0001193125-13-193449.txt : 20130502 0001193125-13-193449.hdr.sgml : 20130502 20130501211838 ACCESSION NUMBER: 0001193125-13-193449 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 59 CONFORMED PERIOD OF REPORT: 20130501 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Changes in Registrant's Certifying Accountant ITEM INFORMATION: Changes in Control of Registrant ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20130502 DATE AS OF CHANGE: 20130501 FILER: COMPANY DATA: COMPANY CONFORMED NAME: T-Mobile US, Inc. CENTRAL INDEX KEY: 0001283699 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 200836269 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-33409 FILM NUMBER: 13805168 BUSINESS ADDRESS: STREET 1: 12920 SE 38TH STREET CITY: BELLEVUE STATE: WA ZIP: 98006 BUSINESS PHONE: 800-318-9270 MAIL ADDRESS: STREET 1: 12920 SE 38TH STREET CITY: BELLEVUE STATE: WA ZIP: 98006 FORMER COMPANY: FORMER CONFORMED NAME: METROPCS COMMUNICATIONS INC DATE OF NAME CHANGE: 20040315 8-K 1 d527693d8k.htm FORM 8-K Form 8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): May 1, 2013

 

 

T-Mobile US, Inc.

(Exact Name of Registrant as Specified in Charter)

 

 

 

Delaware   1-33409   20-0836269

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

12920 SE 38th Street, Bellevue (Washington)   98006
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s telephone number, including area code: 425-378-4000

MetroPCS Communications, Inc.

2250 Lakeside Boulevard

Richardson, Texas

75082-4304

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Introduction.

This Current Report on Form 8-K is being filed in connection with the consummation on April 30, 2013 (the “Closing”) of the previously announced proposed combination contemplated by the Business Combination Agreement entered into on October 3, 2012, as amended (the “Business Combination Agreement”), by T-Mobile US, Inc., formerly known as MetroPCS Communications, Inc. (the “Company”), Deutsche Telekom AG, an Aktiengesellschaft organized in Germany (“Deutsche Telekom”), T-Mobile Global Zwischenholding GmbH, a Gesellschaft mit beschränkter Haftung organized in Germany and a direct wholly-owned subsidiary of Deutsche Telekom, T-Mobile Global Holding GmbH, a Gesellschaft mit beschränkter Haftung organized in Germany and a direct wholly-owned subsidiary of T-Mobile Global Zwischenholding GmbH (“T-Mobile Holding”), and T-Mobile USA, Inc., a Delaware corporation and, formerly, a direct wholly-owned subsidiary of T-Mobile Holding (“T-Mobile USA”).

Pursuant to the terms and subject to the conditions set forth in the Business Combination Agreement, the Company, on April 30, 2013, (i) amended and restated its certificate of incorporation in the form of the Fourth Amended and Restated Certificate of Incorporation (the “Restated Certificate of Incorporation”) described in Item 5.03 below, (ii) completed a recapitalization and reverse stock split of the Company’s common stock, par value $0.0001 per share, pursuant to which each share of common stock of the Company outstanding as of the effective time of the Restated Certificate of Incorporation (the “Effective Time”) now represents one-half of a share of common stock, par value $0.00001 per share, of the Company (the “Common Stock”), (iii) as part of such recapitalization, the Company made a payment in cash in an amount equal to $1.5 billion in the aggregate (or $4.0491 per share pre-reverse stock split), without interest, to the Company stockholders of record immediately following the Effective Time, and (iv) immediately following the above recapitalization, including the reverse stock split and the cash payment under (ii) and (iii) above, issued and delivered to T-Mobile Holding 535,286,077 shares of Common Stock, in exchange for T-Mobile Holding transferring to the Company all of T-Mobile Holding’s right, title and interest in and to all the equity interests of T-Mobile USA, as a result of which T-Mobile USA became a wholly-owned subsidiary of the Company (collectively, the “Transaction”). The shares of Common Stock issued to Deutsche Telekom represent approximately 74% of the fully diluted shares on a treasury method basis of Common Stock outstanding immediately following the Closing.

On May 1, 2013, MetroPCS, Inc., a wholly-owned subsidiary of the Company (“HoldCo”), merged with and into MetroPCS Wireless, Inc., a wholly-owned subsidiary of HoldCo (“Wireless”), with Wireless continuing as the surviving entity. Immediately thereafter, Wireless merged with and into T-Mobile USA, with T-Mobile USA continuing as the surviving entity. The foregoing mergers are referred to in this Current Report on Form 8-K as the “Mergers.”

 

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Also on April 30, 2013, pursuant to the Restated Certificate of Incorporation described in Item 5.03 below, the Company’s name was changed to T-Mobile US, Inc. The Company’s Common Stock will continue to be listed on the New York Stock Exchange (“NYSE”) under the new symbol “TMUS.”

The description of the Transaction and the Mergers contained in this Introduction does not purport to be complete and is qualified in its entirety by reference to the Business Combination Agreement, filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission (the “SEC”) on October 3, 2012, and to Amendment No. 1 to the Business Combination Agreement dated as of April 14, 2013, filed as Exhibit 2.2 to the Company’s Current Report on Form 8-K, filed with the SEC on April 15, 2013.

Item 1.01 Entry into a Material Definitive Agreement.

Stockholder’s Agreement

On April 30, 2013, pursuant to the Business Combination Agreement, the Company and Deutsche Telekom entered into a stockholder’s agreement (the “Stockholder’s Agreement”). Pursuant to the Stockholder’s Agreement, Deutsche Telekom has the right to designate a number of individuals to be nominees for election to the Company’s board of directors (the “Board”) equal to the percentage of Common Stock beneficially owned by Deutsche Telekom multiplied by the number of directors on the Board rounded to the nearest whole number. In addition, the Company has agreed to include as members of each committee of the Board the number of Deutsche Telekom director designees equal to the percentage of Common Stock beneficially owned by Deutsche Telekom multiplied by the number of members of such committee rounded up to the nearest whole number, except to the extent that such membership would violate applicable law or stock exchange rules; provided that no committee may consist solely of directors designated by Deutsche Telekom. These rights will remain in effect as long as Deutsche Telekom beneficially owns 10% or more of the outstanding shares of Common Stock. The Company and Deutsche Telekom also have each agreed to use their reasonable best efforts to cause at least three members of the Board to be considered “independent” under the rules of the SEC and under applicable listing standards.

In addition, pursuant to the Stockholder’s Agreement, as long as Deutsche Telekom beneficially owns 30% or more of the outstanding shares of Common Stock, the Company will not take certain actions without Deutsche Telekom’s prior written consent, including (a) incurring indebtedness above certain levels based on a specified debt to cash flow ratio, (b) taking any action that would cause a default under any instrument evidencing indebtedness of Deutsche Telekom or its affiliates, (c) acquiring or disposing of assets or entering into mergers or similar acquisitions in excess of $1,000,000,000, (d) changing the size of the Board, (e) issuing equity of 10% or more of the then-outstanding shares of Common Stock, or issuing equity to redeem debt held by Deutsche Telekom, (f) repurchasing or redeeming equity securities or making any extraordinary or in-kind dividend other than on a pro rata basis or (g) making certain changes involving the Company’s chief executive officer. In addition, the Company has agreed not to amend its certificate of incorporation in any manner that could adversely affect Deutsche Telekom’s rights under the Stockholder’s Agreement as long Deutsche Telekom beneficially owns 5% or more of the outstanding shares of Common Stock.

 

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Pursuant to the Stockholder’s Agreement, Deutsche Telekom and its affiliates are prohibited from acquiring more than 80.1% of the outstanding shares of Common Stock unless it makes an offer to acquire all of the then remaining outstanding shares of Common Stock at the same price and on the same terms and conditions as the proposed acquisition from all other stockholders of the Company, which offer is approved or accepted by disinterested directors or stockholders. Deutsche Telekom is also prohibited from publicly transferring any shares of Common Stock during the 18-month period after the Closing, subject to certain exceptions. Deutsche Telekom is also prohibited from transferring any shares of Common Stock in any other transaction that would result in the transferee owning more than 30% of the outstanding shares of Common Stock unless such transferee offers to acquire all of the then outstanding shares of Common Stock at the same price and on the same terms and conditions as the proposed transfer. The Stockholder’s Agreement also restricts Deutsche Telekom’s ability to compete with the Company in the United States, Puerto Rico and the territories and protectorates of the United States during the period beginning on the date of the Closing and ending on the date that is two years after the date on which Deutsche Telekom beneficially owns less than 10% of the outstanding shares of Common Stock.

The Stockholder’s Agreement obligates the Company to file a shelf registration statement following the Closing permitting the resale of shares of Common Stock and debt securities of the Company beneficially owned by Deutsche Telekom and acquired in connection with the Transaction or in the future (the “Shelf Registration Statement”). Subject to specified limitations, Deutsche Telekom has the right to request that the Company file, from time to time, a registration statement or prospectus supplement to a registration statement for the resale of such securities after the expiration of the lock-up described above if the Shelf Registration Statement is not available for the resale of such securities. In addition, Deutsche Telekom has piggyback registration rights with respect to any offering initiated by the Company. Any transferee of Deutsche Telekom who acquires at least 5% of either the registrable equity securities or the registrable debt securities pursuant to a transaction that is not registered under the Securities Act will be entitled to enjoy the same registration rights as Deutsche Telekom as long as the registrable securities held by such transferee may not be sold or disposed of pursuant to Rule 144 without volume limitations.

The foregoing summary of the Stockholder’s Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the Stockholder’s Agreement, which is filed as Exhibit 10.1 to this Form 8-K.

Trademark License Agreement

On April 30, 2013, pursuant to the Business Combination Agreement, the Company and Deutsche Telekom entered into a trademark license agreement, pursuant to which the Company is entitled to receive (i) a limited, exclusive, non-revocable and royalty-bearing license to certain T-Mobile trademarks (including Internet domains) for use in connection with telecommunications and broadband products and services in the United States, Puerto Rico and

 

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the territories and protectorates of the United States, (ii) a limited, non-exclusive, non-revocable and royalty-bearing license to use certain other trademarks for use in connection with telecommunications and broadband products and services in the United States, Puerto Rico and the territories and protectorates of the United States and (iii) free of charge, the right to use the trademark “T-Mobile” as a name for the Company.

The initial term of the trademark license ends on December 31, 2018. The trademark license automatically renews for an additional five-year term unless the Company provides notice of its intent not to renew the trademark license. Thereafter, the trademark license automatically renews for subsequent five-year periods unless the Company provides 12 months’ notice prior to the expiration of the then-current term. Additionally, the Company may terminate the trademark license at any time upon one year’s prior notice, and Deutsche Telekom can terminate the trademark license if the Company abandons the trademarks licensed thereunder or if the Company commits a material breach. Moreover, Deutsche Telekom may terminate the trademark license under certain conditions if Deutsche Telekom’s ownership in the Company falls below 50% or if there is otherwise a change of control regarding the Company, provided however that in such case the parties shall first negotiate in good faith the terms of a new license agreement.

The Company is obligated to pay Deutsche Telekom a royalty in an amount equal to 0.25% of the net revenue generated by products and services sold by the Company under the licensed trademarks. On the fifth anniversary of the trademark license, the Company and Deutsche Telekom have agreed to adjust the royalty rate to the royalty rate found under similar licenses for trademarks in the field of wireless telecommunication, broadband and information products and services in the territory through a binding benchmarking process.

The trademark license contains certain quality control requirements, branding guidelines and approval processes that the Company is required to maintain.

The foregoing summary of the Trademark License Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the Trademark License Agreement, which is filed as Exhibit 10.2 to this Form 8-K.

The information set forth in Items 2.03 below is incorporated herein by reference.

Item 1.02 Termination of a Material Definitive Agreement.

Intercompany Indebtedness

In connection with the issuance of the DT Notes (as defined below), as described in Item 2.03 below, T-Mobile USA and its subsidiaries were relieved of all obligations under $14.5 billion aggregate principal amount of indebtedness previously owed thereby to Deutsche Telekom and its subsidiaries (other than T-Mobile USA and its subsidiaries).

 

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Wireless Credit Facility

In connection with the closing of the Mergers, a portion of the net proceeds from the sale of $1.75 billion aggregate principal amount of 6.250% Senior Notes due 2021 and $1.75 billion aggregate principal amount of 6.625% Senior Notes due 2023, as described in Item 2.03 below, was used to repay all outstanding amounts owed under Wireless’s existing $2.5 billion credit agreement with JPMorgan Chase Bank, N.A., as administrative agent, to pay liabilities under related interest rate protection agreements and to pay related fees and expenses, and such credit facility was terminated on May 1, 2013.

The information set forth in Item 2.03 under the “Deutsche Telekom Notes” and “$3.5 Billion MetroPCS Notes” is incorporated herein by reference.

Item 2.01 Completion of Acquisition or Disposition of Assets.

The information set forth in the Introduction above regarding the acquisition of the equity interests of T-Mobile USA and the information set forth below in Item 2.03 is incorporated herein by reference.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

Deutsche Telekom Notes.

On April 28, 2013, T-Mobile USA issued $11.2 billion of senior unsecured notes to Deutsche Telekom (the “DT Notes”) pursuant to the terms of the indenture, dated as of April 28, 2013, entered into by T-Mobile USA, the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee, as modified by the supplemental indentures relating to each series of DT Notes, each also dated as of April 28, 2013. The DT Notes were guaranteed by T-Mobile USA’s wholly owned domestic restricted subsidiaries (other than certain designated special purpose entities, a certain reinsurance subsidiary and immaterial subsidiaries). Upon closing of the Mergers, the Company and those subsidiaries of the Company that had previously been subsidiaries of Wireless agreed to guarantee the DT Notes pursuant to a supplemental indenture dated as of May 1, 2013. The DT Notes consist of the following series:

 

   

6.464% Senior Notes due 2019 in an aggregate principal amount of $1.25 billion;

 

   

6.542% Senior Notes due 2020 in an aggregate principal amount of $1.25 billion;

 

   

6.633% Senior Notes due 2021 in an aggregate principal amount of $1.25 billion;

 

   

6.731% Senior Notes due 2022 in an aggregate principal amount of $1.25 billion;

 

   

6.836% Senior Notes due 2023 in an aggregate principal amount of $600 million;

 

   

Senior Reset Notes due 2019 with an initial coupon of 5.578%, which will be re-priced two years after the date of issuance, in an aggregate principal amount of $1.25 billion;

 

   

Senior Reset Notes due 2020 with an initial coupon of 5.656%, which will be re-priced two years after the date of issuance, in an aggregate principal amount of $1.25 billion;

 

   

Senior Reset Notes due 2021 with an initial coupon of 5.747%, which will be re-priced two and a half years after the date of issuance, in an aggregate principal amount of $1.25 billion;

 

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Senior Reset Notes due 2022 with an initial coupon of 5.845%, which will be re-priced two and a half years after the date of issuance, in an aggregate principal amount of $1.25 billion; and

 

   

Senior Reset Notes due 2023 with an initial coupon of 5.950%, which will be re-priced three years after the date of issuance, in an aggregate principal amount of $600 million.

The no-call period with respect to each series of non-reset DT Notes that are not subject to re-pricing ranges from two to five years after the issuance thereof. The no-call period with respect to each series of DT Notes which are subject to re-pricing ranges from four to six years after the issuance thereof, or two or three years after the applicable reset date of such series.

Each series of the DT Notes that is subject to re-pricing will be re-priced at the applicable time based on a formula set forth in the applicable supplemental indenture governing such series of DT Notes.

The indenture governing the DT Notes contains customary events of default, covenants and other terms, including, among other things, covenants that restrict the ability of the issuer and its subsidiaries to, inter alia, pay dividends and make certain other restricted payments, incur indebtedness and issue preferred stock, create liens on assets, sell or otherwise dispose of assets, enter into transactions with affiliates and enter new lines of business. These covenants include certain customary baskets, exceptions and incurrence-based ratio tests. The DT Notes indenture does not contain any financial maintenance covenants.

The foregoing summary of the DT Notes does not purport to be complete and is subject to, and qualified in its entirety by, the Indenture, dated as of April 28, 2013 among T-Mobile USA, the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee, as supplemented by the First through Eleventh Supplemental Indentures, which are filed as Exhibits 4.1 through 4.12 to this Form 8-K. In connection with issuance of the DT Notes, T-Mobile USA entered into the Noteholder Agreement described below.

Noteholder Agreement.

On April 28, 2013, pursuant to the Business Combination Agreement and in connection with the issuance of the DT Notes, T-Mobile USA and Deutsche Telekom entered into a noteholder agreement (the “Noteholder Agreement”). Pursuant to the Noteholder Agreement, Deutsche Telekom and any of its subsidiaries (other than the Company and any of its subsidiaries), as holder of the DT Notes, has certain special rights, and is subject to certain special restrictions, that do not apply to other persons who may become holders of the DT Notes, including among other things (i) a more broadly defined change in control put right, (ii) restrictions on their ability to tender DT Notes into a change in control offer following a change in control resulting from a transfer of Common Stock of the Company by Deutsche Telekom unless all holders of Common Stock are required or entitled to participate on the same terms, (iii)

 

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a right to consent to equity issuances the proceeds of which would be used to redeem DT Notes held by Deutsche Telekom and any of its subsidiaries (other than the Company and any of its subsidiaries), and (iv) a right to consent to any redemption of the DT Notes held by Deutsche Telekom and any of its subsidiaries (other than the Company and any of its subsidiaries) with the proceeds of any equity issuance by T-Mobile USA or the Company.

The foregoing summary of the Noteholder Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the Noteholder Agreement, dated as of April 28, 2013, by and among Deutsche Telekom and T-Mobile USA, Inc., which is filed as Exhibit 4.13 to this Form 8-K.

Revolving Credit Facility

Upon closing of the Mergers, T-Mobile USA and Deutsche Telekom entered into a credit agreement pursuant to which Deutsche Telekom has made available to T-Mobile USA a revolving credit facility with a maximum principal amount of $500 million, to be used for working capital and other general corporate purposes (the “Credit Facility”). T-Mobile USA’s obligations under the credit agreement relating to the Credit Facility are unsecured but are guaranteed by the Company and each of T-Mobile USA’s wholly-owned domestic restricted subsidiaries (other than certain designated special purpose entities, a certain reinsurance subsidiary and immaterial subsidiaries). The term of the Credit Facility is five years.

T-Mobile USA may borrow from time to time under the Credit Facility during the term. Outstanding borrowings under the Credit Facility bear interest at a variable rate based on the prime rate or eurodollar rate plus a margin ranging from 2.5% to 3.0% (for eurodollar rate loans) or 1.5% to 2.0% (for base rate loans) (depending on T-Mobile USA’s debt to cash flow ratio). At the end of the five-year term, all amounts outstanding under the Credit Facility will be due and payable. Loans under the Credit Facility may be prepaid without penalty or premium (other than customary eurodollar breakage costs) at any time.

As contemplated by the Business Combination Agreement, Deutsche Telekom was paid on May 1, 2013 an upfront commitment fee equal to 0.50% of the amount of its commitment under the Credit Facility. In addition, the Credit Facility requires the payment of additional commitment fees ranging from 0.25% to 0.50% (depending on T-Mobile USA’s debt to cash flow ratio) of the amount of the undrawn commitment, payable quarterly in arrears.

The credit agreement governing the Credit Facility contains customary events of default, covenants and other terms, including, among other things, restrictions on payment of dividends and the making of certain other restricted payments, incurrence of indebtedness and issuance of preferred stock, creation of liens on assets, sales or other dispositions of assets, and entry into transactions with affiliates and entry into new lines of business. If loans are outstanding under the Credit Facility, then T-Mobile USA will be required to maintain a debt to cash flow ratio of 4.00 to 1.00, tested quarterly.

The foregoing summary of the Credit Facility does not purport to be complete and is subject to, and qualified in its entirety by, the Credit Agreement, dated as of May 1, 2013, among T-Mobile USA, as Borrower, Deutsche Telekom, as Lender, the other lenders party thereto from time to time, and JPMorgan Chase Bank, N.A., as Administrative Agent, which is filed as Exhibit 4.14 to this Form 8-K.

 

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$2.0 Billion MetroPCS Notes

Upon closing of the Mergers, pursuant to the Seventh Supplemental Indenture, dated as of May 1, 2013, among T-Mobile USA, certain subsidiaries of T-Mobile USA, and Wells Fargo Bank, N.A., as trustee, T-Mobile USA assumed all obligations of Wireless under Wireless’s outstanding $1.0 billion principal amount of 7 7/8% Senior Notes due 2018 and $1.0 billion principal amount of 6 5/8% Senior Notes due 2020, and certain of T-Mobile USA’s subsidiaries guaranteed such notes (a summary of the terms of such notes is contained in the Company’s Current Reports on Form 8-K, filed with the SEC on September 21, 2010 and on November 17, 2010, respectively).

$3.5 Billion MetroPCS Notes

Also upon closing of the Mergers, pursuant to the Fourth Supplemental Indenture, dated as of May 1, 2013, among T-Mobile USA, certain subsidiaries of T-Mobile USA, and Deutsche Bank Trust Company Americas, as trustee, T-Mobile USA assumed all obligations of Wireless under Wireless’s outstanding $1.75 billion aggregate principal amount of 6.250% Senior Notes due 2021 and $1.75 billion aggregate principal amount of 6.625% Senior Notes due 2023, and certain of T-Mobile USA’s subsidiaries guaranteed such notes (a summary of the terms of such notes is contained in the Company’s Current Report on Form 8-K, filed with the SEC on March 22, 2013).

The information set forth in Item 1.02 under “Wireless Credit Facility” is incorporated by reference herein.

The foregoing summaries of the assumption of Wireless’s notes described above under “$2.0 Billion MetroPCS Notes” and “$3.5 Billion MetroPCS Notes” do not purport to be complete and are subject to, and qualified in their entirety by, the Seventh Supplemental Indenture, dated as of May 1, 2013, among T-Mobile USA, certain subsidiaries of T-Mobile USA, and Wells Fargo Bank, N.A., as trustee, which is filed as Exhibit 4.15 to this Form 8-K, and the Fourth Supplemental Indenture, dated as of May 1, 2013, among T-Mobile USA, certain subsidiaries of T-Mobile USA, and Deutsche Bank Trust Company Americas, as trustee, which is filed as Exhibit 4.16 to this Form 8-K.

Item 3.02 Unregistered Sales of Equity Securities

The information set forth in the Introduction above relating to the issuance of shares of Common Stock to T-Mobile Holding is incorporated herein by reference. The 535,286,077 shares of Common Stock issued and delivered to T-Mobile Holding pursuant to the Business Combination Agreement have been issued in a transaction exempted from the registration requirement of the Securities Act of 1933 pursuant to Section 4(2) thereof and Regulation D promulgated thereunder.

 

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Item 3.03 Material Modification to Rights of Security Holders

The information set forth in Item 1.01 relating to the Stockholder’s Agreement and the information set forth in Item 5.03 relating to the Company’s Restated Certificate of Incorporation and bylaws is incorporated herein by reference.

Item 4.01 Changes in Registrant’s Certifying Accountant

The Transaction was treated as a “reverse acquisition” for accounting purposes and, as such, the historical financial statements of the accounting acquirer, T-Mobile USA, will become the historical financial statements of the Company. Pursuant to guidance from the SEC, a reverse acquisition results in a change of the accounting firm unless the same accounting firm reported on the financial statements of both the registrant and the accounting acquirer.

(a) Deloitte & Touche LLP was the independent registered public accounting firm that audited MetroPCS Communications, Inc.’s financial statements for the fiscal years ended December 31, 2012 and 2011. In connection with the closing of the Transaction, on May 1, 2013, the Audit Committee chose to (i) dismiss Deloitte & Touche LLP as the Company’s independent registered public accounting firm, and (ii) formally engage PricewaterhouseCoopers LLP to be the independent registered public accounting firm for the Company for the fiscal year ending December 31, 2013. Deloitte & Touche LLP’s reports on MetroPCS Communications, Inc.’s financial statements for the fiscal years ended December 31, 2012 and 2011 did not contain an adverse opinion or disclaimer of opinion, or qualification or modification as to uncertainty, audit scope, or accounting principles. In addition, during the Company’s two most recent fiscal years and through the date of this report, there were no disagreements with Deloitte & Touche LLP on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, which disagreement(s), if not resolved to the satisfaction of Deloitte & Touche LLP, would have caused it to make reference to the subject matter of the disagreement(s) in connection with its report.

The Company has provided Deloitte & Touche LLP with a copy of the foregoing disclosures and requested that Deloitte & Touche LLP furnish a letter addressed to the SEC stating whether it agreed with the above statements made by the Company. A copy of such letter, dated May 1, 2013, is filed as Exhibit 16.1 to this Form 8-K, and incorporated herein by reference.

(b) As noted above in Item 4.01(a), on May 1, 2013, the Audit Committee of the Company’s Board of Directors formally engaged PricewaterhouseCoopers LLP to be the independent registered public accounting firm for the Company for the fiscal year ending December 31, 2013. PricewaterhouseCoopers LLP was the independent registered public accounting firm that audited T-Mobile USA’s financial statements for the fiscal years ended December 31, 2012 and 2011. During the fiscal years ended December 31, 2012 and 2011, and during the interim period from January 1, 2013 to May 1, 2013, the Company did not consult with PricewaterhouseCoopers LLP in regards to MetroPCS Communication, Inc.’s financial statements, which were audited by Deloitte & Touche LLP, with respect to any of (i) the application of accounting principles to a specified transaction, either completed or proposed; (ii)

 

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the type of audit opinion that might be rendered on the Company’s financial statements; or (iii) any other matter that was either the subject of a disagreement (as defined in Item 304(a)(1)(iv) of Regulation S-K and the related instructions to Item 304 of Regulation S-K) or a reportable event of the type described in Item 304(a)(1)(v) of Regulation S-K. Additionally, during the fiscal years ended December 31, 2012 and 2011, and during the interim period from January 1, 2013 to May 1, 2013, no written report or oral advice was provided to the Company by PricewaterhouseCoopers LLP that was an important factor considered by the Company in reaching a decision as to any accounting, auditing or financial reporting issue.

Item 5.01 Changes in Control of Registrant.

The information set forth in the Introduction, Items 1.01, 2.01 and 3.02 above and Items 5.02 and 5.03 below is incorporated herein by reference.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Board of Directors

On April 30, 2013, in connection with the consummation of the Transaction and the Mergers, the Board was increased to 11 members, and Roger D. Linquist, Arthur C. Patterson, John (Jack) F. Callahan, Jr., and C. Kevin Landry resigned from their positions as directors of the Company.

W. Michael Barnes and James N. Perry, Jr. continue to serve as directors of the Company. Effective April 30, 2013, the following individuals were appointed by the Board as directors of the Company pursuant to the terms of the Business Combination Agreement and the Stockholder’s Agreement, to fill the vacancies resulting from the resignations of the individuals referred to above and an increase in the size of the Board: Srikant Datar, Lawrence H. Guffey, Timotheus Höttges, Raphael Kübler, Thorsten Langheim, John J. Legere, René Obermann, Teresa A. Taylor, and Kelvin R. Westbrook.

Effective May 1, 2013, the Board’s Committees were constituted as follows:

Audit Committee: Srikant Datar, W. Michael Barnes and James N. Perry, Jr.

Nominating and Corporate Governance Committee: Kelvin R. Westbrook, Thorsten Langheim and Lawrence H. Guffey

Compensation Committee: Teresa A. Taylor, Kelvin R. Westbrook, Lawrence H. Guffey, Raphael Kübler, and René Obermann

Executive Committee: Timotheus Höttges, Raphael Kübler, Thorsten Langheim, René Obermann, John J. Legere, and James N. Perry, Jr.

 

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Effective May 1, 2013, non-employee directors of the Company will be compensated according to the Company’s Director Compensation Program. Under the program, non-employee directors of the Company receive annual cash compensation as follows:

 

Annual Retainer for Board Service

   $ 100,000   

Additional Retainer for Lead Independent Director

   $ 25,000   

Audit Committee Chair

   $ 50,000   

Compensation Committee Chair

   $ 25,000   

Nominating and Corporate Governance Committee Chair

   $ 10,000   

Fees are paid in cash in equal quarterly installments after the end of the quarter in which they are earned. Fees are subject to pro-ration for any person who becomes a non-employee director and/or committee chair at any time of the year other than the date of the Company’s annual meeting of stockholders. Non-employee directors will receive an additional $2,000 per meeting for in-person board or committee meetings attended in excess of 10 meetings and additional compensation of $1,000 per meeting for telephonic board or committee meetings attended in excess of 10 meetings.

In addition, immediately after each annual meeting of stockholders, subject to stockholder approval of the Company’s 2013 Omnibus Incentive Plan (the “2013 Plan”) at the Company’s 2013 Annual Meeting of Stockholders, each non-employee director will automatically be granted restricted stock units with a value of $100,000 (based on the closing price of the Company’s stock on the NYSE on the grant date, with fractional shares rounded to the nearest whole share). The restricted stock units will vest in full on the one-year anniversary of their grant dates, subject to continued service as a non-employee director. The restricted stock units will immediately vest in full on the date of a change in control. The restricted stock units will be granted pursuant to the 2013 Plan and will be subject to the terms and conditions of the 2013 Plan and the Director Compensation Program.

This summary of the Director Compensation Program does not purport to be complete and is qualified in its entirety by reference to the full text of the program, which is filed as Exhibit 10.7 hereto.

Executive Officers

In connection with the consummation of the Transactions and the Mergers, effective April 30, 2013, the following individuals were appointed by the Board to serve as executive officers of the Company (the “Executive Officers”):

 

   

John J. Legere, President and Chief Executive Officer

 

   

James (Jim) C. Alling, Executive Vice President and Chief Operating Officer T-Mobile Business

 

   

David R. Carey, Executive Vice President, Corporate Services

 

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J. Braxton Carter, Executive Vice President, Chief Financial Officer, Chief Accounting Officer and Treasurer

 

   

Peter A. Ewens, Executive Vice President, Corporate Strategy

 

   

Alexander Andrew (Drew) Kelton, Executive Vice President, Business-to-Business

 

   

Thomas C. Keys, Executive Vice President and Chief Operating Officer MetroPCS Business

 

   

David A. Miller, Executive Vice President, General Counsel and Secretary

 

   

Larry L. Myers, Executive Vice President, Human Resources

 

   

Neville R. Ray, Executive Vice President and Chief Technology Officer

 

   

G. Michael (Mike) Sievert, Executive Vice President and Chief Marketing Officer

Mr. Carter acted as interim Chief Accounting Officer until the Board appointed Michael James Morgan as Senior Vice President, Finance and Chief Accounting Officer on May 1, 2013, at which time Mr. Carter resigned from the position of Chief Accounting Officer.

Biographical information and business experience for each of the Executive Officers, other than Mr. Morgan and Mr. Kelton, is included in the section entitled “Board of Directors and Management After the Transaction—Officers of the Combined Company” in the Company’s Definitive Proxy Statement filed on March 12, 2013.

Mr. Morgan and Mr. Kelton’s biographical information and business experience is set forth below:

Michael James Morgan, age 52, serves as the Company’s Senior Vice President, Finance and Chief Accounting Officer responsible for accounting and tax matters. Mr. Morgan has also served as T-Mobile USA’s Senior Vice President and Interim Chief Financial Officer since October 2011. Prior to his interim Chief Financial Officer role, Mr. Morgan served as Senior Vice President, Finance and Co-Chief Financial Officer of T-Mobile USA from February 2011 to October 2011. From September 2010 to January 2011, Mr. Morgan served as Vice President, Finance and from March 2005 to September 2010 he was Vice President, Risk Management & Assurance. Mr. Morgan received Bachelor of Arts degrees in Business Administration (Accounting and Finance) and Political Science from Washington State University.

Alexander Andrew (Drew) Kelton, age 54, serves as the Company’s Executive Vice President, Business-to-Business (B2B), responsible for leading the B2B organization, helping to redefine the B2B wireless experience for the Company’s business customers, and growing market share in this important segment. Mr. Kelton has also served as T-Mobile USA’s Executive Vice President of B2B since April 2013. Previously, Mr. Kelton served as President of Bharti Airtel Business, a leading Indian global telecommunications company, from June 2010 to April 2013. Before that, he served as the Managing Director for Telstra Corporation Limited, an Australian telecommunications and media company, responsible for international operations, from May 2002 to June 2010. Previously, Mr. Kelton held executive posts with Asia Global Crossing Limited, a telecommunications company, and Saturn Global Network Services Holdings Limited, an international provider of end-to-end managed voice and data services. Mr. Kelton has also held a variety of international sales, marketing, product and engineering roles with Timeplex, LLC, a provider of networking systems and support services, and The Plessey Co. plc., a British-based international electronics, defense and telecommunications company. Mr. Kelton serves on the board of directors of Mobile Active (Australia), a mobile advertising, design and development company, and the board of directors of Limas StockWatch (Indonesia), a financial services information company. Mr. Kelton received a Bachelor of Science degree in electronics and electrical engineering from the University of Western Scotland.

 

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On April 30, 2013, Roger D. Linquist, Mark A. Stachiw, Dennis T. Currier, Christine B. Kornegay, and Malcolm M. Lorang resigned as executive officers of the Company.

On January 25, 2013, Deutsche Telekom entered into offer letters with Messrs. Carter and Keys, in connection with their post-Closing roles. The offer letters are summarized in the section entitled “Board of Directors and Management After the Transaction—Summary of J. Braxton Carter and Thomas C. Keys Offer Letters” in the Company’s Definitive Proxy Statement filed on March 12, 2013, which summary is incorporated herein by reference. The offer letters with Messrs. Carter and Keys are filed as Exhibits 10.3 and 10.4 hereto, respectively, and are incorporated herein by reference.

On April 30, 2013, the Company entered into an offer letter with Mr. Currier regarding his post-Closing role. Under the offer letter Mr. Currier will serve as Senior Vice President of Human Resources. Key terms and conditions of the offer letter are summarized below.

Mr. Currier’s annualized base compensation in effect immediately preceding the Closing will not change in 2013, but he will be eligible for periodic salary changes consistent with similarly situated Company employees after 2013. Subject to the approval of the Compensation Committee (i) in 2014, Mr. Currier will be eligible to participate in the Company’s annual incentive compensation plan, with a target award of 60% of his eligible earnings and (ii) Mr. Currier will be eligible to participate in the Company’s long-term incentive plan with a target award value equal to 100% of his annual base salary plus target bonus. In addition, if Mr. Currier remains employed by MetroPCS Texas, LLC or its affiliate until May 1, 2014, or his employment is terminated by MetroPCS Texas LLC or any of its affiliates before that date other than for cause (as defined in Mr. Currier’s change in control agreement), he will receive a lump sum payment of $322,400 in cash within 30 days of the earlier of May 1, 2014 or the date his employment is so terminated. Mr. Currier’s change in control agreement, filed with the SEC as Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q, filed on August 9, 2010, will remain in effect in accordance with its terms. For a period of 12 months following the Closing, if Mr. Currier voluntarily terminates his employment with the Company with at least 90 days’ notice, upon signing and delivering to the Company a release of all claims against the Company, he will be entitled to the severance benefits provided in his change in control agreement, which include two times his base salary plus annual target bonus, a pro-rated payment of his target annual cash incentive award, and two years of continued coverage under the Company’s health and dental benefit plans. In the offer letter, the Company recognizes that the benefits described above are included in recognition of the fact that, because Mr. Currier will be required to move to the State of Washington in order to carry out his new role, he would otherwise have “good reason” to resign and receive benefits under his MetroPCS change in control agreement. After the expiration or termination of Mr. Currier’s change in control agreement, he will be eligible for severance benefits under such change in control plan established by the Company for executives at his level, which is expected to be an amount equal to two times his base salary plus annual target bonus. Mr. Currier will be eligible for relocation assistance associated with his move to the Seattle, Washington area under the Company’s relocation policy. With respect to all of MetroPCS’ existing benefit plans, and the Company’s modified and newly adopted benefit plans, Mr. Currier will receive service credit for all purposes based on his original hire date in April 2009. Until January 1, 2014, all benefits and benefit plans available to Mr. Currier (including

 

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vacation) will be no less favorable to him than were available to him prior to the Closing, except that any changes to the vacation benefits of all MetroPCS employees to conform to the Company’s policies with respect to its employees, including a prohibition on taking vacation before it accrues, will apply to him. The offer letter also provides that Mr. Currier will remain eligible for MetroPCS benefits until such time as he is transitioned to the Company’s payroll. Concurrently with entering into the offer letter, Mr. Currier entered into a restrictive covenant and confidentiality agreement with the Company, similar to the restrictive covenant agreement entered into by Messrs. Carter and Keys, that includes covenants regarding confidentiality as well as covenants regarding non-competition and non-solicitation of employees and customers during and for a one-year period following employment.

This summary of Mr. Currier’s offer letter does not purport to be complete and is qualified in its entirety by reference to the full text of the offer letter, which is filed as Exhibit 10.5 hereto.

Indemnification

Pursuant to indemnification agreements entered into by the Company with each director and Executive Officer of the Company (each, an “Indemnitee”), if an Indemnitee is, or is threatened to be made, a party to or participant in any threatened, pending or completed proceeding, the Company will, under the circumstances and to the extent provided for in the indemnification agreement, indemnify, and advance certain expenses to, the Indemnitee to the fullest extent permitted by applicable law and to any greater extent as such law may thereafter from time to time permit. The indemnification agreement further provides procedures for the determination of an Indemnitee’s right to receive indemnification and the advancement of expenses. This summary of the form of indemnification agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form of indemnification agreement, which is filed as Exhibit 10.6 hereto.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On April 30, 2013, in connection with the completion of the Transaction, the Company amended and restated its existing certificate of incorporation in its entirety in the form of the Restated Certificate of Incorporation. The following summary of the Restated Certificate of Incorporation does not purport to be complete and is subject to, and qualified in its entirety by, the Restated Certificate of Incorporation, copy of which is attached hereto as Exhibit 3.1.

The Restated Certificate of Incorporation effects a number of changes to the Company’s precedent certificate of incorporation, including the following:

 

   

Company Name. The Restated Certificate of Incorporation changed the Company’s name to “T-Mobile US, Inc.”

 

   

Par Value and Reverse Stock Split. The Restated Certificate of Incorporation reduced the par value of the Company’ Common Stock and preferred stock from $0.0001 to $0.00001. In addition, the Restated Certificate of Incorporation effected the reverse stock split, pursuant to which each share of the Company’s Common Stock, par value $0.0001

 

- 14 -


 

per share, issued and outstanding immediately before the Effective Time automatically has been, without any action on the part of the Company or any Company stockholder, reclassified as, and converted into, one-half of a validly issued, fully paid and non-assessable share of the Company’s Common Stock, par value $0.00001 per share.

 

   

Declassification. The Restated Certificate of Incorporation provides for the declassification of the Board with all members of the Board being elected annually.

 

   

Board Representation. The Restated Certificate of Incorporation provides Deutsche Telekom with the same board and committee representation rights as are set forth in the Stockholder’s Agreement described in Item 1.01.

 

   

Director Removal. The Restated Certificate of Incorporation provides that, subject to certain rights of the holders of preferred stock, if any, any director may be removed from office at any time, with or without cause, by the affirmative vote of the holders of at least a majority of the voting power of all of the outstanding shares of the Company’s capital stock entitled to elect such director, voting separately as a class, at a duly organized meeting of stockholders or by written consent. However, no director designated by Deutsche Telekom may be removed without the prior written consent of Deutsche Telekom.

 

   

Approval Rights. The Restated Certificate of Incorporation provides Deutsche Telekom with the same approval rights as are set forth in the Stockholder’s Agreement described in Item 1.01 with respect to the Company’s ability to take certain actions without Deutsche Telekom’s prior written consent as long as Deutsche Telekom beneficially owns 30% or more of the outstanding shares of the Company’s Common Stock.

 

   

Stockholder Meetings. The Restated Certificate of Incorporation provides that a special meeting of the Company’s stockholders (i) may be called by the chairman of the Board or the Company’s chief executive officer and (ii) must be called by the Company’s secretary at the request of (a) a majority of the Board or (b) as long as Deutsche Telekom beneficially owns 25% or more of the outstanding shares of Company’s Common Stock, the holders of not less than 33-1/3% of the voting power of all of the outstanding voting stock of the Company entitled to vote generally for the election of directors.

 

   

Stockholder Action by Written Consent. The Restated Certificate of Incorporation provides that, as long as Deutsche Telekom beneficially owns 25% or more of the outstanding shares of the Company’s Common Stock, any action required or permitted to be taken at any annual or special meeting of the Company’s stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing setting forth the action so taken is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

 

- 15 -


   

Power to Amend Bylaws. The Restated Certificate of Incorporation provides that the Company’s bylaws may be amended upon the affirmative vote of the holders of shares having a majority of the Company’s voting power. The bylaws may also be amended by the Board upon the affirmative vote of a majority of the directors then serving.

 

   

Redemption. The Restated Certificate of Incorporation provides that the Company’s right to redeem outstanding Company common stock or preferred stock in order to cure any violation of a rule or regulation of the FCC does not apply with respect to the Company’s common stock or preferred stock beneficially owned by Deutsche Telekom or any of its subsidiaries.

 

   

Governing Law; Forum for Adjudication of Disputes. The Restated Certificate of Incorporation will provide that the Restated Certificate of Incorporation and the internal affairs of the combined company will be governed by and interpreted under the laws of the State of Delaware and the Court of Chancery of the State of Delaware will be the sole and exclusive forum for certain actions.

On April 30, 2013, in connection with the completion of the transaction, the Company amended and restated its existing bylaws in the form of the Fifth Amended and Restated Bylaws (the “Restated Bylaws”). The Restated Bylaws include amendments to reflect changes reflected in the Restated Certificate of Incorporation, including those related to the declassification of the Board, Board and committee composition, stockholder action by written consent and the ability to call a special meeting of stockholders. In addition, the Restated Bylaws provide that special meetings of the Board may be called by, among others, a majority of the directors on the Board. The foregoing summary of the Restated Bylaws does not purport to be complete and is subject to, and qualified in its entirety by, the Restated Bylaws, a copy of which is attached hereto as Exhibit 3.2.

Item 5.05 Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.

On May 1, 2013, the Board of Directors adopted a new Code of Business Conduct, which superseded the Code of Ethics in effect prior to the consummation of the Transaction. Also on May 1, 2013, the Company board adopted a new Code of Ethics for Senior Financial Officers pursuant to Section 406 of the Sarbanes-Oxley Act of 2002 (the “Code”). Previously, the Company’s code of ethics for senior financial officers was included in the Code of Ethics that was superseded by the Code of Business Conduct adopted by the Board on May 1, 2013. The new Code addresses ethical conduct, full, fair and accurate disclosure in documents the Company files with the SEC and other regulatory agencies, compliance with laws, and the process for reporting suspected violations of the code of ethics.

The Code took effect upon adoption by the Company’s Board and did not result in any waiver, explicit or implicit, of any provision of the Company’s previous code of ethics for senior financial officers.

 

- 16 -


Item 7.01 Regulation FD Disclosure.

On May 1, 2013, the Company issued a press release announcing the completion of the Transaction and the Mergers. The full text of the press release is attached hereto as Exhibit 99.1.

The foregoing information in Item 7.01 of this Current Report on Form 8-K, together with the press release attached hereto as Exhibit 99.1, is being furnished pursuant to Item 7.01 and shall not be deemed “filed” for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, and it shall not be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or under the Exchange Act, whether made before or after the date hereof, except as expressly set forth by specific reference in such filing to Item 7.01 of this Current Report on Form 8-K.

Item 9.01 Financial Statements and Exhibits

Financial Statement of Businesses Acquired and Pro Forma Financial Information

The audited financial statements of T-Mobile USA as required by Item 9.01(a) of Form 8-K and the unaudited pro forma condensed combined financial statements and notes related thereto, as required by Item 9.01(b) of Form 8-K are not included in this initial report on Form 8-K. The financial statements and pro forma condensed combined financial statements will be filed by an amendment to this report within the time period specified in the instructions to Item 9.01 of Form 8-K.

 

(d) Exhibits.

 

Exhibit No.

  

Description

2.1    Business Combination Agreement, by and among Deutsche Telekom AG, T-Mobile USA, Inc., T-Mobile Global Zwischenholding GmbH, T-Mobile Global Holding GmbH and MetroPCS Communications, Inc., dated October 3, 2012 (incorporated by reference to Exhibit 2.1 to the Company’s Current report on Form 8-K filed with the SEC on October 3, 2012).
2.2    Amendment No. 1 to the Business Combination Agreement by and among Deutsche Telekom AG, T-Mobile USA, Inc., T-Mobile Global Zwischenholding GmbH, T-Mobile Global Holding GmbH and MetroPCS Communications, Inc., dated April 14, 2013 (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the SEC on April 15, 2013).
3.1    Fourth Amended and Restated Certificate of Incorporation of the Company.
3.2    Fifth Amended and Restated Bylaws of the Company.
4.1    Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.

 

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Exhibit No.

  

Description

4.2    First Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.3    Second Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.4    Third Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.5    Fourth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.6    Fifth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.7    Sixth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.8    Seventh Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.9    Eighth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.10    Ninth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.11    Tenth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.12    Eleventh Supplemental Indenture, dated as of May 1, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.13    Noteholder Agreement dated as of April 28, 2013, by and between Deutsche Telekom AG and T-Mobile USA, Inc.

 

- 18 -


Exhibit No.

  

Description

  4.14    Credit Agreement, dated as of May 1, 2013, among T-Mobile USA, Inc., as Borrower, Deutsche Telekom AG, as Lender, the other lenders party thereto from time to time, and JPMorgan Chase Bank, N.A., as Administrative Agent.
  4.15    Seventh Supplemental Indenture, dated as of May 1, 2013, among T-Mobile USA, Inc., the guarantors party thereto, and Wells Fargo Bank, N.A., as trustee.
  4.16    Fourth Supplemental Indenture, dated as of May 1, 2013, among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
10.1    Stockholder’s Agreement dated as of April 30, 2013 by and between MetroPCS Communications, Inc. and Deutsche Telekom AG.
10.2    License Agreement dated as of April 30, 2013 by and between T-Mobile US, Inc. and Deutsche Telekom AG.
10.3    Employment Agreement of Braxton Carter dated as of January 25, 2013.
10.4    Employment Agreement of Thomas C. Keys dated as of January 25, 2013.
10.5    Employment Agreement of Dennis T. Currier dated as of April 30, 2013.
10.6    Form of Indemnification Agreement.
10.7    Company’s Director Compensation Program dated as of May 1, 2013.
16.1    Letter from Deloitte & Touche LLP to the SEC, dated May 1, 2013.
99.1    Press release, dated May 1, 2013.

 

- 19 -


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: May 1, 2013

 

T-Mobile US, Inc.
By:  

/s/ J. Braxton Carter

Name:   J. Braxton Carter
Title:  

Executive Vice President, Chief

Financial Officer and Treasurer

 

- 20 -


EXHIBIT INDEX

 

Exhibit No.

  

Description

2.1    Business Combination Agreement, by and among Deutsche Telekom AG, T-Mobile USA, Inc., T-Mobile Global Zwischenholding GmbH, T-Mobile Global Holding GmbH and MetroPCS Communications, Inc., dated October 3, 2012 (incorporated by reference to Exhibit 2.1 to the Company’s Current report on Form 8-K filed with the SEC on October 3, 2012).
2.2    Amendment No. 1 to the Business Combination Agreement by and among Deutsche Telekom AG, T-Mobile USA, Inc., T-Mobile Global Zwischenholding GmbH, T-Mobile Global Holding GmbH and MetroPCS Communications, Inc., dated April 14, 2013 (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the SEC on April 15, 2013).
3.1    Fourth Amended and Restated Certificate of Incorporation of the Company.
3.2    Fifth Amended and Restated Bylaws of the Company.
4.1    Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.2    First Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.3    Second Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.4    Third Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.5    Fourth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.6    Fifth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
4.7    Sixth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.


Exhibit No.

  

Description

  4.8    Seventh Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
  4.9    Eighth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
  4.10    Ninth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
  4.11    Tenth Supplemental Indenture, dated as of April 28, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
  4.12    Eleventh Supplemental Indenture, dated as of May 1, 2013 among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
  4.13    Noteholder Agreement dated as of April 28, 2013, by and between Deutsche Telekom AG and T-Mobile USA, Inc.
  4.14    Credit Agreement, dated as of May 1, 2013, among T-Mobile USA, Inc., as Borrower, Deutsche Telekom AG, as Lender, the other lenders party thereto from time to time, and JPMorgan Chase Bank, N.A., as Administrative Agent.
  4.15    Seventh Supplemental Indenture, dated as of May 1, 2013, among T-Mobile USA, Inc., the guarantors party thereto, and Wells Fargo Bank, N.A., as trustee.
  4.16    Fourth Supplemental Indenture, dated as of May 1, 2013, among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.
10.1    Stockholder’s Agreement dated as of April 30, 2013 by and between MetroPCS Communications, Inc. and Deutsche Telekom AG.
10.2    License Agreement dated as of April 30, 2013 by and between T-Mobile US, Inc. and Deutsche Telekom AG.
10.3    Employment Agreement of Braxton Carter dated as of January 25, 2013.
10.4    Employment Agreement of Thomas C. Keys dated as of January 25, 2013.
10.5    Employment Agreement of Dennis T. Currier dated as of April 30, 2013.


Exhibit No.

  

Description

10.6    Form of Indemnification Agreement.
10.7    Company’s Director Compensation Program dated as of May 1, 2013.
16.1    Letter from Deloitte & Touche LLP to the SEC, dated May 1, 2013.
99.1    Press release, dated May 1, 2013.
EX-3.1 2 d527693dex31.htm EX-3.1 EX-3.1

Exhibit 3.1

FOURTH AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

T-MOBILE US, INC.

Pursuant to Sections 242 and 245

of the Delaware General Corporation Law (“DGCL”)

The undersigned, J. Braxton Carter, hereby certifies that,

ONE: He is the duly elected and acting Chief Financial Officer of MetroPCS Communications, Inc. (the “Corporation”).

TWO: The name of the Corporation prior to the Effective Time is MetroPCS Communications, Inc.

THREE: The original certificate of incorporation of the Corporation was filed in the Office of the Secretary of State of the State of Delaware on March 10, 2004 pursuant to the DGCL.

