricted Subsidiaries in
connection therewith; and
(2) the aggregate amount of cash so received which is used to retire
any existing Indebtedness of ours or any of our Restricted Subsidiaries
which is required to be repaid in connection therewith.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither us nor any of our Restricted Subsidiaries;
(a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness);
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(b) is directly or indirectly liable (as a guarantor or otherwise);
or
(c) constitutes the lender;
(2) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an Unrestricted
Subsidiary of ours) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of ours or any of our Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity;
and
(3) as to which the lenders have been notified in writing that they
will not have any recourse to the stock or assets of ours or any of our
Restricted Subsidiaries.
"Offer to Purchase" means a written offer (the "Offer") sent by us to each
holder at his address appearing in the Security Register on the date of the
Offer offering to purchase up to the principal amount of Senior Discount Notes
specified in such Offer at the purchase price specified in such Offer.
"Officers' Certificate" means a certificate signed by two officers at least
one of whom shall be our Principal Executive Officer, Principal Accounting
Officer or Principal Financial Officer and delivered to the trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be our
Counsel, and who shall be reasonably acceptable to the trustee and delivered to
the trustee.
"Permitted Investments" include:
(1) Investments in us or our Restricted Subsidiaries;
(2) Investments in a Person such that the Person will become a
Restricted Subsidiary after giving effect to the Investment or purchases of
additional Equity Interests of a Restricted Subsidiary or of a Person who
becomes a Restricted Subsidiary as a result of any such purchase;
(3) a Temporary Cash Investment;
(4) stock, obligations or other consideration received in satisfaction
of judgments;
(5) an Investment in any Person to the extent such Investment
represents the non-cash portion of the consideration received for an Asset
Disposition as permitted by the provision of the indentures described under
"-- Asset Dispositions";
(6) Investments (including acquisitions of other Telecommunications
Businesses) not to exceed two times the Net Cash Proceeds from the sale of
Equity Interests;
(7) Investments (including acquisitions of other Telecommunications
Businesses) made with Capital Stock;
(8) Restricted Equity Investments;
(9) Strategic Investments;
(10) customary loans or advances made in the ordinary course of
business to officers, directors or employees of ours or any of our
Restricted Subsidiaries for travel, entertainment and moving and other
relocation expenses; and
(11) any other Investments not to exceed $100 million in the
aggregate.
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"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Preferred Stock" means, with respect to any Person, Capital Stock of such
Person of any class or classes (however designated) that ranks prior, as to the
payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
"Public Equity Offering" means an underwritten primary public offering of
Common Stock pursuant to an effective registration statement under the
Securities Act.
"Rating Agency" means (1) S&P and Moody's or (2) any other rating agencies
contemplated by the definitions of "S&P" and "Moody's".
"Rating Category" means:
(1) with respect to S&P, any of the following categories (any of which
may include a "+" or "-"): AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or
equivalent successor categories);
(2) with respect to Moody's, any of the following categories (any of
which may include a "1", "2" or "3"); Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C
and D (or equivalent successor categories); and
(3) the equivalent of any such categories of S&P or Moody's used by
another Rating Agency, if applicable.
"Redeemable Stock" of any Person means any equity security of such Person
that by its terms or otherwise is required to be redeemed prior to the final
Stated Maturity of the notes or is redeemable at the option of the holder
thereof at any time prior to the final Stated Maturity of the notes.
"Related Person" of any Person means any other Person owning (a) 5% or more
of the outstanding Common Stock of such Person or (b) 5% or more of the Voting
Power of such Person.
"Restricted Entity" means, as applied to any Person, any corporation or
other entity:
(1) engaged in the acquisition, ownership, operation and management of
assets in the Telecommunications Business;
(2) over which such Person is responsible (either directly or through
a services agreement) for day-to-day operations or otherwise has a
technical services or comparable agreement that provides such Person with
such rights, duties and obligations as are substantially similar to those
rights, duties and obligations of ours under that certain Technical
Services Agreement dated July 30, 1996, as amended, with respect to Cook
Inlet Western Wireless PV/SS PCS, L.P.;
(3) of which more than 40% of the outstanding Capital Stock (other
than directors' qualifying shares) having ordinary voting power to elect
its board of directors, regardless of the existence at the time of a right
of the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency,
in the case of a corporation, or more than 40% of the outstanding ownership
interests, in the case of an entity other than a corporation, is at the
time owned directly or indirectly by such Person, or by one or more
Subsidiaries of such Person, or by such Person and by one or more
Subsidiaries of such Person; and
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(4) that is formed or the ownership in which is acquired pursuant to
an arms' length negotiation between such Person and the Restricted Entity
or the other investors in such Restricted Entity that satisfies the
requirements of the covenant described under "-- Limitation on Transactions
with Affiliates and Related Persons".
"Restricted Equity Investments" means:
(1) any payment on account of the purchase, redemption, retirement or
acquisition of (a) any shares of Capital Stock or other ownership interests
in a Restricted Entity or (b) any option, warrant or other right to acquire
shares of Capital Stock or ownership interests of a Restricted Entity; or
(2) any loan, advance, lease, capital contribution to, or Investment
in, or payment of a Guarantee of any obligation of a Restricted Entity.