FOUR: The directors and the stockholders of the Corporation, in accordance with Sections 242 and 245 of the DGCL, have duly adopted and approved this Fourth Amended and Restated Certificate of Incorporation.

The certificate of incorporation of the Corporation is hereby amended and restated to read in its entirety as follows:

ARTICLE I

CORPORATE NAME

The name of the Corporation from and after the Effective Time is T-Mobile US, Inc.

ARTICLE II

REGISTERED ADDRESS AND AGENT

The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, City of Wilmington, County of New Castle, 19808. The name of its registered agent at such address is Corporation Service Company.

ARTICLE III

NATURE OF BUSINESS

The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the DGCL.


ARTICLE IV

AUTHORIZED CAPITAL STOCK

(A) General. The Corporation is authorized to issue two (2) classes of capital stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares which the Corporation is authorized to issue is One Billion One Hundred Million (1,100,000,000) shares. One Billion (1,000,000,000) shares shall be Common Stock, par value $0.00001 per share, and One Hundred Million (100,000,000) shares shall be Preferred Stock, par value $0.00001 per share.

(B) Upon the Effective Time, each share of Common Stock, par value $0.0001 per share, issued and outstanding immediately before the Effective Time automatically shall be, without any action on the part of the Corporation or the holder thereof, reclassified as, and converted into, 0.5 of a validly issued, fully paid and non-assessable share of Common Stock, par value $0.00001 per share (such reclassification and conversion, the “Reverse Stock Split”), subject to the treatment of fractional share interests as described below. Any stock certificate that, immediately before the Effective Time, represented a share or shares of Common Stock shall, from and after the Effective Time, automatically and without the presentation of such certificate to the Corporation for exchange thereof, represent such share or shares of Common Stock that result from the Reverse Stock Split, subject to the elimination of fractional shares as described below. Notwithstanding the foregoing, each Common Stock holder that would otherwise be entitled to a fraction of a share of Common Stock as a result of the Reverse Stock Split after aggregating all fractions of shares of Common Stock to be received by such holder shall in lieu thereof be entitled to receive payment in cash (rounded up to the nearest whole cent, without interest and subject to applicable withholding taxes) from the Corporation’s transfer agent in lieu of such fractional shares in accordance with Section 155 of the DGCL.

(C) Preferred Stock.

1. The Preferred Stock may be issued from time to time in one or more series and in such amounts as may be determined by the Board of Directors or by order or decree of a court of competent jurisdiction over the Corporation administering any applicable statute of the United States relating to plans of reorganization of corporations, subject to any qualifications, limitations and restrictions set forth elsewhere in this Article IV or in Article VIII. The voting powers, designations, preferences and relative, participating, optional or other special rights, if any, and the qualifications, limitations or restrictions thereof, if any, of each series of the Preferred Stock shall be such as are fixed by the Board of Directors or fixed by such court, the authority to do so being hereby expressly granted, and as are stated and expressed in a resolution or resolutions adopted by the Board of Directors or in an order or decree of such court providing for the issue of such series of Preferred Stock (herein called the “Certificate of Designation”). The Certificate of Designation as to any series shall, subject to any qualifications, limitations and restrictions set forth elsewhere in this Article IV or in Article VIII, (a) designate the series, (b) fix the dividend rate, if any, of such series, the payment dates for dividends on shares of such series and the date or dates, or the method of determining the date or dates, if any, from which dividends on shares of such series shall be cumulative, (c) fix the amount or amounts payable on shares of such series upon voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, and (d) state the price or prices or rate or rates, and adjustments, if

 

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any, at which, and the time or times and the terms and conditions upon which, the shares of such series may be redeemed at the option of the Corporation or at the option of the holder or holders of shares of such series or upon the occurrence of a specified event, and state whether such shares may be redeemed for cash, property or rights, including securities of the Corporation or other equity securities; and such Certificate of Designation may (i) limit the number of shares of such series that may be issued, (ii) provide for a sinking fund for the purchase or redemption of shares of such series and specify the terms and conditions governing the operations of any such fund, (iii) grant voting rights to the holders of shares of such series, (iv) impose conditions or restrictions upon the creation of indebtedness of the Corporation or upon the issuance of additional Preferred Stock or other capital stock ranking on a parity therewith, or prior thereto, with respect to dividends or distribution of assets upon liquidation, (v) impose conditions or restrictions upon the payment of dividends upon, or the making of other distributions to, or the acquisition of, shares ranking junior to such series with respect to dividends or distributions of assets upon liquidation, (vi) state the time or times, the price or prices or the rate or rates of exchange and other terms, conditions and adjustments upon which shares of any such series may be made convertible into, or exchangeable for, at the option of the holder or the Corporation or upon the occurrence of a specified event, shares of any other class or classes or of any other series of Preferred Stock or any other class or classes of stock or other securities of the Corporation, and (vii) grant such other special rights and impose such qualifications, limitations or restrictions thereon as shall be fixed by the Board of Directors or such court, to the extent not inconsistent with this Article IV or Article VIII and to the full extent now or hereafter permitted by the laws of the State of Delaware.

2. Preferred Stock that is redeemed, purchased or retired by the Corporation shall assume the status of authorized and unissued Preferred Stock and may thereafter, subject to the provisions of any Certificate of Designation providing for the issue of any particular series of Preferred Stock, be reissued in the same manner as authorized and unissued Preferred Stock.

(D) Common Stock. All shares of Common Stock shall be identical except as expressly set forth in this Article IV. Each share of Common Stock shall have attributed to it the number of votes set forth in Section (E) below.

(E) Rights of Holders of Capital Stock.

1. Holders of Preferred Stock. Except as such rights may be specifically limited herein, the rights of holders of Preferred Stock shall be as set forth in any Certificate of Designation relating thereto.

2. Holders of Common Stock. The rights of holders of Common Stock shall be as set forth in this Section (E)(2), except with respect to such rights as are set forth in Section (F) of this Article IV.

(a) Dividend Rights. Subject to the prior rights of holders of all classes of stock at the time outstanding having prior rights as to dividends, the holders of the Common Stock shall be entitled to receive, when and as declared by the Board of Directors, out of any assets of the Corporation legally available therefor, such dividends, distributed ratably among the holders of the Common Stock in proportion to the number of shares of such Common Stock owned by each such holder, as may be declared from time to time by the Board of Directors.

 

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(b) Liquidation Preference. Subject to the prior rights of holders of all classes of stock at the time outstanding having prior rights as to distributions in the event of liquidation, dissolution or winding up of the Corporation, and after any and all distributions are made in accordance therewith, in such event, either voluntary or involuntary, the remaining assets and funds of the Corporation legally available for distribution shall be distributed ratably among the holders of the Common Stock in proportion to the number of shares of such Common Stock owned by each such holder.

3. Redemption.

(a) Subject to Section (E)(3)(e) of this Article IV, if, at any time, a holder of shares of Common Stock or Preferred Stock acquires additional shares of Common Stock or Preferred Stock, or is otherwise attributed with ownership of such shares, that would cause the Corporation to violate (in each case, an “FCC Violation”) (A) any requirement of the Federal Communications Commission (“FCC”) regarding foreign ownership (collectively, “Foreign Ownership Requirements”) or (B) any other rule or regulation of the FCC applicable to the Corporation, then the Corporation may, at the option of the Board of Directors, redeem from the holder or holders causing such FCC Violation a sufficient number of shares of Common Stock or Preferred Stock to eliminate the FCC Violation by paying in cash therefor a sum equal to the Redemption Price. The “Redemption Price” (herein so called) shall equal such price as is mutually determined by such stockholders and the Corporation, or, if no mutually acceptable agreement can be reached, shall equal either (i) seventy-five percent (75%) of the fair market value of the Common Stock (the “Common Stock Fair Market Value”) or the Fair Market Value of the Preferred Stock, as applicable, where such holder caused the FCC Violation, or (ii) one hundred percent (100%) of the Common Stock Fair Market Value or the Fair Market Value of the Preferred Stock, as applicable, where the FCC Violation was caused by no fault of the holder; provided, however, that the determination of whether such party caused the FCC Violation shall be made, in good faith, by the disinterested members of the Board of Directors. As used in this Section (E)(3), the Common Stock Fair Market Value shall be determined as follows:

(i) if the Common Stock is publicly traded at the time of determination, the average of the closing prices for the Common Stock on all domestic securities exchanges on which the Common Stock may at the time be listed, or, if there have been no sales of the Common Stock on any such exchange on such day, the average of the highest bid and lowest asked prices for the Common Stock on all such exchanges at the end of such day, or, if on any day the Common Stock is not so listed, the average of the representative bid and asked prices for the Common Stock quoted on the NASDAQ system as of the close of trading on such day, or if on any day such security is not quoted in the NASDAQ system, the average of the highest bid and lowest asked prices for the Common Stock on such day in the domestic over-the-counter market as reported by the Pink Sheets, LLC, or any similar successor organization, in each such case averaged over the 30-day period ending three days prior to the Redemption Date (as defined in Section (E)(3)(b) of this Article IV); and

 

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(ii) if the Common Stock is not publicly traded at the time of determination then, the fair value of the Common Stock as determined in good faith by the disinterested members of the Board of Directors.

As used in this Section (E)(3), the Preferred Stock Fair Market Value shall mean the value determined by multiplying the Common Stock Fair Market Value by the number of shares of Common Stock into which the share of Preferred Stock is then convertible.

(b) At least five (5) but no more than thirty (30) days prior to any date on which Common Stock or Preferred Stock is to be redeemed (a “Redemption Date”), written notice shall be sent by mail, first class postage prepaid, overnight mail, facsimile, or electronic mail to each holder of record (at the close of business on the business day next preceding the day on which notice is given) of the shares of Common Stock or Preferred Stock to be redeemed, at the address last shown on the records of the Corporation for such holder, notifying such holder of the redemption to be effected, specifying the number of shares to be redeemed from such holder, the Redemption Date, the Redemption Price, the place at which payment may be obtained and calling upon such holder to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate or certificates representing the shares to be redeemed (the “Redemption Notice”). Except as provided in Section (E)(3)(c) of this Article IV, on or after the Redemption Date, each holder of shares of Common Stock or Preferred Stock to be redeemed shall surrender to the Corporation the certificate or certificates representing such shares, in the manner and at the place designated in the Redemption Notice, and thereupon the Redemption Price of such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof and each surrendered certificate shall be canceled. In the event less than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares.

(c) From and after the Redemption Date, unless there shall have been a default in payment of the Redemption Price, all rights of the holders of shares of Common Stock or Preferred Stock designated for redemption in the Redemption Notice as holders of such shares of Common Stock or Preferred Stock (except the right to receive the Redemption Price without interest upon surrender of their certificate or certificates) shall cease with respect to such shares, and such shares shall not thereafter be transferred on the books of the Corporation or be deemed to be outstanding for any purpose whatsoever. If the funds of the Corporation legally available for redemption of shares of Common Stock or Preferred Stock on any Redemption Date are insufficient to redeem the total number of shares of Common Stock or Preferred Stock to be redeemed on such date, those funds which are legally available will be used to redeem the maximum possible number of such shares ratably among the holders of such shares to be redeemed based upon their holdings of Common Stock or Preferred Stock to be redeemed. The shares of Common Stock or Preferred Stock not redeemed shall remain outstanding and entitled to all the rights and preferences provided herein. At any time thereafter when additional funds of the Corporation are legally available for the redemption of shares of Common Stock or Preferred Stock, such funds will immediately be used to redeem the balance of the shares which the Corporation has become obligated to redeem on any Redemption Date but which it has not redeemed.

 

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(d) Prior to effecting any such redemption, the Corporation shall provide any holder of Common Stock or Preferred Stock to be redeemed with reasonable prior written notice of the reason giving rise to the Corporation’s redemption right and, if requested to do so by such holder, the Corporation shall reasonably cooperate with such affected holder in arranging another method to minimize or eliminate the reason giving rise to the Corporation’s redemption right, including, but not limited to and not in any particular order of priority, preparing and filing waiver requests with the FCC, developing alternative ownership structures, assisting with a sale of such holders’ interest in the Corporation, amending the Corporation’s Certificate of Incorporation and obtaining FCC approvals for such transaction.

(e) The provisions of Sections (E)(3)(a) through (E)(3)(d) of this Article IV shall not apply to Deutsche Telekom AG (the “Stockholder”) or any of its subsidiaries, any acquisition of shares of Common Stock or Preferred Stock by the Stockholder or any of its subsidiaries, or any ownership of such shares otherwise attributed to the Stockholder or any of its subsidiaries, and the Corporation shall not have the authority under Sections (E)(3)(a) through (E)(3)(d) of this Article IV to redeem any shares of Common Stock or Preferred Stock beneficially owned, directly or indirectly, by the Stockholder or any of its subsidiaries, in each case notwithstanding anything to the contrary therein. In the event that any waivers or approvals are required from the FCC in order for the Stockholder or any of its subsidiaries to acquire or hold Common Stock or Preferred Stock, the Stockholder and its subsidiaries shall cooperate to secure such waivers or approvals and abide by any conditions related to such waivers or approvals.

(F) Voting Rights.

1. Common Stock. The holders of Common Stock shall have the right to vote on every matter submitted to a vote of the holders of capital stock of the Corporation other than any matter on which only the holders of one or more other classes or series of capital stock of the Corporation are entitled to vote separately as a class.

2. Preferred Stock. Except as specifically limited herein, the holders of Preferred Stock shall have such voting rights as shall be set forth in any Certificate of Designation relating thereto.

ARTICLE V

POWER TO AMEND BYLAWS

(A) Board of Directors. Except as otherwise provided in this Fourth Amended and Restated Certificate of Incorporation (as it may be amended from time to time, this “Certificate of Incorporation”) and subject to any additional requirements expressly set forth in the Bylaws of the Corporation, the Board of Directors is expressly authorized, upon the affirmative vote of a majority of the directors then serving, to make, adopt, alter, amend, and repeal from time to time the Bylaws of the Corporation and make from time to time new Bylaws of the Corporation (subject to the right of the stockholders entitled to vote thereon to adopt, alter, amend, and repeal Bylaws made by the Board of Directors or to make new Bylaws).

 

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(B) Stockholders. The stockholders of the Corporation may adopt, alter, amend, or repeal Bylaws made by the Board of Directors or make new Bylaws upon the affirmative vote of the holders of shares having a majority of the aggregate voting power of all of the outstanding shares of the Corporation’s capital stock then entitled to vote thereon, subject to any additional requirements in the Bylaws of the Corporation.

ARTICLE VI

BOARD OF DIRECTORS

(A) Number, Election and Term of Directors.

1. The number of directors constituting the entire Board of Directors shall be fixed by, or in the manner provided in, the Bylaws of the Corporation, or as provided in accordance with any Certificate of Designation. All of the directors of the Corporation shall be of one class and shall be elected annually. Each director shall hold office until the next annual meeting of stockholders and, the foregoing notwithstanding, shall serve until his successor shall have been duly elected and qualified or until his earlier death, resignation, retirement, disqualification or removal.

2. At all times when the ratio, expressed as a percentage, of (i) the number of votes entitled to be cast generally in the election of directors (“Votes”) by the Common Stock and any class of capital stock or other securities of the Corporation other than the Common Stock that are entitled to vote generally in the election of directors (the “Voting Securities”) Beneficially Owned by the Stockholder to (ii) the aggregate Votes entitled to be cast by all then-outstanding Voting Securities (such ratio, the “Stockholder Voting Percentage”) is ten percent (10%) or more, the Stockholder shall have the right to designate a number of individuals to be nominees for election to the Board of Directors (“Stockholder Designees”) equal to the Stockholder Voting Percentage multiplied by the total number of directors of the Board of Directors that the Corporation would have if there were no vacancies, rounded to the nearest whole number; provided, that the number of directors on the Board of Directors who are also officers, employees, directors or affiliates of the Stockholder shall not in any event exceed a number equal to the Stockholder Voting Percentage multiplied by the total number of Directors that the Corporation would have if there were no vacancies, rounded to the nearest whole number greater than zero. In addition, the Corporation shall cause any committee of the Board of Directors to include in its membership a number of Stockholder Designees then serving as directors on the Board of Directors equal to the Stockholder Voting Percentage multiplied by the total number of members that such committee would have if there were no vacancies on such committee, rounded up to the nearest whole number, except to the extent that such membership would violate applicable securities laws or stock exchange or stock market rules; provided, however, that no committee may consist solely of directors who are also officers, employees, directors or affiliates of the Stockholder. If at any time the Stockholder Voting Percentage is less than ten percent (10%), the Stockholder shall promptly cause all of the Stockholder Designees then serving as Directors to resign from the Board, and all of the rights of the Stockholder set forth in this Section (A)(2) of Article VI shall forever terminate.

3. If at any time the number of Stockholder Designees then serving as directors or as members of any committee of the Board of Directors exceeds the number of

 

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Stockholder Designees the Stockholder is entitled to designate to the Board of Directors or any committee thereof pursuant to this Section (A) of Article VI, the Stockholder shall cause the number of Stockholder Designees then serving as directors or as members of such committee of the Board of Directors representing such excess to resign immediately as directors or committee members, as applicable.

4. In the event of any change in the authorized number of directors, each director then continuing to serve as such shall nevertheless continue as a director until the expiration of his current term, or his prior death, resignation, retirement, disqualification or removal. In the event of any increase in the authorized number of directors as a result of which the Stockholder shall be entitled to designate one or more additional Stockholder Designees based upon the increased size of the Board of Directors and the then Stockholder Voting Percentage, (i) the Stockholder shall be entitled promptly to designate such Stockholder Designees, and (ii) the Corporation shall cause the prompt appointment or election of such Stockholder Designee(s) as director(s) . If at any time the Stockholder Voting Percentage is less than ten percent (10%), all of the rights of the Stockholder set forth in this Section (A)(4) of Article VI shall forever terminate.

5. The Company and the Stockholder shall use their reasonable best efforts to cause at least three of the directors to be considered “independent” under the rules of the Securities and Exchange Commission, the New York Stock Exchange and any other or additional exchange on which the securities of the Corporation are listed, including for purposes of Rule 10A-3 promulgated under the Securities Exchange Act of 1934, as amended (or any successor rule thereto).

(B) Vacancies. Any vacancies of the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or other reason may be filled as provided in the Bylaws of the Corporation; provided that upon any such vacancy resulting in any Stockholder Designee ceasing to serve as a director at a time when the Stockholder has the right under Section (A)(2) of Article VI to designate a replacement Stockholder Designee, (i) the Stockholder shall be entitled promptly to designate a replacement Stockholder Designee to fill such vacancy, and (ii) the Corporation shall cause the prompt appointment or election of such replacement Stockholder Designee as a director.

(C) Written Ballots not Required. Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.

(D) Removal of Directors. Subject to the rights of the holders of any class or series of Preferred Stock then outstanding, any director may be removed from office at any time, with or without cause, by the affirmative vote of the holders of at least a majority of the voting power of all of the outstanding shares of the Corporation’s capital stock entitled to elect such director, voting separately as a class, at a duly organized meeting of stockholders or by written consent; provided that no Stockholder Designee may be removed under this Section (D) of Article VI without the prior written consent of the Stockholder.

 

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(E) Corporate Opportunity Matters.

1. Except as set forth in Section (E)(2) of this Article VI, to the extent permitted by the DGCL, if any non-employee director (or any of his or her affiliates) acquires knowledge of a potential transaction or matter which may be a corporate opportunity in the same or similar activity or line of business as the Corporation, the Corporation shall have no interest or expectancy in being offered by such non-employee director any opportunity to participate in such corporate opportunity, any such interest or expectancy being hereby renounced, so that, as a result of such renunciation and without limiting the scope of such renunciation, such person (a) shall have no duty to communicate or present such corporate opportunity to the Corporation and (b) shall have the right to hold any such corporate opportunity for its (and its officers’, directors’, agents’, stockholders’ or affiliates’) own account or to recommend, sell, assign or transfer such corporate opportunity to any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, governmental entity or other entity of any kind or nature (each, a “Person”) other than the Corporation; provided, however, that the foregoing shall not preclude or prevent the Corporation from pursuing any corporate opportunity that may be presented to it by any means.

2. Notwithstanding the provisions of Section (E)(1) of this Article VI, the Corporation does not renounce any interest or expectancy it may have in any corporate opportunity that is offered to any non-employee director, if such opportunity is expressly offered to such non-employee director (or his or her affiliates) solely in, and as a direct result of, his or her capacity as a director of the Corporation.

ARTICLE VII

MEETINGS OF STOCKHOLDERS; ACTION WITHOUT A MEETING

(A) Meetings of Stockholders. Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of the Corporation may provide. Special meetings of the stockholders of the Corporation (i) may be called, for any purpose or purposes, by the chairman of the Board of Directors or the chief executive officer and (ii) shall be called by the secretary of the Corporation at the request of (a) a majority of the Board of Directors or (b) for so long as the Stockholder Voting Percentage is twenty-five percent (25%) or greater, the holders of not less than thirty-three and one third percent (33-1/3%) of the voting power of all of the outstanding voting stock of the Corporation entitled to vote generally for the election of directors, which such request must be in writing, shall state the purpose or purposes of the proposed meeting (which shall be included in the notice of such meeting) and shall include all information required to be delivered pursuant to the notice requirements set forth in the Bylaws of the Corporation in order for nominations or business, as applicable, to be properly brought before a meeting by a stockholder. If at any time the Stockholder Voting Percentage is less than twenty-five percent (25%), the stockholders’ ability to request a special meeting of stockholders pursuant to the immediately preceding sentence shall forever terminate. Each special meeting shall be held within a reasonable time after being called in accordance with the preceding sentence. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws of the Corporation. The books of the Corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.

 

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(B) Stockholder Action by Written Consent. For so long as the Stockholder Voting Percentage is twenty-five percent (25%) or greater, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing setting forth the action so taken shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If at any time the Stockholder Voting Percentage is less than twenty-five percent (25%), the stockholders’ ability to act by written consent pursuant to the immediately preceding sentence shall forever terminate, and, thereafter, (i) no action shall be taken by the stockholders of the Corporation except at an annual or special meeting of such stockholders and (ii) the stockholders may not take action by written consent.

ARTICLE VIII

CONSENTS

(A) In addition to any other vote, consent or approval required by this Certificate of Incorporation, the Bylaws of the Corporation, or applicable law, for so long as the Stockholder Voting Percentage is thirty percent (30%) or greater, the Corporation shall not, and shall cause its subsidiaries not to, take or agree to take any of the following actions, in each case without the prior written consent of the Stockholder, which consent the Stockholder may withhold in its sole discretion:

1. create, incur, issue, assume or otherwise become liable for (including through a merger, acquisition or otherwise) or refinance or guarantee any Indebtedness (as defined in the stockholder’s agreement entered into on April 30, 2013 by the Stockholder and the Corporation (the “Stockholder’s Agreement”)) (excluding any Permitted Debt (as defined in the Stockholder’s Agreement)) that would result in the Corporation and its subsidiaries, on a consolidated basis, having or being liable for Indebtedness (as defined in the Stockholder’s Agreement) in an aggregate principal amount that would result in the Debt to Cash Flow Ratio (as defined in the Stockholder’s Agreement) for the Corporation’s most recently ended four full fiscal quarters for which financial statements are available to be greater than 5.25 to 1.0 on a pro forma basis as if the additional Indebtedness had been incurred at the beginning of such four-quarter period;

2. take any action or enter into any transaction that would reasonably be expected to result in a breach of or default under any credit agreement, indenture, note, or similar instrument or security to which the Stockholder or any of its affiliates is a party or is bound;

3. acquire (including by way of merger, recapitalization, reorganization, liquidation or dissolution) any business, debt or equity interests, operations or assets of any Person, or make any investment in or loan to any Person, in any single transaction or series of related transactions (excluding the acquisition of products and equipment in the ordinary course of business), for consideration in excess of $1,000,000,000;

 

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4. sell, lease, transfer, Encumber (as defined in the Stockholder’s Agreement) (other than Permitted Liens (as defined in the Stockholder’s Agreement)) or otherwise dispose of (including by way of merger, recapitalization, reorganization, liquidation or dissolution) any division, business, or operations of the Corporation or any of its subsidiaries, or any equity interests of the Corporation or any of its subsidiaries, in any single transaction or series of related transactions, for consideration in excess of $1,000,000,000;

5. change the size of the Board of Directors;

6. issue any equity or equity-linked securities or other Voting Securities of the Corporation or any of its subsidiaries, in any single transaction or series of related transactions, (i) constituting ten percent (10%) or more of the then outstanding shares of Common Stock (other than grants of incentive awards to officers or employees of the Corporation or its subsidiaries that are approved by the Board or the applicable committee thereof or issuances of securities to the Corporation or any of its wholly owned Subsidiaries) or (ii) for the purpose of redeeming or purchasing any indebtedness of the Corporation held by the Stockholder or its affiliates;

7. subject to Section (E)(3)(e) of Article IV, (i) repurchase or redeem any equity (or equity-based) securities of the Corporation or any of its non-wholly owned subsidiaries, or (ii) make any extraordinary or in-kind dividend with respect to any of the equity (or equity-based) securities of the Corporation or any of its subsidiaries, other than a dividend on a pro rata basis with respect to all stockholders of the Corporation, or a dividend to the Corporation or any of its wholly owned Subsidiaries; or

8. hire, or terminate without cause, its Chief Executive Officer, or agree to do so.

(B) In addition to any other vote, consent or approval required by this Certificate of Incorporation, the Bylaws of the Corporation, or applicable law, for so long as the Stockholder Voting Percentage is five percent (5%) or greater, the Corporation shall not amend or seek to amend this Certificate of Incorporation, the Bylaws of the Corporation or the Stockholder’s Agreement (including, for the avoidance of doubt, the creation of any shareholder rights plan or other amendment intended to limit the Stockholder’s ownership or acquisition of securities of the Corporation) in any manner that could limit, restrict or adversely affect the Stockholder or its rights thereunder without the prior written consent of the Stockholder, which consent may be withheld in its sole discretion.

(C) Notwithstanding anything contained herein to the contrary, if at any time the Stockholder Voting Percentage is less than thirty percent (30%), all of the obligation of the Corporation and rights of the Stockholder set forth in Section (A) of this Article VIII shall forever terminate.

ARTICLE IX

INDEMNIFICATION

(A) The Corporation shall, to the fullest extent permitted by the DGCL in effect on the date of the effectiveness of this Certificate of Incorporation, and to such greater extent as the

 

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DGCL may thereafter permit, indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative by reason of the fact that he is or was a director, manager, member, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, manager, member, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, liabilities, losses, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding.

(B) To the extent that a director, manager, member, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section (A) of this Article IX, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.

(C) Any indemnification under Section (A) of this Article IX (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in the DGCL. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders of the Corporation.

(D) Expenses (including attorneys’ fees) incurred by an officer, director, a manager of a Corporation limited liability company, or a member of a management committee of a Corporation limited liability company, in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director, officer, manager or member to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article IX. Such expenses (including attorneys’ fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.

(E) The indemnification and advancement of expenses provided by, or granted pursuant to, the other sections of this Article IX shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any law, Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office.

(F) The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, manager, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, manager, member, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of Section 145 of the DGCL.

 

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(G) For purposes of this Article IX, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation, partnership, limited liability company, or joint venturer or other enterprise (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, managers, members, employees or agents so that any person who is or was a director, officer, manager, member, employee or agent of such constituent corporation, partnership, limited liability company, or joint venturer or other enterprise, or is or was serving at the request of such constituent corporation, partnership, limited liability company, or joint venturer or other enterprise as a director, officer, manager, member, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article IX with respect to the resulting or surviving corporation, partnership, limited liability company, or joint venturer or other enterprise as he would have with respect to such constituent corporation if its separate existence had continued.

(H) For purposes of this Article IX, (i) references to “other enterprises” shall include employee benefit plans, including without limitation, any plan of the Corporation which is governed by the Employee Retirement Income Security Act of 1974, as amended from time to time (collectively, “Employee Benefit Plans”), (ii) references to “fines” shall include any excise taxes assessed on a person with respect to an Employee Benefit Plan, (iii) references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves service by, such director, officer, employee or agent with respect to any Employee Benefit Plan, its participants or beneficiaries, and (iv) a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an Employee Benefit Plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article IX.

(I) The indemnification and advancement of expenses provided by, or granted pursuant to, this Article IX shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, manager, member, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

(J) The provisions of this Article IX shall be deemed to be a contract between the Corporation and each director, officer, employee or agent who serves in such capacity at any time while this Article IX is in effect. Any repeal or modification of this Article IX shall be prospective only, and shall not adversely affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in whole or in part upon any such state of facts, whether such state of facts was then known or later known.

 

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ARTICLE X

LIMITATION OF LIABILITY

A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, as the same exists or hereafter may be amended or replaced, or (iv) for any transaction from which the director derived any improper personal benefit. If the DGCL is amended after the date of filing this Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the DGCL as so amended. Any repeal or modification of this Article X shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such repeal or modification.

ARTICLE XI

AMENDMENTS TO CERTIFICATE OF INCORPORATION

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed by law and subject to Section C of Article VIII, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power; provided that, notwithstanding the fact that a lesser percentage may be specified by the DGCL, the affirmative vote of the holders of record of outstanding shares representing at least seventy-five percent (75%) of the voting power of all of the shares of capital stock of the Corporation then entitled to vote generally in the election of the Board of Directors, voting together as a single class, shall be required to amend, alter, change, repeal, or adopt any provision or provisions inconsistent with, Article IX and this Article XI of this Certificate of Incorporation unless such amendment, alteration, change, repeal or adoption of any inconsistent provision or provisions is adopted or authorized by the Board of Directors by the affirmative vote of at least seventy-five percent (75%) of all of the members of the Board of Directors.

ARTICLE XII

GOVERNING LAW; FORUM FOR ADJUDICATION OF DISPUTES

This Certificate of Incorporation and the internal affairs of the Corporation shall be governed by and interpreted under the laws of the State of Delaware, excluding its conflict of laws principles. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware Corporation Law, this Certificate of Incorporation or the Bylaws of the Corporation, or (iv) any other action asserting a claim arising under, in connection with, and governed by the internal affairs doctrine.

 

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ARTICLE XIII

EFFECTIVE TIME

This Certificate of Incorporation shall become effective as of 4:01 p.m. Eastern Standard Time on April 30, 2013 (the “Effective Time”).

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IN WITNESS WHEREOF, the Corporation has caused this Fourth Amended and Restated Certificate of Incorporation to be executed by the Chief Financial Officer of the Corporation on this 30th day of April, 2013.

 

MetroPCS Communications, Inc.
By:  

/s/  Roger Linquist

  Name: Roger Linquist
  Title: Chief Executive Officer
EX-3.2 3 d527693dex32.htm EX-3.2 EX-3.2

Exhibit 3.2

FIFTH AMENDED AND RESTATED BYLAWS

OF T-MOBILE US, INC.

PREAMBLE

In accordance with power conferred to the board of directors (the “Board of Directors”) of T-Mobile US, Inc., a Delaware corporation (the “Corporation”), in the Fourth Amended and Restated Certificate of Incorporation (“Certificate of Incorporation”) of the Corporation, the Board of Directors approved and adopted these Fifth Amended and Restated Bylaws (these “Bylaws”), effective as of April 30, 2013. These Bylaws are subject to, and governed by, the General Corporation Law of the State of Delaware (the “Delaware Corporation Law”) and the Certificate of Incorporation. In the event of a direct conflict between the provisions of these Bylaws and the mandatory provisions of the Delaware Corporation Law or the provisions of the Certificate of Incorporation, such provisions of the Delaware Corporation Law or the Certificate of Incorporation, as the case may be, will be controlling.

ARTICLE I

OFFICES

1. The registered office of the Corporation shall be the registered office named in the Certificate of Incorporation or such other place as shall be determined by the Board from time to time.

2. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

1. All meetings of the stockholders for the election of directors shall be held at such time and place either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.

2. The annual meeting of the stockholders for the election of directors and the transaction of such other business as may properly be brought before the meeting shall be held at such date, time and place as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting.


3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not fewer than ten (10) nor more than sixty (60) days before the date of the meeting.

4. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders a complete list of the stockholders entitled to vote at the meeting of stockholders (provided, however, if the record date for determining the stockholders entitled to vote is less than ten days before the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares of each class of capital stock registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Except as provided by applicable law, the stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger and the list of stockholders entitled to vote in person or by proxy at any meeting of stockholders.

5. Special meetings of the stockholders, for any purpose or purposes, may be called as set forth in the Certificate of Incorporation.

6. Written notice of a special meeting stating the date, time and place of the meeting and the purpose or purposes for which the meeting is called, shall be given not fewer than ten (10) nor more than sixty (60) days before the date of the meeting, to each stockholder entitled to vote at such meeting.

7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

8. At each meeting of the stockholders, the stockholders holding issued and outstanding capital stock of the Corporation having not less than a majority of the votes of the capital stock of the Corporation entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. A quorum, once established, shall not be broken by the subsequent withdrawal of enough votes to leave less than a quorum. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty (30) days, or, if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

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9. When a quorum is present at any meeting, unless otherwise required by applicable law, the Certificate of Incorporation, or these Bylaws, the election of directors and any advisory vote on the frequency of stockholder votes related to the compensation of executives required by Section 14A(a)(2) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), shall be decided by a plurality of the votes cast at a meeting in person or by proxy by the holders of stock entitled to vote therein. When a quorum is present at any meeting, unless otherwise required by applicable law, the Certificate of Incorporation, or these Bylaws, any matter, other than the election of directors and an advisory vote on the frequency of stockholder votes related to the compensation of executives required by Section 14A(a)(2) of the Exchange Act, brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the votes cast in person or by proxy in favor of such action by the holders of stock entitled to vote therein. For the avoidance of doubt, abstentions and, except as may be permitted pursuant to the rules of any exchange where the securities of the Corporation may be listed, broker non-votes, will not be counted as votes cast for such purposes.

10. Unless otherwise provided by applicable law, in the Certificate of Incorporation, or in these Bylaws, each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Such proxy shall be filed with the Secretary before or at the time of the meeting. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot.

11. The Board of Directors of the Corporation may adopt by resolution such rules and regulations for the conduct of the meeting of the stockholders as it shall deem appropriate. At every meeting of stockholders, the chief executive officer, or in his or her absence or inability to act, the secretary, or, in his or her absence or inability to act, the person whom the chief executive officer shall appoint, shall act as chairman of, and preside at, the meeting. The secretary or, in his or her absence or inability act, the person whom the chairman of the meeting shall appoint as secretary of the meeting, shall act as secretary of the meeting and keep the minutes thereof. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of the stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) order of business for the meeting; (b) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (c) rules and procedures for maintaining order at the meeting and the safety of those present; (d) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (e) restrictions on entry to the meeting after the time fixed for the commencement thereof; (f) limitations on the time allotted to questions or comments by participants; and (g) policies and procedures with respect to the adjournment of such meeting.

 

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12. Unless otherwise provided in the Certificate of Incorporation, the provisions of this Section 12 shall apply to the nominations of directors to the Board of Directors. Nominations of persons for election to the Board of Directors may be made in advance of any annual meeting of stockholders or any special meeting of stockholders at which directors are to be elected as provided in the notice of meeting delivered in accordance with Sections 3 or 6 of this Article II, respectively. Nominations for election to the Board of Directors must be made by the Board of Directors or by any Eligible Stockholder (as defined below). Nominations, other than those made by the Board of Directors of the Corporation, must be preceded by notification in writing for each nominee received by the secretary of the Corporation at the executive offices of the Corporation (i) in the case of an annual meeting, not later than the close of business on the ninetieth (90th) calendar day nor earlier than the close of business on the one hundred twentieth (120th) calendar day prior to the first anniversary of the preceding year’s annual meeting, regardless of whether the party or parties seeking to make the nominations are seeking to include the nominees in management’s proxy materials or in their own or other proxy materials; provided, however, that in the event that the date of the annual meeting is more than thirty (30) calendar days before or more than sixty (60) calendar days after such anniversary date, notification must be received by the secretary of the Corporation not earlier than the close of business on the one hundred twentieth (120th) calendar day prior to such annual meeting but not later than the close of business on the latter of the ninetieth (90th) calendar day prior to such annual meeting or the tenth (10th) calendar day following the calendar day on which public announcement of the date of such meeting is first made by the Corporation, and (ii) in the case of a special meeting, not later than the close of business on the sixtieth (60th) calendar day nor earlier than the close of business on the ninetieth (90th) calendar day prior to the date of such special meeting, or if the first public announcement of the date of such special meeting is less than seventy (70) days prior to the date of such special meeting, the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and, if applicable, of the nominees proposed by the Board of Directors to be elected at such meeting. Such notification shall contain the following:

(a) the written consent of each proposed nominee to serve as a director if so elected;

(b) the following information as to each proposed nominee:

(1) the name, age, citizenship, residence address, and business address of each proposed nominee;

(2) the principal occupation or employment, and the name, type of business and address of the Corporation or other organization in which such employment is carried on, of such proposed nominee and of each such person nominating such proposed nominee;

(3) the qualifications of such proposed nominee to serve as a director of the Corporation;

(4) the amount of stock of the Corporation owned of record and beneficially, either directly or indirectly, by each proposed nominee;

 

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(5) a description of any arrangement or understanding of each proposed nominee and of each person proposing such nomination with each other or any other person regarding future employment or any future transaction to which the Corporation will or may be a party; and

(6) all information required by the Corporation’s director questionnaire then in use by the Corporation for its directors and officers, a copy of which shall be available at the offices of the Corporation; and

(c) the following information with respect to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made, and as to each person, acting alone or in conjunction with one or more other persons as a partnership, limited partnership, syndicate or other group, who participates or is expected to participate in making such nomination or in organizing, directing or financing such nomination or solicitation of proxies to vote for the nominee :

(1) the name and address of such stockholder, as they appear on the Corporation’s books, and such beneficial owner;

(2) the class and number of shares of the Corporation which are owned of record and beneficially by such stockholder and such beneficial owner;

(3) the voting rights of such stockholder; and

(4) the hedging and derivative positions of such stockholder, if any, in the Corporation’s capital stock.

The term “Eligible Stockholder” means a stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice by such stockholder provided for in this Section 12 or Section 13 (as the case may be) and on the record date for the determination of stockholders entitled to vote at the applicable annual or special meeting of the stockholders, (ii) who is entitled to vote on the business proposed in such notice to be conducted at an annual meeting of the stockholders (in the case of Section 13) or for the election of directors to be elected at an annual or special meeting of stockholders (in the case of this Section 12) and (iii) who complies with the applicable procedures set forth in this Section 12 or Section 13 (as the case may be).

Public announcement of a stockholder meeting shall be deemed to occur upon disclosure of the date of such meeting in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.

13. At any meeting of the stockholders, only such business shall be conducted as shall have been brought before the meeting (a) pursuant to the Corporation’s notice of meeting, (b) by or at the direction of the Board of Directors or (c) by any Eligible Stockholder who complies with the notice procedures set forth in these Bylaws. The procedures referred to in clause (c) of the immediately preceding sentence and described in the remainder of this Section 13 shall be

 

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the exclusive means for a stockholder to submit business (other than stockholder proposals properly submitted in accordance with Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) to be considered or acted upon at an annual meeting of stockholders. To be properly brought before a special meeting of the stockholders, business must be specified in the notice of meeting (or any supplement thereto), and stockholders shall not be entitled to submit business to be considered or acted upon at any special meeting except in accordance with any applicable procedures for calling a special meeting as set forth in the Certificate of Incorporation. For the avoidance of doubt, the nomination of directors and the election of directors are deemed separate and distinct items of business, and candidates eligible for election to the Board of Directors at any meeting will be limited to those candidates who have been nominated in accordance with the provisions of Section 12.

For business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of this Section 13, the stockholder must have given timely notice thereof in writing to the secretary of the Corporation and such business must otherwise be a proper matter for stockholder action. To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Corporation (i) in the case of an annual meeting, not later than the close of business on the ninetieth (90th) calendar day nor earlier than the close of business on the one hundred twentieth (120th) calendar day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is more than thirty (30) calendar days before or more than sixty (60) calendar days after such anniversary date, notice to the Corporation to be timely must be so delivered not earlier than the close of business on the one hundred twentieth (120th) calendar day prior to such annual meeting but not later than the close of business on the latter of the ninetieth (90th) calendar day prior to such annual meeting or the tenth (10th) calendar day following the calendar day on which public announcement of the date of such meeting is first made by the Corporation, and (ii) in the case of a special meeting, not later than the close of business on the ninetieth (90th) calendar day nor earlier than the close of business on the one hundred twentieth (120th) calendar day prior to the date of such special meeting, or if the first public announcement of the date of such special meeting is less than one hundred (100) days prior to the date of such special meeting, the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting. A stockholder’s notice to the secretary shall set forth as to each matter the stockholder proposes to bring before the meeting (i) a precise description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting, (ii) the name and address, as they appear on the Corporation’s books, of the stockholder proposing such business, and the name and address of the beneficial owner, if any, on whose behalf the proposal is made, (iii) the class and number of shares of capital stock of the Corporation which are owned of record and beneficially and of record by such stockholder of record and by the beneficial owner, if any, on whose behalf of the proposal is made, (iv) any material interest of such stockholder of record and the beneficial owner, if any, on whose behalf the proposal is made in such business, (v) the voting rights of such stockholder; and (vi) the hedging and derivative positions of such stockholder, if any, in the Corporation’s stock. The preceding requirements must be met independently for each item of business that any stockholder proposes to bring before a meeting, regardless of whether the stockholder seeks to include the proposal in management’s proxy materials or in their own or other proxy materials.

 

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Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at a meeting except in accordance with the procedures set forth in this Section 13. The presiding officer of the meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the procedures prescribed by this Section 13, and if such person should so determine, such person shall so declare to the meeting any such business not properly brought before the meeting shall not be transacted. Notwithstanding the foregoing provisions of this Section 13, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 13.

14. Failure to receive notice of any meeting shall not invalidate the meeting.

15. The Board of Directors, in advance of any meeting of stockholders, may, and shall if required by law, appoint one or more inspectors, who may be employees of the Corporation, to act at the meeting or any adjournment thereof and make a written report thereof. The Board of Directors may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall (a) ascertain the number of shares outstanding and the voting power of each, (b) determine the shares represented at the meeting, the existence of a quorum and the validity of proxies and ballots, (c) count all votes and ballots, (d) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors and (e) certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of their duties. Unless otherwise provided by the Board of Directors, the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be determined by the person presiding at the meeting and shall be announced at the meeting. No ballot, proxies, votes or any revocation thereof or change thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of Chancery of the State of Delaware upon application by a stockholder shall determine otherwise. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for office at an election may serve as an inspector at such election.

ARTICLE III

DIRECTORS

1. Except as provided in the Certificate of Incorporation, the number of directors which shall constitute the whole Board of Directors shall be determined by resolution of the Board of Directors; provided, however, that no decrease in the number of directors shall have the effect of shortening the term of an incumbent director. Except as provided in Section 2 of this Article and the Certificate of Incorporation, the directors shall be elected at the annual meeting of the stockholders and each director elected shall hold office until his successor is elected and qualified, unless he shall resign, die, become disqualified or disabled, or otherwise be removed. Directors need not be stockholders.

 

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2. Except as provided in the Certificate of Incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the votes of the directors then in office, though less than a quorum, or by a sole remaining director. The term of a director elected to fill a newly created directorship or other vacancy shall expire at the next annual election of directors, and such director shall hold office until his successor is duly elected and shall qualify, or until his earlier death, resignation, retirement, disqualification or removal. If there are no directors in office, then an election of directors may be held in the manner provided by applicable law.

3. The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders or by specific stockholders.

MEETINGS OF THE BOARD OF DIRECTORS

4. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. The Board of Directors may adopt such rules and procedures, not inconsistent with the Certificate of Incorporation, these Bylaws or applicable law, as it may deem proper for the conduct of its meetings and the management of the Corporation.

5. The first meeting of each newly elected Board of Directors shall be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as shall be specified in a written waiver signed by all of the directors.

6. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board of Directors.

7. Special meetings of the Board of Directors may be called by the chairman of the Board of Directors, the vice chairman of the Board of Directors, or the chief executive officer on two (2) days’ prior written notice to each director by mail or forty-eight (48) hours’ prior notice to each director either personally or by facsimile, telegram or electronic mail; special meetings shall be called by the chairman of the Board of Directors, the vice chairman of the Board of Directors, the chief executive officer, or secretary of the Corporation in like manner and on like notice on the written request of a majority of the directors unless the Board of Directors consists of only one director, in which case special meetings shall be called by the chairman of the Board of Directors, the vice chairman of the Board of Directors, the chief executive officer, or secretary of the Corporation in like manner and on like notice on the written request of the sole director.

8. At all meetings of the Board of Directors a majority of all directors then serving in office shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of

 

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Directors, except as may be otherwise specifically provided by applicable law, the Certificate of Incorporation or these Bylaws. A quorum, once established, shall not be broken by the subsequent withdrawal or departure of directors to leave less than a quorum. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any business may be transacted at an adjourned meeting that might have been transacted at the meeting as originally called.

9. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.

10. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference call, video conference, webcast or other means by which all persons participating in the meeting can hear or communicate with each other, and such participation in a meeting shall constitute presence in person at the meeting.

11. At each meeting of the Board of Directors, the chairman of the Board of Directors, or, in his or her absence, the vice chairman of the Board of Directors, and in his or her absence, the presiding director, or in his absence, a director in attendance at such meeting selected by the Board of Directors shall preside. The secretary shall act as secretary at each meeting of the Board of Directors. If the secretary is absent from any meeting of the Board of Directors, an assistant secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the secretary and all assistant secretaries, the person presiding at the meeting may appoint any person to act as secretary of the meeting.

COMMITTEES OF THE BOARD OF DIRECTORS

12. The Board of Directors may, by resolution passed by a majority of all of the directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation, subject to the provisions of the Certificate of Incorporation.

Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to submitting any actions to the stockholders which require stockholder approval (other than the election or removal of directors), amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, amending these Bylaws; and, unless the resolution or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to

 

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declare a dividend or to authorize the issuance of capital stock. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors.Unless the Board of Directors or the applicable committee charter provides otherwise, at all meetings of such committee, a majority of the then authorized members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. A quorum, once established, shall not be broken by the subsequent withdrawal or departure of directors to leave less than a quorum. Each committee shall keep regular minutes of its meetings. Unless the Board of Directors or the committee charter provides otherwise and subject to the provisions of the Certificate of Incorporation, each committee designated by the Board of Directors may make, alter and repeal rules and procedures for the conduct of its business. In the absence of such rules and procedures each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to this Article III.

13. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.

COMPENSATION OF DIRECTORS

14. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of Directors or designated committee thereof shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director payable in cash, stock, stock options, or other compensation or a combination thereof. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation and reimbursement of expenses for attending committee meetings.

REMOVAL OF DIRECTORS

15. Unless otherwise restricted or permitted by the Certificate of Incorporation or these Bylaws, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors at any meeting of stockholders or any adjournment thereof or by action taken by the stockholders by written consent without a meeting.

RESIGNATIONS OF DIRECTORS OR COMMITTEE MEMBERS

16. Any director or member of a committee may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the chairman of the Board of Directors or chief executive officer and the secretary of the Corporation. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

 

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FCC ELIGIBILITY — DIRECTORS

17. The Corporation, to the extent necessary to comply with FCC reporting or disclosure requirements, shall obtain from each existing and proposed director information relating to the citizenship and foreign affiliations, if any, of the director and such other information regarding the director as is reasonable to ensure the Corporation is in compliance with applicable law.

ARTICLE IV

NOTICES

1. Whenever, under the provisions of applicable law, the Certificate of Incorporation, or these Bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but to the extent permitted by law such notice may be given in writing, personally, by overnight mail, telegram, facsimile, or electronic mail or by mail, addressed to such director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given when by United States mail, at the time when the same shall be deposited in the United States mail, and upon delivery if personally delivered, sent via telegram, overnight mail, facsimile, or electronic mail.

2. Whenever any notice is required to be given under the provisions of applicable law, the Certificate of Incorporation, or these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee need be specified in any written waiver of notice unless so required by the Certificate of Incorporation or these Bylaws.

ARTICLE V

OFFICERS

1. Subject to the restrictions of the Certificate of Incorporation, the officers of the Corporation shall be chosen by the Board of Directors and shall include a chief executive officer, president, chief financial officer, treasurer, and secretary and may include such additional officers as may from time to time be authorized by these Bylaws or the Board. Subject to the restrictions of the Certificate of Incorporation, the Board of Directors may elect from among its members a chairman of the Board of Directors, one or more vice chairmen of the Board of Directors, and a presiding director of the Board of Directors. Subject to the restrictions of the Certificate of Incorporation, the Board of Directors may also choose one or more officers, vice-presidents, a chief operating officer, and or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the Certificate of Incorporation or these Bylaws otherwise provide.

 

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2. Subject to the restrictions of the Certificate of Incorporation, the Board of Directors, at its first meeting after each annual meeting of stockholders, shall choose a chief executive officer, president, chief financial officer, treasurer and secretary and may include such additional officers as may from time to time be authorized by these Bylaws or the Board of Directors.

3. Subject to the restrictions of the Certificate of Incorporation, the Board of Directors may appoint such other officers and agents as it shall deem necessary or appropriate who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.

4. The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors.

5. Each officer of the Corporation shall hold office until such officer’s successor is elected or appointed by the Board of Directors and shall qualify or until such officer’s death, resignation or removal in the manner hereinafter provided. Any officer may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the chief executive officer or secretary. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of directors comprising the whole Board of Directors. Subject to the restrictions of the Certificate of Incorporation, any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors.

THE CHAIRMAN OF THE BOARD OF DIRECTORS

6. The chairman of the Board of Directors, if any, shall preside at all meetings of the Board of Directors and of the stockholders at which he shall be present. He shall have and may exercise such powers as are, from time to time, assigned to him by the Board of Directors and as may be provided by law. The Board of Directors may elect a presiding director of the Board of Directors and may elect one or more vice chairmen of the Board of Directors by majority vote.

7. In the absence of the chairman of the Board of Directors, the vice chairman of the Board of Directors, if any, or the presiding director of the Board of Directors (if the chairman of the Board of Directors and the vice chairman of the Board of Directors, if any, is not present) shall preside at all meetings of the Board of Directors and of the stockholders at which he shall be present. He shall have and may exercise such powers as are, from time to lime, assigned to him by the Board of Directors and as may be provided by law.