"Restricted Payment" means, with respect to any Person:
(1) any declaration or payment of a dividend or other distribution on
any shares of such Person's Capital Stock (other than (a) dividends payable
solely in shares of its Capital Stock or options, warrants or other rights
to acquire its Capital Stock, (b) any declaration or payment of a dividend
or other distribution by a Restricted Subsidiary to such Person or another
Restricted Subsidiary or (c) any declaration or payment of a dividend or
other distribution by a Restricted Subsidiary to any other shareholder of
such Restricted Subsidiary, so long as such Person or its Restricted
Subsidiaries receive their pro rata share of such dividends or
distributions);
(2) any payment on account of the purchase, redemption, retirement or
acquisition of (a) any shares of Capital Stock of such Person or any
Related Person (other than a Restricted Subsidiary) of such Person or (b)
any option, warrant or other right to acquire shares of Capital Stock of
such Person or any Related Person (other than a Restricted Subsidiary) of
such Person, in each case other than pursuant to the cashless exercise of
options;
(3) any Investment other than a Permitted Investment; and
(4) any redemption, defeasance, repurchase or other acquisition or
retirement for value prior to any scheduled maturity, repayment or sinking
fund payment, of any Indebtedness of such Person which is subordinate in
right of payment to the notes.
"Restricted Subsidiary" of any Person means any Subsidiary of such Person
other than an Unrestricted Subsidiary.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than 270 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"S&P" means Standard & Poor's Rating Services or, if Standard & Poor's
Rating Services shall cease rating debt securities having a maturity at original
issuance of at least one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, however,
that if S&P ceases rating debt securities having a maturity at original issuance
of at least one year
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and its rating business with respect thereto shall not have been transferred to
any successor Person, then "S&P" shall mean any other national recognized rating
agency (other than S&P) that rates debt securities having a maturity at original
issuance of at least one year and that shall have been designated by us, by a
written notice given to the Trustee.
"Stated Maturity," when used with respect to any note means the date
specified in such note as the date on which the principal of such note is due
and payable.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively-traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the terms of the Senior
Discount Notes, such other reasonably comparable index which will be designated
by us.
"Strategic Equity Infusion" means an equity investment in us made by a
Strategic Investor in an aggregate amount of not less than $250 million.
"Strategic Investment" means an Investment in one or more Persons engaged
in a Telecommunications Business, provided that the aggregate amount of all such
Investments does not exceed (1) $100 million or (2), provided that after giving
effect to such Strategic Investment we would comply with the first paragraph of
the covenant described under "-- Certain Covenants -- Limitations on
Consolidated Indebtedness", $175 million.
"Strategic Investor" means a corporation, partnership or other entity
engaged in one or more Telecommunications Businesses that has, or 80% or more of
the voting stock of which is owned by a Person that has, an equity market
capitalization, at the time of its initial Investment in us, in excess of $1
billion.
"Subsidiary" means, as applied to any Person:
(1) any corporation of which more than fifty percent (50%) of the
outstanding Capital Stock (other than directors' qualifying shares) having
ordinary Voting Power to elect its board of directors, regardless of the
existence at the time of a right of the holders of any class or classes of
securities of such corporation to exercise such Voting Power by reason of
the happening of any contingency, or any entity other than a corporation of
which more than fifty percent (50%) of the outstanding ownership interests,
is at the time owned directly or indirectly by such Person, or by one or
more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person; or
(2) any other entity which is directly or indirectly controlled or
capable of being controlled by such Person, or by one or more Subsidiaries
of such Person, or by such Person and one or more Subsidiaries of such
Person.
"Telecommunications Asset" means any asset of a Telecommunications
Business, including, without limitation, Equity Interests or joint venture,
partnership or membership interests of an entity engaged in the
Telecommunications Business.
"Telecommunications Business" means the business of:
(1) transmitting, or providing services relating to the transmission
of, voice, video or data through owned or leased wireline or wireless
transmission facilities;
(2) creating, developing, acquiring, constructing, installing,
repairing, maintaining or marketing communications-related systems, network
equipment and facilities, software and other products; or
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(3) evaluating, owning, operating, participating in or pursuing any
other business that is primarily related to those identified in clause (1)
or (2) above (in the case of this clause (3), however, in a manner
consistent with ours and Aerial's manner of business on the date of the
indentures), and shall, in any event, include all businesses in which we or
Aerial or any of our Subsidiaries was engaged on the date of the indentures
or has entered into agreements to engage in or to acquire a company to
engage in or contemplate engaging in, as expressly set forth in our Form
10/A filed with the Commission on April 13, 1999 or our Form 10-Q for the
quarter ended June 30, 1999 or our current reports on Form 8-K filed prior
to October 15, 1999 (or not required to be disclosed therein pursuant to
the rules and regulations of the Commission) and Aerial's Form 10-K for the
fiscal year ended December 31, 1998 and Forms 10-Q and 8-K filed during
calendar year 1999 prior to November 4, 1999 (or not required to be
disclosed therein pursuant to the rules and regulations of the Commission);
provided that the determination of what constitutes a Telecommunications
Business shall be made in good faith by our board of directors.
"Telecommunications Indebtedness" means Indebtedness (including Acquired
Indebtedness) of ours or any of our Restricted Subsidiaries that is incurred for
the (1) development, construction, acquisition, operations or improvement by us
or any of our Restricted Subsidiaries of Telecommunications Assets (including
any Indebtedness assumed in connection with an acquisition of Telecommunications
Assets) or (2) acquisition of Equity Interests of a Person engaged in a
Telecommunications Business; provided that with respect to clause (1) the net
proceeds of such Telecommunications Indebtedness do not exceed 100% of the cost
of construction, development, acquisition, operations or improvement of the
applicable Telecommunications Assets.
"Temporary Cash Investment" means:
(1) Government Securities;
(2) any time deposit account, money market deposit and certificate of
deposit maturing not more than 270 days after the date of acquisition
issued by, or time deposit of, an Eligible Institution;
(3) commercial paper maturing not more than 270 days after the date of
acquisition issued by a corporation (other than an Affiliate of either
Issuer) 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.,
"A-1" or higher according to Standard & Poor's Ratings Group or "A-1" or
higher according to Duff & Phelps Credit Rating Co. (or such similar
equivalent rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act));
(4) any banker's acceptances or money market deposit accounts issued
or offered by an Eligible Institution;
(5) repurchase obligations with a term of not more than 7 days for
Government Securities entered into with an Eligible Institution; and
(6) any fund investing exclusively in investments of the types
described in clauses (1) through (5) above.
"Unrestricted Subsidiary" of any Person means (1) any Subsidiary of such
Person that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors of such Person in the manner provided
below, and (2) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors of any Person may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary unless such Subsidiary owns any Common Stock or
Preferred Stock of, or owns or holds any lien on any property of, such Person or
any Restricted Subsidiary; provided that either (a) the
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<PAGE> 55
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 the Fair Market Value of the
Subsidiary at the time of such designation would be permitted as an Investment
under the provision of the indenture described under "-- Limitation on
Restricted Payments". The Board of Directors of any Person may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary of such Person; provided
that immediately after giving effect to such designation (x) such Person would
be permitted to incur $1.00 of additional Indebtedness pursuant to the provision
of the indenture described in the first paragraph under "Limitation on
Consolidated Indebtedness" and (y) no Event of Default or event which with
notice or lapse of time or both would become an Event of Default has occurred
and is continuing. Any such designation by the Board of Directors shall be
evidenced by a Board Resolution submitted to the trustee.
"Voting Power" of any Person means the aggregate number of votes of all
classes of Capital Stock of such Person which ordinarily has voting power for
the election of directors of such Person.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
MODIFICATION AND WAIVER
Modifications and amendments of either indenture may be made by us and the
trustee with the consent of the holders of a majority in aggregate principal
amount of the outstanding notes of the applicable series; provided, however,
that no such modification or amendment may, without the consent of the holder of
each note affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any note;
(2) reduce the principal amount of or premium, if any, or interest on
any note;
(3) change the place or currency of payment of principal of, or
premium or interest on any note;
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to any note;
(5) reduce the percentage of aggregate principal amount of notes
outstanding necessary to amend the applicable indenture;
(6) reduce the percentage of aggregate principal amount of notes
outstanding necessary for waiver of compliance with certain provisions of
the indenture or for waiver of certain defaults;
(7) modify such provisions with respect to modification and waiver; or
(8) following the mailing of an Offer to Purchase, modify the
provisions of the applicable indenture with respect to such Offer to
Purchase in a manner adverse to such holder.
The holders of a majority in aggregate principal amount of the outstanding
notes of either series may waive compliance by the Issuers with certain
restrictive provisions of the applicable indenture. The holders of a majority in
aggregate principal amount of the outstanding notes of either series may waive
any past default under the applicable indenture, except a default in the payment
of principal,
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<PAGE> 56
premium or interest and certain covenants and provisions of such indenture which
cannot be amended without the consent of the holder of each outstanding note
affected.
DEFEASANCE
At our option, (1) if applicable, we will be discharged from any and all
obligations in respect of the outstanding notes or (2) if applicable, we may
omit to comply with certain restrictive covenants, and that such omission will
not be deemed to be an Event of Default under the indentures and the notes. In
order to exercise either option, we must first irrevocably deposit with the
trustee, in trust, money and/or U.S. government obligations which will provide
money in an amount sufficient in the opinion of a nationally recognized firm of
independent certified public accountants to pay the principal and premium, if
any, and each installment of interest, if any, on the outstanding notes on the
Stated Maturity. In addition, if we elect to have certain restrictive covenants
discharged under (2) above, the obligations under the indentures other than with
respect to such covenants and the Events of Default other than the Events of
Default relating to such covenants above shall remain in full force and effect.