 

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THE CHIEF EXECUTIVE OFFICER, PRESIDENT, CHIEF OPERATING OFFICER

AND VICE-PRESIDENTS

8. The chief executive officer shall preside at all meetings of the stockholders; he shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect.

9. The president shall be the chief administrative officer of the Corporation and, in the absence of the appointment of a separate chief operating officer or in the event of his inability or refusal to act, the president shall perform the duties of the chief operating officer of the Corporation, and when so acting, shall have all the powers of, and be subject to, all the restrictions upon the chief operating officer. The president shall perform such duties as from time to time may be assigned to him by the Board of Directors or by the chief executive officer. In the absence of the chief executive officer or in the event of his inability or refusal to act, the president shall perform the duties of the chief executive officer, and when so acting, shall have all the powers of, and be subject to, all the restrictions upon the chief executive officer.

10. The chief operating officer shall be responsible for the day-to-day operations of the Corporation. The chief operating officer shall perform such duties as from time to time may be assigned to him by the Board of Directors or by the chief executive officer. In the absence of the president or in the event of his inability or refusal to act, the chief operating officer shall perform the duties of the president, and when so acting, shall have all the powers of, and be subject to, all the restrictions upon the president. In the absence of the chief executive officer and the president or in the event of their inability or refusal to act, the chief operating officer shall perform the duties of the chief executive officer and the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president and chief executive officer.

11. The chief executive officer, the president, the chief operating officer, or any vice president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation.

12. In the absence of the chief executive officer, president and chief operating officer, or in the event of their inability or refusal to act, the vice-president, if any (or in the event there be more than one vice-president, the vice-presidents in the order designated by the Board of Directors, or in the absence of any designation, then in the order of their election), shall perform the duties of the chief executive officer, president, and chief operating officer, and when so acting, shall have all the powers of, and be subject to, all the restrictions upon the chief executive officer, president, and chief operating officer. The vice-presidents shall perform such other duties and have such other powers as the Board of Directors, or the chief executive officer may from time to time prescribe.

 

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CHIEF FINANCIAL OFFICER

13. The chief financial officer of the Corporation shall have responsibility for the general executive charge, management and control of the financial affairs and business of the Corporation and, jointly with the treasurer of the Corporation, shall have custody and control of all the funds and securities of the Corporation, and he shall have such other powers and duties as from time to time may be designated in these Bylaws or assigned to him by the Board of Directors. He shall perform all acts incident to the position of chief financial officer, subject to the control of the chief executive officer and the Board of Directors.

THE SECRETARY AND ASSISTANT SECRETARIES

14. The secretary shall attend all meetings of the Board of Directors, all meetings of committees of the Board of Directors, and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the chief executive officer. He shall have custody of the corporate seal of the Corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.

15. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

THE TREASURER AND ASSISTANT TREASURERS

16. The treasurer, jointly with the chief financial officer, shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the chief executive officer and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all transactions as treasurer and of the financial condition of the Corporation.

17. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of the treasurer’s inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

 

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ARTICLE VI

CERTIFICATE OF STOCK

1. Upon written request, every holder of capital stock in the Corporation shall be entitled to have a certificate, signed by, or in the name of the Corporation by, the chairman or vice-chairman of the Board of Directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the Corporation, certifying the number of shares owned by him in the Corporation; provided that the Board of Directors may provide by resolution or resolutions that some or all of any class or series of capital stock shall be uncertificated shares that may be evidenced by a book-entry system maintained by the registrar of such stock. If shares are represented by certificates such certificates shall be in a form approved by the Board of Directors.

If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, and preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock; provided that, except as otherwise provided in section 202 of the Delaware Corporation Law, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, and preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

2. Any of or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.

LOST CERTIFICATES

3. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

 

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4. The Board of Directors may appoint, or authorize any officer or officers to appoint, one or more transfer agents and one or more registrars.

TRANSFER OF STOCK

5. Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation only by the person named as the holder thereof on the stock records of the Corporation, by such person’s attorney lawfully constituted in writing, and in the case of shares represented by a certificate upon the surrender of the certificate thereof, which shall be cancelled before a new certificate or uncertificated shares shall be issued. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred. Subject to Section 155 of the Delaware Corporation Law, to the extent designated by the president or any vice president or the treasurer of the Corporation, the Corporation may recognize the transfer of fractional uncertificated shares, but shall not otherwise be required to recognize the transfer of fractional shares. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

FIXING RECORD DATE

6. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting nor more than sixty (60) days prior to any other action. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

7. Subject to Section 213 of the Delaware Corporation Law, the record date for a determination of the stockholders entitled to consent to corporate action in writing without a

 

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meeting shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in Delaware (by hand or by certified or registered mail, return receipt requested), its principal place of business or to any officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded.

REGISTERED STOCKHOLDERS

8. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.

ARTICLE VII

GENERAL PROVISIONS

DIVIDENDS

1. Dividends upon the capital stock of the Corporation, subject to applicable law and the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, in shares of the capital stock of the Corporation or out of any other assets of the Corporation legally available therefor, subject to the provisions of the Certificate of Incorporation and applicable law.

2. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deem proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purposes as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.

CHECKS

3. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

FISCAL YEAR

4. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. In the absence of such a resolution, the fiscal year of the Corporation shall be the calendar year.

 

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SEAL

5. The Board of Directors may adopt a corporate seal having inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

FCC ELIGIBILITY — STOCKHOLDERS

6. In order to enable the Corporation to establish that existing and proposed stockholders are eligible to be stockholders of the Corporation under applicable law, the officers of the Corporation, to the extent necessary, may request from each existing and proposed stockholder information relating to the citizenship and the extent, if any, of the foreign ownership of the stockholder, and such other information regarding the stockholder as is reasonable to ensure the Corporation is in compliance with applicable law.

GOVERNING LAW; FORUM FOR ADJUDICATION OF DISPUTES

7. These Bylaws and the internal affairs of the Corporation shall be governed by and interpreted under the laws of the State of Delaware, excluding its conflict of laws principals. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware Corporation Law or the Corporation’s Certificate of Incorporation or Bylaws, or (iv) any other action asserting a claim arising under, in connection with, and governed by the internal affairs doctrine.

ARTICLE VIII

AMENDMENTS

1. These Bylaws may be altered, amended or repealed only in accordance with the provisions of the Certificate of Incorporation.

 

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EX-4.1 4 d527693dex41.htm EX-4.1 EX-4.1

Exhibit 4.1

 

 

 

 

T-MOBILE USA, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

 

 

INDENTURE

Dated as of April 28, 2013

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

 

 

 


  TABLE OF CONTENTS   
  ARTICLE I   
  DEFINITIONS AND INCORPORATION BY REFERENCE   

Section 1.01

 

Definitions

     1   

Section 1.02

 

Other Definitions

     30   

Section 1.03

 

Incorporation by Reference of Trust Indenture Act

     31   

Section 1.04

 

Rules of Construction

     32   
  ARTICLE II   
  THE NOTES   

Section 2.01

 

Issuable in Series

     32   

Section 2.02

 

Establishment of Terms of Series of Notes

     33   

Section 2.03

 

Execution and Authentication

     35   

Section 2.04

 

Registrar and Paying Agent

     36   

Section 2.05

 

Paying Agent to Hold Money in Trust

     36   

Section 2.06

 

Holder Lists

     36   

Section 2.07

 

Transfer and Exchange

     37   

Section 2.08

 

Replacement Notes

     37   

Section 2.09

 

Outstanding Notes

     38   

Section 2.10

 

Treasury Notes

     38   

Section 2.11

 

Temporary Notes

     38   

Section 2.12

 

Cancellation

     39   

Section 2.13

 

Persons Deemed Owners

     39   

Section 2.14

 

Defaulted Interest

     39   

Section 2.15

 

Global Notes

     39   

Section 2.16

 

CUSIP Numbers

     40   
  ARTICLE III   
  REDEMPTION   

Section 3.01

 

Notices to Trustee

     41   

Section 3.02

 

Selection of Notes to be Redeemed

     41   

Section 3.03

 

Notice of Redemption

     42   

Section 3.04

 

Effect of Notice of Redemption

     43   

Section 3.05

 

Deposit of Redemption or Purchase Price

     43   

Section 3.06

 

Notes Redeemed or Purchased in Part

     43   

Section 3.07

 

Offer to Purchase by Application of Excess Proceeds

     44   
  ARTICLE IV   
  COVENANTS   

Section 4.01

 

Payment of Notes

     46   

Section 4.02

 

Maintenance of Office or Agency

     46   

Section 4.03

 

Reports

     47   

Section 4.04

 

Compliance Certificate

     48   

 

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Section 4.05

 

[Reserved]

     48   

Section 4.06

 

Stay, Extension and Usury Laws

     48   

Section 4.07

 

Restricted Payments

     49   

Section 4.08

 

Dividend and Other Payment Restrictions Affecting Subsidiaries

     53   

Section 4.09

 

Incurrence of Indebtedness and Issuance of Preferred Stock

     55   

Section 4.10

 

Asset Sales

     61   

Section 4.11

 

Transactions with Affiliates

     63   

Section 4.12

 

Liens

     66   

Section 4.13

 

Business Activities

     66   

Section 4.14

 

Existence

     66   

Section 4.15

 

Offer to Repurchase Upon Change of Control Triggering Event

     66   

Section 4.16

 

Payments for Consent

     68   

Section 4.17

 

Additional Note Guarantees

     69   

Section 4.18

 

Designation of Restricted and Unrestricted Subsidiaries

     69   

Section 4.19

 

Changes in Covenants When Notes Rated Investment Grade

     70   

Section 4.20

 

Effectiveness of Covenants

     70   
  ARTICLE V   
  SUCCESSORS   

Section 5.01

 

Merger, Consolidation, or Sale of Assets

     70   

Section 5.02

 

Successor Corporation Substituted

     72   
  ARTICLE VI   
  DEFAULTS AND REMEDIES   

Section 6.01

 

Events of Default

     72   

Section 6.02

 

Acceleration

     74   

Section 6.03

 

Other Remedies

     75   

Section 6.04

 

Waiver of Past Defaults

     75   

Section 6.05

 

Control by Majority

     75   

Section 6.06

 

Limitation on Suits

     76   

Section 6.07

 

Rights of Holders of Notes to Receive Payment

     76   

Section 6.08

 

Collection Suit by Trustee

     76   

Section 6.09

 

Trustee May File Proofs of Claim

     77   

Section 6.10

 

Priorities

     77   

Section 6.11

 

Undertaking for Costs

     77   
  ARTICLE VII   
  TRUSTEE   

Section 7.01

 

Duties of Trustee

     78   

Section 7.02

 

Rights of Trustee and the Agents

     79   

Section 7.03

 

Individual Rights of Trustee

     80   

Section 7.04

 

Trustee’s Disclaimer

     81   

Section 7.05

 

Notice of Defaults

     81   

Section 7.06

 

Reports by Trustee to Holders of the Notes

     81   

 

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Section 7.07

 

Compensation and Indemnity

     81   

Section 7.08

 

Replacement of Trustee

     82   

Section 7.09

 

Successor Trustee by Merger, etc

     83   

Section 7.10

 

Eligibility; Disqualification

     83   

Section 7.11

 

Preferential Collection of Claims Against Company

     84   

Section 7.12

 

Force Majeure

     84   
  ARTICLE VIII   
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE   

Section 8.01

 

Legal Defeasance and Covenant Defeasance

     84   

Section 8.02

 

Legal Defeasance and Discharge

     84   

Section 8.03

 

Covenant Defeasance

     85   

Section 8.04

 

Conditions to Legal or Covenant Defeasance

     86   

Section 8.05

 

Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions

     87   

Section 8.06

 

Repayment to Company

     88   

Section 8.07

 

Reinstatement

     88   
  ARTICLE IX   
  AMENDMENT, SUPPLEMENT AND WAIVER   

Section 9.01

 

Without Consent of Holders of Notes

     88   

Section 9.02

 

With Consent of Holders of Notes

     90   

Section 9.03

 

Compliance with Trust Indenture Act

     91   

Section 9.04

 

Revocation and Effect of Consents

     91   

Section 9.05

 

Notation on or Exchange of Notes

     92   

Section 9.06

 

Trustee to Sign Amendments, etc

     92   
  ARTICLE X   
  NOTE GUARANTEES   

Section 10.01

 

Note Guarantees

     92   

Section 10.02

 

Limitation on Guarantor Liability

     93   

Section 10.03

 

Execution and Delivery of Note Guarantee

     94   

Section 10.04

 

Releases

     94   

Section 10.05

 

Guarantors May Consolidate, etc., on Certain Terms

     95   
  ARTICLE XI   
  SATISFACTION AND DISCHARGE   

Section 11.01

 

Satisfaction and Discharge

     96   

Section 11.02

 

Application of Trust Money

     97   
  ARTICLE XII   
  MISCELLANEOUS   

Section 12.01

 

Trust Indenture Act Controls

     98   

 

-iii-


Section 12.02

 

Notices

     98   

Section 12.03

 

Communication by Holders with Other Holders

     99   

Section 12.04

 

Certificate and Opinion as to Conditions Precedent

     99   

Section 12.05

 

Statements Required in Certificate or Opinion

     99   

Section 12.06

 

Rules by Trustee and Agents

     100   

Section 12.07

 

No Personal Liability of Directors, Officers, Employees and Stockholders

     100   

Section 12.08

 

Counterparts

     100   

Section 12.09

 

Legal Holidays

     100   

Section 12.10

 

Governing Law

     100   

Section 12.11

 

Waiver of Jury Trial

     101   

Section 12.12

 

No Adverse Interpretation of Other Agreements

     101   

Section 12.13

 

Successors

     101   

Section 12.14

 

Severability

     101   

Section 12.15

 

[Reserved]

     101   

Section 12.16

 

Table of Contents, Headings, Etc

     101   

Section 12.17

 

U.S.A. Patriot Act

     101   

Section 12.18

 

Beneficiaries of this Indenture

     102   

APPENDICES

 

Appendix A   Provisions Relating to Initial Notes and Exchange Notes
EXHIBITS  
Exhibit A   Form of Notation of Guarantee
Exhibit B   Form of Supplemental Indenture

 

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CROSS-REFERENCE TABLE*

 

Trust Indenture Act Section    Indenture Section

311(a)

   7.11

(b)

   7.11

312(a)

   2.06

(b)

   12.03

(c)

   12.03

313(a)

   7.06

(d)

   7.06

314(a)

   4.03

(a)(4)

   12.05

(b)

   Not Applicable

(c)(1)

   Not Applicable

(c)(2)

   Not Applicable

(c)(3)

   Not Applicable

(d)

   Not Applicable

(e)

   12.05

 

* This Cross-Reference Table is not part of the Indenture.

 

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INDENTURE (this “Base Indenture”), dated as of April 28, 2013, between T-Mobile USA, Inc., a Delaware corporation, the Guarantors party hereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as trustee (the “Trustee”).

Each party agrees as follows for the benefit of each other party and for the equal and ratable benefit of the Holders (as hereinafter defined) of the Notes issued under this Indenture.

ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01 Definitions.

$3.5B Notes” means the $1,750,000,000 in principal amount of MetroPCS Wireless, Inc.’s 6.250% Senior Notes due 2021 and $1,750,000,000 in principal amount of MetroPCS Wireless, Inc.’s 6.625% Senior Notes due 2023, each issued as of March 19, 2013, pursuant to the Indenture, between MetroPCS Wireless, Inc.’s, MetroPCS, Inc., MetroPCS Communications, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as supplemented by the First Supplemental Indenture dated March 19, 2013 or the Second Supplemental Indenture dated March 19, 2013 thereto, as applicable (as so supplemented, the “$3.5B Notes Indenture”), (ii) any additional 6.250% Senior Notes due 2021 and 6.625% Senior Notes due 2023 issued under the $3.5B Notes Indenture as part of the same series, and (iii) any Exchange Notes (as defined in the $3.5B Notes Indenture) relating thereto.

6 5/8% Senior Notes Indenture” means the Indenture, dated as of September 21, 2010, as supplemented by the Second Supplemental Indenture, dated November 17, 2010, among MetroPCS Wireless, Inc., the guarantors party thereto and Wells Fargo Bank, N.A., as trustee, as supplemented by the Fourth Supplemental Indenture, dated as of December 23, 2010, by MetroPCS Wireless, Inc., the guarantors party thereto and Wells Fargo Bank, N.A., as trustee, as further supplemented by the 6 5/8% Senior Notes Sixth Supplemental Indenture, governing the 6 5/8% Senior Notes due 2020 issued by MetroPCS Wireless, Inc.

6  5/8% Senior Notes Sixth Supplemental Indenture” means the Sixth Supplemental Indenture, dated as of December 14, 2012, among MetroPCS Wireless, Inc., the guarantors party thereto and Wells Fargo Bank, N.A., as trustee.

Acquired Debt” 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, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and

(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

The term “Acquired Debt” does not include Indebtedness of a Person that is redeemed, defeased, retired or otherwise repaid at the time of, or immediately upon, consummation of the transactions by which such Person becomes a Restricted Subsidiary or acquires such asset, as the case may be.


Additional Interest” has the meaning set forth in any Registration Rights Agreement relating to amounts to be paid in respect of the Notes of the applicable Series in the event the Company fails to satisfy certain conditions set forth therein. For all purposes of this Indenture, the term “interest”, with respect to the Notes of a Series, shall include Additional Interest, if any, with respect to the Notes of such Series.

Additional Notes” with respect to a Series of Notes shall have the meaning assigned to such term in the supplemental indenture pursuant to which such Series of Notes are issued.

Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

Agent” means any Registrar, Paying Agent or any authenticating agent or transfer agent.

Asset Acquisition” means:

(1) an Investment by the Company (or any predecessor thereto) or any of its Restricted Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary or shall be merged into or consolidated with the Company or any of its Restricted Subsidiaries but only if (x) such Person’s primary business constitutes a Permitted Business and (y) the financial condition and results of operations of such Person are not already consolidated with those of the Company and its Restricted Subsidiaries immediately prior to such Investment, or

(2) an acquisition by the Company (or any predecessor thereto) or any of its Restricted Subsidiaries of the property and assets of any Person, other than the Company or any of its Restricted Subsidiaries, that constitute all or substantially all of a division, operating unit or line of business of such Person but only (x) if the property and assets so acquired constitute a Permitted Business and (y) the financial condition and results of operations of such Person are not already consolidated with those of the Company and its Restricted Subsidiaries immediately prior to such acquisition.

For the avoidance of doubt, the Merger shall be deemed to be an Asset Acquisition.

Asset Disposition” means the sale or other disposition by the Company or any of its Restricted Subsidiaries other than to the Company or another Restricted Subsidiary of (1) all or substantially all of the Capital Stock owned by the Company or any of its Restricted Subsidiaries of any Restricted Subsidiary or any Person that is a Permitted Joint Venture Investment or (2) all or substantially all of the assets that constitute a division, operating unit or line of business of the Company or any of its Restricted Subsidiaries.

 

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Asset Sale” means:

(1) the sale, lease, conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by Section 4.15 hereof and/or Section 5.01 hereof and not by the provisions of Section 4.10 hereof; and

(2) the issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or the sale by the Company or any Restricted Subsidiary thereof of Equity Interests in any of its Restricted Subsidiaries.

Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:

(1) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $100.0 million;

(2) a sale, lease, conveyance or other disposition of assets or Equity Interests between or among the Company and/or its Restricted Subsidiaries;

(3) an issuance or sale of Equity Interests by a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company;

(4) the sale, lease, sublease, conveyance or other disposition of (a) assets, products, services or accounts receivable in the ordinary course of business, (b) equipment or other assets pursuant to a program for the maintenance or upgrading of such equipment or assets, or (c) any sale, conveyance or other disposition of damaged, worn-out, uneconomic or obsolete assets in the ordinary course of business;

(5) the sale, conveyance or other disposition of cash or Cash Equivalents;

(6) a surrender or waiver of contract rights or settlement, release or surrender of contract, tort or other claims in the ordinary course of business or a grant of a Lien not prohibited by this Indenture;

(7) a Restricted Payment that does not violate Section 4.07 hereof;

(8) arms-length sales, leases or subleases (as lessor or sublessor), sale and leasebacks, assignments, conveyances, transfers or other dispositions of assets or rights to a Person that is a Permitted Joint Venture Investment;

(9) licenses and sales of intellectual property or other general intangibles (other than FCC Licenses) in the ordinary course of business;

(10) a Permitted Investment;

(11) dispositions of assets to the ISIS Joint Venture;

 

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(12) one or more sales, conveyances, leases, subleases, licenses, contributions, or other dispositions, assignments or transfers made as part of, or in connection with, the Towers Transaction; or

(13) the settlement or early termination of any Permitted Bond Hedge Transaction.

Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that (a) in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time and (b) in the case of a “group” pursuant to Rule 13d-5(b)(1) of the Exchange Act which group includes one or more Permitted Holders (or one or more Permitted Holders is deemed to share Beneficial Ownership with one or more other persons of any shares of Capital Stock), (i) such “group” shall be deemed not to have Beneficial Ownership of any shares held by such Permitted Holder and (ii) any person (other than such Permitted Holder) that is a member of such group (or sharing such Beneficial Ownership) shall be deemed not to have Beneficial Ownership of any shares held by such Permitted Holder (or in which any such Person shares beneficial ownership). The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.

Board of Directors” means:

(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

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

(3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

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

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

Business Combination Agreement” means that certain Business Combination Agreement, dated as of October 3, 2012, as amended by Amendment No. 1 thereto, dated as of April 14, 2013, by and among DT, T-Mobile Global Zwischenholding GmbH, T-Mobile Global Holding GmbH, T-Mobile, the Issuer and MetroPCS Communications, Inc.

 

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Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday, or a legal holiday in the City of New York or in any place of payment with respect to the Notes on which banking institutions are authorized or required by law, regulation or executive order to close.

Capital Lease Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

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 interests (whether general or limited) or membership interests, respectively; 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, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

Cash Equivalents” means:

(1) United States dollars;

(2) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of those securities) having maturities of not more than two years from the date of acquisition;

(3) demand deposits, certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of “B” or better;

(4) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above;

(5) commercial paper having one of the two highest ratings obtainable from a Rating Agency at the date of acquisition and, in each case, maturing within one year after the date of acquisition;

 

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(6) securities issued and fully guaranteed by any state, commonwealth or territory of the United States, or by any political subdivision or agency or instrumentality thereof, rated at least “A” by a Rating Agency at the date of acquisition and having maturities of not more than two years after the date of acquisition;

(7) auction rate securities rated at least “AA-” or “Aa3” by a Rating Agency at the time of purchase and with reset dates of one year or less from the time of purchase;

(8) investments, classified in accordance with GAAP as current assets of the Company or any of its Restricted Subsidiaries, in money market funds, mutual funds or investment programs registered under the Investment Company Act of 1940, at least 90% of the portfolios of which constitute investments of the character, quality and maturity described in clauses (1) through (7) of this definition;

(9) in the case of any Person that is operating outside the United States or anticipates operating outside the United States within the next 12 months, any substantially similar investment to the kinds described in clauses (1) through (7) of this definition rated at least “P-2” by Moody’s or “A-2” by S&P or the equivalent thereof; and

(10) deposits or payments made to the FCC in connection with the auction or licensing of Governmental Authorizations that are fully refundable.

Change of Control” means the occurrence of any of the following:

(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d) of the Exchange Act) other than any such disposition to a Restricted Subsidiary or a Permitted Holder;

(2) the adoption of a plan relating to the liquidation or dissolution of the Company;

(3) the consummation of any transaction (including any merger or consolidation), the result of which is that any “person” (as defined above), other than a Permitted Holder, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of Parent (or its successor by merger, consolidation or purchase of all or substantially all of its assets or its equity), measured by voting power rather than number of shares;

(4) during any period of 12 consecutive months, a majority of the members of the Board of Directors or other equivalent governing body of the Company or Parent cease to be composed of individuals (i) who were members of that Board of Directors or equivalent governing body on the first day of such period, (ii) whose election or nomination to that Board of Directors or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that Board of Directors or equivalent governing body, (iii)

 

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whose election or nomination to that Board of Directors or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that Board of Directors or equivalent governing body, or (iv) in the case of the Company, whose election or nomination to that Board of Directors or equivalent governing body was approved by Parent; or

(5) the Company ceases to be a direct or indirect Wholly-Owned Subsidiary of Parent;

provided, that the Transactions and other transactions pursuant to the Business Combination Agreement (including the changes to the Beneficial Ownership of the Voting Stock of Parent contemplated therein) shall not be a Change of Control.

Change of Control Triggering Event” with respect to any Series of Notes means the occurrence of a Change of Control (x) that is accompanied or followed by a downgrade by one or more gradations (including gradations within ratings categories as well as between ratings categories) or withdrawal of the rating of such Series of Notes within the Ratings Decline Period by at least two out of the three Rating Agencies and (y) the rating of such Series of Notes on any day during such Ratings Decline Period is below the rating by each such Rating Agency in effect immediately preceding the first public announcement of the Change of Control (or occurrence thereof if such Change of Control occurs prior to public announcement), provided that in making the relevant decision(s) referred to above to downgrade or withdraw such ratings, as applicable, the relevant Rating Agency announces publicly or confirms in writing during such Ratings Decline Period that such decision(s) resulted, in whole or in part, from the occurrence (or expected occurrence) of such Change of Control or the announcement of the intention to effect such Change of Control; provided, further that no Change of Control Triggering Event shall be deemed to occur if at the time of the applicable downgrade the rating of such Series of Notes by at least two out of the three Rating Agencies is Investment Grade.

Closing Date” means the date on which the Merger occurs.

Company” means T-Mobile USA, Inc., until a successor Person shall have become such in accordance with the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

Company Order” means a written order signed in the name of the Company by at least one Officer.

Consolidated Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:

(1) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

 

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(2) the Consolidated Interest Expense of such Person and its Restricted Subsidiaries for such period, to the extent that such Consolidated Interest Expense was deducted in computing such Consolidated Net Income; plus

(3) depreciation, amortization (including, non-cash impairment charges and any write-off or write-down or amortization of intangibles, but excluding, amortization of ordinary course prepaid cash expenses that were paid in a prior period) and other non-cash expenses or charges (excluding, any such non-cash expense to the extent that it represents an ordinary course accrual of or reserve for cash expenses in any future period or amortization of any ordinary course prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses or charges were deducted in computing such Consolidated Net Income; plus

(4) any net after-tax extraordinary, nonrecurring or unusual gains or losses or income, expenses or charges (including all fees and expenses relating thereto), including (a) any fees, expenses and costs relating to the Towers Transaction, (b) any fees, expenses or charges related to any sale or offering of Equity Interests of such Person or Parent, any acquisition or disposition or any Indebtedness, in each case that is permitted to be incurred hereunder (in each case, whether or not successful), or the offering, amendment or modification of any debt instrument, including the offering, any amendment or other modification of the Notes, provided that Consolidated Cash Flow shall not be deemed to be increased by more than $250.0 million in any twelve-month period pursuant to this clause (b), (c) any premium, penalty or fee paid in relation to any repayment, prepayment or repurchase of Indebtedness, (d) any fees or expenses relating to the Transactions and the offering, issuance and sale (in each case, whether or not successful) of the DT Notes and the “Permitted MetroPCS Notes” as such term is defined in the Business Combination Agreement, and (e) restructuring charges, integration costs (including retention, relocation and contract termination costs) and related costs and charges, provided such costs and charges under this clause (e) shall not exceed $300.0 million in any twelve-month period, plus for the first four years after the Closing Date, up to an additional $300.0 million in any twelve-month period related to the Transactions; plus

(5) New Market Losses, up to a maximum aggregate amount of $300.0 million in any twelve-month period; minus

(6) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business, in each case, on a consolidated basis and determined in accordance with GAAP.

Notwithstanding the preceding, the provision for taxes based on the income or profits of, and the depreciation and amortization and other non-cash expenses of, a Restricted Subsidiary of the Company that is not a Subsidiary Guarantor will be added to Consolidated Net Income to compute Consolidated Cash Flow of the Company only to the extent that a corresponding amount would be permitted at the date of determination to be dividended to the Company by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders.

 

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For the avoidance of doubt, calculations of “Consolidated Cash Flow” of the Company for any period prior to the Closing Date for purposes of calculating the Debt to Cash Flow Ratio shall be on a pro forma basis as described in the last paragraph of the definition of “Debt to Cash Flow Ratio”.

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

Consolidated Interest Expense” means, with respect to any Person for any period, the sum of, without duplication:

(1) the consolidated interest expense of such Person and its Subsidiaries for such period, whether paid or accrued (including amortization of debt issuance costs or original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of payments (if any) pursuant to Hedging Obligations); plus

(2) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

(3) any interest expense on that portion of Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries (whether or not such Guarantee or Lien is called upon); plus

(4) the product of (a) all dividend payments on any series of Preferred Stock of such Person or any of its Restricted Subsidiaries, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then-current combined federal, state and local statutory tax rate of such Person, expressed as a decimal;

in each case, on a consolidated basis and in accordance with GAAP; excluding, however, any amount of such interest of any Restricted Subsidiary of the referent Person if the net income of such Restricted Subsidiary is excluded in the calculation of Consolidated Net Income pursuant to clause (2) of the definition thereof (but only in the same proportion as the net income of such Restricted Subsidiary is excluded from the calculation of Consolidated Net Income pursuant to clause (2) of the definition thereof). Notwithstanding the foregoing, if any lease or other liability is reclassified as indebtedness or as a Capital Lease Obligation due to a change in accounting principles or the application thereof after the Closing Date, the interest component of all payments associated with such lease or other liability shall be excluded from Consolidated Interest Expense.

 

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Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

(1) the positive Net Income of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;

(2) solely for the purpose of determining the amount available for Restricted Payments under clause (3)(A) of Section 4.07(a) hereof, the Net Income of any Restricted Subsidiary that is not a Guarantor will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;

(3) the effect of a change in accounting principles or in the application thereof (including any change to IFRS and any cumulative effect adjustment) will be excluded;

(4) unrealized losses and gains attributable to Hedging Obligations, including those resulting from the application of the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) 815, will be excluded; and

(5) any non-cash compensation charge or expense realized from grants of stock, stock appreciation or similar rights, stock option or other rights to officers, directors and employees will be excluded.

Contribution Indebtedness” means, Indebtedness in an aggregate principal amount at any one time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge such Indebtedness, not to exceed 150% of the aggregate amount of all Net Equity Proceeds.

Convertible Debt” means Debt of the Company (which may be Guaranteed by the Guarantors) permitted to be incurred hereunder that is either (a) convertible or exchangeable into common stock of Parent (and cash in lieu of fractional shares) and/or cash (in an amount determined by reference to the price of such common stock) or (b) sold as units with call options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for common stock of Parent and/or cash (in an amount determined by reference to the price of such common stock).

Corporate Trust Office of the Trustee” means, solely for purposes of presenting Notes, Deutsche Bank Trust Company Americas located at 60 Wall Street, New York, NY 10005, and, for all other purposes, the office of the Trustee at which any time its corporate trust business will be

 

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administered, which at the date hereof is located at 60 Wall Street, New York, NY 10005, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

Credit Facilities” means, one or more debt facilities (including the TMUS Working Capital Facility), capital leases, purchase money financings or commercial paper facilities, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables), capital leases, purchase money debt, debt securities or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including, in each case, by means of sales of debt securities to institutional investors) in whole or in part from time to time.

Debt to Cash Flow Ratio” means, with respect to any Person as of any date of determination, the ratio of (a) the Consolidated Indebtedness of such Person as of such date to (b) the Consolidated Cash Flow of such Person for the four most recent full fiscal quarters ending immediately prior to such date for which internal financial statements are available.

For purposes of making the computation referred to above:

(1) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions (including the Merger and including giving pro forma effect to any related financing transactions and the application of proceeds of any Asset Disposition) that occur during such four-quarter period or subsequent to such four-quarter period but on or prior to the date on which the Debt to Cash Flow Ratio is to be calculated as if they had occurred and such proceeds had been applied on the first day of such four-quarter period;

(2) pro forma effect shall be given to asset dispositions and asset acquisitions (including giving pro forma effect to any related financing transactions and the application of proceeds of any asset disposition) that have been made by any Person that has become a Restricted Subsidiary of the Company or has been merged with or into the Company (including MetroPCS Wireless, Inc.) or any Restricted Subsidiary during such four-quarter period or subsequent to such four-quarter period but on or prior to the date on which the Debt to Cash Flow Ratio is to be calculated and that would have constituted Asset Dispositions or Asset Acquisitions had such transactions occurred when such Person was a Restricted Subsidiary, as if such asset dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that occurred on the first day of such four-quarter period;

(3) to the extent that the pro forma effect of any transaction is to be made pursuant to clause (1) or (2) above, such pro forma effect shall be determined in good faith on a reasonable basis by a responsible financial or accounting officer of the specified Person, whose determination shall be conclusive, as if the subject transaction(s) had occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period shall be calculated without giving effect to clause (3) of the proviso set forth in the definition of Consolidated Net Income;

 

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(4) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of (without duplication of clauses (1) and (2) above) prior to the date on which the Debt to Cash Flow Ratio is to be calculated, shall be excluded;

(5) any Person that is a Restricted Subsidiary on the date on which the Debt to Cash Flow Ratio is to be calculated will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period; and

(6) any Person that is not a Restricted Subsidiary on the date on which the Debt to Cash Flow Ratio is to be calculated will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period.

For the avoidance of doubt, if the Debt to Cash Flow Ratio is determined for any period commencing prior to the date that is four fiscal quarters after the fiscal quarter during which the Closing Date occurs, the Debt to Cash Flow Ratio shall be calculated giving pro forma effect to the Transactions as if the Transactions had occurred on the first day of the four-quarter reference period.

Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

Depositary” means, with respect to the Notes of any Series issuable or issued in whole or in part in the form of one or more Global Notes, the Person designated as Depositary for such Series by the Company, which Depositary will be a clearing agency registered under the Exchange Act; and if at any time there is more than one such Person, “Depositary” as used with respect to the Notes of any Series will mean the Depositary with respect to the Notes of such Series.

Designated Entity” means (i) Iowa Wireless Services LLC, a Delaware limited liability company, or (ii) any Designated Tower Entity.

Designated Tower Entity” means any entity established solely or primarily for the limited purpose of holding wireless communications sites, towers, and related contracts, equipment, improvements, real estate, and other assets, and performing other activities incidental thereto or in connection with the Towers Transaction. For the avoidance of doubt, T-Mobile USA Tower LLC and T-Mobile West Tower LLC are each Designated Tower Entities.

Disqualified Stock” means, with respect to Notes of any Series, any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes of the applicable Series mature; provided that any class of Capital Stock of such Person that, by its terms, requires such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to

 

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a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Capital Stock, and that is not convertible, puttable or exchangeable for cash, Disqualified Stock or Indebtedness, will not be deemed to be Disqualified Stock, so long as such Person satisfies its obligations with respect thereto solely by the delivery of Capital Stock. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07 hereof. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

Domestic Restricted Subsidiary” means any Restricted Subsidiary that is not a Foreign Subsidiary.

DT” means Deutsche Telekom AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany.

DT Notes” means the Notes issued pursuant to this Indenture on April 28, 2013 (and any Exchange Notes in respect thereof).

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).

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

Exchange Notes” means the Notes of any Series issued pursuant to this Indenture in connection with a Registered Exchange Offer.

Existing Indebtedness” means (a) Indebtedness of the Company and its Subsidiaries (other than Indebtedness in respect of any Notes) in existence on the Closing Date, until such amounts are repaid, (b)(1) the $3.5B Notes in existence on the Closing Date (and any Exchange Notes (as defined in the $3.5B Notes Base Indenture) relating thereto) and the TMUS Working Capital Facility, and (2) all other Indebtedness of MetroPCS Wireless, Inc. and its Subsidiaries in existence on the Closing Date that was not incurred in violation of the terms of the Business Combination Agreement, in each case until such amounts are repaid (provided that the aggregate principal amount of Indebtedness incurred in contemplation of the Transactions, including any Indebtedness in the form of the $3.5B Notes and Notes issued on the date of this Base Indenture (other than Indebtedness under the TMUS Working Capital Facility), in each case permitted by this clause (b), shall not exceed $20.5 billion).

Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Company’s Board of Directors or a senior officer of the Company, which determination shall be conclusive.

 

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FCC” means the United States Federal Communications Commission and any successor agency that is responsible for regulating the United States telecommunications industry.

FCC Licenses” means all licenses or permits now or hereafter issued by the FCC.

Fitch” means Fitch Inc., a Subsidiary of Fimalac, S.A., and its successors.

Foreign Subsidiary” means any Subsidiary of the Company other than a Subsidiary organized under the laws of the United States or any state of the United States or the District of Columbia, or any direct or indirect subsidiary thereof.

GAAP” means generally accepted accounting principles as in effect on the Closing Date. Notwithstanding the foregoing, at any time, the Company may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP or parts of the Accounting Standards Codification or “ASC” shall thereafter be construed to mean IFRS (except as otherwise provided in this Indenture); provided that any such election, once made, shall be irrevocable; provided further, that any calculation or determination in this Indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to the Company’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Company shall give notice of any such election made in accordance with this definition to the Trustee and the Holders.

Global Note” or “Global Notes” means a Note or Notes, as the case may be, in the form established pursuant to Section 2.02 or 2.15 evidencing all or part of a Series of Notes, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary or nominee.

Government Securities” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer’s option.

Governmental Authorization” means any permit, license, authorization, plan, directive, consent, permission, consent order or consent decree of or from any governmental authority.

Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).

Guarantor” means, with respect to the Notes of any Series, any Person who has guaranteed the obligations of the Company under this Indenture with respect to such Series pursuant to ARTICLE X, until released from its Note Guarantee pursuant to the provisions of this Indenture.

 

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Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:

(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

(2) other agreements or arrangements designed to manage interest rates or interest rate risk; and

(3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices,

and any guarantee in respect thereof.

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

IFRS” means the international accounting standards promulgated by the International Accounting Standards Board and its predecessors, as adopted by the European Union, as in effect from time to time.

Immaterial Subsidiary” means any Subsidiary of the Company that at any time has less than $100.0 million in Total Assets; provided, that the aggregate Total Assets of all Immaterial Subsidiaries shall not at any time exceed $300.0 million.

Indebtedness” means, with respect to any specified Person, without duplication,

(a) any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:

(1) in respect of borrowed money;

(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

(3) in respect of banker’s acceptances;

(4) representing Capital Lease Obligations;

(5) representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed; or

(6) representing any Hedging Obligations; and

(b) any financial liabilities recorded in respect of the upfront proceeds received in connection with the Towers Transaction,

in each case, if and only to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person

 

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prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. Notwithstanding the foregoing, in no event shall the reclassification of any lease or other liability as indebtedness due to a change in accounting principles (or in the application thereof) after the Closing Date be deemed to be an incurrence of Indebtedness for any purpose under this Indenture. The amount of any Indebtedness shall be determined in accordance with the last paragraph of Section 4.09 hereof.

Indenture” means, with respect to any Series of Notes, this Base Indenture, as amended or supplemented from time to time in respect of such Series of Notes and will include the form and terms of such Series of Notes established as contemplated hereunder. For the avoidance of doubt, for purposes of determining the rights of Holders of any Series of Notes, and the terms applicable to such Series of Notes, references herein to “this Indenture” shall mean the Indenture with respect to such Series.

Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees), advances (excluding commission, travel, entertainment, drawing accounts and similar advances to directors, officers and employees made in the ordinary course of business and excluding the purchase of assets, equipment, property or accounts receivables created or acquired in the ordinary course of business) or capital contributions, and purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities. If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Capital Stock of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Company’s Investments in such Restricted Subsidiary that were not sold or disposed of in an amount determined as provided in the final paragraph of Section 4.07 hereof. The acquisition by the Company or any Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of Section 4.07 hereof as of the date the acquisition of the acquired Person is consummated. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.

Investment Grade” means:

(1) with respect to Moody’s (or any successor company acquiring all or substantially all of its assets), a rating of Baa3 (or its equivalent under any successor rating category of Moody’s) or better;

(2) with respect to S&P (or any successor company acquiring all or substantially all of its assets), a rating of BBB- (or its equivalent under any successor rating category of S&P) or better;

 

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(3) with respect to Fitch (or any successor company acquiring all or substantially all of its assets), a rating of BBB- (or its equivalent under any successor rating category of Fitch) or better; and

(4) if any Rating Agency ceases to exist or ceases to rate any Series of the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating for such Series of Notes from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a replacement agency.

ISIS Joint Venture” means Amended and Restated LLC Agreement of JVL Ventures, LLC dated October 1, 2010, as amended.

Issue Date” means the effective date of the Board Resolution, Officers’ Certificate or supplemental indenture pursuant to which the first Series of Notes is issued under this Indenture.

Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement and any lease in the nature thereof.

Maturity” means, when used with respect to any Note, the date on which the principal of such Note becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

Merger” means the merger of MetroPCS Wireless, Inc. with and into the Company with the Company as the surviving Person, pursuant to the Business Combination Agreement.

Moody’s” means Moody’s Investors Service, Inc., and its successors.

Net Equity Proceeds” means the net cash proceeds received by the Company since the Closing Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock).

Net Income” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock accretion or dividends, excluding however:

(1) any gain (or loss), together with any related provision for taxes on such gain (or loss) realized in connection with:

(a) dispositions of assets (other than in the ordinary course of business); or

(b) the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

(2) any extraordinary gain (or loss), together with any related provision for taxes on such extraordinary gain (or loss).

 

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Net Proceeds” means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale, but excluding any items deemed to be cash pursuant to Section 4.10(2)(A) hereof), net of all costs relating to such Asset Sale, including (a) legal, accounting and investment banking fees, finder’s fees, sales commissions, employee severance costs, and any relocation expenses incurred as a result of the Asset Sale, (b) taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, (c) amounts required to be applied to the repayment of Indebtedness, other than Indebtedness under a Credit Facility, secured by a Lien on the asset or assets that were the subject of such Asset Sale, (d) all distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale and (e) any amounts to be set aside in any reserve established in accordance with GAAP or any amount placed in escrow, in either case for adjustment in respect of the sale price of such properties or assets or for liabilities associated with such Asset Sale and retained by the Company or any of its Restricted Subsidiaries until such time as such reserve is reversed or such escrow arrangement is terminated, in which case Net Proceeds shall include only the amount of the reserve so reversed or the amount returned to the Company or its Restricted Subsidiaries from such escrow arrangement, as the case may be.

New Markets” means the collective reference to any wireless telephone markets other than the metropolitan areas of Las Vegas, Nevada; Los Angeles, San Francisco and Sacramento, California; Detroit, Michigan; Dallas/Fort Worth, Texas; Tampa/Sarasota, Orlando, Miami and Jacksonville, Florida; Atlanta, Georgia; Philadelphia, Pennsylvania; New York, New York; Boston, Massachusetts; and Hartford, Connecticut.

New Market Losses” means, for any period, to the extent such losses were deducted in computing such Consolidated Net Income during the applicable period, an amount equal to any extraordinary loss plus any net loss (without duplication) realized by the Company or any of its Restricted Subsidiaries incurred in connection with construction, launch and operations in any New Market for such period, so long as such net losses are incurred on or prior to the fourth anniversary after the initial commencement of commercial operations in the applicable New Market.

Non-Recourse Debt” means Indebtedness:

(1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), subject to customary “bad-boy” exceptions, (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 of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both, any holder of any other Indebtedness of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness 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 the Company or any of its Restricted Subsidiaries.

 

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Notation of Guarantee” means a notation, substantially in the form of Exhibit A attached hereto, executed by a Guarantor and affixed to each Note of any Series to which the Note Guarantee of such Guarantor under ARTICLE X of this Base Indenture applies.

Note” or “Notes” means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.

Note Guarantee” means, with respect to the Notes of any Series, the guarantee by each Guarantor of the obligations of the Company under this Indenture with respect to such Series and the Notes of such Series pursuant to ARTICLE X.

Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, cash collateral obligations, damages and other liabilities payable under the documentation governing any Indebtedness.

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

Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the requirements of Section 12.05 hereof.

Opinion of Counsel” means an opinion (which may be subject to customary assumptions, qualifications and exclusions) from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to the Company or any Subsidiary of the Company.

Parent” means T-Mobile US, Inc. (formerly known as MetroPCS Communications, Inc.), a Delaware corporation, and its successors and assigns.

Permitted Bond Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) on Parent’s common stock purchased by the Company in connection with the issuance of any Convertible Debt; provided that the purchase price for such Permitted Bond Hedge Transaction, does not exceed the net cash proceeds received by the Company from the sale of such Convertible Debt issued in connection with the Permitted Bond Hedge Transaction.

Permitted Business” means those businesses in which the Company and its Subsidiaries were engaged on the Closing Date, or any business similar, related, incidental or ancillary thereto or that constitutes a reasonable extension or expansion thereof, or any business reasonably related to the telecommunications industry, and the acquisition, holding or exploitation of any license relating to the delivery of those services.

 

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Permitted Holder” means (i) DT and (ii) any direct or indirect Subsidiary of DT.

Permitted Investments” means:

(1) any Investment in the Company or in any Restricted Subsidiary of the Company;

(2) any Investment in Cash Equivalents;

(3) any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment:

(a) such Person becomes a Restricted Subsidiary of the Company; or

(b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company;

(4) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;

(5) any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company or Equity Interests of Parent;

(6) any Investments received in compromise or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (B) litigation, arbitration or other disputes with Persons who are not Affiliates;

(7) Investments represented by Hedging Obligations;

(8) loans or advances to employees made in the ordinary course of business of the Company or any Restricted Subsidiary of the Company in an aggregate principal amount not to exceed $50.0 million at any one time outstanding;

(9) any payment on or with respect to, or purchase, redemption, defeasement or other acquisition or retirement for value of (i) any of the Notes issued on the date of this Base Indenture, and any Additional Notes of the same Series, and any Exchange Notes in respect of any such Notes or Additional Notes, (ii) any of MetroPCS Wireless Inc.’s 7 7/8% Senior Notes due 2018 issued pursuant to that certain Indenture, dated as of September 21, 2010, among MetroPCS Wireless, Inc., the guarantors named therein and Wells Fargo Bank, N.A., as trustee, as amended and supplemented by that certain First Supplemental

 

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Indenture, dated as of September 21, 2010, among MetroPCS Wireless Inc., the guarantors named therein and Wells Fargo Bank, N.A., as trustee, as further supplemented by that certain Third Supplemental Indenture, dated as of December 23, 2010, among MetroPCS Wireless, Inc., the guarantors named therein and Wells Fargo Bank, N.A., as trustee, and as amended and restated by that certain Fifth Supplemental Indenture, dated as of December 14, 2012, among MetroPCS Wireless, Inc., the guarantors named therein and Wells Fargo Bank, N.A., as trustee, (iii) any of MetroPCS Wireless Inc.’s 6 5/8% Senior Notes due 2020 issued pursuant to the 6 5/8% Senior Notes Indenture, (iv) any of the $3.5B Notes or (v) any other Indebtedness that is pari passu with the Notes issued on the date of this Base Indenture;

(10) advances and prepayments for asset purchases in the ordinary course of business in a Permitted Business of the Company or any of its Restricted Subsidiaries;

(11) Investments existing on the Closing Date including Investments held by MetroPCS Wireless, Inc., the Company and their Subsidiaries immediately prior to the Merger;

(12) Investments in the ISIS Joint Venture having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (12) since the Closing Date that are at that time outstanding, not to exceed $300.0 million;

(13) Permitted Bond Hedge Transactions which constitute Investments;

(14) (a) Permitted Joint Venture Investments, and (b) other Investments in any Person other than an Affiliate of the Company (excluding any Person that is an Affiliate of the Company solely by reason of Parent’s ownership, directly or indirectly, of Equity Interests, or Parent’s control, of such Person, or which becomes an Affiliate as a result of such Investment), to the extent such Investment under (a) or (b) has an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (14) that are at the time outstanding, not to exceed 12.5% of the Company’s Total Assets on the date of such Investment;

(15) Investments in a Person primarily engaged in a Permitted Business having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (15) since the Closing Date that are at that time outstanding, not to exceed $250.0 million;

(16) guarantees permitted under Section 4.09 hereof;

(17) deposits or payments made with the FCC in connection with the auction or licensing of Governmental Authorizations;

 

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(18) any Investment deemed made from time to time pursuant to Section 4.18 in connection with a Specified Unrestricted Subsidiary Designation, in an amount equal to the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiaries designated as Unrestricted Subsidiaries pursuant to such Specified Unrestricted Subsidiary Designation, but only to the extent not in excess of the aggregate Fair Market Value of all outstanding Investments owned by T-Mobile and its Restricted Subsidiaries in such designated Subsidiaries as of the Closing Date (for this purpose, it shall be assumed, as regards to Investments in any Designated Tower Entity, that all wireless communications sites, towers, and related contracts, equipment, improvements, real estate, and other assets of T-Mobile and its subsidiaries subject to the Towers Transaction that are contemplated to be transferred to the Designated Tower Entities in accordance with the terms of the Towers Transaction, as contemplated in the Towers Transaction Agreements as in effect as of March 19, 2013, had been transferred to the Designated Tower Entities, whether or not all such transfers have in fact then taken place, but disregarding any transfers of assets not part of the Towers Transaction as contemplated in the Towers Transaction Agreements as in effect as of the March 19, 2013); and

(19) any other Investments made in connection with the Towers Transaction, as contemplated in the Towers Transaction Agreements as in effect as of the March 19, 2013].

Notwithstanding any other provision to the contrary, no Permitted Investment shall be deemed to be a Restricted Payment.

Permitted Joint Venture Investment” means, with respect to any specified Person, Investments in any other Person engaged in a Permitted Business of which at least 40% of the outstanding Capital Stock of such other Person is at the time owned directly or indirectly by the specified Person.