The trust referred to above only be established if, among other things:
(1) (a) in the event of a discharge under (1) of the immediately
preceding paragraph, we have received from, or there has been published by,
the Internal Revenue Service a ruling or there has been a change in law
after the Issue Date, which in the Opinion of Counsel provides that holders
of the notes will not recognize gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge has not
occurred; or (b) in the event of a discharge under (2) of the immediately
preceding paragraph, we have delivered to the trustee an Opinion of Counsel
to the effect that the holders of the notes will not recognize gain or loss
for Federal income tax purposes as a result of such deposit and defeasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit
and defeasance had not occurred;
(2) no Default or Event of Default has occurred or is continuing;
(3) we have delivered to the trustee an Opinion of Counsel to the
effect that such deposit shall not cause the trustee or the trust so
created to be subject to the Investment Company Act of 1940, as amended;
and
(4) certain other customary conditions precedent are satisfied.
NOTICES
Notices to holders of notes will be given by mail to the addresses of such
holders as they may appear in the Security Register.
TITLE
We, the trustee and any agent of the trustee may treat the Person in whose
name a note is registered as the absolute owner thereof (whether or not such
note may be overdue) for the purpose of making payment and for all other
purposes.
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<PAGE> 57
GOVERNING LAW
The indentures and the notes will be governed by and construed in
accordance with the laws of the State of New York.
THE TRUSTEE
The indentures provide that, subject to the duty of the trustee during an
Event of Default to act with the required standard of care, the trustee will be
under no obligation to exercise any of its rights or powers under the indentures
at the request or direction of any of the note holders, unless such holders
shall have offered to the trustee reasonable security or indemnity. Subject to
certain provisions, including those requiring security or indemnification of the
trustee, the holders of a majority in principal amount of the notes of either
series will have the right to 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, in each case with respect to such series.
We will be required to furnish to the trustee annually a statement as to
the performance by us of our obligations under the indenture and as to any
default in such performance.
TRANSFERABILITY OF OUR NEW NOTES
Based on interpretations by the staff of the Commission, as set forth in
no-action letters issued to third parties, we believe that our new notes issued
in the exchange offer in exchange for our outstanding notes may be offered for
resale, resold or otherwise transferred by a holder thereof (other than a holder
that is an "affiliate" of ours within the meaning of Rule 405 under the
Securities Act) without complying with the registration and prospectus delivery
provisions of the Securities Act, provided that our new notes are acquired in
the ordinary course of the holder's business and the holder has no arrangement
with any person to participate in the distribution of our new notes.
We do not intend to request the Commission to consider, and the Commission
has not considered, our exchange offers in the context of a no-action letter and
there can be no assurance that the staff of the Commission would make a similar
determination with respect to our exchange offers as in such other
circumstances. Each holder of our outstanding new notes, other than a broker-
dealer, must acknowledge that:
(i) our new notes will be acquired in the ordinary course of its
business;
(ii) at the time of the consummation of the exchange offer the holder
will have not engaged in, and does not intend to engage in, a distribution
of our new notes and has no arrangement or understanding to participate in
a distribution of our new notes; and
(iii) the holder is not an affiliate of ours within the meaning of
Rule 405 of the Securities Act or, if it is such an affiliate, that it will
comply with the registration and prospectus delivery requirements of the
Securities Act, to the extent applicable.
If any holder of our outstanding notes is an affiliate of ours, is engaged
in or intends to engage in or has any arrangement or understanding with respect
to the distribution of our new notes to be acquired pursuant to our exchange
offers, that holder:
(i) could not rely on the applicable interpretations of the staff of
the Commission; and
(ii) must comply with the registration and prospectus delivery
requirement of the Securities Act in connection with any resale
transaction.
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<PAGE> 58
Each broker-dealer that receives our new notes for its own account in
exchange for our outstanding notes must acknowledge that those outstanding notes
were acquired by the broker-dealer as a result of market-making activities or
other trading activities, and that it will deliver a prospectus in connection
with any resale of those notes.
The Letter of Transmittal states that by so acknowledging and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
This prospectus, as it may be amended or supplemented from time to time,
may be used by a broker-dealer in connection with resales of our new notes
received in exchange for our outstanding notes, where those outstanding notes
were acquired by the broker-dealer as a result of market-making activities or
other trading activities.
In addition, to comply with state securities laws, our new notes may not be
offered or sold in any state unless they have been registered or qualified for
sale in such state or an exemption from registration or qualification is
available and is complied with.
The offer and sale of our notes to "Qualified Institutional Buyers" (as
such term is defined under Rule 144A of the Securities Act) would generally be
exempt from registration or qualification under state securities laws. We
currently do not intend to register or qualify the sale of our new notes in any
state where an exemption from registration or qualification is required and not
available.
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 Global Note directly through DTC if they are
participants in such system, or indirectly through organizations 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 new notes represented by such Global Note for all
purposes under our new notes. 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.
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
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<PAGE> 59
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 new 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. 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 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.
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 we nor the trustee will
have any responsibility for the performance by DTC of its obligations under the
rules and procedures governing its operations or the performance by its direct
and indirect participants of their respective obligations.
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 our
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
a 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
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<PAGE> 60
rules. The discussion assumes that our outstanding notes are held as "capital
assets" within the meaning of section 1221 of the Code.
HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS REGARDING THE TAX
CONSEQUENCES OF TENDERING OR FAILING TO TENDER NOTES, INCLUDING THE APPLICATION
AND EFFECT OF ANY STATE, LOCAL, FOREIGN OR OTHER TAX LAW.
The exchange of our outstanding notes for our new registered notes should
not constitute a taxable exchange to holders of our outstanding notes. As a
result, a note holder should have the same tax basis and holding period in our
new registered notes as in our outstanding notes, and the other tax consequences
of holding our new registered notes also should be the same as holding our
outstanding notes.
PLAN OF DISTRIBUTION
A broker-dealer that is the holder of our outstanding notes that were
acquired for the account of a such broker-dealer as a result of market-making or
other trading activities (other than outstanding notes acquired directly from us
or any affiliate of ours) may exchange such outstanding notes for our new notes
pursuant to the exchange offer; provided, however, that each broker-dealer that
receives our new notes for its own account in exchange for our outstanding notes
must acknowledge that it will deliver a prospectus in connection with any resale
of such notes. This prospectus, as it may be amended or supplemented from time
to time, may be used by a broker-dealer in connection with resales of notes
received in exchange for our outstanding notes where our outstanding notes were
acquired as a result of market-making activities or other trading activities.
We will not receive any proceeds from any sale of notes by broker-dealers
or any other holder of notes. 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 broker-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-dealers 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.
The Company has agreed to pay all expenses incident to the exchange offer
other than sales commissions, discounts or concessions.
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 firms as experts in
auditing and accounting.
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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
------- -----------
<C> <S>
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.
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.
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.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
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.
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.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
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.
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.
</TABLE>
61
<PAGE> 65
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
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.
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.
</TABLE>
62
<PAGE> 66
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
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.
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.
</TABLE>
63
<PAGE> 67
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
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(27) Consent of Arthur Andersen LLP (VoiceStream)
23.2(27) Consent of PricewaterhouseCoopers, LLP (Omnipoint)
23.3(27) Consent of Arthur Andersen LLP (Aerial)
23.4(27) Consent of Friedman Kaplan & Seiler (included in Exhibit
5.2)
25.1(27) Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Harris Trust 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.
64
<PAGE> 68
(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.
(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) Previously filed.
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
65
<PAGE> 69
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.
66
<PAGE> 70
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 4th day of April, 2000.
VOICESTREAM WIRELESS CORPORATION
By: /s/ ALAN R. BENDER
------------------------------------
Alan R. Bender
Executive Vice President
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, Director April 4, 2000
- --------------------------------------------------- and Chief Executive Officer
John W. Stanton (Principal Executive Officer)
/s/ ROBERT R. STAPLETON* President and Director April 4, 2000
- ---------------------------------------------------
Robert R. Stapleton
/s/ DOUGLAS G. SMITH* Vice Chairman and Director April 4, 2000
- ---------------------------------------------------
Douglas G. Smith
/s/ DONALD GUTHRIE* Vice Chairman and Director April 4, 2000
- ---------------------------------------------------
Donald Guthrie
/s/ CREGG B. BAUMBAUGH* Executive Vice President -- April 4, 2000
- --------------------------------------------------- Finance, Strategy and
Cregg B. Baumbaugh Development (Principal
Financial Officer)
/s/ PATRICIA L. MILLER* Vice President and Controller April 4, 2000
- --------------------------------------------------- (Principal Accounting
Patricia L. Miller Officer)
/s/ MITCHELL R. COHEN* Director April 4, 2000
- ---------------------------------------------------
Mitchell R. Cohen
/s/ DANIEL J. EVANS* Director April 4, 2000
- ---------------------------------------------------
Daniel J. Evans
</TABLE>
67
<PAGE> 71
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
/s/ RICHARD L. FIELDS* Director April 4, 2000
- ---------------------------------------------------
Richard L. Fields
/s/ CANNING K.N. FOK* Director April 4, 2000
- ---------------------------------------------------
Canning K.N. Fok
/s/ JONATHAN M. NELSON* Director April 4, 2000
- ---------------------------------------------------
Jonathan M. Nelson
/s/ TERENCE M. O'TOOLE* Director April 4, 2000
- ---------------------------------------------------
Terence M. O'Toole
/s/ JAMES N. PERRY, JR.* Director April 4, 2000
- ---------------------------------------------------
James N. Perry, Jr.