Permitted Liens” means:

(1) Liens securing Indebtedness and other Obligations under Credit Facilities and/or securing Hedging Obligations related thereto permitted by Section 4.09(b)(1), (8) and (19) hereof, provided that any secured Permitted Refinancing Indebtedness incurred in respect of Indebtedness or other Obligations previously secured pursuant to this clause (1) will be treated as Indebtedness secured pursuant to this clause (1) in making any determination as to whether additional Indebtedness or other Obligations may be secured pursuant to this clause (1);

(2) Liens in favor of the Company or the Guarantors;

(3) Liens on property of a Person existing at the time such Person becomes a Restricted Subsidiary or is merged with or into or consolidated with the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any assets (other than improvements thereon, accessions thereto and proceeds thereof) other than those of the Person that becomes a Restricted Subsidiary or is merged into or consolidated with the Company or the Subsidiary;

 

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(4) Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to, and not incurred in contemplation of, such acquisition;

(5) (a) bankers’ Liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution, and (b) Liens, deposits (including deposits with the FCC) or pledges to secure the performance of bids, tenders, trade or governmental contracts, leases, licenses, statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business;

(6) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by Section 4.09(b)(4) covering only the assets (including the proceeds thereof, accessions thereto and upgrades thereof) acquired with or financed by such Indebtedness;

(7) Liens existing on the Closing Date (including Liens on the assets of MetroPCS Wireless, Inc. and its Subsidiaries existing immediately prior to the Merger);

(8) 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; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

(9) Liens imposed by law or contract, such as carriers’, warehousemen’s, suppliers’, vendors’, construction, repairmen’s, landlord’s and mechanics’ Liens or other similar Liens, in each case, incurred in the ordinary course of business;

(10) survey exceptions, encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(11) Liens arising by reason of a judgment, attachment, decree or court order, to the extent not otherwise resulting in an Event of Default, and any Liens that are required to protect or enforce any rights in any administrative, arbitration or other court proceedings in the ordinary course of business;

(12) Liens created for the benefit of (or to secure) the Notes (or the Note Guarantees);

(13) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture; provided, however, that:

(a) the new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original

 

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Lien arose, could secure the original Lien (plus improvements and accessions to such property and assets and proceeds or distributions of such property and assets and improvements and accessions thereto); and

(b) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount, or, if greater, committed amount, of the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal, refunding, refinancing, replacement, defeasance or discharge;

(14) (a) Liens contained in purchase and sale agreements or lease agreements limiting the transfer of assets pending the closing of the transactions contemplated thereby or the termination of the lease, respectively, (b) spectrum leases or other similar lease or licensing arrangements contained in, or entered into in connection with, purchase and sale agreements, and (c) Liens relating to deposits or escrows established in connection with purchase and sale agreements;

(15) Liens that may be deemed to exist by virtue of contractual provisions that restrict the ability of the Company or any of its Subsidiaries from granting or permitting to exist Liens on their respective assets;

(16) Liens in favor of the Trustee as provided for in this Indenture on money or property held or collected by the Trustee in its capacity as trustee;

(17) Liens on cash or Cash Equivalents securing (a) workers’ compensation claims, self-insurance obligations, unemployment insurance or other social security, old age pension, bankers’ acceptances, performance bonds, completion bonds, bid bonds, appeal bonds, indemnity bonds, specific performance or injunctive relief bonds, surety bonds, public liability obligations, or other similar bonds or obligations, or securing any Guarantees or letters of credit functioning as or supporting any of the foregoing, in each case incurred in the ordinary course of business or (b) letters of credit required to be issued for the benefit of any Person that controls a Permitted Joint Venture Investment to secure any put right for the benefit of the Person controlling the Permitted Joint Venture Investment;

(18) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into in the ordinary course of business covering only the property under lease (plus improvements and accessions to such property and proceeds or distributions of such property and improvements and accessions thereto);

(19) any interest or title of a lessor, licensor or sublicensor in the property subject to any lease, license or sublicense entered into in the ordinary course of business;

(20) Liens on cash or Cash Equivalents on deposit to secure reimbursement obligations under letters of credit incurred in the ordinary course of business;

 

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(21) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Person that is a Permitted Joint Venture Investment owned by the Company or any Restricted Subsidiary to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Person;

(22) Liens arising under operating agreements, joint venture agreements, partnership agreements, contracts for sale and other agreements arising in the ordinary course of business that are customary in the Permitted Business, and applicable only to the assets that are the subject of such agreements or contracts;

(23) Liens securing Hedging Obligations;

(24) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

(25) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

(26) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(27) Liens securing any arrangement for treasury, depositary or cash management services provided to the Company or any of its Restricted Subsidiaries in the ordinary course of business;

(28) Liens with respect to obligations that do not exceed at any time the greater of (x) $500.0 million and (y) 1.0% of the Company’s Total Assets at such time;

(29) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements; and

(30) Liens, if any, incurred in connection with the Towers Transaction.

Permitted Payments to Parent” means, without duplication as to amounts:

(1) payments to Parent to permit Parent to pay reasonable accounting, legal, investment banking fees and administrative expenses of Parent when due; and

(2) for so long as the Company is a member of a group filing a consolidated or combined tax return with Parent, payments to Parent in respect of an allocable portion of the tax liabilities of such group that is attributable to the Company and its Subsidiaries (“Tax Payments”). The Tax Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any penalties and interest) that the Company would owe if the Company were filing a separate tax return (or a separate consolidated or combined return

 

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with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Company and such Subsidiaries from other taxable years and (ii) the net amount of the relevant tax that Parent actually owes to the appropriate taxing authority.

Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries, any Disqualified Stock of the Company or any Preferred Stock of any Restricted Subsidiary issued (a) in exchange for, or the net proceeds of which are used to, extend the maturity, renew, refund, refinance, replace, defease, discharge or otherwise retire for value, in whole or in part, or (b) constituting an amendment, modification or supplement to or a deferral or renewal of ((a) and (b) above, collectively, a “Refinancing”), any other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness), any Disqualified Stock of the Company or any Preferred Stock of a Restricted Subsidiary in a principal amount or, in the case of Disqualified Stock of the Company or Preferred Stock of a Restricted Subsidiary, liquidation preference, not to exceed (after deduction of reasonable and customary fees and expenses incurred in connection with the Refinancing) the lesser of:

(1) the principal amount or, in the case of Disqualified Stock or Preferred Stock, liquidation preference, of the Indebtedness, Disqualified Stock or Preferred Stock so Refinanced (plus, in the case of Indebtedness, the amount of accrued interest and premium, if any paid in connection therewith), and

(2) if the Indebtedness being Refinanced was issued with any original issue discount, the accreted value of such Indebtedness (as determined in accordance with GAAP) at the time of such Refinancing;

in each case, except to the extent that any such excess principal amount (or accreted value, as applicable) would be then permitted to be incurred by other provisions of Section 4.09 hereof; provided, that such excess principal amount of Indebtedness shall be deemed to be incurred under such other provision.

Notwithstanding the preceding, no Indebtedness, Disqualified Stock or Preferred Stock will be deemed to be Permitted Refinancing Indebtedness, unless:

(1) such Indebtedness, Disqualified Stock or Preferred Stock has a final maturity date or redemption date, as applicable, later than the final maturity date or redemption date, as applicable, of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness, Disqualified Stock or Preferred Stock being Refinanced;

(2) if the Indebtedness, Disqualified Stock or Preferred Stock being Refinanced is contractually subordinated in right of payment to the Notes, such Indebtedness, Disqualified Stock or Preferred Stock is contractually subordinated in right of payment to, the Notes, on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness, Disqualified Stock or Preferred Stock being Refinanced at the time of the Refinancing; and

(3) such Indebtedness or Disqualified Stock is incurred or issued by the Company or such Indebtedness, Disqualified Stock or Preferred Stock is incurred or issued by the Restricted Subsidiary who is the obligor on the Indebtedness being Refinanced or the issuer of the Disqualified Stock or Preferred Stock being Refinanced, or a Restricted Subsidiary of such obligor or issuer.

 

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Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

Preferred Stock” means, with respect to any Person, any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or payments upon liquidation.

Rating Agency” means each of Moody’s, S&P, Fitch and, if any of Moody’s, S&P or Fitch ceases to exist or ceases to rate the Notes of the applicable Series for reasons outside of the control of the Company, any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a replacement agency.

Ratings Decline Period” means the period that (i) begins on the earlier of (a) the date of the first public announcement of the occurrence of a Change of Control or of the intention by the Company or a shareholder of the Company, as applicable, to effect a Change of Control or (b) the occurrence thereof and (ii) ends 90 days following consummation of such Change of Control; provided that such period shall be extended for so long as the rating of the Notes of the applicable Series, as noted by the applicable Rating Agency, is under publicly announced consideration for downgrade by the applicable Rating Agency.

Registered Exchange Offer” means the offer by Company and, if applicable, the Guarantors, to certain holders of initial notes, to issue and deliver to such holders, in exchange for the initial notes, a like aggregate principal amount of Exchange Notes registered under the Securities Act.

Registration Rights Agreement” means, with respect to the issuance of Notes of any Series issued in a transaction exempt from the registration requirements of the Securities Act, the registration rights agreement, if any, among the Company and the initial purchasers of such Series of Notes.

Reinsurance Entity” means TMUS Assurance Corporation, a Hawaii corporation, and any successor thereto.

Replacement Assets” means: (i) capital expenditures with respect to any assets, (ii) other assets that will be used or useful in a Permitted Business, (iii) all or substantially all of the assets of a Permitted Business, (iv) Voting Stock of any Person engaged in a Permitted Business that, when taken together with all other Voting Stock of such Person owned by the Company and its Restricted Subsidiaries, constitutes a majority of the Voting Stock of such Person and such Person will become a Restricted Subsidiary on the date of the acquisition thereof or (v) deposits or payments to acquire FCC Licenses.

 

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Responsible Officer” means, when used with respect to the Trustee, any officer within the Corporate Trust Office of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his/her knowledge of and familiarity with the particular subject and who has responsibility for the administration of this Indenture.

Restricted Investment” means an Investment other than a Permitted Investment.

Restricted Subsidiary” of a Person means any Subsidiary of the referenced Person that is not an Unrestricted Subsidiary.

S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., and its successors.

SEC” means the Securities and Exchange Commission.

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

Series” or “Series of Notes” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.01 and 2.02 hereof.

Significant Subsidiary” means any Restricted Subsidiary that as of the end of the most recent fiscal quarter for which financial statements are available, would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Closing Date.

Specified Issuer Indebtedness” means any Indebtedness of the Company in a principal amount of $250 million or more.

Specified Unrestricted Subsidiary Designation” has the meaning assigned to such term in Section 4.18.

Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Closing Date, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

Subordinated Indebtedness” means:

(1) with respect to the Company, any Indebtedness of the Company which is by its terms subordinated in right of payment to the Notes of the applicable Series; and

(2) with respect to any Guarantor, any Indebtedness of such Guarantor which is by its terms subordinated in right of payment to such Guarantor’s Guarantee of the Notes of the applicable Series.

 

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Subsidiary” means, with respect to any specified Person:

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

(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

Subsidiary Guarantors” means, collectively, the Guarantors that are Subsidiaries of the Company.

TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).

TMUS Working Capital Facility” has the meaning ascribed thereto in the Business Combination Agreement.

Total Assets” means the consolidated total assets of a Person and its Subsidiaries as set forth on the most recent balance sheet of such Person prepared in accordance with GAAP.

Towers Transaction” means the transactions contemplated by the Towers Transaction Agreements.

Towers Transaction Agreements” means: (i) the Master Agreement, dated as of September 28, 2012 (as the same may be amended, modified, or supplemented from time to time), among T-Mobile, Crown Castle International Corp., a Delaware corporation, and certain Subsidiaries of T-Mobile; and (ii) each of the other transaction documents entered into in connection therewith or contemplated thereby, as they may be amended, modified or supplemented from time to time.

Transactions” means (i) the Merger, (ii) the offering of the “Permitted MetroPCS Notes”, as defined in the Business Combination Agreement, and the DT Notes and the incurrence of the TMUS Working Capital Facility, (iii) the refinancing of Existing Indebtedness on or prior to the Closing Date, (iv) the “Cash Payment” and the “MetroPCS Reverse Stock Split”, each as defined in the Business Combination Agreement, and (v) all other transactions consummated in connection therewith.

Trustee” means the Person named as the “Trustee” in the preamble of this Base Indenture until a successor Trustee shall have been selected pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Notes of any Series will mean the Trustee with respect to Notes of that Series.

 

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Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that:

(1) except as permitted by Section 4.11, such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are, taken as a whole, no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;

(2) such Subsidiary does not hold any Liens on any property of Parent, the Company or any of its Restricted Subsidiaries; and

(3) such Subsidiary has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries, except to the extent that such guarantee or credit support would be released upon such designation.

Voting Stock” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

(1) the sum of the products obtained by multiplying (a) the amount of each then-remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

(2) the then outstanding principal amount of such Indebtedness.

Wholly-Owned Subsidiary” of any specified Person means a Subsidiary of such Person, all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) will at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person. Except if expressly otherwise specified, Wholly-Owned Subsidiary means a Wholly-Owned Subsidiary of the Company.

Section 1.02 Other Definitions.

 

TERM

  

DEFINED IN SECTION

 

Affiliate Transaction

     4.11   

Agent Members

     Appendix A   

Applicable Procedures

     Appendix A   

Asset Sale Offer

     3.07   

Base Indenture

     Preamble   

 

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Change of Control Offer

     4.15   

Change of Control Payment Date

     4.15   

Change of Control Payment

     4.15   

Covenant Defeasance

     8.03   

Definitive Note

     Appendix A   

Distribution Compliance Period

     Appendix A   

Event of Default

     6.01   

Excess Proceeds

     4.10   

incur

     4.09   

Initial Notes

     Appendix A   

Initial Purchasers

     Appendix A   

Legal Defeasance

     8.02   

Legal Holiday

     12.09   

Notes Custodian

     Appendix A   

Offer Amount

     3.07   

Offer Period

     3.07   

Paying Agent

     2.04   

Payment Default

     6.01   

Permitted Debt

     4.09   

Purchase Date

     3.07   

QIB

     Appendix A   

Registrar

     2.04   

Registration Statement

     Appendix A   

Regulation S

     Appendix A   

Regulation S Global Note

     Appendix A   

Rule 144A

     Appendix A   

Rule 144A Global Note

     Appendix A   

Rule 144A Notes

     Appendix A   

Restricted Payment

     4.07   

Specified Unrestricted Subsidiary Designation

     4.18   

Transfer Restricted Notes

     Appendix A   

Section 1.03 Incorporation by Reference of Trust Indenture Act.

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

The following TIA terms used in this Indenture have the following meanings:

indenture securities” means the Notes;

indenture security Holder” means a Holder of a Note;

indenture to be qualified” means this Indenture;

indenture trustee” or “institutional trustee” means the Trustee; and

 

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obligor” on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.

All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used herein as so defined.

Section 1.04 Rules of Construction.

Unless the context otherwise requires:

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

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

(3) “or” is not exclusive;

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

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

(6) provisions apply to successive events and transactions;

(7) “including” means “including, without limitation”; and

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

ARTICLE II

THE NOTES

Section 2.01 Issuable in Series.

The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited. The Notes may be issued in one or more Series. All Notes of a Series will be identical except as may be set forth or determined in the manner provided in a Board Resolution, supplemental indenture or Officers’ Certificate detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution. In the case of Notes of a Series to be issued from time to time, the Board Resolution, Officers’ Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest will accrue) are to be determined. Notes may differ between Series in respect of any matters, but otherwise all Series of Notes are equally and ratably entitled to the benefits of this Base Indenture.

 

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Section 2.02 Establishment of Terms of Series of Notes.

At or prior to the issuance of any Notes within a Series, the following will be established (as to such Series generally, in the case of Section 2.02(a) and either as to such Notes within such Series or as to such Series generally in the case of Sections 2.02(b) through 2.02(v)) by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture or Officers’ Certificate:

(a) the title of the Series (which will distinguish the Notes of that particular Series from the Notes of any other Series);

(b) the price or prices (expressed as a percentage of the principal amount thereof) at which the Notes of the Series will be issued;

(c) any limit upon the aggregate principal amount of the Notes of the Series which may be authenticated and delivered under this Indenture (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes of the Series pursuant to Section 2.07, 2.08, 2.11, 3.06 or 9.05);

(d) the date or dates on which the principal of the Notes of the Series is payable;

(e) the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Notes of the Series will bear interest, if any, the date or dates from which such interest, if any, will accrue, the date or dates on which such interest, if any, will commence and be payable and any regular record date for the interest payable on any interest payment date;

(f) the place or places where the principal of and interest, if any, on the Notes of the Series will be payable, where the Notes of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes of such Series and this Indenture may be served, and the method of such payment, if by wire transfer, mail or other means;

(g) if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Notes of the Series may be redeemed, in whole or in part, at the option of the Company;

(h) the obligation, if any, of the Company to redeem or purchase the Notes of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Notes of the Series will be redeemed or purchased, in whole or in part, pursuant to such obligation;

(i) the dates, if any, on which and the price or prices at which the Notes of the Series may be redeemed by the Company at the option of the Company and other detailed terms and provisions of such redemption rights;

 

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(j) if other than denominations of a minimum of $2,000 and integral multiples of $1,000, the denominations in which the Notes of the Series will be issuable;

(k) the forms of the Notes of the Series and whether the Notes will be issuable as Global Notes;

(l) if other than the full outstanding principal amount thereof, the portion of the principal amount of the Notes of the Series that will be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.02;

(m) the manner in which the amounts of payment of principal of or interest, if any, on the Notes of the Series will be determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;

(n) the provisions, if any, relating to any security provided for the Notes of the Series or the related Note Guarantees;

(o) any addition to or change in the Events of Default which applies to any Notes of the Series and any change in the right of the Trustee or the requisite Holders of such Notes to declare the principal amount thereof due and payable pursuant to Section 6.02;

(p) any addition to or change in the covenants set forth in ARTICLES IV or V hereof which applies to Notes of the Series;

(q) any terms and provisions relating to depositaries, interest rate calculation agents, exchange rate calculation agents or other agents or the appointment thereof with respect to Notes of such Series if other than those appointed herein;

(r) the provisions, if any, relating to conversion of any Notes of such Series, including if applicable, the conversion price, the conversion period, provisions as to whether conversion will be mandatory, at the option of the Holders thereof or at the option of the Company, the events requiring an adjustment of the conversion price and provisions affecting conversion if such Series of Notes are redeemed;

(s) whether the Notes of such Series will be unsubordinated debt securities or subordinated debt securities and, if applicable, a description of the subordination terms thereof;

(t) whether the Notes of such Series are entitled to the benefits of the Note Guarantee of any Guarantor pursuant to this Indenture, whether any such Note Guarantee will be made on a unsubordinated or subordinated basis and, if applicable, a description of the subordination terms of any such Note Guarantee;

(u) whether the terms and provisions set forth in Appendix A of this Base Indenture apply to the Notes of such Series (and, unless so specified, such terms and provisions shall not apply to Notes of such Series); and

(v) any other terms of the Notes of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series, regardless of whether this Indenture expressly contemplates such supplement, modification or deletion).

 

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All Notes of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above.

Section 2.03 Execution and Authentication.

At least one Officer must sign the Notes for the Company by manual or facsimile signature.

If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.

A Note will not be valid until authenticated by the manual or facsimile signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.

The Trustee will at any time, and from time to time, authenticate Notes for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication and delivery pursuant to written instructions from the Company or its duly authorized agent or agents. Each Note will be dated the date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.

The aggregate principal amount of Notes of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.02, except as provided in Section 2.08.

Prior to the issuance of Notes of any Series, the Trustee will have received: (a) the Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the form of the Notes of that Series or of Notes within that Series and the terms of the Notes of that Series or of Notes within that Series, (b) an Officers’ Certificate complying with Section 12.04, and (c) an Opinion of Counsel complying with Section 12.04.

The Trustee will have the right to decline to authenticate and deliver any Notes of such Series (a) if the Trustee, being advised by counsel, determines that such action may not be taken lawfully; or (b) a trust committee of directors and/or vice-presidents of the Trustee determines in good faith that such action would expose the Trustee to personal liability to Holders of any then outstanding Series of Notes.

The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such authenticating agent. An authenticating agent has the same rights as an Agent to deal with Holders, the Company or an Affiliate of the Company.

 

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Section 2.04 Registrar and Paying Agent.

The Company will maintain, with respect to each Series of Notes, an office or agency where Notes of such Series may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes of such Series may be presented for payment (“Paying Agent”). The Registrar will keep a register of each Series of Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee will act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

If a Holder has given wire transfer instructions to the Company and the Company is the Paying Agent, the Company will pay all principal, interest and premium, if any, on that Holder’s Notes in accordance with these instructions until given written notice to the contrary. All other payments on the Notes of any Series will be made at the Corporate Trust Office of the Trustee, unless the Company elects to make interest payments by checks mailed to the Holders at their addresses in the books and records of the Registrar.

The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as custodian of the Global Note (or Global Notes) with respect to each Series unless another Registrar or Paying Agent, as the case may be, is appointed prior to the time Notes of that Series are first issued. The Company may change the Paying Agent or Registrar with respect to the Notes of any Series without prior notice to the Holders.

Section 2.05 Paying Agent to Hold Money in Trust.

The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders of any Series of Notes or the Trustee, all money held by the Paying Agent for the payment of principal of, premium on, if any, or interest on such Series of Notes, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) will have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders of any Series of Notes all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will serve as Paying Agent for the Notes.

Section 2.06 Holder Lists.

The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of each Series of Notes and will otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish to the

 

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Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders of each Series of Notes.

Section 2.07 Transfer and Exchange.

When Notes of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of the same Series of other denominations, the Registrar will register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes at the Registrar’s request. A Holder may transfer or exchange Notes only in accordance with this Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.06 or 9.05).

Neither the Company nor the Registrar will be required (a) to issue, register the transfer or purchase of, or exchange Notes of any Series for the period beginning at the opening of business 15 days immediately preceding the sending of a notice of redemption of Notes of that Series selected for redemption and ending at the close of business on the day such notice is sent or (b) to issue, register the transfer or purchase of, or exchange Notes of any Series selected for redemption.

Section 2.08 Replacement Notes.

If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft and ownership of any Note, the Company will issue and the Trustee, upon receipt of a Company Order, will authenticate and deliver a replacement Note of the same Series and of like tenor and principal amount in exchange and substitution for the mutilated Note, or in lieu and in substitution for the Note so destroyed, lost or stolen. In every case, the applicant for a substituted Note shall furnish to the Company, the Trustee, and any authentication agent, such security or indemnity as may be required by them to indemnify them and save each of them harmless from any loss that any of them may suffer if a Note is replaced, including an indemnity bond. The Company may charge for its expenses in replacing a Note.

Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes of such Series duly issued hereunder.

The provisions of this Section 2.08 are exclusive and will preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.

 

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Section 2.09 Outstanding Notes.

The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.09 as not outstanding. Except as set forth in Section 2.10 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.

If a Note is replaced pursuant to Section 2.08 hereof, it ceases to be outstanding and shall be deemed cancelled for all purposes unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.

If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding, shall be deemed cancelled, and interest on it ceases to accrue.

If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption or purchase date or at Maturity, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding, shall be deemed cancelled, and will cease to accrue interest.

Section 2.10 Treasury Notes.

In determining whether the Holders of the required principal amount of Notes of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Notes of a Series owned by the Company or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any Guarantor, shall be disregarded, except that (a) notwithstanding this Section 2.10, so long as all of the Notes of a Series are owned by DT or its Affiliates, Notes of such Series owned by DT or its Affiliates shall not be disregarded for purposes of determining whether the Holders of the required principal amount of Notes of such Series have concurred in any request, demand, authorization, direction, notice, consent or waiver and (b) for the purposes of determining whether the Trustee will be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver, only Notes of a Series that a Responsible Officer has been informed in writing are so owned will be so disregarded.

Section 2.11 Temporary Notes.

Until definitive Notes are ready for delivery, the Company may prepare and the Trustee will authenticate temporary Notes upon receipt of a Company Order. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes, including any legend the Company deems appropriate. Without unreasonable delay, the Company will prepare and the Trustee upon receipt of a Company Order will authenticate definitive Notes of the same Series and date of maturity in exchange for temporary Notes. Until so exchanged, temporary securities will have the same rights under this Indenture as the definitive Notes.

Holders of temporary Notes will be entitled to all of the benefits of this Indenture.

 

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Section 2.12 Cancellation.

The Company or its agents or representatives at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange, redemption, purchase, cancellation, replacement or payment. The Trustee and no one else will promptly cancel all Notes surrendered for registration of transfer, exchange, redemption, purchase, payment, replacement or cancellation and will destroy canceled Notes (subject to the record retention requirement of the Exchange Act). Certification of the cancellation of all canceled Notes will be delivered to the Company upon written request. The Registrar and Paying Agent will deliver to the Company, upon request, any cancelled Notes. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.

Section 2.13 Persons Deemed Owners.

Prior to due presentment of a Global Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may (subject to Section 2.15(e)) treat the Person in whose name such Global Note is registered as the absolute owner of such Global Note for all purposes, including for the purpose of receiving payment of principal of, and any premium and any interest, if any, on, such Global Note and for all other purposes whatsoever, whether or not such Global Note be overdue, and neither the Company nor Trustee nor any of their respective agents shall be affected by notice to the contrary.

Neither the Company, nor the Trustee, nor any of their respective agents will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests of a Global Note or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

Section 2.14 Defaulted Interest.

If the Company defaults in a payment of interest on a Series of Notes, it will pay the defaulted interest in any lawful manner, plus, to the extent lawful, any interest payable on the defaulted interest, to the Persons who are Holders of the Series on a subsequent special record date. The Company will fix such special record date and payment date. At least 10 days before such special record date, the Company will send to the Trustee and to each Holder of Notes of the applicable Series a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.

Section 2.15 Global Notes.

(a) Terms of Notes. A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate will establish whether the Notes of a Series will be issued in whole or in part in the form of one or more Global Notes and the Depositary, if any, for such Global Note or Notes.

(b) Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.07 and in addition thereto, any Global Note will be exchangeable pursuant to Section 2.07 for Notes registered in the names of Holders other than the Depositary for such Note or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue

 

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as a Depositary for such Global Note or has ceased to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing agency under the Exchange Act within 120 days of such event, or (ii) if requested by such a Holder after the occurrence and during the continuance of an Event of Default or (iii) the Company executes and delivers to the Trustee an Officers’ Certificate to the effect that such Global Note will be so exchangeable. Any Global Note that is exchangeable pursuant to the preceding sentence will be exchangeable for Notes registered in such names as the Depositary will direct in writing in an aggregate principal amount equal to the principal amount of the Global Note with like tenor and terms.

Except as provided in this Section 2.15(b), a Global Note may not be transferred except as a whole by the Depositary with respect to such Global Note to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.

(c) Legend. Any Global Note issued hereunder will bear a legend in substantially the following form:

“THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”

(d) Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under this Indenture.

(e) Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.02, payment of the principal of and premium, if any and interest, if any, on any Global Note will be made to the Holder thereof.

(f) Rights of Beneficial Owners. No beneficial owner of a beneficial interest in any Global Note held on its behalf by a Depositary shall have any rights under this Indenture with respect to such Global Note, and such Depositary may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the sole beneficial owner of such Note for all purposes whatsoever.

Section 2.16 CUSIP Numbers.

The Company in issuing the Notes may use “CUSIP,” “ISIN” and/or “Common Code” numbers (if then generally in use), and, if so, the Trustee will use “CUSIP,” “ISIN” and/or “Common Code”

 

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numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Notes, and any such redemption will not be affected by any defect in or omission of such numbers.

ARTICLE III

REDEMPTION

Section 3.01 Notices to Trustee.

The Company may, with respect to any Series of Notes, reserve the right to redeem and pay such Series of Notes or may covenant to redeem and pay such Series of Notes or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in the Board Resolution, Officers’ Certificate or supplemental indenture relating to such Series. If a Series of Notes is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Notes pursuant to the terms of such Notes, it must furnish to the Trustee, at least 10 days but not more than 60 days (in the case of redemptions upon less than 30 days’ notice, subject to the ability of the Depositary to process such redemption on the date specified in such notice) before a redemption date, an Officers’ Certificate setting forth:

(1) the redemption date;

(2) the principal amount of Notes of a Series to be redeemed; and

(3) the redemption price.

Section 3.02 Selection of Notes to be Redeemed.

Unless otherwise indicated for a particular Series in the Board Resolution, Officers’ Certificate or supplemental indenture under which such Series of Notes is issued or in the form of Note for such Series, if less than all of the Notes of a Series are to be redeemed or purchased in an offer to purchase at any time, the Trustee will select or cause to be selected the Notes of such Series to be redeemed or purchased on a pro rata basis unless otherwise required by law or applicable stock exchange or Depositary requirements. In the event of partial redemption or purchase by lot, the particular Notes of a Series to be redeemed or purchased will be selected, unless otherwise provided herein, not less than 10 days but not more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes of such Series not previously called for redemption or purchase.

The Trustee will promptly notify the Company in writing of the Notes of a Series selected for redemption or purchase and, in the case of any Note of such Series selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes of a Series and portions of Notes of a Series selected will be in minimum amounts of $2,000 and whole multiples of $1,000 or, with respect to Notes of any Series issuable in other denominations pursuant to Section 2.02(j), the minimum principal denomination for each Series and integral multiples thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes of such Series held by such Holder, even if not in compliance with

 

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the foregoing, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes of a Series called for redemption or purchase also apply to portions of Notes of that Series called for redemption or purchase.

Section 3.03 Notice of Redemption.

Unless otherwise indicated for a particular Series in the Board Resolution, Officers’ Certificate or supplemental indenture under which such Series of Notes is issued or in the form of Note for such Series, and subject to the provisions of Section 3.07 hereof, at least 10 days but not more than 60 days before a redemption date, the Company will send electronically, or mail by first-class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be sent or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes of a Series or a satisfaction and discharge of the Notes of any Series pursuant to ARTICLES VIII or XI hereof.

The notice will identify the Notes to be redeemed and will state:

(1) the redemption date and whether the redemption is contingent upon any transaction or event;

(2) the redemption price;

(3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;

(4) the name and address of the Paying Agent;

(5) that Notes of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;

(6) that, unless the Company defaults in making such redemption payment, interest on Notes of the Series called for redemption ceases to accrue on and after the redemption date;

(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;

(8) the CUSIP and/or ISIN number, if any;

(9) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes; and

(10) any other information as may be required by the terms of the particular Series or the Notes of a Series being redeemed.

 

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At the Company’s request, the Trustee will give the notice of redemption in the Company’s name and at its expense, provided, that the Company makes such request no later than 1:00 p.m., New York City time, on the date that is at least five Business Days (or such shorter period as may be permitted by the Trustee) prior to the date by which such notice must be given to Holders in accordance with this Section 3.03.

Section 3.04 Effect of Notice of Redemption.

Except to the extent that a notice of redemption is conditional as permitted by this Indenture, once notice of redemption is sent in accordance with Section 3.03 hereof, Notes of a Series called for redemption become due and payable on the redemption date at the redemption price. Unless otherwise indicated for a particular Series in the Board Resolution, Officers’ Certificate or supplemental indenture under which such Series of Notes is issued or in the form of Note for such Series, and as otherwise set forth in Section 4.15 hereof, notices of redemption may not be conditional. On and after the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption.

Section 3.05 Deposit of Redemption or Purchase Price.

On or before 10:00 a.m., New York City time, on the redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest, if any, on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly, but in any event no later than 1:00 p.m., New York City time on the next succeeding Business Day, return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest, if any, on, all Notes to be redeemed or purchased, or if any condition to the redemption or purchase is not satisfied. The Trustee will not be liable or responsible for any interest on the funds deposited.

If the Company complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.

Section 3.06 Notes Redeemed or Purchased in Part.

Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and, upon receipt of a Company Order, the Trustee will authenticate for the Holder at the expense of the Company a new Note of the same Series and in equal principal amount to the unredeemed or unpurchased portion of the Note surrendered.

 

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Section 3.07 Offer to Purchase by Application of Excess Proceeds.

In the event that, pursuant to Section 4.10 hereof, the Company is required to commence an offer to all Holders of Notes of any Series to purchase Notes of such Series (an “Asset Sale Offer”), it will follow the procedures specified below.

The Asset Sale Offer shall be made in accordance with this Section 3.07 to all Holders of Notes of the applicable Series and all holders of other Indebtedness that is pari passu with the Notes of such Series containing provisions requiring the Company to make an offer to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes of such Series and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes of such Series and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds, plus accrued and unpaid interest to, but not including, the date of consummation of the purchase, and will be payable in cash. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes of such Series and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes of such Series and other Indebtedness tendered in response to the Asset Sale Offer. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any of its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Payment for any Notes so purchased will be made in the same manner as interest payments are made.

If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.

Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders of Notes of the applicable Series, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:

(1) that the Asset Sale Offer is being made pursuant to this Section 3.07 and Section 4.10 hereof and the length of time the Asset Sale Offer will remain open;

(2) the Offer Amount, the purchase price and the Purchase Date;

(3) that any Note not tendered or accepted for payment will continue to accrue interest;

 

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(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;

(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in minimum denominations of $2,000 and integral multiples of $1,000 only;

(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least two Business Days before the Purchase Date;

(7) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;

(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company will select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis, unless otherwise required by law or applicable stock exchange or depositary requirements; and

(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount (or the ratable portion thereof not applied for the redemption or repurchase of other pari passu Indebtedness in connection with such Asset Sale Offer) of Notes of the applicable Series or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount (or such ratable portion thereof) has been tendered, all Notes of the applicable Series tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.07. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon receipt of a Company Order, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.

 

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Other than as specifically provided in this Section 3.07, any purchase pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.07 or Section 4.10 hereof or compliance with this Section 3.07 or Section 4.10 hereof would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.07 or Section 4.10 hereof by virtue of such compliance.

ARTICLE IV

COVENANTS

Section 4.01 Payment of Notes.

The Company will pay or cause to be paid the principal of, and premium, if any, and interest on the Notes of each Series on the dates and in the manner provided in the Notes of such Series. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds on or before 12:00 noon, New York City time, on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.

Section 4.02 Maintenance of Office or Agency.

The Company will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.

The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.04 hereof.

 

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Section 4.03 Reports.

(a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, Parent will file a copy of each of the reports referred to in clauses (1) and (2) below with the SEC for public availability within the time periods (including all applicable extension periods) specified in the SEC rules and regulations applicable to such reports (unless the SEC will not accept such a filing):

(1) all quarterly and annual financial reports that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if Parent were required to file such reports, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by its certified independent accountants; and

(2) all current reports that would be required to be filed with the SEC on Form 8-K if Parent or the Company were required to file such reports;

provided that the availability of the foregoing reports on the SEC’s EDGAR service (or successor thereto) shall be deemed to satisfy the Company’s delivery obligations to the Trustee and any Holder.

All such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports; provided that, if neither Parent nor the Company is required under the rules and regulations of the SEC to file such reports with the SEC for public availability, such reports need not be prepared in accordance with all of the rules and regulations applicable to such reports and shall only be required to include the information or disclosure that would be required by such form to the extent that, and in the same general style of presentation as, the same or substantially similar information or disclosure is also included in the offering memorandum dated March 8, 2013 relating to the $3.5B Notes. Each annual report on Form 10-K will include a report on Parent’s consolidated financial statements by Parent’s certified independent accountants. The Company will at all times comply with TIA § 314(a).

If the SEC will not accept Parent’s or the Company’s filings for any reason, Parent or the Company will post the reports referred to in the preceding paragraphs on its website, on intralinks.com or another website within the time periods that would apply if Parent were required to file those reports with the SEC (including all applicable extension periods).

(b) If (i) the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries or (ii) the combined operations of Parent and its Subsidiaries, excluding the operations of the Company and its Restricted Subsidiaries and excluding cash and Cash Equivalents, would, if held by a single Unrestricted Subsidiary of the Company, constitute a Significant Subsidiary of the Company, then the quarterly and annual financial information required by Section 4.03(a) will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, of (A) in the case of (i) above, the financial condition and results of operations of Parent, the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the

 

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Company and (B) in the case of (ii) above, the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of Parent and its other Subsidiaries; provided however, that the requirements of this paragraph shall not apply if Parent or the Company files with the SEC the reports referred to in clauses (1) and (2) of Section 4.03(a) hereof, and any such report contains the information required in this paragraph.

(c) For so long as any Notes remain outstanding, if at any time they are not required to file with the SEC the reports required by paragraphs (a) and (b) of this Section 4.03, the Company and the Guarantors will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

(d) Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

Section 4.04 Compliance Certificate.

The Company and each Guarantor shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company and each Guarantor has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to his or her knowledge the Company and each Guarantor has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge).

So long as any of the Notes are outstanding, the Company will deliver to the Trustee, promptly upon becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.

Section 4.05 [Reserved].

Section 4.06 Stay, Extension and Usury Laws.

The Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture or the Notes; and the Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.

 

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Section 4.07 Restricted Payments.

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:

(1) declare or pay (without duplication) any dividend, or make any other payment or distribution, on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);

(2) purchase, redeem or otherwise acquire or retire for value (including in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;

(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a payment of interest or principal at the Stated Maturity thereof; or

(4) make any Restricted Investment

(all such payments and other actions set forth in clauses (1) through (4) above being collectively referred to as “Restricted Payments”),

unless, at the time of and after giving effect to such Restricted Payment:

(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;

(2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in Section 4.09(a) hereof; and

(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Closing Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (11), (12), (13), (14) and (15) of paragraph (b) of this Section 4.07), is less than the sum, without duplication, of:

(A) 100% of the Company’s Consolidated Cash Flow for the period (taken as one accounting period) from and after the Closing Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment, less the product of 1.4 times the Company’s Consolidated Interest Expense for the same period; plus

 

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(B) 100% of the aggregate net cash proceeds and the Fair Market Value of any property other than cash, in each case received by the Company after the Closing Date as a contribution to its common equity capital (other than any such contribution resulting, or deemed to result, from the Merger) or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company); plus

(C) to the extent that any Restricted Investment that was made after the Closing Date, or, any Restricted Investments that was made by MetroPCS Wireless, Inc. or any of its Restricted Subsidiaries after November 3, 2006 and prior to the Closing Date, (provided that, and solely to the extent that, such Restricted Investment, at the time made, reduced the amount that would be calculated pursuant to clause (G) below), is sold for cash or Cash Equivalents, or otherwise is liquidated or repaid for cash or Cash Equivalents, an amount equal to such cash and Cash Equivalents; plus

(D) to the extent that any Unrestricted Subsidiary of the Company designated as such after the Closing Date is redesignated as a Restricted Subsidiary after the Closing Date, the Fair Market Value of the Company’s Investment in such Subsidiary as of the date of such redesignation, other than to the extent such Investment constituted a Permitted Investment; plus

(E) 100% of any cash dividends or cash distributions and the Fair Market Value of any property other than cash, in each case actually received directly or indirectly by the Company or a Restricted Subsidiary of the Company that is a Guarantor after the Closing Date from an Unrestricted Subsidiary of the Company, in each case, to the extent that such dividends, cash distributions or other property were not otherwise included in the Consolidated Net Income of the Company for such period and other than to the extent such Investment constituted a Permitted Investment; minus

(F) the aggregate amount of any Net Equity Proceeds taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) hereof, after the Closing Date; plus

(G) the amount that would be calculated immediately prior to the consummation of the Merger on the Closing Date pursuant to clause (3) of the second paragraph of Section 4.07(a) of the 6 5/8% Senior Notes Indenture, as in

 

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effect immediately prior to the effectiveness of the 6 5/8% Senior Notes Sixth Supplemental Indenture (provided, that any calculation of cumulative Consolidated Cash Flow and Consolidated Interest Expense in subclause (A) of such clause (3) shall include (x) the Company’s last fiscal quarter ending prior to the Closing Date, and (y) the period from the beginning of the Company’s fiscal quarter during which the Closing Date occurs to the Closing Date, in each case, if internal financial statements are available for such period at the time of calculation, even if they are not available immediately prior to the consummation of the Merger on the Closing Date).

(b) So long as no Default has occurred and is continuing or would be caused thereby, the provisions of Section 4.07(a) hereof will not prohibit:

(1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Indenture;

(2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution of common equity capital to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (3)(B) of Section 4.07(a) hereof; provided further that any Net Equity Proceeds (x) used for making a Restricted Investment pursuant to clause (10) of this Section 4.07(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) hereof may not also be used to make a Restricted Payment pursuant to this clause (2);

(3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Company or any Subsidiary Guarantor with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness;

(4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;

(5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Parent, the Company, any Restricted Subsidiary of the Company or any direct or indirect parent of the Company held by any current or former officer, director, employee or consultant of Parent, the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed an amount equal to $50.0 million in any fiscal year; provided further, that such amount in any fiscal

 

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year may be increased by an amount equal to (a) the net cash proceeds contributed to the Company from the sale of Equity Interests of Parent to current or former members of management, directors, consultants or employees that occurs after the Closing Date plus (b) the net cash proceeds of key man life insurance policies received by Parent, the Company or its Restricted Subsidiaries after the Closing Date; provided further, that such amount in any fiscal year shall be reduced by the amount of Indebtedness incurred in such fiscal year pursuant to clause (21) of Section 4.09(b) hereof;

(6) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, warrants or other similar rights, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the vesting, exercise or exchange of stock options, warrants or other similar rights;

(7) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company issued on or after the Closing Date in accordance with the Debt to Cash Flow Ratio test described in Section 4.09(a) hereof;

(8) Permitted Payments to Parent;

(9) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Parent to the extent necessary to comply with law or to prevent the loss or secure the renewal or reinstatement of any FCC License held by the Company or any of its Subsidiaries;

(10) Restricted Investments in an amount equal to 100% of the aggregate amount of any Net Equity Proceeds, less the aggregate amount of any Net Equity Proceeds (x) used for making a Restricted Payment pursuant to clause (2) of this Section 4.07(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) hereof;

(11) payments made to DT or its Subsidiaries from the proceeds of the Towers Transaction;

(12) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to provisions similar to those of Section 4.15 and Section 4.10; provided that all Notes tendered by the Holders of the Notes in connection with a Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or otherwise acquired for value;

(13) Restricted Payments in connection with the “Cash Payment”, as defined in the Business Combination Agreement;

(14) the making of cash payments in connection with any conversion of Convertible Debt in an aggregate amount since the Closing Date not to exceed the sum of

 

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(a) the principal amount of such Convertible Debt plus (b) any payments received by the Company or any of its Restricted Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transactions; and

(15) other Restricted Payments in an aggregate amount since the Closing Date not to exceed $375.0 million.

The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.

Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

(1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;

(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or

(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.

(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:

(1) agreements or instruments governing (a) Existing Indebtedness, and (b) Equity Interests and Credit Facilities as in effect on the Closing Date, and in each case, any amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings of those agreements or instruments; provided that the amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings are (in the good faith judgment of the Board of Directors of the Company or a senior financial officer of the Company, whose determination shall be conclusive) not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements or instruments on the Closing Date;

(2) agreements or instruments governing Credit Facilities not in effect on the Closing Date so long as either (a) the encumbrances and restrictions contained therein do not impair the ability of any Restricted Subsidiary of the Company to pay dividends or make any other distributions or payments directly or indirectly to the Company in an amount sufficient to permit the Company to pay the principal of, or interest and premium, if any, on the Notes, or (b) the encumbrances and restrictions contained therein are no more restrictive, taken as a whole, than those contained in this Indenture;

 

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(3) Notes issued on the date of this Base Indenture, and any Additional Notes of the same Series, and any Exchange Notes in respect of any such Notes or Additional Notes, the Note Guarantees in respect thereof, and this Base Indenture, as supplemented by the Supplemental Indentures hereto executed on the date of this Base Indenture;

(4) applicable law, rule, regulation or order;

(5) agreements or instruments with respect to a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition) or as may be amended, restated, modified, renewed, extended, supplemented, refunded, replaced or refinanced from time to time (so long as the encumbrances and restrictions in any such amendment, restatement, modification, renewal, extension, supplement, refunding, replacement or refinancing are, in the good faith judgment of the Company’s Board of Directors or a senior financial officer of the Company, whose determination shall be conclusive, not materially more restrictive, taken as a whole, than those in effect on the date of the acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of agreements or instruments governing Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;

(6) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business and customary contractual restrictions on transfers of all or substantially all assets of a Person;

(7) any instrument governing any secured Indebtedness or Capital Lease Obligation that imposes restrictions on the assets securing such Indebtedness or the subject of such lease of the nature described in clause (3) of Section 4.08(a) hereof;

(8) any agreement for the sale or other disposition of a Restricted Subsidiary that imposes restrictions of the nature described in clauses (1) and/or (3) of Section 4.08(a) hereof on the Restricted Subsidiary pending the sale or other disposition;

(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;

(11) provisions limiting the disposition or distribution of assets or property in partnership and joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements;

 

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(12) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business;

(13) restrictions in other Indebtedness, Disqualified Stock or Preferred Stock incurred or issued in compliance with Section 4.09 hereof; provided that such restrictions, taken as a whole, are, in the good faith judgment of the Company’s Board of Directors or a senior financial officer of the Company, whose determination shall be conclusive, not materially more restrictive than those contained in the existing agreements referenced in clauses (1) and (3) above;

(14) the issuance of Preferred Stock by a Restricted Subsidiary of the Company or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 4.09 hereof and the terms of such Preferred Stock do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);

(15) any agreement or instrument with respect to Indebtedness incurred, or Preferred Stock issued, by any Restricted Subsidiary, provided that the restrictions contained in the agreements or instruments governing such Indebtedness or Preferred Stock (a) either (i) apply only in the event of a payment default or a default with respect to a financial covenant in such agreement or instrument or (ii) will not materially affect the Company’s ability to pay all principal, interest and premium, if any, on the Notes, as determined in good faith by the Company’s Board of Directors or a senior financial officer of the Company, whose determination shall be conclusive; and (b) are not materially more disadvantageous to the Holders than is customary in comparable financings;

(16) any agreement or instrument of the Company, Parent, MetroPCS Wireless, Inc., or any of MetroPCS Wireless, Inc.’s Subsidiaries existing prior to, or entered into or assumed by the Company or any of its Subsidiaries in connection with the Merger, in each case, as such agreements or instruments may be amended, restated, modified, renewed or replaced from time to time; provided that the amendments, restatements, modifications, renewals, and replacements are (in the good faith judgment of the Board of Directors of the Company or a senior financial officer of the Company, whose determination shall be conclusive) not materially more restrictive, taken as a whole, with respect to such encumbrances and restrictions than those agreements or instruments as in effect as of the Closing Date; and

(17) restrictions arising from the Towers Transaction.

Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any

 

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Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and the Subsidiary Guarantors may incur Indebtedness (including Acquired Debt) or issue Preferred Stock, if the Debt to Cash Flow Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such Preferred Stock is issued, as the case may be, would have been no greater than 6.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the Preferred Stock had been issued, as the case may be, at the beginning of such four-quarter period.

(b) The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”), nor will it prohibit the Company’s Restricted Subsidiaries from issuing the following types of Preferred Stock:

(1) the incurrence by the Company and any Subsidiary Guarantor of (A) additional Indebtedness under Credit Facilities, provided that giving effect to such incurrence, the aggregate principal amount (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) of all Indebtedness under Credit Facilities then outstanding under this paragraph (1), together with any Indebtedness incurred pursuant to the following clause (B), does not exceed the greater of (x) $9.0 billion and (y) 150% of the Consolidated Cash Flow of the Company and its Subsidiaries for the most recently ended four full fiscal quarters for which financial statements are available, calculated on a pro forma basis in the manner described in the definition of “Debt to Cash Flow Ratio” and (B) without duplication, all Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to the foregoing clause (A); provided, however, that the maximum amount permitted under this clause (1) shall not be deemed to limit additional Indebtedness under the Credit Facilities to the extent that the incurrence of such additional Indebtedness is permitted pursuant to any of the other provisions of this Section 4.09;

(2) the incurrence by the Company and its Restricted Subsidiaries of any Existing Indebtedness;

(3) the incurrence by the Company and the Subsidiary Guarantors of Indebtedness represented by the Notes to be issued on the date of this Base Indenture and any related Exchange Notes to be issued in exchange therefor and, in each case, the related Note Guarantees;

(4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing (whether prior to or within 270 days after) all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment or the Capital Stock of any Person owning such assets used in the business of the Company or any of its Restricted

 

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Subsidiaries, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4), not to exceed the greater of (x) $2.5 billion and (y) 5.0% of the Company’s Total Assets, at the time of any such incurrence pursuant to this clause (4);

(5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clauses (2), (3), (4), (5), (13), (14), (15), (24) or (25) of this Section 4.09(b);

(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Parent, the Company and any of its Restricted Subsidiaries and any Guarantors; provided, however, that:

(A) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor; and

(B) (1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Parent, the Company or a Restricted Subsidiary of the Company, or a Guarantor and (2) any sale or other transfer of any such Indebtedness to a Person that is not either Parent, the Company or a Restricted Subsidiary of the Company, or a Guarantor,

will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);

(7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of Preferred Stock; provided, however, that:

(A) any subsequent issuance or transfer of Equity Interests that results in any such Preferred Stock being held by a Person other than Parent, the Company or a Restricted Subsidiary of the Company or a Guarantor; and

(B) any sale or other transfer of any such Preferred Stock to a Person that is not either Parent, the Company or a Restricted Subsidiary of the Company, or a Guarantor,

will be deemed, in each case, to constitute an issuance of such Preferred Stock by such Restricted Subsidiary that was not permitted by this clause (7);

 

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(8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations (other than for speculative purposes);

(9) the guarantee by the Company or any of the Subsidiary Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;

(10) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, deposits, performance bonds, completion bonds, bid bonds, appeal bonds and surety bonds, indemnity bonds, specific performance or injunctive relief bonds or similar bonds or obligations in the ordinary course of business, and any Guarantees or letters of credit functioning as or supporting any of the foregoing;

(11) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days of notice to the Company or any of its Restricted Subsidiaries, (B) in respect of netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement or (C) in respect of the financing of insurance premiums in the ordinary course of business, provided that the aggregate principal amount of Indebtedness incurred pursuant to clauses (B) and (C) of this paragraph shall not, at any time outstanding exceed $250.0 million;

(12) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of letters of credit required to be issued in connection with any Permitted Joint Venture Investment;

(13) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness for relocation or clearing obligations relating to the Company’s or any of its Restricted Subsidiary’s FCC Licenses in an aggregate principal amount (or accreted value, as applicable), including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (13), at any time outstanding not to exceed $400.0 million at the time of such incurrence;

(14) the incurrence by the Company or any of its Restricted Subsidiaries of Contribution Indebtedness;

(15) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness (including Acquired Debt or Indebtedness) used to finance an acquisition of or a merger with another Person, provided that, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company or a Restricted

 

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Subsidiary), on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would either (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in Section 4.09(a) hereof or (b) have a Debt to Cash Flow Ratio no greater than the Debt to Cash Flow Ratio of the Company immediately prior to such transaction;

(16) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), so long as the amount does not exceed the gross proceeds actually received by the Company or any Restricted Subsidiary thereof in connection with such disposition;

(17) the incurrence by the Company or any Restricted Subsidiary of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided that, upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;

(18) the incurrence by the Company or any Restricted Subsidiary of Indebtedness to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the DT Notes;

(19) the incurrence by the Company or any of the Subsidiary Guarantors of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (19), not to exceed the greater of (x) $1.0 billion and (y) 2.0% of the Company’s Total Assets as of the time of incurrence;

(20) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;

(21) the incurrence by the Company or any Restricted Subsidiary of Indebtedness evidenced by promissory notes subordinated to the Notes and the Note Guarantees issued to current or former employees or directors of Parent, the Company or any Subsidiary (or their respective spouses or estates) in lieu of cash payments for Capital Stock being repurchased from such Persons, not to exceed, in any twelve-month period, an amount equal to the amount of Restricted Payments that could be made during such twelve-month period pursuant to clause (5) of Section 4.07(b) hereof less the amount of Restricted Payments that have been made during such twelve-month period pursuant to such clause;

 

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(22) the incurrence by the Company or any Restricted Subsidiary of Indebtedness consisting of take-or-pay obligations contained in supply agreements entered into in the ordinary course of business;

(23) to the extent that deposits with, or payments owed to, the FCC in connection with the auction or licensing of Governmental Authorizations are deemed to be Indebtedness, the incurrence by the Company or any Restricted Subsidiary of such Indebtedness;

(24) Indebtedness incurred in connection with the Towers Transaction; and

(25) the incurrence by Restricted Subsidiaries that are not Guarantors of Indebtedness; provided, however, that the aggregate principal amount (or accreted value, as applicable) of all Indebtedness incurred under this clause (25), when aggregated with the principal amount (or accreted value) of all other Indebtedness then outstanding and incurred pursuant to this clause (25), including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (25), does not exceed $250.0 million.