/s/ JAMES J. ROSS* Director April 4, 2000
- ---------------------------------------------------
James J. Ross
/s/ HANS SNOOK* Director April 4, 2000
- ---------------------------------------------------
Hans Snook
/s/ SUSAN M.F. WOO CHOW* Director April 4, 2000
- ---------------------------------------------------
Susan M.F. Woo Chow
/s/ FRANK J. SIXT* Director April 4, 2000
- ---------------------------------------------------
Frank J. Sixt
/s/ KAJ-ERIK RELANDER* Director April 4, 2000
- ---------------------------------------------------
Kaj-Erik Relander
*By /s/ ALAN R. BENDER
---------------------------------------------
attorney in fact
</TABLE>
68
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
TO TENDER TO
VOICESTREAM WIRELESS CORPORATION
ITS
10 3/8% SENIOR NOTES DUE 2009
AND
11 7/8% SENIOR DISCOUNT NOTES DUE 2009
PURSUANT TO THE PROSPECTUS
DATED APRIL 5, 2000
Deliver to:
HARRIS TRUST AND SAVINGS BANK, EXCHANGE AGENT
<TABLE>
<S> <C> <C>
By Registered or By Hand or Facsimile Transmission
Certified Mail: Overnight Delivery: Number:
HARRIS TRUST AND SAVINGS HARRIS TRUST AND SAVINGS (For Eligible Institutions
c/o Harris Trust Company BANK Only)
of New York c/o Harris Trust Company (212) 701-7636
Wall Street Station of New York Confirm Receipt of Facsimile
P.O. Box 1010 88 Pine Street by Telephone:
New York, NY 10268-1010 19th Floor (212) 701-7624
New York, NY 10005
</TABLE>
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 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 its 10 3/8% Senior Notes due 2009 and 11 7/8% Senior Discount Notes
due 2009 (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 Prospectus.
The Offeror is offering to exchange its currently outstanding Notes for a
like principal amount of new registered notes that have terms substantially
identical to the outstanding 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 delivered
physically to Harris Trust Company of California 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 Depositary's account at The Depository Trust
Company ("DTC") (the "Book Entry Transfer Facility") pursuant to the procedures
set forth in the Prospectus under the caption "The Exchange Offer" 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 in the Prospectus
under "The Exchange Offer," 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 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 "The Exchange Offer."
In the event that the Offer is withdrawn or otherwise not completed, no new
notes will be issued or become issuable to Holders of Notes who validly tendered
their Notes in connection with such Offer and the tendered Notes will be
returned.
The Offer is 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 VoiceStream Wireless Corporation, 3650 131st Avenue
S.E., Bellevue, Washington 98006, Attention: Investor Relations (425) 653-4600.
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 DEPOSITARY 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 DEPOSITARY 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
PRINCIPAL AMOUNT PRINCIPAL
AT MATURITY OF AMOUNT OF
NAME(S) AND ADDRESS(ES) OF HOLDER(S) CERTIFICATE SENIOR DISCOUNT SENIOR NOTES
(PLEASE FILL IN, IF BLANK) NUMBER* NOTES TENDERED TENDERED
<S> <C> <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 of Notes indicated above.
Subject to, and effective upon, the acceptance for exchange of, and the issuance
of new registered notes in exchange thereof, the Notes tendered with this Letter
of Transmittal, the undersigned hereby sells, assigns and transfers to, or upon
the order of, the Offeror all right, title and interest in and to the Notes that
are being tendered hereby.
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 exchange 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 it 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 Offeror's 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 Expiration 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 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 on behalf of such Holder, and
be received at or prior to 5:00 p.m., New York City time, on the Expiration Date
by the Exchange Agent, at one of its addresses 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 Offer 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 subject to certain conditions of the Offer
(each of which the Offeror may waive in its sole discretion) as set forth in the
Prospectus, and otherwise at its sole discretion, the Offeror is not required to
accept for exchange any of the Notes tendered (including any Notes tendered
after the Expiration Date). Any Notes not accepted for exchange 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 Issuance Instructions,"
the undersigned hereby requests that portions of 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). Similarly,
unless otherwise indicated herein under "Special Delivery Instructions," the
undersigned hereby requests that portions of any Notes representing principal
amounts not tendered or not accepted for purchase and all notes to be issued by
the Offeror in exchange for tendered Notes in exchange for tendered Notes be
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 portions of Notes
representing principal amounts not tendered or not accepted for purchase be
issued in the name(s) of, certificates for such Notes be delivered to, be issued
in the name(s) of, and be 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 Issuance 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 ISSUANCE 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 purchase or notes of the Offeror issued in
exchange for Notes are to be issued in a name 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 purchase 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 one of its
addresses 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 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 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 Depositary, 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 Depositary. 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 Depositary has received
from such Eligible Institution at one of the addresses of the Depositary
set forth on the back cover of the Statement, 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 Statement, 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. If the Offer is terminated, the Notes tendered 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 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 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. Any Notes properly
withdrawn will be deemed to be not validly tendered for purposes of the Offer.
The withdrawal of a tender of Notes may also be effected through a properly
transmitted "Request Message" through ATOP, received by the Depositary at any
time prior to 5:00 p.m., New York City time, on the Expiration Date.
Withdrawal of Notes can be accomplished only in accordance with the
foregoing procedures.
3. PARTIAL TENDERS. Tenders of Notes pursuant to the Offer 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 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 Note Tendered" herein. The entire principal amount represented
by the certificates for all Notes delivered to the Exchange Agent will be deemed
to have been tendered. If the entire principal amount of all Notes is not
tendered or not accepted for purchase, 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.