The Company will not incur, and will not permit any Subsidiary Guarantor to incur, any Indebtedness (including Permitted Debt, but excluding Indebtedness permitted by clause (6) above) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Subsidiary Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or any Subsidiary Guarantor solely by virtue of such Indebtedness being unsecured or by virtue of such Indebtedness being secured on a first or junior Lien basis.

For purposes of (x) determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (25) above, or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company will be permitted to classify all or a portion of such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09 and (y) determining the amount of Indebtedness that may be incurred pursuant to clause (1)(A)(y) of Section 4.09(b), the Company may elect, pursuant to an Officers’ Certificate delivered to the Trustee, to treat all or any portion of the commitment under any Indebtedness (and any refinancing with respect thereto) as being incurred at such time, in which case any subsequent incurrence of Indebtedness under such commitment or refinancing, as the case may be, shall not be deemed, for purposes of this calculation, to be an incurrence at such subsequent time. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of Preferred Stock as Indebtedness due to a change in accounting principles or the application thereof, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09. Notwithstanding any other provision of this Section 4.09, the maximum amount of

 

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Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values, and in no event shall the reclassification of any lease or other liability as indebtedness due to a change in accounting principles after the Closing Date be deemed to be an incurrence of Indebtedness. In determining the amount of Indebtedness outstanding under one of the clauses of Section 4.09(b), the outstanding principal amount of any particular Indebtedness of any Person shall be counted only once and any obligation of such Person or any other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as it is permitted to be incurred by the Person or Persons incurring such obligation.

The amount of any Indebtedness outstanding as of any date will be:

(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

(2) in the case of Hedging Obligations, the termination value of the agreement or arrangement giving rise to such obligations that would be payable by such Person at such time;

(3) the principal amount of the Indebtedness, in the case of any other Indebtedness; and

(4) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

(A) the Fair Market Value of such assets at the date of determination; and

(B) the amount of the Indebtedness of the other Person.

Section 4.10 Asset Sales.

The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and

(2) at least 75% of the consideration received by the Company or such Restricted Subsidiary in the Asset Sale and all other Asset Sales since the Closing Date is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:

(A) any liabilities, as shown on the Company’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale), of the Company or any Restricted Subsidiary

 

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(other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation agreement that releases the Company or such Restricted Subsidiary from further liability; and

(B) any securities, notes or other obligations received by the Company, or any such Restricted Subsidiary, from such transferee that are converted by the Company or such Restricted Subsidiary into cash, Cash Equivalents or Replacement Assets within 90 days after such Asset Sale, to the extent of the cash, Cash Equivalents or Replacement Assets received in that conversion.

Notwithstanding the foregoing, the 75% limitation referred to above shall be deemed satisfied with respect to any Asset Sale in which the cash, Cash Equivalents or Replacement Assets portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.

Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary may apply an amount equal to such Net Proceeds:

(1) to purchase Replacement Assets; or

(2) to prepay, repay, defease, redeem, purchase or otherwise retire Indebtedness and other Obligations under a Credit Facility or Indebtedness secured by property that is subject to such Asset Sale and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto.

Notwithstanding the foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary enters into a binding written agreement committing the Company or such Restricted Subsidiary, subject to customary conditions, to an application of funds of the kind described in clause (1) above, the Company or such Restricted Subsidiary shall be deemed not to be in violation of the preceding paragraph so long as such application of funds is consummated within 545 days of the receipt of such Net Proceeds.

Pending the final application of any Net Proceeds of an Asset Sale, the Company may temporarily reduce revolving credit borrowings or otherwise use the Net Proceeds in any manner that is not prohibited by this Indenture.

An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the third paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, within 20 days thereof, the Company shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to make an Asset Sale Offer to all Holders and all holders of other Indebtedness that is pari passu with the applicable Notes containing provisions requiring the Company to make an offer to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.07 hereof to purchase the maximum principal amount of Notes (other than Notes which, by the terms thereof, are expressly not subject to the provisions of this Section) and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds. The

 

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offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the applicable Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds, plus accrued and unpaid interest to, but not including, the date of consummation of the purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of applicable Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company will select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required by law or applicable stock exchange or depositary requirements. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.07 hereof or this Section 4.10, or compliance with Section 3.07 hereof or this Section 4.10 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.07 hereof or this Section 4.10 by virtue of such compliance.

Section 4.11 Transactions with Affiliates.

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each, an “Affiliate Transaction”), in any one or series of related transactions involving aggregate payments or consideration in excess of $50.0 million, unless:

(1) the Affiliate Transaction is on terms that, taken as a whole, are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and

(2) the Company delivers to the Trustee:

(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $100.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a); and

(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $250.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company.

 

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(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:

(1) any employment agreement, employee benefit plan, agreement or plan relating to employee, officer or director compensation or severance, officer or director indemnification agreement or any similar arrangement entered into by the Company, any of its Restricted Subsidiaries or a direct or indirect parent of the Company existing on the Closing Date, or entered into thereafter in the ordinary course of business, and any indemnities or other transactions permitted or required by bylaw, statutory provisions or any of the foregoing agreements, plans or arrangements and payments pursuant thereto;

(2) transactions between or among Parent, the Company and/or its Restricted Subsidiaries;

(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;

(4) any issuance of Equity Interests (other than Disqualified Stock) of the Company to, or receipt of any capital contribution from, any Affiliate of the Company;

(5) transactions in connection with any Permitted Joint Venture Investment;

(6) any Permitted Investments or Restricted Payments that do not violate Section 4.07 hereof;

(7) (x) any contracts, agreements or understandings existing as of the Issue Date and disclosed in the notes to the consolidated financial statements of MetroPCS Wireless, Inc. for the year ended December 31, 2012, (y) any agreement listed on Schedule 3.2(r) — Related-Party Agreements — to the “T-Mobile Disclosure Letter” to the Business Combination Agreement, and (z) any agreement listed under the section entitled “Transactions with Related Persons and Approval” in the proxy statement of Parent filed with the SEC under cover of Schedule 14A on April 16, 2012, and, in each case, any amendments to, replacements of, or orders pursuant to such contracts, agreements or understandings so long as any such amendments, replacements, or orders, taken as a whole, are not (in the good faith judgment of the Company’s Board of Directors or a senior financial officer of the Company, whose determination shall be conclusive) more disadvantageous to the Company or to the Holders in any material respect than the original contracts, agreements or understandings as in effect on the Closing Date;

(8) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, provided that in the good faith determination of the Company’s Board of Directors or a senior financial officer of the Company, which determination shall be conclusive, such transactions are on terms, taken as a whole, not

 

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materially less favorable to the Company or the applicable Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s length basis from a Person that is not an Affiliate of the Company;

(9) issuances, purchases or repurchases of Notes or other Indebtedness of the Company or its Restricted Subsidiaries or solicitations of amendments, waivers or consents in respect of Notes or such other Indebtedness, if such issuance, purchase, repurchase or solicitation is approved by a majority of the disinterested members of the Board of Directors of the Company;

(10) reasonable payments made for any financial advisory, financing, underwriting, placement or syndication services approved by the Company’s Board of Directors or a senior financial officer of the Company in good faith;

(11) amendments, extensions, replacements and other modifications of transactions with Affiliates otherwise permitted by this Indenture, provided that in the good faith determination of the Company’s Board of Directors or a senior financial officer of the Company, which determination shall be conclusive, such amendments, extensions, replacements or other modifications, taken as a whole, are no less favorable in any material respect to the Company or the applicable Restricted Subsidiary than the transaction or transactions being amended, extended, replaced or modified;

(12) (i) the Business Combination Agreement and any Ancillary Agreements, as defined in the Business Combination Agreement, in each case, as the same may be amended, modified, supplemented or replaced from time to time on terms that, taken as a whole, in the good faith determination of the Company’s Board of Directors or a senior financial officer of the Company, which determination shall be conclusive, are not materially less favorable to the Company or the applicable Restricted Subsidiary than those of the agreement being amended, modified, supplemented or replaced, (ii) transactions or agreements relating to the DT Notes and the TMUS Working Capital Facility, each as may be amended, modified, or supplemented from time to time, and any indebtedness incurred in connection with the refinancing of the foregoing, on terms that, taken as a whole, in the good faith determination of the Company’s Board of Directors or a senior financial officer of the Company, which determination shall be conclusive, are not materially less favorable to the Company than those of the DT Notes or TMUS Working Capital Facility, as applicable, and (iii) transactions between the Company and its Restricted Subsidiaries, on the one hand, and any Designated Tower Entities that have been designated as Unrestricted Subsidiaries, on the other hand, in connection with the Towers Transaction; and

(13) so long as 100% of the Notes are held by Permitted Holders, any transactions between the Company or any Restricted Subsidiary, on the one hand, and DT or any Subsidiary thereof (other than Parent, Company or any Subsidiary thereof), on the other hand, and thereafter any agreements evidencing such transactions.

 

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Section 4.12 Liens.

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien securing Indebtedness upon any asset now owned or hereafter acquired, except Permitted Liens, unless the Notes are equally and ratably secured (except that Liens securing Indebtedness that is contractually subordinated to the Notes shall be expressly subordinate to any Lien securing the Notes to at least the same extent that such Indebtedness is subordinate to the Notes).

Section 4.13 Business Activities.

The Company will not, and will not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole.

Section 4.14 Existence.

The Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its existence and the rights (charter and statutory), licenses and franchises material to the conduct of its business; provided, however, that the Company shall not be required to preserve any such existence, right, license or franchise, if the preservation thereof is no longer desirable in the conduct of the business of the Company; provided, further, that the foregoing shall not prohibit any merger, conversion, consolidation, liquidation or dissolution permitted under Section 5.01 hereof.

Section 4.15 Offer to Repurchase Upon Change of Control Triggering Event.

(a) Upon the occurrence of a Change of Control Triggering Event with respect to any Series of Notes, the Company will make an offer (a “Change of Control Offer”) to each Holder of Notes of such Series to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date for periods prior to such repurchase date (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event, the Company will send a notice to each Holder of Notes of such Series and the Trustee describing the transaction or transactions and identify the ratings decline that together constitute the Change of Control Triggering Event and stating:

(1) that the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered will be accepted for payment;

(2) the purchase price and the purchase date, which shall be no earlier than 10 days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”);

(3) that any Note not tendered will continue to accrue interest;

 

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(4) that, unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date;

(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;

(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and

(7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.15 or compliance with the provisions of this Section 4.15 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.15 by virtue of such compliance. In connection with the tender of any Notes with respect to a Change of Control Triggering Event, the tendering Holder shall provide good title to the Notes, free and clear of all Liens and encumbrances, and shall represent and warrant that such Holder is presenting good title, free and clear of all Liens and encumbrances, and such other representations and warranties as are customary.

(b) On the Change of Control Payment Date, the Company will, to the extent lawful:

(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;

(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 Paying Agent the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.

The Paying Agent will promptly make payment to each Holder of Notes of the applicable Series properly tendered the Change of Control Payment for such Notes, and the Trustee, upon receipt of

 

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a Company Order, will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder, a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

(c) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be required to make a Change of Control Offer with respect to any Series of Notes upon a Change of Control Triggering Event if (1) a third party makes the Change of Control Offer for such Series of Notes in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 and purchases all Notes of such Series properly tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption with respect to such Series has been given pursuant to the optional redemption provisions applicable to such Series, unless and until there is a default in payment of the applicable redemption price.

(d) A Change of Control Offer may be made in advance of a Change of Control Triggering Event, and conditioned upon such Change of Control Triggering Event, if a definitive agreement has been executed for a transaction that would constitute a Change of Control at the time of making of the Change of Control Offer.

(e) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes of any Series accept a Change of Control Offer and the Company purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, subject to the ability of the Depositary to process such redemption on the date specified in such notice), given not more than 30 days following the purchase pursuant to the Change of Control Offer described above, to redeem all of the Notes of such Series that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest on the Notes that remain outstanding, to, but not including, the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date).

Section 4.16 Payments for Consent.

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes of any Series for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes of such Series unless such consideration is offered to be paid and is paid to all Holders of the Notes of such Series that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or amendment.

 

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Section 4.17 Additional Note Guarantees.

If (a) the Company or any of the Company’s Domestic Restricted Subsidiaries acquires or creates another Domestic Restricted Subsidiary (and such Subsidiary is a Wholly-Owned Subsidiary and is neither a Designated Tower Entity, the Reinsurance Entity nor an Immaterial Subsidiary) after the Issue Date or (b) any Restricted Subsidiary of the Company guarantees any Specified Issuer Indebtedness of the Company after the Issue Date or (c) Parent or any Subsidiary of Parent acquires or creates a Subsidiary that directly or indirectly owns Equity Interests of the Company, then the Company or Parent, as applicable, will cause that newly acquired or created Domestic Restricted Subsidiary, Restricted Subsidiary, or Subsidiary of Parent to become a Guarantor of each applicable Series of Notes and execute a supplemental indenture in substantially the form of Exhibit B attached hereto and, if requested by the Trustee, deliver an Opinion of Counsel reasonably satisfactory to the Trustee within 10 Business Days after the date on which it was acquired or created or guarantees such Specified Issuer Indebtedness, as applicable, or reasonably promptly thereafter.

Upon or prior to the consummation of the Merger on the Closing Date, the Company will cause Parent to become a Guarantor of each Series of Notes by executing a supplemental indenture in substantially the form of Exhibit B attached hereto and deliver an Opinion of Counsel reasonably satisfactory to the Trustee.

Section 4.18 Designation of Restricted and Unrestricted Subsidiaries.

The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, (i) the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Company in its discretion and (ii) any Guarantee by the Company or any Restricted Subsidiary thereof of any Indebtedness of the Restricted Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation. That designation will only be permitted if the Investment and/or incurrence of Indebtedness would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default.

Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is

 

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permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default would be in existence following such designation, and as a result of such designation.

Notwithstanding the foregoing, the Company may at any time and from time to time designate any Designated Entity, by written notice to the Trustee, as an Unrestricted Subsidiary, and any such Subsidiary shall upon such notice immediately be designated and deemed an Unrestricted Subsidiary, without any further action by the Company (and, for the avoidance of doubt, shall not require delivery of a resolution of the Board of Directors or of an Officers’ Certificate) (each, a “Specified Unrestricted Subsidiary Designation”). The aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in such Designated Entities so designated as Unrestricted Subsidiaries will, as calculated and to the extent permitted by clause (18) of the definition of Permitted Investments, be deemed to be an Investment made as of the time of such Specified Unrestricted Subsidiary Designation under such clause (18), and not reduce the amount available for Restricted Payments under Section 4.07 hereof.

Section 4.19 Changes in Covenants When Notes Rated Investment Grade.

If on any date following the Closing Date:

(1) the Notes of any Series are rated Investment Grade by two out of the three Rating Agencies; and

(2) no Default or Event of Default shall have occurred and be continuing with respect to the Notes of such Series (other than with respect to Sections listed in the following list),

then, beginning on that day and subject to the provisions of the following paragraph, the provisions of the following Sections hereof will cease to apply and will not be later reinstated even if the ratings of the Notes of such Series should subsequently decline: 4.07, 4.08, 4.09, 4.10, 4.11, 4.18, and clauses (3) (to the extent that a Default or Event of Default exists by reason of one or more of the Sections in this list) and (4) of Section 5.01.

Section 4.20 Effectiveness of Covenants.

Notwithstanding anything herein to the contrary, the covenants set forth in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.18 and 4.19 shall not be effective until consummation of the Merger on the Closing Date, at which time they shall become effective automatically.

ARTICLE V

SUCCESSORS

Section 5.01 Merger, Consolidation, or Sale of Assets.

The Company shall not: (i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation); or (ii) directly or indirectly sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:

(1) either:

(A) the Company is the surviving corporation; or

(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made is a corporation, limited liability company or partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Person is not a corporation, such Person immediately causes a Subsidiary that is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia to be added as a co-issuer of the Notes under this Indenture;

 

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(2) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, lease, transfer, conveyance or other disposition has been made expressly assumes, by a supplemental indenture, executed and delivered to the Trustee, the payment of the principal of and any premium and interest on the Notes and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;

(3) immediately after such transaction, no Default or Event of Default exists; and

(4) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, either (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in Section 4.09(a) hereof or (b) have a Debt to Cash Flow Ratio no greater than the Debt to Cash Flow Ratio of the Company immediately prior to such transaction.

This Section 5.01 will not apply to (and the following shall be permitted notwithstanding this Section 5.01):

(1) a merger of the Company with a direct or indirect Subsidiary of Parent solely for the purpose of reincorporating the Company in another jurisdiction in the United States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby;

(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Restricted Subsidiaries; or

(3) the Transactions, including the Merger.

 

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Section 5.02 Successor Corporation Substituted.

Upon any consolidation or merger, or any sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole, in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, transfer, assignment, lease, conveyance or other disposition is made, shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein. When the successor Person assumes all of the Company’s obligations under this Indenture, the Company shall be discharged from those obligations.

ARTICLE VI

DEFAULTS AND REMEDIES

Section 6.01 Events of Default.

Each of the following is an “Event of Default” in respect of the Notes of any Series, unless in the establishing Board Resolution, Officers’ Certificate or supplemental indenture, it is provided that such Series shall not have the benefit of said Event of Default:

(1) default for 30 days in the payment when due of interest (including Additional Interest, if any) on the Notes of such Series;

(2) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes of such Series;

(3) failure by the Company for 120 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes of such Series then outstanding voting as a single class to comply with Section 4.03 hereof;

(4) failure by the Company or any of its Restricted Subsidiaries for 30 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes of such Series then outstanding voting as a single class to comply with the provisions of Sections 4.10 or 4.15 hereof (in each case other than a failure to purchase Notes of such Series that will constitute an Event of Default under clause (2) of this Section 6.01) or 5.01 hereof;

(5) failure by the Company or any of its Restricted Subsidiaries for 90 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes of such Series then outstanding voting as a single class to comply with any of the other agreements in this Indenture;

 

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(6) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries that would constitute a Significant Subsidiary), whether such Indebtedness or Guarantee now exists, or is created hereafter, if that default:

(A) is caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or

(B) results in the acceleration of such Indebtedness prior to its express maturity;

and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates an amount equal to $100.0 million, or more, in each case for so long as such failure or acceleration is continuing;

(7) failure by the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) to pay or discharge final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $100.0 million (to the extent not covered by insurance), which judgments are not paid, discharged or stayed for a period of 60 consecutive days following entry of such final judgment or decree during which a stay of enforcement of such final judgment or decree, by reason of pending appeal or otherwise, is not in effect;

(8) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary, or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary, pursuant to or within the meaning of Bankruptcy Law:

(A) commences a voluntary case,

(B) consents to the entry of an order for relief against it in an involuntary case,

(C) consents to the appointment of a custodian of it or for all or substantially all of its property,

(D) makes a general assignment for the benefit of its creditors, or

(E) generally is not paying its debts as they become due;

 

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(9) a court of competent jurisdiction enters a final order or decree under any Bankruptcy Law that:

(A) is for relief against the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary in an involuntary case;

(B) appoints a custodian of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary; or

(C) orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary;

and the final order or decree remains unstayed and in effect for 60 consecutive days;

(10) except as permitted by this Indenture, any Note Guarantee with respect to Notes of such Series is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee with respect to such Series; and

(11) any other Event of Default provided in the Board Resolution, Officers’ Certificate or supplemental indenture under which such Series of Notes is issued or in the form of Note for such Series.

A Default under one Series of Notes issued under this Indenture will not necessarily be a Default under another Series of Notes issued under this Indenture.

Section 6.02 Acceleration.

In the case of an Event of Default specified in clause (8) or (9) of Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary of the Company that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary, all outstanding Notes of such Series will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing with respect to any Series of Notes, the Trustee or the Holders, with a copy to the Trustee, of at least 25% in aggregate principal amount of the then outstanding Notes of such Series may declare all the Notes of such Series to be due and payable immediately.

The Holders of a majority in aggregate principal amount of the then outstanding Notes of such Series by written notice to the Trustee may, on behalf of all Holders of Notes of that Series, rescind an acceleration or waive any existing Default or Event of Default in respect of such Series of Notes and its consequences under this Indenture except a continuing Default or Event of Default in the payment of interest or premium, if any, on, or the principal of, the Notes of such Series.

 

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Section 6.03 Other Remedies.

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes of a Series or to enforce the performance of any provision of the Notes of such Series or this Indenture.

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Guarantors, the Trustee and the Holders will be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders will continue as though no such proceeding had been instituted.

The Trustee may maintain a proceeding with respect to the Notes of any Series even if it does not possess any of the Notes of such Series or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note of any Series in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

In the case of any Event of Default occurring by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding payment of the premium that the Company would have had to pay if the Company then had elected to redeem the Notes of a Series pursuant to the optional redemption provisions in this Indenture with respect to such Series, an equivalent premium will also become and be immediately due and payable to the extent permitted by law upon the acceleration of the Notes of such Series.

Section 6.04 Waiver of Past Defaults.

Holders of not less than a majority in aggregate principal amount of the then outstanding Notes of any Series by notice to the Trustee may on behalf of the Holders of all of the Notes of such Series waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of interest or premium, if any, on, or the principal of, the Notes of such Series. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

Section 6.05 Control by Majority.

Holders of a majority in aggregate principal amount of the then outstanding Notes of any Series may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it with respect to the Notes of such Series. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders of the Notes of such Series or that may involve the Trustee in personal liability.

 

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Section 6.06 Limitation on Suits.

A Holder may pursue a remedy with respect to this Indenture or the Notes of any Series only if:

(1) such Holder gives to the Trustee written notice that an Event of Default for such Series of Notes is continuing;

(2) Holders of at least 25% in aggregate principal amount of the then outstanding Notes of the applicable Series have made a written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

(3) such Holder or Holders offer and, if requested, provide to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability or expense to be incurred in compliance with such request;

(4) the Trustee does not comply with the request within 90 days after receipt of the request and the offer of indemnity or security; and

(5) during such 90-day period, Holders of a majority in aggregate principal amount of the then outstanding Notes of such Series do not give the Trustee a direction inconsistent with such request.

A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note of the same Series or to obtain a preference or priority over another Holder of a Note of the same Series.

Section 6.07 Rights of Holders of Notes to Receive Payment.

Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal of, and premium, if any, and interest on the Note, on or after the respective due dates expressed in the Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

Section 6.08 Collection Suit by Trustee.

If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, and premium, if any, and interest remaining unpaid on, the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable and actual out-of-pocket expenses, disbursements and advances of the Trustee, its agents and outside counsel.

 

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Section 6.09 Trustee May File Proofs of Claim.

The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable and actual out-of-pocket expenses and disbursements of the Trustee) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable and actual out-of-pocket expenses and disbursements of the Trustee, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such amounts due the Trustee, its agents and outside counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section 6.10 Priorities.

If the Trustee collects any money pursuant to this ARTICLE VI on account of a Series of Notes, it shall pay out the money in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of the Notes of such Series and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

First: To the payment of all amounts due the Trustee and each Agent under Section 7.07;

Second: To the payment of the amounts due and unpaid for principal of, premium, if any, and interest on the Notes of such Series in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes of such Series for principal, premium, if any and interest, respectively; and

Third: To the Company or the Guarantors, as applicable.

Section 6.11 Undertaking for Costs.

In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of such suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any

 

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party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the outstanding Notes of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Note on or after the Stated Maturity or Stated Maturities expressed in such Note (or, in the case of redemption, on the redemption date).

ARTICLE VII

TRUSTEE

Section 7.01 Duties of Trustee.

(a) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. If an Event of Default has occurred and is continuing with respect to any Series of Notes, the Trustee will exercise such of the rights and powers vested in it by this Indenture in respect of such Series of Notes, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

(b) Except during the continuance of an Event of Default with respect to the Notes of any Series:

(1) the Trustee and the Agents shall not be liable except for the performance of such duties as are specifically set out in this Indenture and no implied duties or obligations shall be read into this Indenture against the Trustee and the Agents (it being agreed that a permissive right of the Trustee and the Agents shall not be construed as a duty); and

(2) in the absence of bad faith on its part, the Trustee and the Agents may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and the Agents and conforming to the requirements of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee and the Agents, the Trustee and the Agents will examine such Officers’ Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture, but need not confirm or investigate the accuracy of statements, calculations or other facts stated therein.

(c) The Trustee and the Agents may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

(1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;

(2) the Trustee and the Agents will not be liable for and shall be protected pursuant to the indemnification provisions in Section 7.07 hereof from, any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee or Agent was negligent in ascertaining the pertinent facts; and

(3) the Trustee and the Agents will not be liable for and shall be protected pursuant to the indemnification provisions in Section 7.07 hereof from, any action it takes or omits to take with respect to Notes of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Notes of such Series pursuant to Section 6.05 hereof.

 

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(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee and the Agents is subject to paragraphs (a), (b), and (c) of this Section 7.01.

(e) No provision of this Indenture will require the Trustee or any Agent to expend or risk its own funds or incur any liability. The Trustee and any Agent will be under no obligation to exercise any of its rights or powers under this Indenture at the request of any Holder, unless such Holder has offered to the Trustee or applicable Agent security and indemnity satisfactory to it against any loss, liability or expense.

(f) The Trustee and the Agents will not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

(g) The Trustee will be entitled to the protections, immunities and standard of care as are set forth in paragraphs (a), (b) and (c) of this Section 7.01 and the Agents shall be entitled to the protections, immunities and standard of care as are set forth in paragraphs (c), (e) and (f) of this Section 7.01.

Section 7.02 Rights of Trustee and the Agents.

(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.

(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel or both. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

(c) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.

(d) The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed by an Officer of the Company.

 

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(f) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.

(g) The Trustee shall not be deemed to have notice of any Default or Event of Default, except a Default under Sections 6.01(1) or 6.01(2), unless written notice of any event which is in fact such a Default or Event of Default is received by a Responsible Officer at Corporate Trust Office of the Trustee from either of the Company or the Holders of 25% in aggregate principal amount of the outstanding Notes of the relevant Series, and such notice references the specific Default or Event of Default, the Notes and this Indenture and, in the absence of any such notice, the Trustee may conclusively assume that no such Default or Event of Default exists.

(h) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

(i) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent, custodian and other Person employed to act hereunder.

(j) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

(k) The Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

The Trustee and the Agents shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or document unless requested in writing to do so by the holders of not less than a majority in principal amount of the Notes at the time outstanding, but the Trustee and the Agents may (but shall not be obligated to) make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee or an Agents shall determine to make such further inquiry or investigation, they shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney, at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation.

Section 7.03 Individual Rights of Trustee.

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest when a Default is continuing it must eliminate such conflict within 90 days of the date such conflict arises, apply to the SEC for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.

 

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Section 7.04 Trustee’s Disclaimer.

The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

Section 7.05 Notice of Defaults.

If a Default or Event of Default occurs and is continuing with respect to the Notes of any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall send to each Holder of the Notes of that Series notice of the Default or Event of Default within 120 days after the occurrence thereof; provided, that except in the case of default in the payment of principal of or interest or premium, if any, on any Note of any Series, the Trustee shall be protected pursuant to the indemnification provisions in Section 7.07 hereof in withholding such notice if and so long as a committee of its Responsible Officers in good faith determines that the withholding of such notice is in the interests of Holders of that Series.

Section 7.06 Reports by Trustee to Holders of the Notes.

(a) Within 60 days after May 15 in each year, the Trustee will send to all Holders, as their names and addresses appear on the register kept by the Registrar, a brief report dated as of such May 15, in accordance with, and to the extent required under, TIA § 313(a).

(b) A copy of each report at the time of its being sent to Holders of Notes of any Series will be sent by the Trustee to the Company and filed by the Trustee with the SEC and each stock exchange on which the Notes of that Series are listed in accordance with TIA § 313(d). The Company will promptly notify the Trustee when Notes of any Series are listed on any stock exchange.

Section 7.07 Compensation and Indemnity.

(a) The Company will pay to the Trustee and the Agents from time to time reasonable compensation for its acceptance of this Indenture and services hereunder, as separately agreed in writing. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. The Company will reimburse the Trustee promptly upon request for all reasonable and actual out-of-pocket disbursements and expenses incurred or made by it in addition to the compensation for its services as so agreed. Such expenses will include the reasonable and actual out-of-pocket disbursements and expenses of the Trustee’s agents and outside counsel.

(b) The Company and the Guarantors will indemnify the Trustee and the Agents against any and all losses, liabilities or expenses incurred by it arising out of or in connection with

 

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the acceptance or administration of its duties under this Indenture, including the reasonable and actual out-of-pocket costs and expenses of enforcing this Indenture against the Company and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its gross negligence, willful misconduct or bad faith. The Trustee will notify the Company promptly of any claim for which it may seek indemnity; provided that the failure by the Trustee to deliver such notice shall not relieve the Company of its obligations hereunder except to the extent it has been materially prejudiced by such failure or such failure results in the forfeiture of substantive rights and defenses. The Company or such Guarantor will defend the claim and the Trustee will cooperate in the defense. The Trustee may have one separate counsel and the Company will pay the reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay for any settlement made without its consent.

(c) The obligations of the Company and the Guarantors under this Section 7.07 will survive the satisfaction and discharge of this Indenture as to any Series of Notes or the removal or resignation of the Trustee or any Agent.

(d) To secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes of any Series on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes of that Series. Such Lien will survive the satisfaction or discharge of this Indenture as to any Series of Notes.

(e) When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(8) or (9) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

(f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.

Section 7.08 Replacement of Trustee.

(a) A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.

(b) The Trustee may resign with respect to the Notes of one or more Series in writing at any time and be discharged from the trust hereby created by so notifying the Company at least 30 days prior to the effective date of such resignation. The Holders of a majority in aggregate principal amount of the then outstanding Notes of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company in writing. The Company may remove the Trustee with respect to the Notes of one or more Series if:

(1) the Trustee fails to comply with Section 7.10 hereof;

 

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(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

(3) a custodian or public officer takes charge of the Trustee or its property; or

(4) the Trustee becomes incapable of acting.

(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, with respect to the Notes of one or more Series, the Company will promptly appoint a successor Trustee with respect to the Notes of that Series. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes of such Series may appoint a successor Trustee to replace the successor Trustee appointed by the Company.

(d) If a successor Trustee with respect to the Notes of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least a majority in aggregate principal amount of the then outstanding Notes of such Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.

(e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee with respect to each Series of Notes for which it is acting as Trustee under this Indenture. The successor Trustee will mail a notice of its succession to each Holder of each such Series. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided that, unless the Trustee is in default of its obligations hereunder, all sums owing to the Trustee hereunder have been paid and subject to the lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee with respect to the expenses, liabilities and indemnities incurred by it prior to such replacement.

Section 7.09 Successor Trustee by Merger, etc.

If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee.

Section 7.10 Eligibility; Disqualification.

There will at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth

 

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in its most recent published annual report of condition. This Indenture will always have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b).

Section 7.11 Preferential Collection of Claims Against Company.

Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.

Section 7.12 Force Majeure.

In no event shall the Trustee or the Agents be responsible or liable for any failure or delay in the performance of their obligations hereunder arising out of or caused by, directly or indirectly, forces that are not foreseen and which are beyond their control, including strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, loss of wire or other communication facilities; it being understood that the Trustee and the Agents shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

ARTICLE VIII

LEGAL DEFEASANCE AND COVENANT DEFEASANCE

Section 8.01 Legal Defeasance and Covenant Defeasance.

The Company may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes of any Series upon compliance with the conditions set forth below in this ARTICLE VIII.

Section 8.02 Legal Defeasance and Discharge.

Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of the Guarantors will, with respect to Notes of any Series, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes of such Series (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes of such Series (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:

(1) the rights of Holders of outstanding Notes of such Series to receive payments in respect of the principal of, or interest or premium, if any, on, such Notes when such payments are due from the trust referred to in Section 8.04 hereof;

 

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(2) the Company’s obligations with respect to such Notes under ARTICLE II and Section 4.02 hereof;

(3) the rights, powers, trusts, duties, indemnities and immunities of the Trustee hereunder, and the Company’s and the Guarantors’ obligations in connection therewith; and

(4) the provisions of this ARTICLE VIII.

Subject to compliance with this ARTICLE VIII, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

Section 8.03 Covenant Defeasance.

Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company and each of the Guarantors will, with respect to Notes of any Series and subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants contained in Sections 4.03, 4.04, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.18 hereof and clause (4) of Section 5.01 hereof with respect to the outstanding Notes of such Series on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes of such Series will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes of a Series and related Note Guarantees, the Company and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(9) (in the case of Sections 6.01(8) and 6.01(9), only with respect to the Company’s Subsidiaries) and Section 6.01(11) hereof will not constitute Events of Default.

 

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Section 8.04 Conditions to Legal or Covenant Defeasance.

In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof with respect to Notes of any Series:

(1) the Company must irrevocably deposit with the Trustee or its designee, in trust, for the benefit of the Holders of such Series, cash in U.S. Dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and premium, if any, and interest on, the outstanding Notes of such Series on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes of such Series are being defeased to such stated date for payment or to a particular redemption date;

(2) in the case of an election under Section 8.02 hereof, the Company must deliver to the Trustee an Opinion of Counsel confirming that:

(A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or

(B) since the Closing Date, there has been a change in the applicable U.S. federal income tax law,

in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes of such Series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

(3) in the case of an election under Section 8.03 hereof, the Company must deliver to the Trustee an Opinion of Counsel confirming that the Holders of the outstanding Notes of such Series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

(4) no Default or Event of Default has occurred and is continuing with respect to the Notes of the applicable Series on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds, or the imposition of Liens in connection therewith, to be applied to such deposit, or a Default or Event of Default that will be cured by such Covenant Defeasance or Legal Defeasance) and the deposit will not result in a breach or violation of, or constitute a default under, any material instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;

(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;

 

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(6) the Company must deliver to the Trustee an Officers’ Certificate, stating that the deposit was not made by the Company with the intent of preferring the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;

(7) the Company must deliver to the Trustee an Officers’ Certificate, stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and

(8) the Company must deliver to the Trustee an Opinion of Counsel, stating that all conditions precedent set forth in clauses (2), (3) and (5) of this Section 8.04, as applicable, have been complied with; provided that the Opinion of Counsel with respect to clause (5) of this Section 8.04 may be to the knowledge of such counsel.

Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.

Subject to Section 8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes of a Series will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal of, and premium, if any, and interest but such money need not be segregated from other funds except to the extent required by law.

The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes of such Series.

Notwithstanding anything in this ARTICLE VIII to the contrary, the Trustee will deliver or pay to the Company from time to time upon the written request of the Company any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. This provision shall not authorize the sale by the Trustee of any Government Securities held under this Indenture.

 

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Section 8.06 Repayment to Company.

Subject to applicable state unclaimed property laws, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, and premium, if any, or interest, on, any Note of a Series and remaining unclaimed for two years after such principal of, and premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will thereupon cease.

Section 8.07 Reinstatement.

If the Trustee or Paying Agent is unable to apply any U.S. Dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture with respect to the Notes of such Series and under the Notes of such Series and the corresponding Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, or interest on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

ARTICLE IX

AMENDMENT, SUPPLEMENT AND WAIVER

Section 9.01 Without Consent of Holders of Notes.

Notwithstanding Section 9.02 hereof, the Company, the Guarantors of the Notes of any Series and the Trustee may amend or supplement the Indenture with respect to such Series, the Notes of such Series or the related Note Guarantees without the consent of any Holder of Notes:

(1) to cure any ambiguity, defect or inconsistency;

(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;

(3) to provide for the assumption of the Company’s or a Guarantor’s obligations to Holders of the Notes of such Series and related Note Guarantees in the case of a merger or consolidation or sale of all or substantially all of the Company’s or such Guarantor’s assets, as applicable;

(4) to effect the release of a Guarantor from its Note Guarantee in respect of such Series of Notes and the termination of such Note Guarantee, all in accordance with the provisions of this Indenture governing such release and termination;

 

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(5) to add any Guarantor or Note Guarantee or to secure the Notes of any Series or any Note Guarantee in respect of the Notes of any Series;

(6) to make any change that would provide any additional rights or benefits to the Holders of Notes of such Series or that does not adversely affect the legal rights under this Indenture of any such Holder in any material respect;

(7) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;

(8) to change or eliminate any of the provisions of this Indenture with respect to such Series, provided that any such change or elimination shall not become effective with respect to any outstanding Notes of any Series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision;

(9) to provide for the issuance of and establish forms and terms and conditions of a new Series of Notes as permitted by this Indenture;

(10) to, in the case of any Notes other than Notes of any Series issued on the date of the Base Indenture, conform the text of this Indenture with respect to such Series, the Notes of such Series, or the related Note Guarantees to any provision of the “Description of Notes” section of any prospectus, prospectus supplement, offering memorandum, or other offering document relating to the applicable Series of Notes to the extent that such provision in such Description of Notes was intended to be a verbatim recitation of a provision of the Indenture, the Note Guarantees, or the Notes of such Series, in each case, as conclusively evidenced by an Officers’ Certificate;

(11) to provide for the issuance of additional Notes of any Series, provided that such additional Notes have the same terms as, and be deemed part of the same Series as, the applicable Series of Notes to the extent required under this Indenture;

(12) to evidence and provide for the acceptance of and appointment by a successor trustee with respect to the Notes of such Series and to add to or change any of the provisions of this Indenture with respect to such Series as shall be necessary to provide for or facilitate the administration of the trust by more than one trustee; and

(13) to allow any Guarantor of the Notes of such Series to execute a supplemental indenture and/or a Note Guarantee with respect to the Notes of such Series.

Upon the written request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 and Section 9.06 hereof, the Trustee shall join with the Company and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

 

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Section 9.02 With Consent of Holders of Notes.

Except as provided below in this Section 9.02, the Company, the Guarantors of the Notes of any Series and the Trustee may amend or supplement this Indenture with respect to the Notes of such Series, or the Notes of such Series, or the related Note Guarantees with the consent of the Holders of at least a majority in aggregate principal amount of the Notes of such Series then outstanding (including consents obtained in connection with a purchase of, or a tender offer or exchange offer for, Notes of such Series), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default with respect to the Notes of such Series or compliance with any provision of this Indenture or the Notes of such Series or the related Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the Notes of such Series then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes of such Series). Section 2.09 and 2.10 hereof shall determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.

Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes of a Series as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may, but will not be obligated to, enter into such amended or supplemental indenture.

It is not necessary for the consent of the Holders of Notes of a Series under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it is sufficient if such consent approves the substance thereof.

For the avoidance of doubt, any amendment, supplement or waiver to any Series of Notes made with the consent of Holders of such Series of Notes, shall be made with respect to that Series of Notes only, and not any other Series of Notes, unless the Holders of such other Series of Notes consent to such amendment, supplement or waiver to such other Series of Notes.

After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company will send or cause to be sent to the Holders of Notes of a Series affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to send such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of the Notes of a Series then outstanding may waive compliance in a particular instance by the Company with any provision of this Indenture with respect to such Series or the Notes of such Series or the related Note Guarantees. However, without the consent of each Holder of Notes of the applicable Series affected, an amendment, supplement or waiver (including a waiver pursuant to Section 6.04) under this Section 9.02 may not (with respect to any Notes of any Series held by a non-consenting Holder):

(1) reduce the principal amount of Notes of such Series whose Holders must consent to an amendment, supplement or waiver;

 

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(2) reduce the principal of or change the fixed maturity of any Note of such Series or alter the provisions with respect to the redemption of the Notes of such Series (except with respect to Sections 3.07, 4.10 and 4.15 hereof);

(3) reduce the rate of or change the time for payment of interest on any Note of such Series;

(4) waive a Default or Event of Default in the payment of principal of, or premium, if any, or interest on, the Notes of such Series (except a rescission of acceleration of the Notes of such Series by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes of such Series and a waiver of the payment default that resulted from such acceleration);

(5) make any Note of such Series payable in money other than that stated in the Notes;

(6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of, or interest or premium, if any, on, the Notes of such Series;

(7) waive a redemption payment with respect to any Note of such Series (other than a payment required by Sections 3.07, 4.10 or 4.15 hereof);

(8) release any Guarantor from any of its obligations under its Note Guarantee of the Notes of such Series or this Indenture with respect to such Series, except in accordance with the terms of this Indenture; or

(9) make any change in the preceding amendment and waiver provisions.

Section 9.03 Compliance with Trust Indenture Act.

Every amendment or supplement to this Indenture or the Notes of one or more Series will be set forth in a Board Resolution, Officers’ Certificate, or amended or supplemental indenture that complies with the TIA as then in effect, to the extent the TIA is then applicable hereto.

Section 9.04 Revocation and Effect of Consents.

Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before 11:59 p.m. New York City Time on the Business Day immediately prior to the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder of each Series affected.

 

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Section 9.05 Notation on or Exchange of Notes.

The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note of any Series thereafter authenticated. The Company in exchange for Notes of that Series may issue and the Trustee shall, upon receipt of a Company Order, authenticate new Notes of that Series that reflect the amendment, supplement or waiver.

Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.

Section 9.06 Trustee to Sign Amendments, etc.

The Trustee will sign any amended or supplemental indenture authorized pursuant to this ARTICLE IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until the Board of Directors of the Company approves it. In executing any amended or supplemental indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required by Section 12.04 hereof, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture.

ARTICLE X

NOTE GUARANTEES

Section 10.01 Note Guarantees.

(a) Notwithstanding any provision of this ARTICLE X to the contrary, the provisions of this ARTICLE X will be applicable only to, and inure solely to the benefit of, the Notes of any Series designated, pursuant to Section 2.02(t), as entitled to the benefits of the Note Guarantee of each Guarantor identified in such designation.

(b) Subject to this ARTICLE X, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to the Holders of each Series of Notes authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:

(1) the principal of, premium, if any, and interest on the Notes of such Series will be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on such Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

(2) in case of any extension of time of payment or renewal of any such Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, redemption or otherwise.

 

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Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(c) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.

(d) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.

(e) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the Maturity of the obligations guaranteed hereby may be accelerated as provided in ARTICLE VI hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in ARTICLE VI hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.

Section 10.02 Limitation on Guarantor Liability.

Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the

 

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Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this ARTICLE X, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.

Section 10.03 Execution and Delivery of Note Guarantee.

To evidence its Note Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that a Notation of Guarantee substantially in the form attached as Exhibit A hereto will be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its Officers.

Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 hereof will remain in full force and effect notwithstanding any failure to endorse on each Note a Notation of Guarantee.

If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.

The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.

Section 10.04 Releases.

(a) The Note Guarantee of a Guarantor will be released in respect of the Notes of any Series:

(1) only in the case of a Subsidiary Guarantor, in connection with any sale or other disposition of all or substantially all of the assets of that Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or other disposition is not prohibited by Section 4.10 hereof;

(2) only in the case of a Subsidiary Guarantor, in connection with any issuance, sale or other disposition of Capital Stock of that Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the issuance, sale or other disposition does not violate Section 4.07 or Section 4.10 hereof, and the Guarantor ceases to be a Wholly-Owned Subsidiary of the Company as a result of such sale or other disposition and does not guarantee any Specified Issuer Indebtedness;

(3) if such Guarantor, other than Parent, ceases to guarantee any Specified Issuer Indebtedness and such Guarantor would not otherwise be required to guarantee the Series of Notes pursuant to Section 4.17 hereof;

 

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(4) if the Company designates any Restricted Subsidiary that is a Guarantor to be an Unrestricted Subsidiary in accordance with the provisions of this Indenture;

(5) upon Legal Defeasance, Covenant Defeasance or satisfaction and discharge of this Indenture as provided in ARTICLES VIII and XI hereof;

(6) upon the liquidation or dissolution of such Guarantor, other than Parent, provided no Default or Event of Default has occurred that is continuing; or

(7) if such Guarantor becomes an Immaterial Subsidiary and such Guarantor would not otherwise be required to guarantee the Notes of such series pursuant to Section 4.17 hereof.

(b) The Trustee shall deliver an appropriate instrument evidencing any release of a Guarantor from the Note Guarantee in respect of any Series of Notes upon receipt of a written request of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel to the effect that the Guarantor is entitled to such release in accordance with the provisions of this Indenture. Any Guarantor not so released shall remain liable for the full amount of principal of, and premium, if any, and interest on the Notes entitled to the benefits of the Note Guarantee as provided in this Indenture, subject to the limitations of Section 10.02.

Section 10.05 Guarantors May Consolidate, etc., on Certain Terms.

Except as otherwise provided in Section 10.04 hereof, no Guarantor of the Notes of any Series (other than Parent) may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company or another Guarantor, unless:

(1) immediately after giving effect to that transaction, no Default or Event of Default exists; and

(2) either:

(A) subject to Section 10.04 hereof and if it is not already a Guarantor of the Notes of such Series, the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger assumes all the obligations of that Guarantor under this Indenture and its Note Guarantee of the Notes of such Series on the terms set forth herein or therein, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee; or

(B) such sale or other disposition complies with Sections 3.07 and 4.10 hereof (it being understood that only such portion of the Net Proceeds as is or is required to be applied on or before the date of such release in accordance with the terms hereof needs to be so applied).

In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and

 

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satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Notes of such Series and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so assumed will in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.

Except as set forth in ARTICLES IV and V hereof, and notwithstanding clauses 2(A) and (B) above, nothing contained in this Indenture or in any of the Notes will prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance of all or substantially all of the property of a Guarantor to the Company or another Guarantor.

ARTICLE XI

SATISFACTION AND DISCHARGE

Section 11.01 Satisfaction and Discharge.

This Indenture will be discharged and will cease to be of further effect as to Notes of any Series, when:

(1) either:

(A) all Notes of such Series that have been authenticated, except lost, stolen or destroyed Notes of such Series that have been replaced or paid and Notes of such Series for whose payment money has been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or

(B) all Notes of such Series that have not been delivered to the Trustee for cancellation have become due and payable by reason of the sending of a notice of redemption or otherwise or will become due and payable within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee or its designee as trust funds in trust solely for the benefit of the Holders of Notes of such Series, cash in U.S. Dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes of such Series not delivered to the Trustee for cancellation for principal of, and premium, if any, and accrued interest to the date of maturity or redemption;

(2) no Default or Event of Default with respect to such Series has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds, or the imposition of any Liens in connection therewith, to be applied to such deposit, or a Default or Event of Default that will be cured by such discharge);

 

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(3) such deposit will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;

(4) the Company or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture in respect of such Series; and

(5) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes of such Series at Maturity or on the redemption date, as the case may be.

In addition, the Company must deliver to the Trustee (a) an Officers’ Certificate, stating that all conditions precedent set forth in clauses (1) through (5) above have been satisfied, and (b) an Opinion of Counsel, stating that all conditions precedent set forth in clauses (3) and (5) above have been satisfied; provided that the Opinion of Counsel with respect to clause (3) above may be to the knowledge of such counsel.

Notwithstanding the satisfaction and discharge of this Indenture with respect to Notes of any Series, if money has been deposited with the Trustee for any Series pursuant to subclause (B) of clause (1) of this Section 11.01, the provisions of Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of any Series of Notes under this Indenture.

Section 11.02 Application of Trust Money.

Subject to the provisions of Section 8.06 hereof, all money and Government Securities deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Company has made any payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.

 

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ARTICLE XII

MISCELLANEOUS

Section 12.01 Trust Indenture Act Controls.

To the extent the TIA is applicable to the Indenture at such time, if any provision of this Indenture limits, qualifies or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision will control.

Section 12.02 Notices.

Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly given if in writing and delivered in person or by first class mail (registered or certified, return receipt requested), facsimile transmission or any electronic means the Trustee and the Company agree to accept, or overnight air courier guaranteeing next day delivery, to the others’ address:

If to the Company and/or any Guarantor:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

If to the Trustee:

Deutsche Bank Trust Company Americas

Trust & Agency Services

60 Wall Street, 27th Floor

MS NYC60-2710

New York, New York 10005

Attn: Corporates Team Deal Manager – T-Mobile USA, Inc.

Fax: 732-578-4635

With a copy to:

Deutsche Bank Trust Company Americas

c/o Deutsche Bank National Trust Company

Trust & Agency Services

100 Plaza One, Mailstop JCY03-0699

Jersey City, New Jersey 07311

Attn: Corporates Team Deal Manager – T-Mobile USA, Inc.

Fax: 732-578-4635

The Company, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.

 

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All notices and communications (other than those sent to Holders) will be in writing and deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

Any notice or communication to a Holder will be sent electronically or mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to send a notice or communication to a Holder of any Series or any defect in it will not affect its sufficiency with respect to other Holders of that or any Series.

If a notice or communication is mailed or otherwise delivered in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

If the Company sends a notice or communication to Holders, it will send a copy to the Trustee and each Agent at the same time.

Section 12.03 Communication by Holders with Other Holders.

Holders of any Series may communicate pursuant to TIA § 312(b) with other Holders of that Series or any other Series with respect to their rights under this Indenture or the Notes of that Series or all Series. The Company, the Trustee, the Registrar and anyone else will have the protection of TIA § 312(c).

Section 12.04 Certificate and Opinion as to Conditions Precedent.

Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company will furnish to the Trustee:

(a) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and

(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.

Section 12.05 Statements Required in Certificate or Opinion.

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and must include:

(a) a statement that the Person making such certificate or opinion has read such covenant or condition;

 

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(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.

Section 12.06 Rules by Trustee and Agents.

The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.

No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

Section 12.08 Counterparts.

This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

Section 12.09 Legal Holidays.

Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.

Section 12.10 Governing Law.

THIS BASE INDENTURE AND THE NOTES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

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Section 12.11 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.

Section 12.12 No Adverse Interpretation of Other Agreements.

This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

Section 12.13 Successors.

All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.04 hereof.

Section 12.14 Severability.

In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

Section 12.15 [Reserved].

Section 12.16 Table of Contents, Headings, Etc.

The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.

Section 12.17 U.S.A. Patriot Act.

The parties hereto acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Agreement agree that they will provide to the Trustee and the Agents such information as they may reasonably request, from time to time, in order for the Trustee and the Agents to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow them to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.

 

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Section 12.18 Beneficiaries of this Indenture.

Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Base Indenture to be duly executed, all as of the date first written above.

 

T-MOBILE USA, INC.
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Senior Vice President & Chief Financial Officer
GUARANTORS:
COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Authorized Person of each of the above named entities

[Signature page to Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
  By:   Deutsche Bank National Trust Company
        By:  

/s/ Rodney Gaughan

        Name:   Rodney Gaughan
        Title:   Vice President
        By:  

/s/ Annie Jaghatspanyan

        Name:   Annie Jaghatspanyan
        Title:   Vice President

 

[Signature page to Indenture]


Appendix A

PROVISIONS RELATING TO INITIAL NOTES AND EXCHANGE NOTES

1. Definitions.

1.1 Definitions. For the purposes of this Appendix the following terms shall have the meanings indicated below (capitalized terms used but not defined in this Appendix shall have the meanings assigned to such terms in the Base Indenture):

Applicable Procedures” means, with respect to any transfer or transaction involving a Regulation S Global Note or beneficial interest therein, the rules and procedures of the Depositary for such a Regulation S Global Note, to the extent applicable to such transaction and as in effect from time to time.

Base Indenture” means the Indenture, dated as of April 28, 2013, among T-Mobile USA, Inc., a Delaware corporation, the Guarantors party thereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as trustee.

Definitive Note” means a certificated Initial Note or Exchange Note bearing, if required, the appropriate restricted securities legend set forth in Section 2.3(e).

Depositary” means, with respect to the Notes of any Series, a Person designated at any time by DT (including, for the avoidance of doubt, at any time after the issuance of such Notes) (or, if DT no longer holds Notes of such Series, by the Company), which Depositary will be a clearing agency registered under the Exchange Act. For the avoidance of doubt, no Board Resolution, Officers’ Certificate, supplemental indenture or other delivery to the Trustee or otherwise will be required in connection with such designation.

Distribution Compliance Period,” with respect to any Notes, means the period of 40 consecutive days beginning on and including the later of (i) the day on which such Notes are first offered to Persons other than distributors (as defined in Regulation S under the Securities Act) in reliance on Regulation S and (ii) the Series Issue Date with respect to such Notes.

Initial Notes” means (1) the Notes of any Series issued on the applicable Series Issue Date and (2) Additional Notes of such Series, if any, issued in a transaction exempt from the registration requirements of the Securities Act.

Initial Purchasers” means (1) with respect to the Initial Notes issued on the Series Issue Date, DT and (2) with respect to each issuance of Additional Notes, the Persons purchasing such Additional Notes under the related purchase agreement.

Notes Custodian” means the custodian with respect to a Global Note (as appointed by the Depositary), or any successor Person thereto and shall initially be the Trustee.

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

 

Appendix A-1


Rule 144A Notes” means all Notes offered and sold to QIBs in reliance on Rule 144A.

Series Issue Date” means with respect to a Series of Notes, the effective date of the Board Resolution, Officers’ Certificate or supplemental indenture pursuant to which the first Notes of such Series is issued.

Registration Statement” means a registration statement filed under the Securities Act by the Company in respect of any Notes.

Transfer Restricted Notes” means Notes that bear or are required to bear the legend relating to restrictions on transfer relating to the Securities Act set forth in Section 2.3(e) hereto.

1.2 Other Definitions.

 

Term    Defined in Section:

“Agent Members”

   2.1(b)

“Regulation S”

   2.1(a)

“Regulation S Global Note”

   2.1(a)

“Rule 144A”

   2.1(a)

“Rule 144A Global Note”

   2.1(a)

2. The Notes.

2.1 (a) Form and Dating. The Initial Notes will be issued by the Company to the Initial Purchasers, and will be in the form of one or more Definitive Notes with the definitive notes legend and the appropriate restricted notes legend set forth on Section 2.3(e). Initial Notes may be transferred (i) to QIBs in reliance on Rule 144A under the Securities Act (“Rule 144A”), (ii) to Persons other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S under the Securities Act (“Regulation S”) and (iii) otherwise in reliance upon another exemption from the requirements of the Securities Act, subject in each case to the restrictions on transfer set forth herein. Initial Notes may also be transferred during the period of effectiveness of a Registration Statement with respect thereto. Initial Notes resold pursuant to Rule 144A may be in the form of one or more permanent Global Notes in definitive, fully registered form (collectively, the “Rule 144A Global Notes”), Initial Notes resold pursuant to Regulation S may be in the form of one or more global notes in fully registered form (collectively, the “Regulation S Global Notes”), Initial Notes resold in connection with a Registered Exchange Offer may be in the form of one or more global notes in fully registered form (collectively, the “Exchange Global Notes”), and Initial Notes resold pursuant to a Registration Statement may be in the form of one or more global notes in fully registered form (collectively, the “Registered Global Notes”) in each case without interest coupons and with the global notes legend and the applicable restricted notes legend set forth in Section 2.3(e) hereof, which shall be deposited with the Notes Custodian and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee as provided in the Indenture.

Beneficial interests in Regulation S Global Notes may be exchanged for interests in Rule 144A Global Notes if (1) such exchange occurs in connection with a transfer of Notes in compliance with Rule 144A and (2) the transferor of the beneficial interest in the Regulation S Global Note (if such transfer is during the Distribution Compliance Period) first delivers to the Trustee a written

 

Appendix A-2


certificate to the effect that the beneficial interest in the Regulation S Global Note is being transferred to a Person (a) who the transferor reasonably believes to be a QIB, (b) purchasing for its own account or the account of a QIB in a transaction meeting the requirements of Rule 144A and (c) in accordance with all applicable securities laws of the States of the United States and other jurisdictions.

Beneficial interests in a Rule 144A Global Note may be transferred to a Person who takes delivery in the form of an interest in a Regulation S Global Note, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if applicable).

The aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee as hereinafter provided.

The Company may (and, at the election of DT or of a majority of the Holders of the applicable Series of Notes, shall) obtain “CUSIP,” “ISIN” and/or “Common Code” numbers relating to the Notes of the applicable Series at any time (if then generally in use), including after the Series Issue Date thereof, and, if so, the Trustee will use “CUSIP,” “ISIN” and/or “Common Code” numbers in notices of redemption as a convenience to Holders of Notes of such Series; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes of such Series or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Notes of such Series, and any such redemption will not be affected by any defect in or omission of such numbers.

(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Note deposited with or on behalf of the Depositary.

The Company shall execute and the Trustee, upon receipt of a Company Order in the form of an Officers’ Certificate, shall, in accordance with this Section 2.1(b), authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary for such Global Note or Global Notes or the nominee of such Depositary and (b) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or held by the Trustee as custodian for the Depositary.

Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Depositary or by the Trustee as the custodian of the Depositary or under such Global Note, and the Company, the Trustee and any agent of the Company or the Trustee shall be entitled to treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Note.

 

Appendix A-3


(c) Definitive Notes. Except as provided in this Section 2.1 or Section 2.3 or 2.4, owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery of Definitive Notes.

2.2 Authentication. The Trustee shall authenticate and deliver: (1) on the Series Issue Date, the Initial Notes in an aggregate principal amount specified in the Company Order pursuant to Section 2.03 of the Base Indenture, (2) any Additional Notes for an original issue in an aggregate principal amount and on the date specified in the Company Order pursuant to Section 2.03 of the Base Indenture, (3) Exchange Notes for issue only in a Registered Exchange Offer, for a like principal amount of Initial Notes, in each case upon a Company Order in the form of an Officers’ Certificate and (4) Notes as contemplated by Section 2.3 and Sections 2.07, 2.08 and 2.11 of the Base Indenture.

2.3 Transfer and Exchange.

(a) Transfer and Exchange of Definitive Notes. When Definitive Notes are presented to the Registrar with a request:

(x) to register the transfer of such Definitive Notes; or

(y) to exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,

the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive Notes surrendered for transfer or exchange:

(i) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing; and

(ii) if such Definitive Notes are required to bear a restricted notes legend, they are being transferred or exchanged pursuant to an effective registration statement under the Securities Act, pursuant to Section 2.3(b) below or pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:

(A) if such Definitive Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or

(B) if such Definitive Notes are being transferred to the Company, a certification to that effect; or

(C) if such Definitive Notes are being transferred (x) pursuant to an exemption from registration in accordance with Rule 144A, Regulation S or Rule 144 under the Securities Act or (y) in reliance upon another exemption from the requirements of the Securities Act: (1) a certification to that effect (in the form set forth on the reverse of the Note) and (2) if the Company so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the legend set forth in Section 2.3(e)(i).

 

Appendix A-4


(b) Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a Global Note. A Definitive Note may not be exchanged for a beneficial interest in a Rule 144A Global Note or a Regulation S Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by appropriate instruments of transfer, together with:

(i) certification, in the form set forth on the reverse of the Note, that such Definitive Note is either (A) being transferred to a QIB in accordance with Rule 144A (B) being transferred to a Person in reliance on Regulation S, or (C) being transferred after expiration of the Distribution Compliance Period by a Person who initially purchased such Security in reliance on Regulation S to a buyer who elects to hold its interest in such Security in the form of a beneficial interest in the Regulation S Global Note; and

(ii) written instructions directing the Trustee to make, or to direct the Notes Custodian to make, an adjustment on its books and records with respect to such Rule 144A Global Note (in the case of a transfer pursuant to clause (b)(i)(A)) or Regulation S Global Note (in the case of a transfer pursuant to clause (b)(i)(B) or (b)(i)(C)) to reflect an increase in the aggregate principal amount of the Notes represented by the Rule 144A Global Note or Regulation S Global Note, as applicable, such instructions to contain information regarding the Depositary account to be credited with such increase, then the Trustee shall cancel such Definitive Note and cause, or direct the Notes Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Notes Custodian, the aggregate principal amount of Notes represented by the Rule 144A Global Note or Regulation S Global Note, as applicable, to be increased by the aggregate principal amount of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Rule 144A Global Note or Regulation S Global Note, as applicable, equal to the principal amount of the Definitive Note so canceled. If no Rule 144A Global Notes or Regulation S Global Notes, as applicable, are then outstanding, the Company shall issue and the Trustee shall authenticate, upon Company Order in the form of an Officers’ Certificate of the Company, a new Rule 144A Global Note or Regulation S Global Note, as applicable, in the appropriate principal amount.

(c) Transfer and Exchange of Global Notes.

(i) The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with the Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Registrar a written order given in accordance with the Depositary’s procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the Global Note. The Registrar shall, in accordance with such instructions, instruct the Depositary to credit to the account of the Person specified in such instructions a beneficial interest in the Global Note and to debit the account of the Person making the transfer the beneficial interest in the Global Note being transferred.

 

Appendix A-5


(ii) If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest is being transferred.

(iii) Notwithstanding any other provisions of this Appendix (other than the provisions set forth in Section 2.4), a Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

(iv) In the event that a Global Note is exchanged for Definitive Notes pursuant to Section 2.4 of this Appendix, prior to the consummation of a Registered Exchange Offer or prior to or following the effectiveness of a Registration Statement with respect to such Notes, such Notes may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section 2.3 (including the certification requirements set forth on the reverse of the Initial Notes intended to ensure that such transfers comply with Rule 144A, Regulation S or another applicable exemption under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Company.

(d) Restrictions on Transfer of Regulation S Global Notes. (i) Prior to the expiration of the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note may only be sold, pledged or transferred in accordance with the Applicable Procedures and only (A) to the Company, (B) so long as such security is eligible for resale pursuant to Rule 144A, to a person whom the selling holder reasonably believes is a QIB that purchases for its own account or for the account of a QIB to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A, (C) in an offshore transaction in accordance with Regulation S, (D) pursuant to an exemption from registration under the Securities Act provided by Rule 144 (if applicable), or (E) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any State of the United States. Prior to the expiration of the Distribution Compliance Period, transfers by an owner of a beneficial interest in the Regulation S Global Note to a transferee who takes delivery of such interest through the Rule 144A Global Note shall be made only in accordance with Applicable Procedures and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided on the reverse of the Initial Note to the effect that such transfer is being made to a QIB within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A. Such written certification shall no longer be required after the expiration of the Distribution Compliance Period.

 

Appendix A-6


(e) Legends.

(i) Except as permitted by the following paragraphs (iii), (iv) and (v), each Note certificate evidencing the Global Notes shall bear a legend in substantially the following form:

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

Each certificate evidencing a Note offered in reliance on Regulation S shall, in addition to the foregoing, bear a legend in substantially the following form:

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S.

 

Appendix A-7


PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

Each Definitive Note shall also bear the following additional legend:

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

(ii) Except as permitted by the following paragraphs (iii), (iv) and (v), each Note certificate evidencing the Definitive Notes shall bear a legend in substantially the following form:

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

(iii) Upon any sale or transfer of a Transfer Restricted Note (including any Transfer Restricted Note represented by a Global Note) pursuant to Rule 144 under the Securities Act, the Registrar shall permit the transferee thereof to exchange such Transfer Restricted Note for a certificated Note that does not bear the legend set forth above and rescind any restriction on the transfer of such Transfer Restricted Note, if the transferor thereof certifies in writing to the Registrar that such sale or transfer was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Note).

(iv) After or in connection with a transfer of any Initial Notes pursuant to and during the period of the effectiveness of a Registration Statement with respect to such Initial Notes to a person who is not the Company or an Affiliate thereof, all requirements pertaining to legends on such Initial Note will cease to apply, and a certificated Note or a Note in global form, in each case without restrictive transfer legends, will be available to the transferee of the Holder of such Initial Notes upon exchange of such transferring Holder’s certificated Initial Note or directions to transfer such Holder’s interest in the Global Note, as applicable.

(v) Upon the occurrence of a Registered Exchange Offer, the Company shall issue and, upon receipt of a Company Order in accordance with Section 2.2, the Trustee shall authenticate, one or more Global Notes or Definitive Notes, as directed by the Holders of the Notes to be exchanged, not bearing the restricted notes legend in an aggregate principal amount equal to the principal amount of the beneficial interests in the

 

Appendix A-8


Notes that are Initial Notes tendered for acceptance by a Person other than the Company or an Affiliate thereof in accordance with the Registered Exchange Offer and accepted for exchange in the Registered Exchange Offer. Concurrently with the issuance of such Notes, the Registrar shall cause the aggregate principal amount of the applicable Initial Notes to be reduced accordingly, and the Registrar shall deliver to the Persons designated by the Holders of the Initial Notes so accepted Notes not bearing the restricted securities legend in the appropriate principal amount. Upon the consummation of a Registered Exchange Offer with respect to the Initial Notes, Exchange Notes in certificated or global form, in each case without the restricted notes legend set forth in Section 2.3(e) hereof, will be available to Holders other than the Company or an Affiliate thereof that exchange such Initial Notes in such Registered Exchange Offer.

(f) Cancellation or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, redeemed, purchased or canceled, such Global Note shall be returned to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, redeemed, purchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.

(g) No Obligation of the Trustee.

(i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.

(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under the Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

Appendix A-9


2.4 Definitive Notes.

(a) A Global Note deposited with the Depositary or with the Trustee as Notes Custodian for the Depositary pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.3 hereof and (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Note and the Depositary fails to appoint a successor depositary or if at any time such Depositary ceases to be a “clearing agency” registered under the Exchange Act and, in either case, a successor depositary is not appointed by the Company within 120 days of such notice, or (ii) if requested by such a beneficial owner after the occurrence and during the continuance of an Event of Default or (iii) the Company, in its sole discretion, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes under the Indenture.

(b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.4 shall be surrendered by the Depositary to the Trustee located at its Corporate Trust Office, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall, upon receipt of a Company Order, authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations. Any portion of a Global Note transferred pursuant to this Section 2.4 shall be executed, authenticated and delivered only in denominations of a minimum of $2,000 principal amount and any integral multiples of $1,000 in excess thereof and registered in such names as the Depositary shall direct. Any Definitive Note delivered in exchange for an interest in the Transfer Restricted Note shall, except as otherwise provided by Section 2.3(e) hereof, bear the applicable restricted notes legend and definitive notes legend set forth in Section 2.3(e) hereof.

(c) Subject to the provisions of Section 2.4(b) hereof, the registered Holder of a Global Note shall be entitled to grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.

(d) In the event of the occurrence of one of the events specified in Section 2.4(a) hereof, the Company shall promptly make available to the Trustee a reasonable supply of Definitive Notes in definitive, fully registered form without interest coupons. In the event that such Definitive Notes are not issued, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 6.06 of the Base Indenture, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Note that represents such beneficial owner’s Notes as if such Definitive Notes had been issued.

 

Appendix A-10


EXHIBIT A

[FORM OF]

NOTATION OF GUARANTEE

For value received, each Guarantor has, jointly and severally, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture, dated as of April 28, 2013 (the “Base Indenture”) among T-Mobile USA, Inc. (the “Company”), the guarantors party thereto (the “Guarantors”), and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”) as amended and supplemented by the [list supplemental indentures] (the Base Indenture as so amended and supplemented, the “Indenture”), (a) the due and punctual payment of the principal of, premium, if any, and interest on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in ARTICLE X of the Base Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.

Capitalized terms used but not defined herein have the meanings given to them in the Indenture.

[Remainder of page intentionally left blank.]

 

Exhibit A-1


[NAME OF GUARANTOR(S)]
By:  

 

  Name:
  Its:

 

Exhibit A-2


EXHIBIT B

FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS

[    ] SUPPLEMENTAL INDENTURE (this “[    ] Supplemental Indenture”), dated as of [ ], 2013, among T-Mobile USA, Inc. (the “Company”), [    ] (the “New Guarantors”), the existing guarantors signatory hereto (the “Existing Guarantors”) and Deutsche Bank Trust Company Americas, as trustee under the Indenture referred to below (the “Trustee”).

W I T N E S S E T H:

WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of April 28, 2013 (the “Base Indenture”) as amended and supplemented [insert references to applicable supplemental indentures] (the Base Indenture as so amended and supplemented, the “Indenture”);

WHEREAS Section 4.17 of the Indenture provides that under certain circumstances the Company is required to cause the New Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which each of the New Guarantors shall become a Guarantor of the applicable Notes on the terms and conditions set forth herein; and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company, the Existing Guarantors and the New Guarantors are authorized to execute and deliver this [    ] Supplemental Indenture;

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the New Guarantors, the Existing Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the applicable Notes as follows:

1. Defined Terms. As used in this [    ] Supplemental Indenture, capitalized terms used but not defined herein shall have the meaning set forth in the Indenture. The words “herein,” “hereof” and “hereby” and other words of similar import used in this [    ] Supplemental Indenture refer to this [    ] Supplemental Indenture as a whole and not to any particular section hereof.

2. Agreement to Guarantee. The New Guarantors hereby agree, jointly and severally, to unconditionally guarantee the Company’s obligations under the Notes and the Indenture on the terms and subject to the conditions set forth in the Indenture including but not limited to ARTICLE X thereof.

3. Notices. All notices or other communications to the Company and the New Guarantors shall be given as provided in Section 12.02 of the Indenture.

4. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly contemplated hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

 

Exhibit B-1


5. Governing Law. THIS [    ] SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

6. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this [    ] Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the New Guarantors and the Company.

7. Counterpart Originals. This [    ] Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this [    ] Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this [    ] Supplemental Indenture as to the parties hereto and may be used in lieu of the original [    ] Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes. The parties may sign any number of copies of this [    ] Supplemental Indenture. Each signed copy will be an original, but all of them together represent the same agreement.

8. Headings, etc. The headings of the Articles and Sections of this [    ] Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this [    ] Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

[Signatures on following page]

 

Exhibit B-2


IN WITNESS WHEREOF, the parties hereto have caused this [            ] Supplemental Indenture to be duly executed, as of the date first above written.

 

[NEW GUARANTORS]
By:  

 

  Name:
  Title:
T-MOBILE USA, INC.
By:  

 

  Name:
  Title:
[EXISTING GUARANTORS]
By:  

 

  Name:
  Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

 

  Authorized Signatory
By:  

 

  Authorized Signatory

 

Exhibit B-3

EX-4.2 5 d527693dex42.htm EX-4.2 EX-4.2

Exhibit 4.2

 

 

 

 

T-MOBILE USA, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

 

 

SENIOR RESET NOTES DUE 2019

FIRST SUPPLEMENTAL INDENTURE

Dated as of April 28, 2013

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

 

 

 


TABLE OF CONTENTS

 

          Page  
ARTICLE I.   
DEFINITIONS AND INCORPORATION BY REFERENCE   

Section 1.01

   Definitions.      1   

Section 1.02

   Other Definitions.      1   

Section 1.03

   Rules of Construction.      2   
ARTICLE II.   
THE NOTES   

Section 2.01

   Creation of the Notes; Designations.      3   

Section 2.02

   Forms Generally.      3   

Section 2.03

   Title and Terms of Notes.      4   

Section 2.04

   Transfer and Exchange.      5   
ARTICLE III.   
REDEMPTION AND PREPAYMENT   

Section 3.01

   Optional Redemption.      6   

Section 3.02

   Redemption Procedures.      6   
ARTICLE IV.   
PRICING MECHANISM   

Section 4.01

   Pricing Mechanism Definitions.      6   

Section 4.02

   Notice of Rates.      13   
ARTICLE V.   
MISCELLANEOUS   

Section 5.01

   Effect of First Supplemental Indenture.      13   

Section 5.02

   Governing Law.      13   

Section 5.03

   Waiver of Jury Trial.      14   

Section 5.04

   No Adverse Interpretation of Other Agreements.      14   

Section 5.05

   Successors.      14   

Section 5.06

   Severability.      14   

Section 5.07

   Counterparts.      14   

Section 5.08

   Table of Contents, Headings, etc.      14   

Section 5.09

   Beneficiaries of this First Supplemental Indenture.      15   

Section 5.10

   No Personal Liability of Directors, Officers, Employees and Stockholders.      15   

Section 5.11

   The Trustee.      15   

 

-i-


EXHIBITS

 

Exhibit A

   Form of Initial Note

 

-ii-


FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”), dated as of April 28, 2013 (the “Issue Date”), among T-Mobile USA, Inc., a Delaware corporation, the Guarantors party hereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee.

WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of April 28, 2013 (the “Base Indenture”), between the Company, the Guarantors, and the Trustee, providing for the issuance from time to time of one or more Series of the Company’s Notes;

WHEREAS, Section 2.02 of the Base Indenture permits the forms and terms of the Notes of any Series as permitted in Sections 2.01 and 2.02 of the Base Indenture to be established in a supplemental indenture to the Base Indenture;

WHEREAS, the Company has requested the Trustee to join with it and the Guarantors in the execution of this First Supplemental Indenture in order to supplement the Base Indenture by, among other things, establishing the forms and certain terms of a Series of Notes to be known as the Company’s Senior Reset Notes due 2019 and adding certain provisions thereto for the benefit of the Holders of the Notes of such Series;

WHEREAS, the Company has furnished the Trustee with a duly authorized and executed Company Order dated April 28, 2013 authorizing the execution of this First Supplemental Indenture and the issuance of the Notes established hereby; and

WHEREAS, all things necessary to make this First Supplemental Indenture a valid, binding and enforceable agreement of the Company, the Guarantors and the Trustee and a valid supplement to the Base Indenture have been done;

NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes established hereby:

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01 Definitions.

The Base Indenture as amended and supplemented by this First Supplemental Indenture is collectively referred to as the “Indenture.” All capitalized terms which are used herein and not otherwise defined herein are defined in the Base Indenture and are used herein with the same meanings as in the Base Indenture. If a capitalized term is defined both in the Base Indenture and this First Supplemental Indenture, the definition in this First Supplemental Indenture shall apply to the Notes established hereby (and any Note Guarantee in respect thereof).

 

Section 1.02 Other Definitions.

 

Additional Notes

     2.03   

Adjusted Bond Yield

     4.01   


Adjusted Index Yield

     4.01   

Average Adjusted Company Bond Yield

     4.01   

Average Adjusted Comparable Bond Yield

     4.01   

Average Adjusted Index Yield

     4.01   

Average Bond Price

     4.01   

Average Yield to Worst

     4.01   

BAML HY Index

     4.01   

BAML Successor Index

     4.01   

Base Indenture

     Preamble   

Bloomberg

     4.01   

Calculation Agent

     4.01   

Calculation Period

     4.01   

Company Bond Weight

     4.01   

Comparable Bond Weight

     4.01   

Comparable Issuer

     4.01   

Component

     4.01   

Component Bond

     4.01   

Component Index

     4.01   

Composite Rating

     4.01   

CS HY Index

     4.01   

CS Successor Index

     4.01   

Daily Bond Price

     4.01   

Daily Yield to Worst

     4.01   

Effective Yield to Worst Time

     4.01   

First Supplemental Indenture

     Preamble   

Index Weight

     4.01   

Issue Date

     Preamble   

Interest Payment Date

     2.03(d)   

JPM HY Index

     4.01   

Maturity Adjustment

     4.01   

Pricing Source

     4.01   

Qualified Company Bonds

     4.01   

Qualified Comparable Bonds

     4.01   

Reference Yield

     4.01   

Relevant Exchange

     4.01   

Remaining Tenor

     4.01   

Reset Date

     4.01   

Reset Rate

     4.01   

Security

     4.01   

Successor Index

     4.01   

Trading Day

     4.01   

 

Section 1.03 Rules of Construction.

Unless the context otherwise requires:

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

 

-2-


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

(3) “or” is not exclusive;

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

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

(6) provisions apply to successive events and transactions;

(7) “including” means “including, without limitation”; and

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

ARTICLE II.

THE NOTES

 

Section 2.01 Creation of the Notes; Designations.

In accordance with Section 2.01 of the Base Indenture, the Company hereby creates a Series of Notes issued pursuant to the Indenture. The Notes of this Series shall be known and designated as the “Senior Reset Notes due 2019” of the Company. The Notes of this Series shall be entitled to the benefits of the Note Guarantee of each Guarantor signatory hereto, or that may hereafter execute a supplemental indenture in accordance with Section 4.17 of the Base Indenture, each such Note Guarantee to be governed by Article X of the Base Indenture (including without limitation the provisions for release of such Note Guarantee in respect of the Notes of this Series pursuant to Section 10.04 of the Base Indenture).

 

Section 2.02 Forms Generally.

(a) General. The Notes of this Series and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes of this Series may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note of this Series will be dated the date of its authentication. The Notes of this Series shall be in minimum denominations of $2,000 and integral multiples of $1,000.

The terms and provisions contained in the Notes of this Series will constitute, and are hereby expressly made, a part of this First Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this First Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any such Note conflicts with the express provisions of this First Supplemental Indenture, the provisions of this First Supplemental Indenture shall govern and be controlling.

 

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(b) Global Notes. Notes of this Series issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes of this Series issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes of this Series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes of this Series from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes of this Series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes of this Series represented thereby will be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof.

 

Section 2.03 Title and Terms of Notes.

The aggregate principal amount of Notes of this Series which shall be authenticated and delivered on the Issue Date under the Indenture shall be $1,250,000,000; provided, however, that subject to the Company’s compliance with Section 4.09 of the Base Indenture, the Company from time to time, without giving notice to or seeking the consent of the Holders of Notes of this Series, may issue additional notes (the “Additional Notes”) in any amount having the same terms as the Notes of this Series in all respects, except for the issue date, the issue price, the initial Interest Payment Date and rights under a related registration rights agreement, if any. Any such Additional Notes shall be authenticated by the Trustee upon receipt of a Company Order to that effect, and when so authenticated, will constitute “Notes” for all purposes of the Indenture and will (together with all other Notes of this Series issued under the Indenture) constitute a single Series of Notes under the Indenture; provided that if such Additional Notes are not fungible with the Notes of this Series for U.S. federal income tax purposes, as applicable, as determined by the Company, such Additional Notes may have a separate CUSIP number.

(a) The Notes of this Series issued on the Issue Date will be issued at an issue price of 100% of the principal amount thereof.

(b) The principal amount of the Notes of this Series is due and payable in full on April 28, 2019 unless earlier redeemed.

(c) The Notes of this Series shall bear interest (computed on the basis of a 360-day year comprised of twelve 30-day months) at the rate of (i) 5.578% per annum from and including the Issue Date to, but not including, the Reset Date, and (ii) from and including the Reset Date until maturity at a rate per annum equal to the Reset Rate, as determined by the Calculation Agent according to the Pricing Mechanism set forth in Article IV of this First Supplemental Indenture, or, in each case, until early redemption; and interest will be payable semi-annually in arrears on April 28 and October 28 of each year (each, an “Interest Payment Date”), commencing October 28, 2013, to the Persons in whose name such Notes of this Series were registered at the close of business on the preceding April 15 or October 15, respectively.

 

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(d) Principal of and interest on the Notes of this Series shall be payable as set forth in Exhibit A.

(e) Other than as provided in Article III of this First Supplemental Indenture, the Notes of this Series shall not be redeemable.

(f) The Notes of this Series shall not be entitled to the benefit of any mandatory redemption or sinking fund.

(g) The Notes of this Series shall not be convertible into any other securities.

(h) The Notes of this Series will be unsubordinated debt securities and will be entitled to unsubordinated Note Guarantees of the Guarantors in accordance with the terms of the Indenture.

(i) The Company initially appoints the Trustee as Registrar and Paying Agent with respect to the Notes of this Series until such time as the Trustee has resigned or a successor has been appointed.

(j) The Notes of this Series will initially be evidenced by one or more Definitive Notes issued in the name of DT.

(k) The Company shall pay principal of, premium, if any, and interest on the Notes of this Series in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.

(l) The terms and provisions of Appendix A of the Base Indenture shall apply to the Notes of this Series.

 

Section 2.04 Transfer and Exchange.

The Notes of this Series shall be issued in registered form and shall be transferable only upon the surrender of a Note of this Series for registration of transfer and in compliance with Appendix A of the Base Indenture.

When Notes of this Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of this Series of other denominations, the Registrar will register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes of this Series at the Registrar’s request. A Holder of Notes of this Series may transfer or exchange Notes of this Series only in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder of Notes of this Series, among other things, to furnish appropriate endorsements or transfer documents. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

 

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Prior to due presentment of any Note of this Series for registration of transfer, the Company, the Trustee, any agent of the Company or the Trustee, the Paying Agent and the Registrar may deem and treat the Person in whose name a Note of this Series is registered as the absolute owner of such Note for all purposes, including for the purpose of receiving payment of principal of, and any premium and any interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

Any holder of a beneficial interest in a Global Note of this Series shall, by acceptance of such beneficial interest, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (a) the holder of such Global Note (or its agent) or (b) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.

All Notes of this Series issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as such Notes surrendered upon such transfer or exchange.

ARTICLE III.

REDEMPTION AND PREPAYMENT

 

Section 3.01 Optional Redemption.

The Notes of this Series may be redeemed, in whole, or from time to time in part, subject to the conditions and at the redemption prices set forth in Section 5 of the form of Note set forth in Exhibit A hereto, which are hereby incorporated by reference and made part of this First Supplemental Indenture, together with accrued and unpaid interest to, but not including, the redemption date.

 

Section 3.02 Redemption Procedures.

The provisions of Article III of the Base Indenture shall apply in the case of a redemption pursuant to this Article III.

ARTICLE IV.

PRICING MECHANISM

 

Section 4.01 Pricing Mechanism Definitions.

Adjusted Bond Yield” means, for any Component Bond as of any date of determination:

 

  (i) the Average Yield to Worst of such Component Bond as of such date, plus

 

  (ii) an amount (which may be negative) equal to the product of (a)(1) the number of days until a date that is eight (8) years from such date of determination, minus (2) the number of days until the date that results in the yield to worst of such Component Bond, and (b) the fraction of 12.5 basis points divided by three hundred sixty-five (365); plus

 

  (iii) an amount (which may be negative) equal to the product of (a)(1) the score set forth in the definition of “Composite Rating” for the Composite Rating of the Notes of this Series, minus (2) the score set forth in the definition of “Composite Rating” for the Composite Rating of such Component Bond, and (b) 50 basis points.

 

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Adjusted Index Yield” means, for any Component Index as of any date of determination:

 

  (i) the Average Yield to Worst of such Component Index as of such date, plus

 

  (ii) an amount (which may be negative) equal to the product of (a)(1) the number of days until a date that is eight (8) years from such date of determination, minus (2) Effective Yield to Worst Time of such Component Index, and (b) the fraction of 12.5 basis points divided by three hundred sixty-five (365).

Average Adjusted Company Bond Yield” means, as of any date of determination, the arithmetic average of the Adjusted Bond Yields for each of the Qualified Company Bonds as of such date.

Average Adjusted Comparable Bond Yield” means, as of any date of determination, the arithmetic average of the Adjusted Bond Yields for each of the Qualified Comparable Bonds as of such date.

Average Adjusted Index Yield” means, as of any date of determination, the arithmetic average of the Adjusted Index Yield for each Component Index as of such date.

Average Bond Price” means, as to any Component Bond on any date of determination, the arithmetic average of the Daily Bond Price of such Component on each Trading Day in the Calculation Period, other than any Trading Day as to which both (A) there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount and (B) there are no Trading Days during the Calculation Period preceding such Trading Day as to which there was such a trade.

Average Yield to Worst” means, as to any Component on any date of determination, the arithmetic average of the Daily Yield to Worst of such Component on each Trading Day in the Calculation Period, other than any Trading Day as to which both (A) there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount and (B) there are no Trading Days during the Calculation Period preceding such Trading Day as to which there was such a trade.

BAML HY Index” means the “Bank of America Merrill Lynch US High Yield Telecommunications (H0TC) Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “BAML Successor Index”), then the Calculation Agent shall substitute the BAML Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the

 

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Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

Bloomberg” means Bloomberg Financial Markets.

Calculation Agent” means such nationally recognized investment bank as is selected by DT.

Calculation Period” means, as to any date of determination, the period that begins on the first Trading Day on or following the day that is 45 days prior to such date and ends on such date.

Company Bond Weight” means: (i) if the number of Qualified Company Bonds is one or more and the number of Qualified Comparable Bonds is zero, one-third; (ii) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-quarter; and (iii) if the number of Qualified Company Bonds is zero, zero.

Comparable Bond Weight” means: (i) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is zero, one-third; (ii) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-quarter; and (iii) if the number of Qualified Comparable Bonds is zero, zero.

Comparable Issuer” means Sprint Nextel Corporation or any successor or assign.

Component” means any Component Bond or any Component Index.

Component Bond” means any Qualified Comparable Bond or any Qualified Company Bond.

Component Index” means the JPM HY Index, the CS HY Index, and the BAML HY Index.

Composite Rating” means (i) if such Security is rated by either S&P or Moody’s, but not both, the composite rating indicated on the chart below as corresponding to the rating given to such Security by S&P or Moody’s; and (ii) if such Security is rated by both S&P and Moody’s, the composite rating indicated on the chart below as corresponding to a score equal to the average (rounded up to the nearest integer) of the scores assigned on the chart below to such Security’s S&P rating and such Security’s Moody’s rating.

 

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Moody’s

   S&P    Score      Composite
Rating
Baa1    BBB+      1       BBB+
Baa2    BBB      2       BBB
Baa3    BBB-      3       BBB-
Ba1    BB+      4       BB+
Ba2    BB      5       BB
Ba3    BB-      6       BB-
B1    B+      7       B+
B2    B      8       B
B3    B-      9       B-
Caa1    CCC+      10       CCC+
Caa2    CCC      11       CCC
Caa3    CCC-      12       CCC-

Notwithstanding the foregoing, for purposes of determining the Composite Rating of the Notes of this Series, in the event that, at the time of such determination, neither S&P nor Moody’s has rated the Notes of this Series, then (a) the rating of the Notes of this Series from S&P and/or Moody’s, as applicable, shall be deemed, for purposes of this definition, to be the same as (i) the rating by the applicable rating agency of the Company’s 6.625% Senior Notes due 2023 or (ii) solely in the event that the 6.625% Senior Notes due 2023 are not outstanding, or are not rated by either rating agency, the rating of any other series of unsecured notes issued by the Company which rank pari passu in right of payment with, and are guaranteed on a similar basis as, the Notes of this Series (and, if multiple series of notes issued by the Company and meeting the requirements of this clause (ii) are outstanding, the rating of the Notes of this Series shall be deemed to be the rating of the series of notes issued by the Company with a remaining tenor closest to the remaining tenor of the Notes of this Series) and (b) in the event that ratings from either rating agency in respect of any notes of the types described in clause (a)(i) or (ii) are not available, for purposes of determining the Adjusted Bond Yield of a Component Bond in relation to the Notes of this Series, clause (iii) of the definition of Adjusted Bond Yield shall be deemed to be zero. If neither S&P nor Moody’s has rated a Component Bond, then for purposes of determining the Adjusted Bond Yield of such Component Bond, clause (iii) of the definition of Adjusted Bond Yield shall be deemed to be zero.

CS HY Index” means the “Credit Suisse US Liquid High Yield Telecom Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “CS Successor Index”), then the Calculation Agent shall substitute the CS Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

Daily Bond Price” means, as to any Component Bond on any date of determination, the arithmetic average of the price of each reported trade of such Component Bond in an amount

 

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greater than $500,000 of principal amount on such date (or, if there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount on such date, the arithmetic average of the price of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on the next preceding Trading Day during the Calculation Period on which there was such a trade), determined by reference to the Pricing Source.

Daily Yield to Worst” means:

 

  (i) as to any Component Bond on any date of determination, the arithmetic average of the yield to worst of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on such date (or, if there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount on such date, the arithmetic average of the yield to worst of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on the next preceding Trading Day during the Calculation Period on which there was such a trade), determined by reference to the Pricing Source; and

 

  (ii) as to any Component Index on any date of determination, the yield to worst of such Component Index for such date as reported by the Pricing Source.

Effective Yield to Worst Time” means, as to any Component Index, the number of days to the date that results in the yield to worst implied by such Component Index, as reported by the Pricing Source, or if not reported by the Pricing Source, as calculated by the Calculation Agent in good faith.

Index Weight” means: (i) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-half; (ii) if (a) the number of Qualified Comparable Bonds is zero and the number of Qualified Company Bonds is one or more, or (b) the number of Qualified Company Bonds is zero and the number of Qualified Comparable Bonds is one or more, two-thirds; and (iii) if the number of Qualified Comparable Bonds is zero and the number of Qualified Company Bonds is zero, one.

JPM HY Index” means the “JP Morgan Domestic Telecom High Yield Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “Successor Index”), then the Calculation Agent shall substitute the Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

 

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Maturity Adjustment” means, as of any specified date, an amount (which may be negative) equal to the product of (i)(a) the Remaining Tenor of the Notes of this Series minus (b) the number eight (8) and (ii) 12.5 basis points.

Pricing Source” means (i) with respect to any Component Index, the index sponsor; and (ii) with respect to any Component Bond, TRACE as provided by Bloomberg.

Except where another source or method is specified, the Pricing Source shall be used for all applicable purposes hereunder. If the Pricing Source for any Component is unavailable at any time for any reason, and an alternative source or method is not expressly provided herein, the Calculation Agent shall determine a suitable substitute source in good faith.

Qualified Company Bonds” means, as of any date of determination, each series of publicly-traded unsecured notes that:

 

  (i) is issued by the Issuer (including for the avoidance of doubt, to the extent then outstanding, notes that were issued prior to the Merger Date by MetroPCS Wireless, Inc. and assumed by the Issuer (so long as such notes, in each case, meet the requirements set forth in clauses (ii) through (vi) below));

 

  (ii) has a minimum aggregate principal amount outstanding as of such date of at least $1.0 billion;

 

  (iii) has an Average Bond Price during the Calculation Period of not less than $800.00 or greater than $1200.00 (per $1000.00 of principal amount);

 

  (iv) for which the date that results in the yield to worst is not less than four (4) and not greater than ten (10) years from such date of determination;

 

  (v) for which there are at least five Trading Days in the Calculation Period on which there is a reported trade of such Qualified Comparable Bond in an amount greater than $500,000 of principal amount; and

 

  (vi) which was not subject, on any date during the Calculation Period, to a publicly announced tender offer, exchange offer, or any transaction that would result or has resulted in a change of control.

Qualified Comparable Bonds” means, as of any date of determination, each series of publicly-traded unsecured notes that:

 

  (i) is issued by the Comparable Issuer;

 

  (ii) has a minimum aggregate principal amount outstanding as of such date of at least $1.0 billion;

 

  (iii) has an Average Bond Price during the Calculation Period of not less than $800.00 or greater than $1200.00 (per $1000.00 of principal amount);

 

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  (iv) for which the date that results in the yield to worst is not less than four (4) and not greater than ten (10) years from such date of determination;

 

  (v) for which there are at least five Trading Days in the Calculation Period on which there is a reported trade of such Qualified Comparable Bond in an amount greater than $500,000 of principal amount; and

 

  (vi) which was not subject, on any date during the Calculation Period, to a publicly announced tender offer, exchange offer, or any transaction that would result or has resulted in a change of control.

Reference Yield” means, as of any date of determination, a rate per annum, as determined by the Calculation Agent in a commercially reasonable manner, equal to the sum of:

 

  (i) the product of (a) the Index Weight and (b) the Average Adjusted Index Yield as of such date; plus,

 

  (ii) the product of (a) the Comparable Bond Weight and (b) the Average Adjusted Comparable Bond Yield as of such date; plus,

 

  (iii) the product of (a) the Company Bond Weight and (b) the Average Adjusted Company Bond Yield as of such date.

Relevant Exchange” means, for any Component Bond, the primary exchange or quotation system on which such Component Bond is traded or quoted, as determined by the Calculation Agent.

Remaining Tenor” means, as of any specified date, the number of days from such specified date to the stated maturity of the Notes of this Series, divided by three hundred sixty-five (365).

Reset Date” means April 28, 2015.

Reset Rate” means a rate per annum, rounded to the nearest thousandth of a percent (and, in the event that rate per annum, prior to rounding, is equidistant to the nearest thousandth up and the nearest thousandth down, rounded up to the nearest thousandth of a percent), equal to the sum of:

 

  (i) the Reference Yield as of the Reset Date, plus

 

  (ii) 50.0 bps, plus

 

  (iii) the Maturity Adjustment for the Notes of this Series as of the Reset Date, plus

 

  (iv) 39.7 bps.

Security” means the Notes of this Series or any Component Bond.

Trading Day” means (i) with respect to any Component Index, any date on which the sponsor of such index reports an updated value for such index; and (ii) with respect to any Component Bond, a day, as determined by the Calculation Agent, on which the Relevant Exchange with respect to such Component Bond is scheduled to be open for trading for their respective regular trading sessions or on which such Component Bond is quoted, as applicable.

 

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Section 4.02 Notice of Rates.

The Calculation Agent will calculate the Reset Rate as of the Reset Date and, within five Business Days of the Reset Date, the Company will send (or, if agreed to by the Trustee, shall provide to the Trustee, and the Trustee, as instructed by the Company and at the expense of the Company, shall send) a notice to each Holder of Notes of this Series and the Trustee, specifying the Reset Rate and setting forth in reasonable detail the manner in which the Reset Rate was calculated. The calculation of the Reset Rate by the Calculation Agent will (in the absence of manifest error) be conclusive for all purposes and final and binding on the Holders of Notes of this Series and the Company.

The Company shall provide all cooperation reasonably requested by DT and the Calculation Agent in connection with the calculation of the Reset Rate, including, without limitation, providing any information reasonably requested and the payment of any fees and expenses then due and payable.

In the event that the Calculation Agent shall not have provided the Reset Rate to the Company within such five Business Day period and the Company shall have complied with the foregoing, (x) the Company shall promptly so notify the Trustee and the Holders of such failure, (y) the date on which the Company shall be required to deliver such notice of the Reset Rate will be extended until the date that is two Business Days after the date on which the Company receives such Reset Rate from the Calculation Agent and (z) DT may, in its sole discretion, appoint a replacement Calculation Agent.

ARTICLE V.

MISCELLANEOUS

 

Section 5.01 Effect of First Supplemental Indenture.

(a) This First Supplemental Indenture is a supplemental indenture within the meaning of Section 2.02 of the Base Indenture, and the Base Indenture shall (notwithstanding Section 12.12 thereof or Section 5.04 hereof) be read together with this First Supplemental Indenture and shall have the same effect over the Notes of this Series, in the same manner as if the provisions of the Base Indenture and this First Supplemental Indenture were contained in the same instrument.

(b) In all other respects, the Base Indenture is confirmed by the parties hereto as supplemented by the terms of this First Supplemental Indenture.

 

Section 5.02 Governing Law.

THE INDENTURE AND THE NOTES OF THIS SERIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

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Section 5.03 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS FIRST SUPPLEMENTAL INDENTURE.

 

Section 5.04 No Adverse Interpretation of Other Agreements.

Subject to Section 5.01, this First Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Subject to Section 5.01, any such other indenture, loan or debt agreement may not be used to interpret this First Supplemental Indenture.

 

Section 5.05 Successors.

All agreements of the Company in this First Supplemental Indenture and the Notes of this Series will bind its successors. All agreements of the Trustee in this First Supplemental Indenture will bind its successors. All agreements of each Guarantor in this First Supplemental Indenture will bind its successors, except as otherwise provided in Section 10.04 of the Base Indenture.

 

Section 5.06 Severability.

In case any provision in this First Supplemental Indenture or in the Notes of this Series is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

Section 5.07 Counterparts.

This First Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this First Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this First Supplemental Indenture as to the parties hereto and may be used in lieu of the original First Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

Section 5.08 Table of Contents, Headings, etc.

The Table of Contents and headings of the Articles and Sections of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this First Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

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Section 5.09 Beneficiaries of this First Supplemental Indenture.

Nothing in this First Supplemental Indenture or in the Notes of this Series, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Notes of this Series, any benefit or any legal or equitable right, remedy or claim under this First Supplemental Indenture.

 

Section 5.10 No Personal Liability of Directors, Officers, Employees and Stockholders.

No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes of this Series, this First Supplemental Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes of this Series by accepting a Note of this Series waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes of this Series.

 

Section 5.11 The Trustee.

The Trustee shall not be responsible or liable for the validity or sufficiency of, or the recitals in, this First Supplemental Indenture and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee and the Agents shall be applicable in respect of the Notes of this Series and of this First Supplemental Indenture as fully and with like effect as set forth in full herein.

[Signatures on following page]

 

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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed, all as of the date first written above.

 

T-MOBILE USA, INC.
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Senior Vice President & Chief Financial Officer
GUARANTORS:
COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Authorized Person of each of the above named entities

[Signature page to First Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

/s/ Rodney Gaughan

Name:   Rodney Gaughan
Title:   Vice President
By:  

/s/ Annie Jaghatspanyan

Name:   Annie Jaghatspanyan
Title:   Vice President

[Signature page to First Supplemental Indenture]


EXHIBIT A

[Form of Face of Initial Note]

[Global Notes Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE [DEPOSITARY NAME], NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [DEPOSITARY] OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY] (AND ANY PAYMENT IS MADE TO [DEPOSITARY], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [DEPOSITARY], HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [DEPOSITARY] OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE FIRST SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Notes Legend for Definitive Notes held by Initial Purchasers]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

[Restricted Notes Legend for Rule 144A Notes or Regulation S Notes]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR

 

Exhibit A-1


PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

[Additional Restricted Notes Legend for Notes Offered in Reliance on Regulation S]

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

[Definitive Notes Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

Exhibit A-2


[CUSIP]

[ISIN]

[Other ID Number]

Senior Reset Notes due 2019

 

No.                 $               

T-MOBILE USA, INC.

promises to pay to                      or registered assigns, the principal sum of                      DOLLARS on April 28, 2019.

Interest Payment Dates: April 28 and October 28

Record Dates: April 15 and October 15

Reset Date: April 28, 2015

 

Exhibit A-3


 

Dated:             , 20

 

T-MOBILE USA, INC.

By:  

 

  Name:    
  Title:    

 

This is one of the Notes referred to in the within-mentioned Indenture:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

 

  Authorized Signatory

 

Exhibit A-4


[Form of Reverse Side of Initial Note]

Senior Reset Notes due 2019 (the “Notes”)

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Interest (computed on the basis of a 360-day year comprised of twelve 30-day months) shall accrue on the principal amount of this Note from and including April 28, 2013 to, but not including, April 28, 2015 (the “Reset Date”) at 5.578% per annum, and (ii) from and including the Reset Date until maturity at a rate per annum equal to the Reset Rate, as determined by the Calculation Agent according to the Pricing Mechanism set forth in Article IV of the First Supplemental Indenture.