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
9
<PAGE> 10
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 not
tendered or not accepted for purchase are to be issued (or if any portion 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, and checks for payments of
consideration in respect of Notes 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, 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 at maturity not tendered or not accepted for purchase 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 United States
Holder is an individual, the TIN is his or her social security number. If the
Depositary is not provided with the correct TIN, the United States Holder may be
subject to a $50 penalty
10
<PAGE> 11
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 Depositary 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 Offer, 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).
Neither the Offeror nor 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
Offer 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 in the Prospectus.
11. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
may be directed to and additional copies of the Offer Documents may be obtained
from VoiceStream Wireless Corporation, 3650 131st Avenue S.E., Bellevue,
Washington 98006 Attention: Investor Relations (425) 653-4600.
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 OFFER. 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.
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.
12
<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 ITS
10 3/8% SENIOR NOTES DUE 2009
AND
11 7/8% SENIOR DISCOUNT NOTES DUE 2009
PURSUANT TO THE PROSPECTUS
DATED APRIL 5, 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 10 3/8% Senior Notes due 2009 and 11 7/8%
Senior Discount Notes due 2009 of VoiceStream Wireless Corporation
(collectively, the "Notes") pursuant to the Offer (as defined below) of
VoiceStream Wireless Corporation (the "Offeror") if (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 Harris Trust Company of California, 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 Prospectus under the caption
"The Exchange Offer -- Guaranteed Delivery Procedures." 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 Prospectus.
The Exchange Agent for the Offers is:
HARRIS TRUST AND SAVINGS BANK, EXCHANGE AGENT
<TABLE>
<S> <C> <C>
By Registered or By Hand or Facsimile Transmission
Certified Mail: Overnight Delivery: Number:
HARRIS TRUST AND SAVINGS HARRIS TRUST AND SAVINGS BANK (For Eligible Institutions
c/o Harris Trust Company c/o Harris Trust Company Only)
of New York of New York (212) 701-7636
Wall Street Station 88 Pine Street Confirm Receipt of Facsimile by
P.O. Box 1010 19th Floor Telephone:
New York, NY 10268-1010 New York, NY 10005 (212) 701-7624
</TABLE>
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 at
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
(as amended or supplemented from time to time, the "Prospectus") of VoiceStream
Wireless Corporation, a Delaware corporation (the "Offeror") relating to its
10 3/8% Senior Notes due 2009 and 11 7/8% Senior Discount Notes due 2009
<PAGE> 2
(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
offer (the "Offer") to exchange for notes of the Offeror, upon the terms and
subject to the conditions set forth in the Prospectus.
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 below pursuant to the guaranteed delivery procedures described in the
Offer Documents.
In the event of a termination of the Offer, the Notes tendered pursuant to
such Offer 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 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 ITS OUTSTANDING
10 3/8% SENIOR NOTES DUE 2009
AND
11 7/8% SENIOR DISCOUNT NOTES DUE 2009
April 5, 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 of its 10 3/8%
Senior Notes due 2009 and 11 7/8% Senior Discount Notes due 2009 (collectively,
the "Notes") upon the terms and subject to the conditions set forth in the
Prospectus dated April 5, 2000 (as it may be supplemented from time to time, the
"Prospectus").
All capitalized terms used but not defined herein shall have the meanings
given to them in the Statement.
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 dated April 5, 2000.
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 that they own.
DTC participants will be able to execute tenders through the DTC Automated
Tender Offer Program.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE.
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 Offers.
Any questions or requests for assistance or additional copies of the
Prospectus or the related documents may be directed to VoiceStream Wireless
Corporation, 3650 131st Avenue S.E., Bellevue, Washington 98006, Attention:
Investor Relations (425) 653-4600.
Very truly yours,
- --
<PAGE> 2
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 ITS OUTSTANDING
10 3/8% SENIOR NOTES DUE 2009
AND
11 7/8% SENIOR DISCOUNT NOTES DUE 2009
April 5, 2000
To our Clients:
Enclosed for your consideration is the Prospectus (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 new registered notes for
any and all of its 10 3/8% Senior Notes due 2009 and 11 7/8% Senior Discount
Notes due 2009 (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 Offer are being forwarded to you as the
beneficial owner of Notes held by us for your account or benefit but not
registered in your name. A tender of any Notes may only be made by us as
registered Holder pursuant to your instructions. 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 Offer.
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 8, 2000, unless the applicable 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 but
not thereafter.
Your attention is directed to the following:
1. The Offers are for 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 OFFER, 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 its 10 3/8% Senior Notes due 2009 and 11 7/8% Senior
Discount Notes due 2009 (collectively, the "Notes").
This will instruct you to tender the 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 dated April 5, 2000 and the related
Letter of Transmittal.