The Company promises to pay interest semi-annually in arrears on April 28 and October 28 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be October 28, 2013. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If an Interest Payment Date or the maturity date falls on a day that is not a Business Day, the related payment of principal or interest will be made on the next succeeding Business Day as if made on the date the payment was due, and no interest shall accrue for the intervening period.

(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the April 15 or October 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the books and records of the Registrar; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium, if any, on, all Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such money of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Holder of a Definitive Note is not required to surrender such Definitive Note to the Trustee in order to receive payment of principal at maturity. Such Definitive Note, after payment has been made, shall be cancelled without the requirement of presentation.

(3) PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

 

Exhibit A-5


(4) INDENTURE. The Company issued the Notes pursuant to an Indenture dated as of April 28, 2013 (the “Base Indenture”) among the Company, the Guarantors and the Trustee, as amended and supplemented with respect to the Notes by the First Supplemental Indenture dated as of April 28, 2013 (the “First Supplemental Indenture”; the Base Indenture as amended and supplemented with respect to the Notes by the First Supplemental Indenture, the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and, to the extent so included in the Indenture, to the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured, unsubordinated obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) OPTIONAL REDEMPTION.

(a) On or after April 28, 2017, the Company may redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of the Depositary to process such redemption on the date specified in such notice), at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed to, but not including, the applicable redemption date, if redeemed during the twelve month period beginning on April 28 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date for periods prior to such redemption date:

 

Year

   Percentage  

2017

     100.000% + ( 1/2 × Reset Rate)   

2018 and thereafter

     100.000

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

At any time prior to April 28, 2017, the Company may also redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of Depositary to process such redemption on the date specified in such notice), at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date for periods prior to such date of redemption.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to April 28, 2016, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 105.578% of the principal amount, plus accrued and unpaid interest to, but not including, the redemption date, with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified

 

Exhibit A-6


Stock) of the Company or contributions to the Company’s common equity capital made with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of Parent; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 180 days of the date of the closing of such sale of Equity Interests by the Company or the date of contribution to the Company’s common equity capital made with net cash proceeds of one or more sales of Equity Interests of Parent.

Applicable Premium” means, as calculated by the Company and provided to the Trustee, with respect to any Note on any redemption date, the greater of:

(1) 1.0% of the principal amount of the Note; or

(2) the excess of:

(a) the present value at such redemption date of (i) the redemption price of the Note at April 28, 2017 (such redemption price being set forth in the table appearing above under Section 5(a) hereof (provided that if the redemption date is prior to the Reset Date, for purposes of calculating the redemption price under this clause (i) the Reset Rate shall be deemed to be 5.578%)), plus (ii) all required interest payments due on the Note (determined, for purposes of calculating such interest payments under this clause (ii), with respect to periods from and after the Reset Date if the redemption date is prior to the Reset Date, as if the Reset Rate would equal 5.578%) through April 28, 2017 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

(b) the principal amount of the Note, if greater.

Treasury Rate” means, with respect to any redemption date, the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 28, 2017; provided, however, that if the period from the redemption date to April 28, 2017 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Company will (1) calculate the Treasury Rate on the third business day preceding the applicable redemption date and (2) prior to such redemption date file with the trustee an officer’s certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.

 

Exhibit A-7


(6) MANDATORY REDEMPTION.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

(7) REPURCHASE AT THE OPTION OF HOLDER.

(a) If there is a Change of Control Triggering Event, the Company will be required to make a Change of Control Offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date for periods prior to such repurchase date pursuant to Section 4.15 of the Base Indenture. Within 30 days following any Change of Control Triggering Event, the Company will send a notice to each Holder and the Trustee describing the transaction or transactions and identify the ratings decline that together constitute the Change of Control Triggering Event, offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent and setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to make an Asset Sale Offer pursuant to Section 4.10 of the Base Indenture to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes (including any Additional Notes) and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds thereof plus accrued and unpaid interest thereon to, but not including, the date of consummation of the purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required by law or applicable stock exchange or depositary requirements. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

 

Exhibit A-8


(8) NOTICE OF REDEMPTION. Notice of redemption will be sent at least 30 days (or, if any Global Notes are outstanding, such shorter period as may be permitted by the eligibility rules of the Depositary) but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed, except that redemption notices may be sent or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer or exchange of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes (i) for a period beginning at the opening of business 15 days immediately preceding the sending of notice of redemption of Notes selected for redemption and ending at the close of business on the day such notice is sent or (ii) during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend and supplement the Indenture as provided in the Base Indenture.

(12) DEFAULTS AND REMEDIES. If an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, in each case, by notice to the Company, may declare the principal of, premium, if any, and accrued but unpaid interest on all the Notes to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary occurs, the principal of, premium, if any, and interest on all the Notes shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.

 

Exhibit A-9


(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.

(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or facsimile signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

 

Exhibit A-10


ASSIGNMENT FORM

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:   

 

   (Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                      to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date:  

 

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Base Indenture, check the appropriate box below:

¨ Section 4.10                     ¨ Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$        

 

Date:  

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this Note)

Tax Identification No.:  

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-12


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES

This certificate relates to $         principal amount of Notes held in definitive form by the undersigned.

The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

¨    (1)    to the Company; or
¨    (2)    to the Registrar for registration in the name of the Holder, without transfer; or
¨    (3)    pursuant to an effective registration statement under the Securities Act of 1933; or
¨    (4)    inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
¨    (5)    outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or
¨    (6)    pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933.

 

Exhibit A-13


Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (4), (5) or (6) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

 

   

 

    Your Signature
Signature Guarantee:    
Date:                                             

 

Signature must be guaranteed

by a participant in a recognized

signature guaranty medallion

program or other signature

guarantor acceptable to the

Trustee

  Signature of Signature Guarantee

 

 

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:  

 

   

 

      NOTICE:   To be executed by an executive officer

 

Exhibit A-14


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of
Exchange

   Amount of
decrease in
Principal Amount
of this Global
Note
   Amount of
increase in

Principal  Amount
of this Global
Note
   Principal Amount
of this Global
Note following

such
decrease
(or increase)
   Signature of
authorized officer
of Trustee or
Notes Custodian
           
           
           
           

 

* This schedule should be included only if the Note is issued in global form.
EX-4.3 6 d527693dex43.htm EX-4.3 EX-4.3

Exhibit 4.3

 

 

 

 

T-MOBILE USA, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

 

 

SENIOR RESET NOTES DUE 2020

SECOND SUPPLEMENTAL INDENTURE

Dated as of April 28, 2013

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

 

 

 


TABLE OF CONTENTS

 

          Page  
ARTICLE I.   
DEFINITIONS AND INCORPORATION BY REFERENCE   

Section 1.01

  

Definitions.

     1   

Section 1.02

  

Other Definitions.

     1   

Section 1.03

  

Rules of Construction.

     2   
ARTICLE II.   
THE NOTES   

Section 2.01

  

Creation of the Notes; Designations.

     3   

Section 2.02

  

Forms Generally.

     3   

Section 2.03

  

Title and Terms of Notes.

     4   

Section 2.04

  

Transfer and Exchange.

     5   
ARTICLE III.   
REDEMPTION AND PREPAYMENT   

Section 3.01

  

Optional Redemption.

     6   

Section 3.02

  

Redemption Procedures.

     6   
ARTICLE IV.   
PRICING MECHANISM   

Section 4.01

  

Pricing Mechanism Definitions.

     6   

Section 4.02

  

Notice of Rates.

     13   
ARTICLE V.   
MISCELLANEOUS   

Section 5.01

  

Effect of Second Supplemental Indenture.

     13   

Section 5.02

  

Governing Law.

     13   

Section 5.03

  

Waiver of Jury Trial.

     14   

Section 5.04

  

No Adverse Interpretation of Other Agreements.

     14   

Section 5.05

  

Successors.

     14   

Section 5.06

  

Severability.

     14   

Section 5.07

  

Counterparts.

     14   

Section 5.08

  

Table of Contents, Headings, etc.

     14   

Section 5.09

  

Beneficiaries of this Second Supplemental Indenture.

     15   

Section 5.10

  

No Personal Liability of Directors, Officers, Employees and Stockholders.

     15   

Section 5.11

  

The Trustee.

     15   

 

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EXHIBITS

 

Exhibit A    Form of Initial Note

 

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SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), dated as of April 28, 2013 (the “Issue Date”), among T-Mobile USA, Inc., a Delaware corporation, the Guarantors party hereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee.

WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of April 28, 2013 (the “Base Indenture”), between the Company, the Guarantors, and the Trustee, providing for the issuance from time to time of one or more Series of the Company’s Notes;

WHEREAS, Section 2.02 of the Base Indenture permits the forms and terms of the Notes of any Series as permitted in Sections 2.01 and 2.02 of the Base Indenture to be established in a supplemental indenture to the Base Indenture;

WHEREAS, the Company has requested the Trustee to join with it and the Guarantors in the execution of this Second Supplemental Indenture in order to supplement the Base Indenture by, among other things, establishing the forms and certain terms of a Series of Notes to be known as the Company’s Senior Reset Notes due 2020 and adding certain provisions thereto for the benefit of the Holders of the Notes of such Series;

WHEREAS, the Company has furnished the Trustee with a duly authorized and executed Company Order dated April 28, 2013 authorizing the execution of this Second Supplemental Indenture and the issuance of the Notes established hereby; and

WHEREAS, all things necessary to make this Second Supplemental Indenture a valid, binding and enforceable agreement of the Company, the Guarantors and the Trustee and a valid supplement to the Base Indenture have been done;

NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes established hereby:

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01 Definitions.

The Base Indenture as amended and supplemented by this Second Supplemental Indenture is collectively referred to as the “Indenture.” All capitalized terms which are used herein and not otherwise defined herein are defined in the Base Indenture and are used herein with the same meanings as in the Base Indenture. If a capitalized term is defined both in the Base Indenture and this Second Supplemental Indenture, the definition in this Second Supplemental Indenture shall apply to the Notes established hereby (and any Note Guarantee in respect thereof).

 

Section 1.02 Other Definitions.

 

Additional Notes

     2.03   

Adjusted Bond Yield

     4.01   


Adjusted Index Yield

     4.01   

Average Adjusted Company Bond Yield

     4.01   

Average Adjusted Comparable Bond Yield

     4.01   

Average Adjusted Index Yield

     4.01   

Average Bond Price

     4.01   

Average Yield to Worst

     4.01   

BAML HY Index

     4.01   

BAML Successor Index

     4.01   

Base Indenture

     Preamble   

Bloomberg

     4.01   

Calculation Agent

     4.01   

Calculation Period

     4.01   

Company Bond Weight

     4.01   

Comparable Bond Weight

     4.01   

Comparable Issuer

     4.01   

Component

     4.01   

Component Bond

     4.01   

Component Index

     4.01   

Composite Rating

     4.01   

CS HY Index

     4.01   

CS Successor Index

     4.01   

Daily Bond Price

     4.01   

Daily Yield to Worst

     4.01   

Effective Yield to Worst Time

     4.01   

Second Supplemental Indenture

     Preamble   

Index Weight

     4.01   

Issue Date

     Preamble   

Interest Payment Date

     2.03(d

JPM HY Index

     4.01   

Maturity Adjustment

     4.01   

Pricing Source

     4.01   

Qualified Company Bonds

     4.01   

Qualified Comparable Bonds

     4.01   

Reference Yield

     4.01   

Relevant Exchange

     4.01   

Remaining Tenor

     4.01   

Reset Date

     4.01   

Reset Rate

     4.01   

Security

     4.01   

Successor Index

     4.01   

Trading Day

     4.01   

 

Section 1.03 Rules of Construction.

Unless the context otherwise requires:

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

 

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

(3) “or” is not exclusive;

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

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

(6) provisions apply to successive events and transactions;

(7) “including” means “including, without limitation”; and

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

ARTICLE II.

THE NOTES

 

Section 2.01 Creation of the Notes; Designations.

In accordance with Section 2.01 of the Base Indenture, the Company hereby creates a Series of Notes issued pursuant to the Indenture. The Notes of this Series shall be known and designated as the “Senior Reset Notes due 2020” of the Company. The Notes of this Series shall be entitled to the benefits of the Note Guarantee of each Guarantor signatory hereto, or that may hereafter execute a supplemental indenture in accordance with Section 4.17 of the Base Indenture, each such Note Guarantee to be governed by Article X of the Base Indenture (including without limitation the provisions for release of such Note Guarantee in respect of the Notes of this Series pursuant to Section 10.04 of the Base Indenture).

 

Section 2.02 Forms Generally.

(a) General. The Notes of this Series and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes of this Series may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note of this Series will be dated the date of its authentication. The Notes of this Series shall be in minimum denominations of $2,000 and integral multiples of $1,000.

The terms and provisions contained in the Notes of this Series will constitute, and are hereby expressly made, a part of this Second Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Second Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any such Note conflicts with the express provisions of this Second Supplemental Indenture, the provisions of this Second Supplemental Indenture shall govern and be controlling.

 

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(b) Global Notes. Notes of this Series issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes of this Series issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes of this Series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes of this Series from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes of this Series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes of this Series represented thereby will be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof.

 

Section 2.03 Title and Terms of Notes.

The aggregate principal amount of Notes of this Series which shall be authenticated and delivered on the Issue Date under the Indenture shall be $1,250,000,000; provided, however, that subject to the Company’s compliance with Section 4.09 of the Base Indenture, the Company from time to time, without giving notice to or seeking the consent of the Holders of Notes of this Series, may issue additional notes (the “Additional Notes”) in any amount having the same terms as the Notes of this Series in all respects, except for the issue date, the issue price, the initial Interest Payment Date and rights under a related registration rights agreement, if any. Any such Additional Notes shall be authenticated by the Trustee upon receipt of a Company Order to that effect, and when so authenticated, will constitute “Notes” for all purposes of the Indenture and will (together with all other Notes of this Series issued under the Indenture) constitute a single Series of Notes under the Indenture; provided that if such Additional Notes are not fungible with the Notes of this Series for U.S. federal income tax purposes, as applicable, as determined by the Company, such Additional Notes may have a separate CUSIP number.

(a) The Notes of this Series issued on the Issue Date will be issued at an issue price of 100% of the principal amount thereof.

(b) The principal amount of the Notes of this Series is due and payable in full on April 28, 2020 unless earlier redeemed.

(c) The Notes of this Series shall bear interest (computed on the basis of a 360-day year comprised of twelve 30-day months) at the rate of (i) 5.656% per annum from and including the Issue Date to, but not including, the Reset Date, and (ii) from and including the Reset Date until maturity at a rate per annum equal to the Reset Rate, as determined by the Calculation Agent according to the Pricing Mechanism set forth in Article IV of this Second Supplemental Indenture, or, in each case, until early redemption; and interest will be payable semi-annually in arrears on April 28 and October 28 of each year (each, an “Interest Payment Date”), commencing October 28, 2013, to the Persons in whose name such Notes of this Series were registered at the close of business on the preceding April 15 or October 15, respectively.

 

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(d) Principal of and interest on the Notes of this Series shall be payable as set forth in Exhibit A.

(e) Other than as provided in Article III of this Second Supplemental Indenture, the Notes of this Series shall not be redeemable.

(f) The Notes of this Series shall not be entitled to the benefit of any mandatory redemption or sinking fund.

(g) The Notes of this Series shall not be convertible into any other securities.

(h) The Notes of this Series will be unsubordinated debt securities and will be entitled to unsubordinated Note Guarantees of the Guarantors in accordance with the terms of the Indenture.

(i) The Company initially appoints the Trustee as Registrar and Paying Agent with respect to the Notes of this Series until such time as the Trustee has resigned or a successor has been appointed.

(j) The Notes of this Series will initially be evidenced by one or more Definitive Notes issued in the name of DT.

(k) The Company shall pay principal of, premium, if any, and interest on the Notes of this Series in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.

(l) The terms and provisions of Appendix A of the Base Indenture shall apply to the Notes of this Series.

 

Section 2.04 Transfer and Exchange.

The Notes of this Series shall be issued in registered form and shall be transferable only upon the surrender of a Note of this Series for registration of transfer and in compliance with Appendix A of the Base Indenture.

When Notes of this Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of this Series of other denominations, the Registrar will register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes of this Series at the Registrar’s request. A Holder of Notes of this Series may transfer or exchange Notes of this Series only in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder of Notes of this Series, among other things, to furnish appropriate endorsements or transfer documents. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

 

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Prior to due presentment of any Note of this Series for registration of transfer, the Company, the Trustee, any agent of the Company or the Trustee, the Paying Agent and the Registrar may deem and treat the Person in whose name a Note of this Series is registered as the absolute owner of such Note for all purposes, including for the purpose of receiving payment of principal of, and any premium and any interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

Any holder of a beneficial interest in a Global Note of this Series shall, by acceptance of such beneficial interest, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (a) the holder of such Global Note (or its agent) or (b) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.

All Notes of this Series issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as such Notes surrendered upon such transfer or exchange.

ARTICLE III.

REDEMPTION AND PREPAYMENT

 

Section 3.01 Optional Redemption.

The Notes of this Series may be redeemed, in whole, or from time to time in part, subject to the conditions and at the redemption prices set forth in Section 5 of the form of Note set forth in Exhibit A hereto, which are hereby incorporated by reference and made part of this Second Supplemental Indenture, together with accrued and unpaid interest to, but not including, the redemption date.

 

Section 3.02 Redemption Procedures.

The provisions of Article III of the Base Indenture shall apply in the case of a redemption pursuant to this Article III.

ARTICLE IV.

PRICING MECHANISM

 

Section 4.01 Pricing Mechanism Definitions.

Adjusted Bond Yield” means, for any Component Bond as of any date of determination:

 

  (i) the Average Yield to Worst of such Component Bond as of such date, plus

 

  (ii) an amount (which may be negative) equal to the product of (a)(1) the number of days until a date that is eight (8) years from such date of determination, minus (2) the number of days until the date that results in the yield to worst of such Component Bond, and (b) the fraction of 12.5 basis points divided by three hundred sixty-five (365); plus

 

  (iii) an amount (which may be negative) equal to the product of (a)(1) the score set forth in the definition of “Composite Rating” for the Composite Rating of the Notes of this Series, minus (2) the score set forth in the definition of “Composite Rating” for the Composite Rating of such Component Bond, and (b) 50 basis points.

 

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Adjusted Index Yield” means, for any Component Index as of any date of determination:

 

  (i) the Average Yield to Worst of such Component Index as of such date, plus

 

  (ii) an amount (which may be negative) equal to the product of (a)(1) the number of days until a date that is eight (8) years from such date of determination, minus (2) Effective Yield to Worst Time of such Component Index, and (b) the fraction of 12.5 basis points divided by three hundred sixty-five (365).

Average Adjusted Company Bond Yield” means, as of any date of determination, the arithmetic average of the Adjusted Bond Yields for each of the Qualified Company Bonds as of such date.

Average Adjusted Comparable Bond Yield” means, as of any date of determination, the arithmetic average of the Adjusted Bond Yields for each of the Qualified Comparable Bonds as of such date.

Average Adjusted Index Yield” means, as of any date of determination, the arithmetic average of the Adjusted Index Yield for each Component Index as of such date.

Average Bond Price” means, as to any Component Bond on any date of determination, the arithmetic average of the Daily Bond Price of such Component on each Trading Day in the Calculation Period, other than any Trading Day as to which both (A) there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount and (B) there are no Trading Days during the Calculation Period preceding such Trading Day as to which there was such a trade.

Average Yield to Worst” means, as to any Component on any date of determination, the arithmetic average of the Daily Yield to Worst of such Component on each Trading Day in the Calculation Period, other than any Trading Day as to which both (A) there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount and (B) there are no Trading Days during the Calculation Period preceding such Trading Day as to which there was such a trade.

BAML HY Index” means the “Bank of America Merrill Lynch US High Yield Telecommunications (H0TC) Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “BAML Successor Index”), then the Calculation Agent shall substitute the BAML Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the

 

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Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

Bloomberg” means Bloomberg Financial Markets.

Calculation Agent” means such nationally recognized investment bank as is selected by DT.

Calculation Period” means, as to any date of determination, the period that begins on the first Trading Day on or following the day that is 45 days prior to such date and ends on such date.

Company Bond Weight” means: (i) if the number of Qualified Company Bonds is one or more and the number of Qualified Comparable Bonds is zero, one-third; (ii) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-quarter; and (iii) if the number of Qualified Company Bonds is zero, zero.

Comparable Bond Weight” means: (i) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is zero, one-third; (ii) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-quarter; and (iii) if the number of Qualified Comparable Bonds is zero, zero.

Comparable Issuer” means Sprint Nextel Corporation or any successor or assign.

Component” means any Component Bond or any Component Index.

Component Bond” means any Qualified Comparable Bond or any Qualified Company Bond.

Component Index” means the JPM HY Index, the CS HY Index, and the BAML HY Index.

Composite Rating” means (i) if such Security is rated by either S&P or Moody’s, but not both, the composite rating indicated on the chart below as corresponding to the rating given to such Security by S&P or Moody’s; and (ii) if such Security is rated by both S&P and Moody’s, the composite rating indicated on the chart below as corresponding to a score equal to the average (rounded up to the nearest integer) of the scores assigned on the chart below to such Security’s S&P rating and such Security’s Moody’s rating.

 

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Moody’s

   S&P    Score      Composite
Rating
Baa1    BBB+      1       BBB+
Baa2    BBB      2       BBB
Baa3    BBB-      3       BBB-
Ba1    BB+      4       BB+
Ba2    BB      5       BB
Ba3    BB-      6       BB-
B1    B+      7       B+
B2    B      8       B
B3    B-      9       B-
Caa1    CCC+      10       CCC+
Caa2    CCC      11       CCC
Caa3    CCC-      12       CCC-

Notwithstanding the foregoing, for purposes of determining the Composite Rating of the Notes of this Series, in the event that, at the time of such determination, neither S&P nor Moody’s has rated the Notes of this Series, then (a) the rating of the Notes of this Series from S&P and/or Moody’s, as applicable, shall be deemed, for purposes of this definition, to be the same as (i) the rating by the applicable rating agency of the Company’s 6.625% Senior Notes due 2023 or (ii) solely in the event that the 6.625% Senior Notes due 2023 are not outstanding, or are not rated by either rating agency, the rating of any other series of unsecured notes issued by the Company which rank pari passu in right of payment with, and are guaranteed on a similar basis as, the Notes of this Series (and, if multiple series of notes issued by the Company and meeting the requirements of this clause (ii) are outstanding, the rating of the Notes of this Series shall be deemed to be the rating of the series of notes issued by the Company with a remaining tenor closest to the remaining tenor of the Notes of this Series) and (b) in the event that ratings from either rating agency in respect of any notes of the types described in clause (a)(i) or (ii) are not available, for purposes of determining the Adjusted Bond Yield of a Component Bond in relation to the Notes of this Series, clause (iii) of the definition of Adjusted Bond Yield shall be deemed to be zero. If neither S&P nor Moody’s has rated a Component Bond, then for purposes of determining the Adjusted Bond Yield of such Component Bond, clause (iii) of the definition of Adjusted Bond Yield shall be deemed to be zero.

CS HY Index” means the “Credit Suisse US Liquid High Yield Telecom Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “CS Successor Index”), then the Calculation Agent shall substitute the CS Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

Daily Bond Price” means, as to any Component Bond on any date of determination, the arithmetic average of the price of each reported trade of such Component Bond in an amount

 

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greater than $500,000 of principal amount on such date (or, if there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount on such date, the arithmetic average of the price of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on the next preceding Trading Day during the Calculation Period on which there was such a trade), determined by reference to the Pricing Source.

Daily Yield to Worst” means:

 

  (i) as to any Component Bond on any date of determination, the arithmetic average of the yield to worst of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on such date (or, if there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount on such date, the arithmetic average of the yield to worst of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on the next preceding Trading Day during the Calculation Period on which there was such a trade), determined by reference to the Pricing Source; and

 

  (ii) as to any Component Index on any date of determination, the yield to worst of such Component Index for such date as reported by the Pricing Source.

Effective Yield to Worst Time” means, as to any Component Index, the number of days to the date that results in the yield to worst implied by such Component Index, as reported by the Pricing Source, or if not reported by the Pricing Source, as calculated by the Calculation Agent in good faith.

Index Weight” means: (i) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-half; (ii) if (a) the number of Qualified Comparable Bonds is zero and the number of Qualified Company Bonds is one or more, or (b) the number of Qualified Company Bonds is zero and the number of Qualified Comparable Bonds is one or more, two-thirds; and (iii) if the number of Qualified Comparable Bonds is zero and the number of Qualified Company Bonds is zero, one.

JPM HY Index” means the “JP Morgan Domestic Telecom High Yield Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “Successor Index”), then the Calculation Agent shall substitute the Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

 

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Maturity Adjustment” means, as of any specified date, an amount (which may be negative) equal to the product of (i)(a) the Remaining Tenor of the Notes of this Series minus (b) the number eight (8) and (ii) 12.5 basis points.

Pricing Source” means (i) with respect to any Component Index, the index sponsor; and (ii) with respect to any Component Bond, TRACE as provided by Bloomberg.

Except where another source or method is specified, the Pricing Source shall be used for all applicable purposes hereunder. If the Pricing Source for any Component is unavailable at any time for any reason, and an alternative source or method is not expressly provided herein, the Calculation Agent shall determine a suitable substitute source in good faith.

Qualified Company Bonds” means, as of any date of determination, each series of publicly-traded unsecured notes that:

 

  (i) is issued by the Issuer (including for the avoidance of doubt, to the extent then outstanding, notes that were issued prior to the Merger Date by MetroPCS Wireless, Inc. and assumed by the Issuer (so long as such notes, in each case, meet the requirements set forth in clauses (ii) through (vi) below));

 

  (ii) has a minimum aggregate principal amount outstanding as of such date of at least $1.0 billion;

 

  (iii) has an Average Bond Price during the Calculation Period of not less than $800.00 or greater than $1200.00 (per $1000.00 of principal amount);

 

  (iv) for which the date that results in the yield to worst is not less than four (4) and not greater than ten (10) years from such date of determination;

 

  (v) for which there are at least five Trading Days in the Calculation Period on which there is a reported trade of such Qualified Comparable Bond in an amount greater than $500,000 of principal amount; and

 

  (vi) which was not subject, on any date during the Calculation Period, to a publicly announced tender offer, exchange offer, or any transaction that would result or has resulted in a change of control.

Qualified Comparable Bonds” means, as of any date of determination, each series of publicly-traded unsecured notes that:

 

  (i) is issued by the Comparable Issuer;

 

  (ii) has a minimum aggregate principal amount outstanding as of such date of at least $1.0 billion;

 

  (iii) has an Average Bond Price during the Calculation Period of not less than $800.00 or greater than $1200.00 (per $1000.00 of principal amount);

 

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  (iv) for which the date that results in the yield to worst is not less than four (4) and not greater than ten (10) years from such date of determination;

 

  (v) for which there are at least five Trading Days in the Calculation Period on which there is a reported trade of such Qualified Comparable Bond in an amount greater than $500,000 of principal amount; and

 

  (vi) which was not subject, on any date during the Calculation Period, to a publicly announced tender offer, exchange offer, or any transaction that would result or has resulted in a change of control.

Reference Yield” means, as of any date of determination, a rate per annum, as determined by the Calculation Agent in a commercially reasonable manner, equal to the sum of:

 

  (i) the product of (a) the Index Weight and (b) the Average Adjusted Index Yield as of such date; plus,

 

  (ii) the product of (a) the Comparable Bond Weight and (b) the Average Adjusted Comparable Bond Yield as of such date; plus,

 

  (iii) the product of (a) the Company Bond Weight and (b) the Average Adjusted Company Bond Yield as of such date.

Relevant Exchange” means, for any Component Bond, the primary exchange or quotation system on which such Component Bond is traded or quoted, as determined by the Calculation Agent.

Remaining Tenor” means, as of any specified date, the number of days from such specified date to the stated maturity of the Notes of this Series, divided by three hundred sixty-five (365).

Reset Date” means April 28, 2015.

Reset Rate” means a rate per annum, rounded to the nearest thousandth of a percent (and, in the event that rate per annum, prior to rounding, is equidistant to the nearest thousandth up and the nearest thousandth down, rounded up to the nearest thousandth of a percent), equal to the sum of:

 

  (i) the Reference Yield as of the Reset Date, plus

 

  (ii) 50.0 bps, plus

 

  (iii) the Maturity Adjustment for the Notes of this Series as of the Reset Date, plus

 

  (iv) 35.0 bps.

Security” means the Notes of this Series or any Component Bond.

Trading Day” means (i) with respect to any Component Index, any date on which the sponsor of such index reports an updated value for such index; and (ii) with respect to any Component Bond, a day, as determined by the Calculation Agent, on which the Relevant Exchange with respect to such Component Bond is scheduled to be open for trading for their respective regular trading sessions or on which such Component Bond is quoted, as applicable.

 

-12-


Section 4.02 Notice of Rates.

The Calculation Agent will calculate the Reset Rate as of the Reset Date and, within five Business Days of the Reset Date, the Company will send (or, if agreed to by the Trustee, shall provide to the Trustee, and the Trustee, as instructed by the Company and at the expense of the Company, shall send) a notice to each Holder of Notes of this Series and the Trustee, specifying the Reset Rate and setting forth in reasonable detail the manner in which the Reset Rate was calculated. The calculation of the Reset Rate by the Calculation Agent will (in the absence of manifest error) be conclusive for all purposes and final and binding on the Holders of Notes of this Series and the Company.

The Company shall provide all cooperation reasonably requested by DT and the Calculation Agent in connection with the calculation of the Reset Rate, including, without limitation, providing any information reasonably requested and the payment of any fees and expenses then due and payable.

In the event that the Calculation Agent shall not have provided the Reset Rate to the Company within such five Business Day period and the Company shall have complied with the foregoing, (x) the Company shall promptly so notify the Trustee and the Holders of such failure, (y) the date on which the Company shall be required to deliver such notice of the Reset Rate will be extended until the date that is two Business Days after the date on which the Company receives such Reset Rate from the Calculation Agent and (z) DT may, in its sole discretion, appoint a replacement Calculation Agent.

ARTICLE V.

MISCELLANEOUS

 

Section 5.01 Effect of Second Supplemental Indenture.

(a) This Second Supplemental Indenture is a supplemental indenture within the meaning of Section 2.02 of the Base Indenture, and the Base Indenture shall (notwithstanding Section 12.12 thereof or Section 5.04 hereof) be read together with this Second Supplemental Indenture and shall have the same effect over the Notes of this Series, in the same manner as if the provisions of the Base Indenture and this Second Supplemental Indenture were contained in the same instrument.

(b) In all other respects, the Base Indenture is confirmed by the parties hereto as supplemented by the terms of this Second Supplemental Indenture.

 

Section 5.02 Governing Law.

THE INDENTURE AND THE NOTES OF THIS SERIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

-13-


Section 5.03 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECOND SUPPLEMENTAL INDENTURE.

 

Section 5.04 No Adverse Interpretation of Other Agreements.

Subject to Section 5.01, this Second Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Subject to Section 5.01, any such other indenture, loan or debt agreement may not be used to interpret this Second Supplemental Indenture.

 

Section 5.05 Successors.

All agreements of the Company in this Second Supplemental Indenture and the Notes of this Series will bind its successors. All agreements of the Trustee in this Second Supplemental Indenture will bind its successors. All agreements of each Guarantor in this Second Supplemental Indenture will bind its successors, except as otherwise provided in Section 10.04 of the Base Indenture.

 

Section 5.06 Severability.

In case any provision in this Second Supplemental Indenture or in the Notes of this Series is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

Section 5.07 Counterparts.

This Second Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Second Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Second Supplemental Indenture as to the parties hereto and may be used in lieu of the original Second Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

Section 5.08 Table of Contents, Headings, etc.

The Table of Contents and headings of the Articles and Sections of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Second Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

-14-


Section 5.09 Beneficiaries of this Second Supplemental Indenture.

Nothing in this Second Supplemental Indenture or in the Notes of this Series, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Notes of this Series, any benefit or any legal or equitable right, remedy or claim under this Second Supplemental Indenture.

 

Section 5.10 No Personal Liability of Directors, Officers, Employees and Stockholders.

No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes of this Series, this Second Supplemental Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes of this Series by accepting a Note of this Series waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes of this Series.

 

Section 5.11 The Trustee.

The Trustee shall not be responsible or liable for the validity or sufficiency of, or the recitals in, this Second Supplemental Indenture and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee and the Agents shall be applicable in respect of the Notes of this Series and of this Second Supplemental Indenture as fully and with like effect as set forth in full herein.

[Signatures on following page]

 

-15-


IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed, all as of the date first written above.

 

T-MOBILE USA, INC.
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Senior Vice President & Chief Financial Officer
GUARANTORS:
COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Authorized Person of each of the above entities

[Signature page to Second Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

/s/ Rodney Gaughan

Name:   Rodney Gaughan
Title:   Vice President
By:  

/s/ Annie Jaghatspanyan

Name:   Annie Jaghatspanyan
Title:   Vice President

 

[Signature page to Second Supplemental Indenture]


EXHIBIT A

[Form of Face of Initial Note]

[Global Notes Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE [DEPOSITARY NAME], NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [DEPOSITARY] OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY] (AND ANY PAYMENT IS MADE TO [DEPOSITARY], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [DEPOSITARY], HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [DEPOSITARY] OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE SECOND SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Notes Legend for Definitive Notes held by Initial Purchasers]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

[Restricted Notes Legend for Rule 144A Notes or Regulation S Notes]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR

 

Exhibit A-1


PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

[Additional Restricted Notes Legend for Notes Offered in Reliance on Regulation S]

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

[Definitive Notes Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

Exhibit A-2


[CUSIP]

[ISIN]

[Other ID Number]

Senior Reset Notes due 2020

 

No.                 $               

T-MOBILE USA, INC.

promises to pay to                     or registered assigns, the principal sum of                      DOLLARS on April 28, 2020.

Interest Payment Dates: April 28 and October 28

Record Dates: April 15 and October 15

Reset Date: April 28, 2015

 

Exhibit A-3


 

     

Dated:             , 20

 

T-MOBILE USA, INC.

By:  

 

  Name:
  Title:

 

    This is one of the Notes referred to in the within-mentioned Indenture:
    DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
    By:   Deutsche Bank National Trust Company
By:  

 

  Authorized Signatory

 

Exhibit A-4


[Form of Reverse Side of Initial Note]

Senior Reset Notes due 2020 (the “Notes”)

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Interest (computed on the basis of a 360-day year comprised of twelve 30-day months) shall accrue on the principal amount of this Note from and including April 28, 2013 to, but not including, April 28, 2015 (the “Reset Date”) at 5.656% per annum, and (ii) from and including the Reset Date until maturity at a rate per annum equal to the Reset Rate, as determined by the Calculation Agent according to the Pricing Mechanism set forth in Article IV of the Second Supplemental Indenture.

The Company promises to pay interest semi-annually in arrears on April 28 and October 28 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be October 28, 2013. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If an Interest Payment Date or the maturity date falls on a day that is not a Business Day, the related payment of principal or interest will be made on the next succeeding Business Day as if made on the date the payment was due, and no interest shall accrue for the intervening period.

(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the April 15 or October 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the books and records of the Registrar; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium, if any, on, all Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such money of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Holder of a Definitive Note is not required to surrender such Definitive Note to the Trustee in order to receive payment of principal at maturity. Such Definitive Note, after payment has been made, shall be cancelled without the requirement of presentation.

(3) PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

 

Exhibit A-5


(4) INDENTURE. The Company issued the Notes pursuant to an Indenture dated as of April 28, 2013 (the “Base Indenture”) among the Company, the Guarantors and the Trustee, as amended and supplemented with respect to the Notes by the Second Supplemental Indenture dated as of April 28, 2013 (the “Second Supplemental Indenture”; the Base Indenture as amended and supplemented with respect to the Notes by the Second Supplemental Indenture, the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and, to the extent so included in the Indenture, to the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured, unsubordinated obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) OPTIONAL REDEMPTION.

(a) On or after April 28, 2017, the Company may redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of the Depositary to process such redemption on the date specified in such notice), at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed to, but not including, the applicable redemption date, if redeemed during the twelve month period beginning on April 28 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date for periods prior to such redemption date:

 

Year

   Percentage  

2017

     100.000% + ( 1/2 × Reset Rate)   

2018

     100.000% + ( 1/4 × Reset Rate)   

2019 and thereafter

     100.000

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

At any time prior to April 28, 2017, the Company may also redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of Depositary to process such redemption on the date specified in such notice), at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date for periods prior to such date of redemption.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to April 28, 2016, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 105.656%

 

Exhibit A-6


of the principal amount, plus accrued and unpaid interest to, but not including, the redemption date, with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of the Company or contributions to the Company’s common equity capital made with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of Parent; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 180 days of the date of the closing of such sale of Equity Interests by the Company or the date of contribution to the Company’s common equity capital made with net cash proceeds of one or more sales of Equity Interests of Parent.

Applicable Premium” means, as calculated by the Company and provided to the Trustee, with respect to any Note on any redemption date, the greater of:

(1) 1.0% of the principal amount of the Note; or

(2) the excess of:

(a) the present value at such redemption date of (i) the redemption price of the Note at April 28, 2017 (such redemption price being set forth in the table appearing above under Section 5(a) hereof (provided that if the redemption date is prior to the Reset Date, for purposes of calculating the redemption price under this clause (i) the Reset Rate shall be deemed to be 5.656%)), plus (ii) all required interest payments due on the Note (determined, for purposes of calculating such interest payments under this clause (ii), with respect to periods from and after the Reset Date if the redemption date is prior to the Reset Date, as if the Reset Rate would equal 5.656%) through April 28, 2017 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

(b) the principal amount of the Note, if greater.

Treasury Rate” means, with respect to any redemption date, the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 28, 2017; provided, however, that if the period from the redemption date to April 28, 2017 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Company will (1) calculate the Treasury Rate on the third business day preceding the applicable redemption date and (2) prior to such redemption date file with the trustee an officer’s certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.

 

Exhibit A-7


(6) MANDATORY REDEMPTION.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

(7) REPURCHASE AT THE OPTION OF HOLDER.

(a) If there is a Change of Control Triggering Event, the Company will be required to make a Change of Control Offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date for periods prior to such repurchase date pursuant to Section 4.15 of the Base Indenture. Within 30 days following any Change of Control Triggering Event, the Company will send a notice to each Holder and the Trustee describing the transaction or transactions and identify the ratings decline that together constitute the Change of Control Triggering Event, offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent and setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to make an Asset Sale Offer pursuant to Section 4.10 of the Base Indenture to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes (including any Additional Notes) and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds thereof plus accrued and unpaid interest thereon to, but not including, the date of consummation of the purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required by law or applicable stock exchange or depositary requirements. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

 

Exhibit A-8


(8) NOTICE OF REDEMPTION. Notice of redemption will be sent at least 30 days (or, if any Global Notes are outstanding, such shorter period as may be permitted by the eligibility rules of the Depositary) but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed, except that redemption notices may be sent or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer or exchange of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes (i) for a period beginning at the opening of business 15 days immediately preceding the sending of notice of redemption of Notes selected for redemption and ending at the close of business on the day such notice is sent or (ii) during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend and supplement the Indenture as provided in the Base Indenture.

(12) DEFAULTS AND REMEDIES. If an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, in each case, by notice to the Company, may declare the principal of, premium, if any, and accrued but unpaid interest on all the Notes to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary occurs, the principal of, premium, if any, and interest on all the Notes shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.

 

Exhibit A-9


(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.

(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or facsimile signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

 

Exhibit A-10


ASSIGNMENT FORM

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:   

 

   (Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                      to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date:  

 

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this  Note)

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Base Indenture, check the appropriate box below:

¨ Section 4.10                    ¨ Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$        

 

Date:  

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this Note)

Tax Identification No.:  

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-12


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES

This certificate relates to $         principal amount of Notes held in definitive form by the undersigned.

The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

¨    (1)    to the Company; or
¨    (2)    to the Registrar for registration in the name of the Holder, without transfer; or
¨    (3)    pursuant to an effective registration statement under the Securities Act of 1933; or
¨    (4)    inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
¨    (5)    outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or
¨    (6)    pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933.

 

Exhibit A-13


Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (4), (5) or (6) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

 

   

 

    Your Signature
Signature Guarantee:    
Date:                                             

 

Signature must be guaranteed

by a participant in a recognized

signature guaranty medallion

program or other signature

guarantor acceptable to the

Trustee

  Signature of Signature Guarantee

 

 

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:  

 

   

 

      NOTICE:   To be executed by an executive officer

 

Exhibit A-14


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of
Exchange

   Amount of
decrease in
Principal Amount
of this Global
Note
   Amount of
increase in

Principal  Amount
of this Global
Note
   Principal Amount
of this Global
Note following

such
decrease
(or increase)
   Signature of
authorized officer
of Trustee or
Notes Custodian
           
           
           
           

 

* This schedule should be included only if the Note is issued in global form.

 

Exhibit A-15

EX-4.4 7 d527693dex44.htm EX-4.4 EX-4.4

Exhibit 4.4

 

 

 

 

T-MOBILE USA, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

 

 

SENIOR RESET NOTES DUE 2021

THIRD SUPPLEMENTAL INDENTURE

Dated as of April 28, 2013

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

 

 

 


TABLE OF CONTENTS

 

         Page  
ARTICLE I.   
DEFINITIONS AND INCORPORATION BY REFERENCE   

Section 1.01

 

Definitions.

     1   

Section 1.02

 

Other Definitions.

     2   

Section 1.03

 

Rules of Construction.

     2   
ARTICLE II.   
THE NOTES   

Section 2.01

 

Creation of the Notes; Designations.

     3   

Section 2.02

 

Forms Generally.

     3   

Section 2.03

 

Title and Terms of Notes.

     4   

Section 2.04

 

Transfer and Exchange.

     5   
ARTICLE III.   
REDEMPTION AND PREPAYMENT   

Section 3.01

 

Optional Redemption.

     6   

Section 3.02

 

Redemption Procedures.

     6   
ARTICLE IV.   
PRICING MECHANISM   

Section 4.01

 

Pricing Mechanism Definitions.

     6   

Section 4.02

 

Notice of Rates.

     13   
ARTICLE V.   
MISCELLANEOUS   

Section 5.01

 

Effect of Third Supplemental Indenture.

     13   

Section 5.02

 

Governing Law.

     13   

Section 5.03

 

Waiver of Jury Trial.

     14   

Section 5.04

 

No Adverse Interpretation of Other Agreements.

     14   

Section 5.05

 

Successors.

     14   

Section 5.06

 

Severability.

     14   

Section 5.07

 

Counterparts.

     14   

Section 5.08

 

Table of Contents, Headings, etc.

     14   

Section 5.09

 

Beneficiaries of this Third Supplemental Indenture.

     15   

Section 5.10

 

No Personal Liability of Directors, Officers, Employees and Stockholders.

     15   

Section 5.11

 

The Trustee.

     15   

 

-i-


EXHIBITS

Exhibit A        Form of Initial Note

 

-ii-


THIRD SUPPLEMENTAL INDENTURE (this “Third Supplemental Indenture”), dated as of April 28, 2013 (the “Issue Date”), among T-Mobile USA, Inc., a Delaware corporation, the Guarantors party hereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee.

WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of April 28, 2013 (the “Base Indenture”), between the Company, the Guarantors, and the Trustee, providing for the issuance from time to time of one or more Series of the Company’s Notes;

WHEREAS, Section 2.02 of the Base Indenture permits the forms and terms of the Notes of any Series as permitted in Sections 2.01 and 2.02 of the Base Indenture to be established in a supplemental indenture to the Base Indenture;

WHEREAS, the Company has requested the Trustee to join with it and the Guarantors in the execution of this Third Supplemental Indenture in order to supplement the Base Indenture by, among other things, establishing the forms and certain terms of a Series of Notes to be known as the Company’s Senior Reset Notes due 2021 and adding certain provisions thereto for the benefit of the Holders of the Notes of such Series;

WHEREAS, the Company has furnished the Trustee with a duly authorized and executed Company Order dated April 28, 2013 authorizing the execution of this Third Supplemental Indenture and the issuance of the Notes established hereby; and

WHEREAS, all things necessary to make this Third Supplemental Indenture a valid, binding and enforceable agreement of the Company, the Guarantors and the Trustee and a valid supplement to the Base Indenture have been done;

NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes established hereby:

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01 Definitions.

The Base Indenture as amended and supplemented by this Third Supplemental Indenture is collectively referred to as the “Indenture.” All capitalized terms which are used herein and not otherwise defined herein are defined in the Base Indenture and are used herein with the same meanings as in the Base Indenture. If a capitalized term is defined both in the Base Indenture and this Third Supplemental Indenture, the definition in this Third Supplemental Indenture shall apply to the Notes established hereby (and any Note Guarantee in respect thereof).


Section 1.02 Other Definitions.

 

Additional Notes

   2.03

Adjusted Bond Yield

   4.01

Adjusted Index Yield

   4.01

Average Adjusted Company Bond Yield

   4.01

Average Adjusted Comparable Bond Yield

   4.01

Average Adjusted Index Yield

   4.01

Average Bond Price

   4.01

Average Yield to Worst

   4.01

BAML HY Index

   4.01

BAML Successor Index

   4.01

Base Indenture

   Preamble

Bloomberg

   4.01

Calculation Agent

   4.01

Calculation Period

   4.01

Company Bond Weight

   4.01

Comparable Bond Weight

   4.01

Comparable Issuer

   4.01

Component

   4.01

Component Bond

   4.01

Component Index

   4.01

Composite Rating

   4.01

CS HY Index

   4.01

CS Successor Index

   4.01

Daily Bond Price

   4.01

Daily Yield to Worst

   4.01

Effective Yield to Worst Time

   4.01

Third Supplemental Indenture

   Preamble

Index Weight

   4.01

Issue Date

   Preamble

Interest Payment Date

   2.03(d)

JPM HY Index

   4.01

Maturity Adjustment

   4.01

Pricing Source

   4.01

Qualified Company Bonds

   4.01

Qualified Comparable Bonds

   4.01

Reference Yield

   4.01

Relevant Exchange

   4.01

Remaining Tenor

   4.01

Reset Date

   4.01

Reset Rate

   4.01

Security

   4.01

Successor Index

   4.01

Trading Day

   4.01

 

Section 1.03 Rules of Construction.

Unless the context otherwise requires:

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

 

-2-


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

(3) “or” is not exclusive;

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

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

(6) provisions apply to successive events and transactions;

(7) “including” means “including, without limitation”; and

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

ARTICLE II.

THE NOTES

 

Section 2.01 Creation of the Notes; Designations.

In accordance with Section 2.01 of the Base Indenture, the Company hereby creates a Series of Notes issued pursuant to the Indenture. The Notes of this Series shall be known and designated as the “Senior Reset Notes due 2021” of the Company. The Notes of this Series shall be entitled to the benefits of the Note Guarantee of each Guarantor signatory hereto, or that may hereafter execute a supplemental indenture in accordance with Section 4.17 of the Base Indenture, each such Note Guarantee to be governed by Article X of the Base Indenture (including without limitation the provisions for release of such Note Guarantee in respect of the Notes of this Series pursuant to Section 10.04 of the Base Indenture).

 

Section 2.02 Forms Generally.

(a) General. The Notes of this Series and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes of this Series may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note of this Series will be dated the date of its authentication. The Notes of this Series shall be in minimum denominations of $2,000 and integral multiples of $1,000.

The terms and provisions contained in the Notes of this Series will constitute, and are hereby expressly made, a part of this Third Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Third Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any such Note conflicts with the express provisions of this Third Supplemental Indenture, the provisions of this Third Supplemental Indenture shall govern and be controlling.

 

-3-


(b) Global Notes. Notes of this Series issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes of this Series issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes of this Series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes of this Series from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes of this Series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes of this Series represented thereby will be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof.

 

Section 2.03 Title and Terms of Notes.

The aggregate principal amount of Notes of this Series which shall be authenticated and delivered on the Issue Date under the Indenture shall be $1,250,000,000; provided, however, that subject to the Company’s compliance with Section 4.09 of the Base Indenture, the Company from time to time, without giving notice to or seeking the consent of the Holders of Notes of this Series, may issue additional notes (the “Additional Notes”) in any amount having the same terms as the Notes of this Series in all respects, except for the issue date, the issue price, the initial Interest Payment Date and rights under a related registration rights agreement, if any. Any such Additional Notes shall be authenticated by the Trustee upon receipt of a Company Order to that effect, and when so authenticated, will constitute “Notes” for all purposes of the Indenture and will (together with all other Notes of this Series issued under the Indenture) constitute a single Series of Notes under the Indenture; provided that if such Additional Notes are not fungible with the Notes of this Series for U.S. federal income tax purposes, as applicable, as determined by the Company, such Additional Notes may have a separate CUSIP number.

(a) The Notes of this Series issued on the Issue Date will be issued at an issue price of 100% of the principal amount thereof.

(b) The principal amount of the Notes of this Series is due and payable in full on April 28, 2021 unless earlier redeemed.

(c) The Notes of this Series shall bear interest (computed on the basis of a 360-day year comprised of twelve 30-day months) at the rate of (i) 5.747% per annum from and including the Issue Date to, but not including, the Reset Date, and (ii) from and including the Reset Date until maturity at a rate per annum equal to the Reset Rate, as determined by the Calculation Agent according to the Pricing Mechanism set forth in Article IV of this Third Supplemental Indenture, or, in each case, until early redemption; and interest will be payable semi-annually in arrears on April 28 and October 28 of each year (each, an “Interest Payment Date”), commencing October 28, 2013, to the Persons in whose name such Notes of this Series were registered at the close of business on the preceding April 15 or October 15, respectively.

 

-4-


(d) Principal of and interest on the Notes of this Series shall be payable as set forth in Exhibit A.

(e) Other than as provided in Article III of this Third Supplemental Indenture, the Notes of this Series shall not be redeemable.

(f) The Notes of this Series shall not be entitled to the benefit of any mandatory redemption or sinking fund.