<TABLE>
<S> <C>
- ----------------------------------------------------------------------------------------------------
VOICESTREAM NOTES WHICH ARE TO BE TENDERED
- ----------------------------------------------------------------------------------------------------
PRINCIPAL AMOUNT OF SENIOR NOTES PRINCIPAL AMOUNT AT MATURITY OF SENIOR DISCOUNT
NOTES
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
</TABLE>
------------------------------------------
Name:
2
<PAGE> 3
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER. Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<C> <S> <C>
- ----------------------------------------------------------------
FOR THIS TYPE OF ACCOUNT: GIVE THE
SOCIAL SECURITY
NUMBER OF:
- ----------------------------------------------------------------
- ----------------------------------------------------------------
FOR THIS TYPE OF ACCOUNT: GIVE THE EMPLOYER
IDENTIFICATION
NUMBER OF:
- ----------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S> <C>
1. An individual's account The individual.
2. Two or more individuals (joint The individual owner of
account) the account or, if
combined funds, the
first individual on the
account(1)
3. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
4. a. The usual revocable savings The grantor-trustee(1)
trust account (grantor is also
trustee)
b. So-called trust account that The actual owner(1)
is not a legal or valid trust
under State law
5. Sole proprietorship account The owner(3)
6. A valid trust estate, or pension The legal entity (Do
trust not furnish the
identifying number of
the personal
representative or
trustee unless the
legal entity itself is
not designated in the
account title.)(4)
7. Corporate account The corporation
8. Religious, charitable, or The organization
educational organization account
9. Partnership account The partnership
10. Association, club or other The organization
tax-exempt organization
11. A broker or registered nominee The broker or nominee
12. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a State or
local government school district
or prison) that receives
agricultural program payments
</TABLE>
- -------------------------------------------------------------
- -------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a social security number, that
person's number must be furnished.
(2) Circle the minor's name and furnish the minor's social security number.
(3) You must show your individual name. You may also enter your business or
"doing business as" name. You may use either your social security number or,
if you have one, your employer identification number.
(4) List first and circle the name of the legal trust, estate or pension trust.
NOTE: If no name is circled when there is more than one name listed, the number
will be considered to be that of the first name listed.
<PAGE> 4
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you do not have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service (the "IRS") and
apply for a number. You may also obtain Form SS-4 by calling the IRS at
1-800-TAX-FORM.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
- - An organization exempt from tax under section 501(a), or an individual
retirement account.
- - The United States or any wholly-owned agency or instrumentality thereof.
- - A State, the District of Columbia, a possession of the United States or any
political subdivision or wholly-owned agency or instrumentality thereof.
- - A foreign government, a political subdivision of a foreign government, or
any wholly-owned agency or instrumentality thereof.
- - An international organization or any wholly-owned agency or instrumentality
thereof.
Payees specifically exempted from backup withholding on interest and dividend
payments include the following:
- - A corporation.
- - A financial institution.
- - A dealer in securities or commodities required to register in the U.S., the
District of Columbia, or a possession of the U.S.
- - A real estate investment trust.
- - A common trust fund operated by a bank under section 584(a)
- - An exempt charitable remainder trust, or a non-exempt trust described in
section 4947.
- - An entity registered at all times during the tax year under the Investment
Company Act of 1940.
- - A foreign central bank of issue.
- - A middleman known in the investment community as a nominee or who is listed
in the most recent publication of the American Society of Corporate
Secretaries, Inc. Nominee List.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- - Payments to nonresident aliens subject to withholding under section 1441.
- - Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
- - Payments of patronage dividends not paid in money.
- - Payments made by certain foreign organizations.
- - Section 404(k) payments made by an ESOP.
Payments of interest not generally subject to backup withholding including the
following:
- - Payments of interest on obligations issued by individuals.
Note: You may be subject to backup withholding if this interest is $600 or
more and is paid in the course of the payer's trade or business and you have
not provided your correct taxpayer identification number to the payer.
- - Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
- - Payments described in section 6049(b)(5) to non-resident aliens.
- - Payments on tax-free covenant bonds under section 1451.
- - Payments made by certain foreign organizations.
Exempt payees described above should file the Substitute Form W-9 to avoid
possible erroneous backup withholding. FILE THE SUBSTITUTE FORM W-9 WITH THE
PAYER. FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER. CHECK THE BOX MARKED
"EXEMPT" IN PART II OF THE SUBSTITUTE FORM W-9 AND RETURN IT TO THE PAYER.
Certain payments other than dividends that are not subject to information
reporting are also not subject to backup withholding. For details, see sections
6041, 6041A(a), 6045, 6050A, 6050N and the regulations thereunder.
PRIVACY ACT NOTICE--Section 6109 requires most recipients of dividend, interest
or other payments to give taxpayer identification numbers to payers who must
report the payments to the IRS. The IRS uses the numbers for identification
purposes and to help verify the accuracy of tax returns. The IRS also may
provide this information to the Department of Justice for civil and criminal
litigation and to cities, states, and the District of Columbia to carry out
their tax laws. Payers must be given the number whether or not recipients are
required to file tax returns. Payers must generally withhold 31% of taxable
interest, dividends and certain other payments to a payee who does not furnish a
taxpayer identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE.