(g) The Notes of this Series shall not be convertible into any other securities.

(h) The Notes of this Series will be unsubordinated debt securities and will be entitled to unsubordinated Note Guarantees of the Guarantors in accordance with the terms of the Indenture.

(i) The Company initially appoints the Trustee as Registrar and Paying Agent with respect to the Notes of this Series until such time as the Trustee has resigned or a successor has been appointed.

(j) The Notes of this Series will initially be evidenced by one or more Definitive Notes issued in the name of DT.

(k) The Company shall pay principal of, premium, if any, and interest on the Notes of this Series in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.

(l) The terms and provisions of Appendix A of the Base Indenture shall apply to the Notes of this Series.

 

Section 2.04 Transfer and Exchange.

The Notes of this Series shall be issued in registered form and shall be transferable only upon the surrender of a Note of this Series for registration of transfer and in compliance with Appendix A of the Base Indenture.

When Notes of this Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of this Series of other denominations, the Registrar will register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes of this Series at the Registrar’s request. A Holder of Notes of this Series may transfer or exchange Notes of this Series only in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder of Notes of this Series, among other things, to furnish appropriate endorsements or transfer documents. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

 

-5-


Prior to due presentment of any Note of this Series for registration of transfer, the Company, the Trustee, any agent of the Company or the Trustee, the Paying Agent and the Registrar may deem and treat the Person in whose name a Note of this Series is registered as the absolute owner of such Note for all purposes, including for the purpose of receiving payment of principal of, and any premium and any interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

Any holder of a beneficial interest in a Global Note of this Series shall, by acceptance of such beneficial interest, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (a) the holder of such Global Note (or its agent) or (b) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.

All Notes of this Series issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as such Notes surrendered upon such transfer or exchange.

ARTICLE III.

REDEMPTION AND PREPAYMENT

 

Section 3.01 Optional Redemption.

The Notes of this Series may be redeemed, in whole, or from time to time in part, subject to the conditions and at the redemption prices set forth in Section 5 of the form of Note set forth in Exhibit A hereto, which are hereby incorporated by reference and made part of this Third Supplemental Indenture, together with accrued and unpaid interest to, but not including, the redemption date.

 

Section 3.02 Redemption Procedures.

The provisions of Article III of the Base Indenture shall apply in the case of a redemption pursuant to this Article III.

ARTICLE IV.

PRICING MECHANISM

 

Section 4.01 Pricing Mechanism Definitions.

Adjusted Bond Yield” means, for any Component Bond as of any date of determination:

 

  (i) the Average Yield to Worst of such Component Bond as of such date, plus

 

  (ii) an amount (which may be negative) equal to the product of (a)(1) the number of days until a date that is eight (8) years from such date of determination, minus (2) the number of days until the date that results in the yield to worst of such Component Bond, and (b) the fraction of 12.5 basis points divided by three hundred sixty-five (365); plus

 

  (iii) an amount (which may be negative) equal to the product of (a)(1) the score set forth in the definition of “Composite Rating” for the Composite Rating of the Notes of this Series, minus (2) the score set forth in the definition of “Composite Rating” for the Composite Rating of such Component Bond, and (b) 50 basis points.

 

-6-


Adjusted Index Yield” means, for any Component Index as of any date of determination:

 

  (i) the Average Yield to Worst of such Component Index as of such date, plus

 

  (ii) an amount (which may be negative) equal to the product of (a)(1) the number of days until a date that is eight (8) years from such date of determination, minus (2) Effective Yield to Worst Time of such Component Index, and (b) the fraction of 12.5 basis points divided by three hundred sixty-five (365).

Average Adjusted Company Bond Yield” means, as of any date of determination, the arithmetic average of the Adjusted Bond Yields for each of the Qualified Company Bonds as of such date.

Average Adjusted Comparable Bond Yield” means, as of any date of determination, the arithmetic average of the Adjusted Bond Yields for each of the Qualified Comparable Bonds as of such date.

Average Adjusted Index Yield” means, as of any date of determination, the arithmetic average of the Adjusted Index Yield for each Component Index as of such date.

Average Bond Price” means, as to any Component Bond on any date of determination, the arithmetic average of the Daily Bond Price of such Component on each Trading Day in the Calculation Period, other than any Trading Day as to which both (A) there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount and (B) there are no Trading Days during the Calculation Period preceding such Trading Day as to which there was such a trade.

Average Yield to Worst” means, as to any Component on any date of determination, the arithmetic average of the Daily Yield to Worst of such Component on each Trading Day in the Calculation Period, other than any Trading Day as to which both (A) there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount and (B) there are no Trading Days during the Calculation Period preceding such Trading Day as to which there was such a trade.

BAML HY Index” means the “Bank of America Merrill Lynch US High Yield Telecommunications (H0TC) Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “BAML Successor Index”), then the Calculation Agent shall substitute the BAML Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the

 

-7-


Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

Bloomberg” means Bloomberg Financial Markets.

Calculation Agent” means such nationally recognized investment bank as is selected by DT.

Calculation Period” means, as to any date of determination, the period that begins on the first Trading Day on or following the day that is 45 days prior to such date and ends on such date.

Company Bond Weight” means: (i) if the number of Qualified Company Bonds is one or more and the number of Qualified Comparable Bonds is zero, one-third; (ii) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-quarter; and (iii) if the number of Qualified Company Bonds is zero, zero.

Comparable Bond Weight” means: (i) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is zero, one-third; (ii) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-quarter; and (iii) if the number of Qualified Comparable Bonds is zero, zero.

Comparable Issuer” means Sprint Nextel Corporation or any successor or assign.

Component” means any Component Bond or any Component Index.

Component Bond” means any Qualified Comparable Bond or any Qualified Company Bond.

Component Index” means the JPM HY Index, the CS HY Index, and the BAML HY Index.

Composite Rating” means (i) if such Security is rated by either S&P or Moody’s, but not both, the composite rating indicated on the chart below as corresponding to the rating given to such Security by S&P or Moody’s; and (ii) if such Security is rated by both S&P and Moody’s, the composite rating indicated on the chart below as corresponding to a score equal to the average (rounded up to the nearest integer) of the scores assigned on the chart below to such Security’s S&P rating and such Security’s Moody’s rating.

 

-8-


Moody’s

  

S&P

  

Score

    

Composite
   Rating

Baa1    BBB+      1       BBB+
Baa2    BBB      2       BBB
Baa3    BBB-      3       BBB-
Ba1    BB+      4       BB+
Ba2    BB      5       BB
Ba3    BB-      6       BB-
B1    B+      7       B+
B2    B      8       B
B3    B-      9       B-
Caa1    CCC+      10       CCC+
Caa2    CCC      11       CCC
Caa3    CCC-      12       CCC-

Notwithstanding the foregoing, for purposes of determining the Composite Rating of the Notes of this Series, in the event that, at the time of such determination, neither S&P nor Moody’s has rated the Notes of this Series, then (a) the rating of the Notes of this Series from S&P and/or Moody’s, as applicable, shall be deemed, for purposes of this definition, to be the same as (i) the rating by the applicable rating agency of the Company’s 6.625% Senior Notes due 2023 or (ii) solely in the event that the 6.625% Senior Notes due 2023 are not outstanding, or are not rated by either rating agency, the rating of any other series of unsecured notes issued by the Company which rank pari passu in right of payment with, and are guaranteed on a similar basis as, the Notes of this Series (and, if multiple series of notes issued by the Company and meeting the requirements of this clause (ii) are outstanding, the rating of the Notes of this Series shall be deemed to be the rating of the series of notes issued by the Company with a remaining tenor closest to the remaining tenor of the Notes of this Series) and (b) in the event that ratings from either rating agency in respect of any notes of the types described in clause (a)(i) or (ii) are not available, for purposes of determining the Adjusted Bond Yield of a Component Bond in relation to the Notes of this Series, clause (iii) of the definition of Adjusted Bond Yield shall be deemed to be zero. If neither S&P nor Moody’s has rated a Component Bond, then for purposes of determining the Adjusted Bond Yield of such Component Bond, clause (iii) of the definition of Adjusted Bond Yield shall be deemed to be zero.

CS HY Index” means the “Credit Suisse US Liquid High Yield Telecom Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “CS Successor Index”), then the Calculation Agent shall substitute the CS Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

Daily Bond Price” means, as to any Component Bond on any date of determination, the arithmetic average of the price of each reported trade of such Component Bond in an amount

 

-9-


greater than $500,000 of principal amount on such date (or, if there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount on such date, the arithmetic average of the price of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on the next preceding Trading Day during the Calculation Period on which there was such a trade), determined by reference to the Pricing Source.

Daily Yield to Worst” means:

 

  (i) as to any Component Bond on any date of determination, the arithmetic average of the yield to worst of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on such date (or, if there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount on such date, the arithmetic average of the yield to worst of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on the next preceding Trading Day during the Calculation Period on which there was such a trade), determined by reference to the Pricing Source; and

 

  (ii) as to any Component Index on any date of determination, the yield to worst of such Component Index for such date as reported by the Pricing Source.

Effective Yield to Worst Time” means, as to any Component Index, the number of days to the date that results in the yield to worst implied by such Component Index, as reported by the Pricing Source, or if not reported by the Pricing Source, as calculated by the Calculation Agent in good faith.

Index Weight” means: (i) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-half; (ii) if (a) the number of Qualified Comparable Bonds is zero and the number of Qualified Company Bonds is one or more, or (b) the number of Qualified Company Bonds is zero and the number of Qualified Comparable Bonds is one or more, two-thirds; and (iii) if the number of Qualified Comparable Bonds is zero and the number of Qualified Company Bonds is zero, one.

JPM HY Index” means the “JP Morgan Domestic Telecom High Yield Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “Successor Index”), then the Calculation Agent shall substitute the Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

 

-10-


Maturity Adjustment” means, as of any specified date, an amount (which may be negative) equal to the product of (i)(a) the Remaining Tenor of the Notes of this Series minus (b) the number eight (8) and (ii) 12.5 basis points.

Pricing Source” means (i) with respect to any Component Index, the index sponsor; and (ii) with respect to any Component Bond, TRACE as provided by Bloomberg.

Except where another source or method is specified, the Pricing Source shall be used for all applicable purposes hereunder. If the Pricing Source for any Component is unavailable at any time for any reason, and an alternative source or method is not expressly provided herein, the Calculation Agent shall determine a suitable substitute source in good faith.

Qualified Company Bonds” means, as of any date of determination, each series of publicly-traded unsecured notes that:

 

  (i) is issued by the Issuer (including for the avoidance of doubt, to the extent then outstanding, notes that were issued prior to the Merger Date by MetroPCS Wireless, Inc. and assumed by the Issuer (so long as such notes, in each case, meet the requirements set forth in clauses (ii) through (vi) below));

 

  (ii) has a minimum aggregate principal amount outstanding as of such date of at least $1.0 billion;

 

  (iii) has an Average Bond Price during the Calculation Period of not less than $800.00 or greater than $1200.00 (per $1000.00 of principal amount);

 

  (iv) for which the date that results in the yield to worst is not less than four (4) and not greater than ten (10) years from such date of determination;

 

  (v) for which there are at least five Trading Days in the Calculation Period on which there is a reported trade of such Qualified Comparable Bond in an amount greater than $500,000 of principal amount; and

 

  (vi) which was not subject, on any date during the Calculation Period, to a publicly announced tender offer, exchange offer, or any transaction that would result or has resulted in a change of control.

Qualified Comparable Bonds” means, as of any date of determination, each series of publicly-traded unsecured notes that:

 

  (i) is issued by the Comparable Issuer;

 

  (ii) has a minimum aggregate principal amount outstanding as of such date of at least $1.0 billion;

 

  (iii) has an Average Bond Price during the Calculation Period of not less than $800.00 or greater than $1200.00 (per $1000.00 of principal amount);

 

-11-


  (iv) for which the date that results in the yield to worst is not less than four (4) and not greater than ten (10) years from such date of determination;

 

  (v) for which there are at least five Trading Days in the Calculation Period on which there is a reported trade of such Qualified Comparable Bond in an amount greater than $500,000 of principal amount; and

 

  (vi) which was not subject, on any date during the Calculation Period, to a publicly announced tender offer, exchange offer, or any transaction that would result or has resulted in a change of control.

Reference Yield” means, as of any date of determination, a rate per annum, as determined by the Calculation Agent in a commercially reasonable manner, equal to the sum of:

 

  (i) the product of (a) the Index Weight and (b) the Average Adjusted Index Yield as of such date; plus,

 

  (ii) the product of (a) the Comparable Bond Weight and (b) the Average Adjusted Comparable Bond Yield as of such date; plus,

 

  (iii) the product of (a) the Company Bond Weight and (b) the Average Adjusted Company Bond Yield as of such date.

Relevant Exchange” means, for any Component Bond, the primary exchange or quotation system on which such Component Bond is traded or quoted, as determined by the Calculation Agent.

Remaining Tenor” means, as of any specified date, the number of days from such specified date to the stated maturity of the Notes of this Series, divided by three hundred sixty-five (365).

Reset Date” means October 28, 2015.

Reset Rate” means a rate per annum, rounded to the nearest thousandth of a percent (and, in the event that rate per annum, prior to rounding, is equidistant to the nearest thousandth up and the nearest thousandth down, rounded up to the nearest thousandth of a percent), equal to the sum of:

 

  (i) the Reference Yield as of the Reset Date, plus

 

  (ii) 50.0 bps, plus

 

  (iii) the Maturity Adjustment for the Notes of this Series as of the Reset Date, plus

 

  (iv) 31.6 bps.

Security” means the Notes of this Series or any Component Bond.

Trading Day” means (i) with respect to any Component Index, any date on which the sponsor of such index reports an updated value for such index; and (ii) with respect to any Component Bond, a day, as determined by the Calculation Agent, on which the Relevant Exchange with respect to such Component Bond is scheduled to be open for trading for their respective regular trading sessions or on which such Component Bond is quoted, as applicable.

 

-12-


Section 4.02 Notice of Rates.

The Calculation Agent will calculate the Reset Rate as of the Reset Date and, within five Business Days of the Reset Date, the Company will send (or, if agreed to by the Trustee, shall provide to the Trustee, and the Trustee, as instructed by the Company and at the expense of the Company, shall send) a notice to each Holder of Notes of this Series and the Trustee, specifying the Reset Rate and setting forth in reasonable detail the manner in which the Reset Rate was calculated. The calculation of the Reset Rate by the Calculation Agent will (in the absence of manifest error) be conclusive for all purposes and final and binding on the Holders of Notes of this Series and the Company.

The Company shall provide all cooperation reasonably requested by DT and the Calculation Agent in connection with the calculation of the Reset Rate, including, without limitation, providing any information reasonably requested and the payment of any fees and expenses then due and payable.

In the event that the Calculation Agent shall not have provided the Reset Rate to the Company within such five Business Day period and the Company shall have complied with the foregoing, (x) the Company shall promptly so notify the Trustee and the Holders of such failure, (y) the date on which the Company shall be required to deliver such notice of the Reset Rate will be extended until the date that is two Business Days after the date on which the Company receives such Reset Rate from the Calculation Agent and (z) DT may, in its sole discretion, appoint a replacement Calculation Agent.

ARTICLE V.

MISCELLANEOUS

 

Section 5.01 Effect of Third Supplemental Indenture.

(a) This Third Supplemental Indenture is a supplemental indenture within the meaning of Section 2.02 of the Base Indenture, and the Base Indenture shall (notwithstanding Section 12.12 thereof or Section 5.04 hereof) be read together with this Third Supplemental Indenture and shall have the same effect over the Notes of this Series, in the same manner as if the provisions of the Base Indenture and this Third Supplemental Indenture were contained in the same instrument.

(b) In all other respects, the Base Indenture is confirmed by the parties hereto as supplemented by the terms of this Third Supplemental Indenture.

 

Section 5.02 Governing Law.

THE INDENTURE AND THE NOTES OF THIS SERIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

-13-


Section 5.03 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS THIRD SUPPLEMENTAL INDENTURE.

 

Section 5.04 No Adverse Interpretation of Other Agreements.

Subject to Section 5.01, this Third Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Subject to Section 5.01, any such other indenture, loan or debt agreement may not be used to interpret this Third Supplemental Indenture.

 

Section 5.05 Successors.

All agreements of the Company in this Third Supplemental Indenture and the Notes of this Series will bind its successors. All agreements of the Trustee in this Third Supplemental Indenture will bind its successors. All agreements of each Guarantor in this Third Supplemental Indenture will bind its successors, except as otherwise provided in Section 10.04 of the Base Indenture.

 

Section 5.06 Severability.

In case any provision in this Third Supplemental Indenture or in the Notes of this Series is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

Section 5.07 Counterparts.

This Third Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Third Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Third Supplemental Indenture as to the parties hereto and may be used in lieu of the original Third Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

Section 5.08 Table of Contents, Headings, etc.

The Table of Contents and headings of the Articles and Sections of this Third Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Third Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

-14-


Section 5.09 Beneficiaries of this Third Supplemental Indenture.

Nothing in this Third Supplemental Indenture or in the Notes of this Series, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Notes of this Series, any benefit or any legal or equitable right, remedy or claim under this Third Supplemental Indenture.

 

Section 5.10 No Personal Liability of Directors, Officers, Employees and Stockholders.

No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes of this Series, this Third Supplemental Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes of this Series by accepting a Note of this Series waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes of this Series.

 

Section 5.11 The Trustee.

The Trustee shall not be responsible or liable for the validity or sufficiency of, or the recitals in, this Third Supplemental Indenture and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee and the Agents shall be applicable in respect of the Notes of this Series and of this Third Supplemental Indenture as fully and with like effect as set forth in full herein.

[Signatures on following page]

 

-15-


IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed, all as of the date first written above.

 

T-MOBILE USA, INC.
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Senior Vice President & Chief Financial Officer
GUARANTORS:
COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Authorized Person of each of the above named entities

[Signature page to Third Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

/s/ Rodney Gaughan

Name:   Rodney Gaughan
Title:   Vice President
By:  

/s/ Annie Jaghatspanyan

Name:   Annie Jaghatspanyan
Title:   Vice President

[Signature page to Third Supplemental Indenture]


EXHIBIT A

[Form of Face of Initial Note]

[Global Notes Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE [DEPOSITARY NAME], NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [DEPOSITARY] OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY] (AND ANY PAYMENT IS MADE TO [DEPOSITARY], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [DEPOSITARY], HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [DEPOSITARY] OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE THIRD SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Notes Legend for Definitive Notes held by Initial Purchasers]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

[Restricted Notes Legend for Rule 144A Notes or Regulation S Notes]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR

 

Exhibit A-1


PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

[Additional Restricted Notes Legend for Notes Offered in Reliance on Regulation S]

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

[Definitive Notes Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

Exhibit A-2


[CUSIP]

[ISIN]

[Other ID Number]

Senior Reset Notes due 2021

 

No.        $            

T-MOBILE USA, INC.

promises to pay to                      or registered assigns,

the principal sum of                      DOLLARS on April 28, 2021.

Interest Payment Dates: April 28 and October 28

Record Dates: April 15 and October 15

Reset Date: October 28, 2015

 

Exhibit A-3


Dated:             , 20

T-MOBILE USA, INC.

By:  

 

  Name:
  Title:

This is one of the Notes referred to in the within-mentioned Indenture:

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee

By: Deutsche Bank National Trust Company

By:  

 

Authorized Signatory

 

Exhibit A-4


[Form of Reverse Side of Initial Note]

Senior Reset Notes due 2021 (the “Notes”)

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Interest (computed on the basis of a 360-day year comprised of twelve 30-day months) shall accrue on the principal amount of this Note from and including April 28, 2013 to, but not including, October 28, 2015 (the “Reset Date”) at 5.747% per annum, and (ii) from and including the Reset Date until maturity at a rate per annum equal to the Reset Rate, as determined by the Calculation Agent according to the Pricing Mechanism set forth in Article IV of the Third Supplemental Indenture.

The Company promises to pay interest semi-annually in arrears on April 28 and October 28 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be October 28, 2013. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If an Interest Payment Date or the maturity date falls on a day that is not a Business Day, the related payment of principal or interest will be made on the next succeeding Business Day as if made on the date the payment was due, and no interest shall accrue for the intervening period.

(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the April 15 or October 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the books and records of the Registrar; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium, if any, on, all Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such money of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Holder of a Definitive Note is not required to surrender such Definitive Note to the Trustee in order to receive payment of principal at maturity. Such Definitive Note, after payment has been made, shall be cancelled without the requirement of presentation.

(3) PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

 

Exhibit A-5


(4) INDENTURE. The Company issued the Notes pursuant to an Indenture dated as of April 28, 2013 (the “Base Indenture”) among the Company, the Guarantors and the Trustee, as amended and supplemented with respect to the Notes by the Third Supplemental Indenture dated as of April 28, 2013 (the “Third Supplemental Indenture”; the Base Indenture as amended and supplemented with respect to the Notes by the Third Supplemental Indenture, the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and, to the extent so included in the Indenture, to the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured, unsubordinated obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) OPTIONAL REDEMPTION.

(a) On or after April 28, 2018, the Company may redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of the Depositary to process such redemption on the date specified in such notice), at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed to, but not including, the applicable redemption date, if redeemed during the twelve month period beginning on April 28 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date for periods prior to such redemption date:

 

Year

   Percentage  

2018

     100.000% + ( 1/2 × Reset Rate

2019

     100.000% + ( 1/4 × Reset Rate

2020 and thereafter

     100.000

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

At any time prior to April 28, 2018, the Company may also redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of Depositary to process such redemption on the date specified in such notice), at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date for periods prior to such date of redemption.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to April 28, 2016, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 105.747%

 

Exhibit A-6


of the principal amount, plus accrued and unpaid interest to, but not including, the redemption date, with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of the Company or contributions to the Company’s common equity capital made with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of Parent; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 180 days of the date of the closing of such sale of Equity Interests by the Company or the date of contribution to the Company’s common equity capital made with net cash proceeds of one or more sales of Equity Interests of Parent.

Applicable Premium” means, as calculated by the Company and provided to the Trustee, with respect to any Note on any redemption date, the greater of:

(1) 1.0% of the principal amount of the Note; or

(2) the excess of:

(a) the present value at such redemption date of (i) the redemption price of the Note at April 28, 2018 (such redemption price being set forth in the table appearing above under Section 5(a) hereof (provided that if the redemption date is prior to the Reset Date, for purposes of calculating the redemption price under this clause (i) the Reset Rate shall be deemed to be 5.747%)), plus (ii) all required interest payments due on the Note (determined, for purposes of calculating such interest payments under this clause (ii), with respect to periods from and after the Reset Date if the redemption date is prior to the Reset Date, as if the Reset Rate would equal 5.747%) through April 28, 2018 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

(b) the principal amount of the Note, if greater.

Treasury Rate” means, with respect to any redemption date, the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 28, 2018; provided, however, that if the period from the redemption date to April 28, 2018 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Company will (1) calculate the Treasury Rate on the third business day preceding the applicable redemption date and (2) prior to such redemption date file with the trustee an officer’s certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.

 

Exhibit A-7


(6) MANDATORY REDEMPTION.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

(7) REPURCHASE AT THE OPTION OF HOLDER.

(a) If there is a Change of Control Triggering Event, the Company will be required to make a Change of Control Offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date for periods prior to such repurchase date pursuant to Section 4.15 of the Base Indenture. Within 30 days following any Change of Control Triggering Event, the Company will send a notice to each Holder and the Trustee describing the transaction or transactions and identify the ratings decline that together constitute the Change of Control Triggering Event, offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent and setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to make an Asset Sale Offer pursuant to Section 4.10 of the Base Indenture to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes (including any Additional Notes) and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds thereof plus accrued and unpaid interest thereon to, but not including, the date of consummation of the purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required by law or applicable stock exchange or depositary requirements. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

 

Exhibit A-8


(8) NOTICE OF REDEMPTION. Notice of redemption will be sent at least 30 days (or, if any Global Notes are outstanding, such shorter period as may be permitted by the eligibility rules of the Depositary) but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed, except that redemption notices may be sent or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer or exchange of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes (i) for a period beginning at the opening of business 15 days immediately preceding the sending of notice of redemption of Notes selected for redemption and ending at the close of business on the day such notice is sent or (ii) during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend and supplement the Indenture as provided in the Base Indenture.

(12) DEFAULTS AND REMEDIES. If an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, in each case, by notice to the Company, may declare the principal of, premium, if any, and accrued but unpaid interest on all the Notes to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary occurs, the principal of, premium, if any, and interest on all the Notes shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.

 

Exhibit A-9


(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.

(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or facsimile signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

 

Exhibit A-10


ASSIGNMENT FORM

 

To assign this Note, fill in the form below:   

 

(I) or (we) assign and transfer this Note to:

  

 

   (Insert assignee’s legal name)

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                      to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date:  

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this  Note)

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Base Indenture, check the appropriate box below:

¨ Section 4.10                    ¨ Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$        

 

Date:  

 

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this Note)

 

Tax Identification No.:  

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-12


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES

This certificate relates to $         principal amount of Notes held in definitive form by the undersigned.

The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

¨

   (1)    to the Company; or

¨

   (2)    to the Registrar for registration in the name of the Holder, without transfer; or

¨

   (3)    pursuant to an effective registration statement under the Securities Act of 1933; or

¨

   (4)    inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or

¨

   (5)    outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or

¨

   (6)    pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933.

 

Exhibit A-13


Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (4), (5) or (6) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

 

    

 

     Your Signature
Signature Guarantee:     
    
Date:                                              

 

Signature must be guaranteed

by a participant in a recognized

signature guaranty medallion

program or other signature

guarantor acceptable to the

Trustee

     Signature of Signature Guarantee

 

 

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:                                              

 

     NOTICE: To be executed by an executive officer

 

Exhibit A-14


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of
Exchange

   Amount of
decrease in
Principal Amount
of this Global
Note
   Amount of
increase in
Principal Amount
of this Global
Note
   Principal Amount
of this Global
Note following
such
decrease
(or increase)
   Signature of
authorized officer
of Trustee or
Notes Custodian
           
           
           
           

 

* This schedule should be included only if the Note is issued in global form.

 

Exhibit A-15

EX-4.5 8 d527693dex45.htm EX-4.5 EX-4.5

Exhibit 4.5

 

 

 

 

T-MOBILE USA, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

 

 

SENIOR RESET NOTES DUE 2022

FOURTH SUPPLEMENTAL INDENTURE

Dated as of April 28, 2013

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

 

 

 


TABLE OF CONTENTS

 

          Page  
ARTICLE I.   
DEFINITIONS AND INCORPORATION BY REFERENCE   
Section 1.01    Definitions.      1   
Section 1.02    Other Definitions.      2   
Section 1.03    Rules of Construction.      2   
ARTICLE II.   
THE NOTES   
Section 2.01    Creation of the Notes; Designations.      3   
Section 2.02    Forms Generally.      3   
Section 2.03    Title and Terms of Notes.      4   
Section 2.04    Transfer and Exchange.      5   
ARTICLE III.   
REDEMPTION AND PREPAYMENT   
Section 3.01    Optional Redemption.      6   
Section 3.02    Redemption Procedures.      6   
ARTICLE IV.   
PRICING MECHANISM   
Section 4.01    Pricing Mechanism Definitions.      7   
Section 4.02    Notice of Rates.      13   
ARTICLE V.   
MISCELLANEOUS   
Section 5.01    Effect of Fourth Supplemental Indenture.      13   
Section 5.02    Governing Law.      13   
Section 5.03    Waiver of Jury Trial.      14   
Section 5.04    No Adverse Interpretation of Other Agreements.      14   
Section 5.05    Successors.      14   
Section 5.06    Severability.      14   
Section 5.07    Counterparts.      14   
Section 5.08    Table of Contents, Headings, etc.      14   
Section 5.09    Beneficiaries of this Fourth Supplemental Indenture.      15   
Section 5.10    No Personal Liability of Directors, Officers, Employees and Stockholders.      15   
Section 5.11    The Trustee.      15   

 

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EXHIBITS

Exhibit A        Form of Initial Note

 

-ii-


FOURTH SUPPLEMENTAL INDENTURE (this “Fourth Supplemental Indenture”), dated as of April 28, 2013 (the “Issue Date”), among T-Mobile USA, Inc., a Delaware corporation, the Guarantors party hereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee.

WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of April 28, 2013 (the “Base Indenture”), between the Company, the Guarantors, and the Trustee, providing for the issuance from time to time of one or more Series of the Company’s Notes;

WHEREAS, Section 2.02 of the Base Indenture permits the forms and terms of the Notes of any Series as permitted in Sections 2.01 and 2.02 of the Base Indenture to be established in a supplemental indenture to the Base Indenture;

WHEREAS, the Company has requested the Trustee to join with it and the Guarantors in the execution of this Fourth Supplemental Indenture in order to supplement the Base Indenture by, among other things, establishing the forms and certain terms of a Series of Notes to be known as the Company’s Senior Reset Notes due 2022 and adding certain provisions thereto for the benefit of the Holders of the Notes of such Series;

WHEREAS, the Company has furnished the Trustee with a duly authorized and executed Company Order dated April 28, 2013 authorizing the execution of this Fourth Supplemental Indenture and the issuance of the Notes established hereby; and

WHEREAS, all things necessary to make this Fourth Supplemental Indenture a valid, binding and enforceable agreement of the Company, the Guarantors and the Trustee and a valid supplement to the Base Indenture have been done;

NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes established hereby:

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01 Definitions.

The Base Indenture as amended and supplemented by this Fourth Supplemental Indenture is collectively referred to as the “Indenture.” All capitalized terms which are used herein and not otherwise defined herein are defined in the Base Indenture and are used herein with the same meanings as in the Base Indenture. If a capitalized term is defined both in the Base Indenture and this Fourth Supplemental Indenture, the definition in this Fourth Supplemental Indenture shall apply to the Notes established hereby (and any Note Guarantee in respect thereof).


Section 1.02 Other Definitions.

 

Additional Notes

   2.03

Adjusted Bond Yield

   4.01

Adjusted Index Yield

   4.01

Average Adjusted Company Bond Yield

   4.01

Average Adjusted Comparable Bond Yield

   4.01

Average Adjusted Index Yield

   4.01

Average Bond Price

   4.01

Average Yield to Worst

   4.01

BAML HY Index

   4.01

BAML Successor Index

   4.01

Base Indenture

   Preamble

Bloomberg

   4.01

Calculation Agent

   4.01

Calculation Period

   4.01

Company Bond Weight

   4.01

Comparable Bond Weight

   4.01

Comparable Issuer

   4.01

Component

   4.01

Component Bond

   4.01

Component Index

   4.01

Composite Rating

   4.01

CS HY Index

   4.01

CS Successor Index

   4.01

Daily Bond Price

   4.01

Daily Yield to Worst

   4.01

Effective Yield to Worst Time

   4.01

Fourth Supplemental Indenture

   Preamble

Index Weight

   4.01

Issue Date

   Preamble

Interest Payment Date

   2.03(d)

JPM HY Index

   4.01

Maturity Adjustment

   4.01

Pricing Source

   4.01

Qualified Company Bonds

   4.01

Qualified Comparable Bonds

   4.01

Reference Yield

   4.01

Relevant Exchange

   4.01

Remaining Tenor

   4.01

Reset Date

   4.01

Reset Rate

   4.01

Security

   4.01

Successor Index

   4.01

Trading Day

   4.01

 

Section 1.03 Rules of Construction.

Unless the context otherwise requires:

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

 

-2-


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

(3) “or” is not exclusive;

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

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

(6) provisions apply to successive events and transactions;

(7) “including” means “including, without limitation”; and

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

ARTICLE II.

THE NOTES

 

Section 2.01 Creation of the Notes; Designations.

In accordance with Section 2.01 of the Base Indenture, the Company hereby creates a Series of Notes issued pursuant to the Indenture. The Notes of this Series shall be known and designated as the “Senior Reset Notes due 2022” of the Company. The Notes of this Series shall be entitled to the benefits of the Note Guarantee of each Guarantor signatory hereto, or that may hereafter execute a supplemental indenture in accordance with Section 4.17 of the Base Indenture, each such Note Guarantee to be governed by Article X of the Base Indenture (including without limitation the provisions for release of such Note Guarantee in respect of the Notes of this Series pursuant to Section 10.04 of the Base Indenture).

 

Section 2.02 Forms Generally.

(a) General. The Notes of this Series and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes of this Series may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note of this Series will be dated the date of its authentication. The Notes of this Series shall be in minimum denominations of $2,000 and integral multiples of $1,000.

The terms and provisions contained in the Notes of this Series will constitute, and are hereby expressly made, a part of this Fourth Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Fourth Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any such Note conflicts with the express provisions of this Fourth Supplemental Indenture, the provisions of this Fourth Supplemental Indenture shall govern and be controlling.

 

-3-


(b) Global Notes. Notes of this Series issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes of this Series issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes of this Series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes of this Series from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes of this Series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes of this Series represented thereby will be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof.

 

Section 2.03 Title and Terms of Notes.

The aggregate principal amount of Notes of this Series which shall be authenticated and delivered on the Issue Date under the Indenture shall be $1,250,000,000; provided, however, that subject to the Company’s compliance with Section 4.09 of the Base Indenture, the Company from time to time, without giving notice to or seeking the consent of the Holders of Notes of this Series, may issue additional notes (the “Additional Notes”) in any amount having the same terms as the Notes of this Series in all respects, except for the issue date, the issue price, the initial Interest Payment Date and rights under a related registration rights agreement, if any. Any such Additional Notes shall be authenticated by the Trustee upon receipt of a Company Order to that effect, and when so authenticated, will constitute “Notes” for all purposes of the Indenture and will (together with all other Notes of this Series issued under the Indenture) constitute a single Series of Notes under the Indenture; provided that if such Additional Notes are not fungible with the Notes of this Series for U.S. federal income tax purposes, as applicable, as determined by the Company, such Additional Notes may have a separate CUSIP number.

(a) The Notes of this Series issued on the Issue Date will be issued at an issue price of 100% of the principal amount thereof.

(b) The principal amount of the Notes of this Series is due and payable in full on April 28, 2022 unless earlier redeemed.

(c) The Notes of this Series shall bear interest (computed on the basis of a 360-day year comprised of twelve 30-day months) at the rate of (i) 5.845% per annum from and including the Issue Date to, but not including, the Reset Date, and (ii) from and including the Reset Date until maturity at a rate per annum equal to the Reset Rate, as determined by the Calculation Agent according to the Pricing Mechanism set forth in Article IV of this Fourth Supplemental Indenture, or, in each case, until early redemption; and interest will be payable semi-annually in arrears on April 28 and October 28 of each year (each, an “Interest Payment Date”), commencing October 28, 2013, to the Persons in whose name such Notes of this Series were registered at the close of business on the preceding April 15 or October 15, respectively.

 

-4-


(d) Principal of and interest on the Notes of this Series shall be payable as set forth in Exhibit A.

(e) Other than as provided in Article III of this Fourth Supplemental Indenture, the Notes of this Series shall not be redeemable.

(f) The Notes of this Series shall not be entitled to the benefit of any mandatory redemption or sinking fund.

(g) The Notes of this Series shall not be convertible into any other securities.

(h) The Notes of this Series will be unsubordinated debt securities and will be entitled to unsubordinated Note Guarantees of the Guarantors in accordance with the terms of the Indenture.

(i) The Company initially appoints the Trustee as Registrar and Paying Agent with respect to the Notes of this Series until such time as the Trustee has resigned or a successor has been appointed.

(j) The Notes of this Series will initially be evidenced by one or more Definitive Notes issued in the name of DT.

(k) The Company shall pay principal of, premium, if any, and interest on the Notes of this Series in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.

(l) The terms and provisions of Appendix A of the Base Indenture shall apply to the Notes of this Series.

 

Section 2.04 Transfer and Exchange.

The Notes of this Series shall be issued in registered form and shall be transferable only upon the surrender of a Note of this Series for registration of transfer and in compliance with Appendix A of the Base Indenture.

When Notes of this Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of this Series of other denominations, the Registrar will register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes of this Series at the Registrar’s request. A Holder of Notes of this Series may transfer or exchange Notes of this Series only in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder of Notes of this Series, among other things, to furnish appropriate endorsements or transfer documents. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

 

-5-


Prior to due presentment of any Note of this Series for registration of transfer, the Company, the Trustee, any agent of the Company or the Trustee, the Paying Agent and the Registrar may deem and treat the Person in whose name a Note of this Series is registered as the absolute owner of such Note for all purposes, including for the purpose of receiving payment of principal of, and any premium and any interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

Any holder of a beneficial interest in a Global Note of this Series shall, by acceptance of such beneficial interest, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (a) the holder of such Global Note (or its agent) or (b) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.

All Notes of this Series issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as such Notes surrendered upon such transfer or exchange.

ARTICLE III.

REDEMPTION AND PREPAYMENT

 

Section 3.01 Optional Redemption.

The Notes of this Series may be redeemed, in whole, or from time to time in part, subject to the conditions and at the redemption prices set forth in Section 5 of the form of Note set forth in Exhibit A hereto, which are hereby incorporated by reference and made part of this Fourth Supplemental Indenture, together with accrued and unpaid interest to, but not including, the redemption date.

 

Section 3.02 Redemption Procedures.

The provisions of Article III of the Base Indenture shall apply in the case of a redemption pursuant to this Article III.

ARTICLE IV.

PRICING MECHANISM

 

Section 4.01 Pricing Mechanism Definitions.

Adjusted Bond Yield” means, for any Component Bond as of any date of determination:

 

  (i) the Average Yield to Worst of such Component Bond as of such date, plus

 

  (ii) an amount (which may be negative) equal to the product of (a)(1) the number of days until a date that is eight (8) years from such date of determination, minus (2) the number of days until the date that results in the yield to worst of such Component Bond, and (b) the fraction of 12.5 basis points divided by three hundred sixty-five (365); plus

 

  (iii) an amount (which may be negative) equal to the product of (a)(1) the score set forth in the definition of “Composite Rating” for the Composite Rating of the Notes of this Series, minus (2) the score set forth in the definition of “Composite Rating” for the Composite Rating of such Component Bond, and (b) 50 basis points.

 

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Adjusted Index Yield” means, for any Component Index as of any date of determination:

 

  (i) the Average Yield to Worst of such Component Index as of such date, plus

 

  (ii) an amount (which may be negative) equal to the product of (a)(1) the number of days until a date that is eight (8) years from such date of determination, minus (2) Effective Yield to Worst Time of such Component Index, and (b) the fraction of 12.5 basis points divided by three hundred sixty-five (365).

Average Adjusted Company Bond Yield” means, as of any date of determination, the arithmetic average of the Adjusted Bond Yields for each of the Qualified Company Bonds as of such date.

Average Adjusted Comparable Bond Yield” means, as of any date of determination, the arithmetic average of the Adjusted Bond Yields for each of the Qualified Comparable Bonds as of such date.

Average Adjusted Index Yield” means, as of any date of determination, the arithmetic average of the Adjusted Index Yield for each Component Index as of such date.

Average Bond Price” means, as to any Component Bond on any date of determination, the arithmetic average of the Daily Bond Price of such Component on each Trading Day in the Calculation Period, other than any Trading Day as to which both (A) there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount and (B) there are no Trading Days during the Calculation Period preceding such Trading Day as to which there was such a trade.

Average Yield to Worst” means, as to any Component on any date of determination, the arithmetic average of the Daily Yield to Worst of such Component on each Trading Day in the Calculation Period, other than any Trading Day as to which both (A) there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount and (B) there are no Trading Days during the Calculation Period preceding such Trading Day as to which there was such a trade.

BAML HY Index” means the “Bank of America Merrill Lynch US High Yield Telecommunications (H0TC) Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “BAML Successor Index”), then the Calculation Agent shall substitute the BAML Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the

 

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Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

Bloomberg” means Bloomberg Financial Markets.

Calculation Agent” means such nationally recognized investment bank as is selected by DT.

Calculation Period” means, as to any date of determination, the period that begins on the first Trading Day on or following the day that is 45 days prior to such date and ends on such date.

Company Bond Weight” means: (i) if the number of Qualified Company Bonds is one or more and the number of Qualified Comparable Bonds is zero, one-third; (ii) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-quarter; and (iii) if the number of Qualified Company Bonds is zero, zero.

Comparable Bond Weight” means: (i) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is zero, one-third; (ii) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-quarter; and (iii) if the number of Qualified Comparable Bonds is zero, zero.

Comparable Issuer” means Sprint Nextel Corporation or any successor or assign.

Component” means any Component Bond or any Component Index.

Component Bond” means any Qualified Comparable Bond or any Qualified Company Bond.

Component Index” means the JPM HY Index, the CS HY Index, and the BAML HY Index.

Composite Rating” means (i) if such Security is rated by either S&P or Moody’s, but not both, the composite rating indicated on the chart below as corresponding to the rating given to such Security by S&P or Moody’s; and (ii) if such Security is rated by both S&P and Moody’s, the composite rating indicated on the chart below as corresponding to a score equal to the average (rounded up to the nearest integer) of the scores assigned on the chart below to such Security’s S&P rating and such Security’s Moody’s rating.

 

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Moody’s

   S&P    Score      Composite
Rating
Baa1    BBB+      1       BBB+
Baa2    BBB      2       BBB
Baa3    BBB-      3       BBB-
Ba1    BB+      4       BB+
Ba2    BB      5       BB
Ba3    BB-      6       BB-
B1    B+      7       B+
B2    B      8       B
B3    B-      9       B-
Caa1    CCC+      10       CCC+
Caa2    CCC      11       CCC
Caa3    CCC-      12       CCC-

Notwithstanding the foregoing, for purposes of determining the Composite Rating of the Notes of this Series, in the event that, at the time of such determination, neither S&P nor Moody’s has rated the Notes of this Series, then (a) the rating of the Notes of this Series from S&P and/or Moody’s, as applicable, shall be deemed, for purposes of this definition, to be the same as (i) the rating by the applicable rating agency of the Company’s 6.625% Senior Notes due 2023 or (ii) solely in the event that the 6.625% Senior Notes due 2023 are not outstanding, or are not rated by either rating agency, the rating of any other series of unsecured notes issued by the Company which rank pari passu in right of payment with, and are guaranteed on a similar basis as, the Notes of this Series (and, if multiple series of notes issued by the Company and meeting the requirements of this clause (ii) are outstanding, the rating of the Notes of this Series shall be deemed to be the rating of the series of notes issued by the Company with a remaining tenor closest to the remaining tenor of the Notes of this Series) and (b) in the event that ratings from either rating agency in respect of any notes of the types described in clause (a)(i) or (ii) are not available, for purposes of determining the Adjusted Bond Yield of a Component Bond in relation to the Notes of this Series, clause (iii) of the definition of Adjusted Bond Yield shall be deemed to be zero. If neither S&P nor Moody’s has rated a Component Bond, then for purposes of determining the Adjusted Bond Yield of such Component Bond, clause (iii) of the definition of Adjusted Bond Yield shall be deemed to be zero.

CS HY Index” means the “Credit Suisse US Liquid High Yield Telecom Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “CS Successor Index”), then the Calculation Agent shall substitute the CS Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

Daily Bond Price” means, as to any Component Bond on any date of determination, the arithmetic average of the price of each reported trade of such Component Bond in an amount

 

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greater than $500,000 of principal amount on such date (or, if there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount on such date, the arithmetic average of the price of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on the next preceding Trading Day during the Calculation Period on which there was such a trade), determined by reference to the Pricing Source.

Daily Yield to Worst” means:

 

  (i) as to any Component Bond on any date of determination, the arithmetic average of the yield to worst of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on such date (or, if there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount on such date, the arithmetic average of the yield to worst of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on the next preceding Trading Day during the Calculation Period on which there was such a trade), determined by reference to the Pricing Source; and

 

  (ii) as to any Component Index on any date of determination, the yield to worst of such Component Index for such date as reported by the Pricing Source.

Effective Yield to Worst Time” means, as to any Component Index, the number of days to the date that results in the yield to worst implied by such Component Index, as reported by the Pricing Source, or if not reported by the Pricing Source, as calculated by the Calculation Agent in good faith.

Index Weight” means: (i) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-half; (ii) if (a) the number of Qualified Comparable Bonds is zero and the number of Qualified Company Bonds is one or more, or (b) the number of Qualified Company Bonds is zero and the number of Qualified Comparable Bonds is one or more, two-thirds; and (iii) if the number of Qualified Comparable Bonds is zero and the number of Qualified Company Bonds is zero, one.

JPM HY Index” means the “JP Morgan Domestic Telecom High Yield Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “Successor Index”), then the Calculation Agent shall substitute the Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

 

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Maturity Adjustment” means, as of any specified date, an amount (which may be negative) equal to the product of (i)(a) the Remaining Tenor of the Notes of this Series minus (b) the number eight (8) and (ii) 12.5 basis points.

Pricing Source” means (i) with respect to any Component Index, the index sponsor; and (ii) with respect to any Component Bond, TRACE as provided by Bloomberg.

Except where another source or method is specified, the Pricing Source shall be used for all applicable purposes hereunder. If the Pricing Source for any Component is unavailable at any time for any reason, and an alternative source or method is not expressly provided herein, the Calculation Agent shall determine a suitable substitute source in good faith.

Qualified Company Bonds” means, as of any date of determination, each series of publicly-traded unsecured notes that:

 

  (i) is issued by the Issuer (including for the avoidance of doubt, to the extent then outstanding, notes that were issued prior to the Merger Date by MetroPCS Wireless, Inc. and assumed by the Issuer (so long as such notes, in each case, meet the requirements set forth in clauses (ii) through (vi) below));

 

  (ii) has a minimum aggregate principal amount outstanding as of such date of at least $1.0 billion;

 

  (iii) has an Average Bond Price during the Calculation Period of not less than $800.00 or greater than $1200.00 (per $1000.00 of principal amount);

 

  (iv) for which the date that results in the yield to worst is not less than four (4) and not greater than ten (10) years from such date of determination;

 

  (v) for which there are at least five Trading Days in the Calculation Period on which there is a reported trade of such Qualified Comparable Bond in an amount greater than $500,000 of principal amount; and

 

  (vi) which was not subject, on any date during the Calculation Period, to a publicly announced tender offer, exchange offer, or any transaction that would result or has resulted in a change of control.

Qualified Comparable Bonds” means, as of any date of determination, each series of publicly-traded unsecured notes that:

 

  (i) is issued by the Comparable Issuer;

 

  (ii) has a minimum aggregate principal amount outstanding as of such date of at least $1.0 billion;

 

  (iii) has an Average Bond Price during the Calculation Period of not less than $800.00 or greater than $1200.00 (per $1000.00 of principal amount);

 

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  (iv) for which the date that results in the yield to worst is not less than four (4) and not greater than ten (10) years from such date of determination;

 

  (v) for which there are at least five Trading Days in the Calculation Period on which there is a reported trade of such Qualified Comparable Bond in an amount greater than $500,000 of principal amount; and

 

  (vi) which was not subject, on any date during the Calculation Period, to a publicly announced tender offer, exchange offer, or any transaction that would result or has resulted in a change of control.

Reference Yield” means, as of any date of determination, a rate per annum, as determined by the Calculation Agent in a commercially reasonable manner, equal to the sum of:

 

  (i) the product of (a) the Index Weight and (b) the Average Adjusted Index Yield as of such date; plus,

 

  (ii) the product of (a) the Comparable Bond Weight and (b) the Average Adjusted Comparable Bond Yield as of such date; plus,

 

  (iii) the product of (a) the Company Bond Weight and (b) the Average Adjusted Company Bond Yield as of such date.

Relevant Exchange” means, for any Component Bond, the primary exchange or quotation system on which such Component Bond is traded or quoted, as determined by the Calculation Agent.

Remaining Tenor” means, as of any specified date, the number of days from such specified date to the stated maturity of the Notes of this Series, divided by three hundred sixty-five (365).

Reset Date” means October 28, 2015.

Reset Rate” means a rate per annum, rounded to the nearest thousandth of a percent (and, in the event that rate per annum, prior to rounding, is equidistant to the nearest thousandth up and the nearest thousandth down, rounded up to the nearest thousandth of a percent), equal to the sum of:

 

  (i) the Reference Yield as of the Reset Date, plus

 

  (ii) 50.0 bps, plus

 

  (iii) the Maturity Adjustment for the Notes of this Series as of the Reset Date, plus

 

  (iv) 28.9 bps.

Security” means the Notes of this Series or any Component Bond.

Trading Day” means (i) with respect to any Component Index, any date on which the sponsor of such index reports an updated value for such index; and (ii) with respect to any Component Bond, a day, as determined by the Calculation Agent, on which the Relevant Exchange with respect to such Component Bond is scheduled to be open for trading for their respective regular trading sessions or on which such Component Bond is quoted, as applicable.

 

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Section 4.02 Notice of Rates.

The Calculation Agent will calculate the Reset Rate as of the Reset Date and, within five Business Days of the Reset Date, the Company will send (or, if agreed to by the Trustee, shall provide to the Trustee, and the Trustee, as instructed by the Company and at the expense of the Company, shall send) a notice to each Holder of Notes of this Series and the Trustee, specifying the Reset Rate and setting forth in reasonable detail the manner in which the Reset Rate was calculated. The calculation of the Reset Rate by the Calculation Agent will (in the absence of manifest error) be conclusive for all purposes and final and binding on the Holders of Notes of this Series and the Company.

The Company shall provide all cooperation reasonably requested by DT and the Calculation Agent in connection with the calculation of the Reset Rate, including, without limitation, providing any information reasonably requested and the payment of any fees and expenses then due and payable.

In the event that the Calculation Agent shall not have provided the Reset Rate to the Company within such five Business Day period and the Company shall have complied with the foregoing, (x) the Company shall promptly so notify the Trustee and the Holders of such failure, (y) the date on which the Company shall be required to deliver such notice of the Reset Rate will be extended until the date that is two Business Days after the date on which the Company receives such Reset Rate from the Calculation Agent and (z) DT may, in its sole discretion, appoint a replacement Calculation Agent.

ARTICLE V.

MISCELLANEOUS

 

Section 5.01 Effect of Fourth Supplemental Indenture.

(a) This Fourth Supplemental Indenture is a supplemental indenture within the meaning of Section 2.02 of the Base Indenture, and the Base Indenture shall (notwithstanding Section 12.12 thereof or Section 5.04 hereof) be read together with this Fourth Supplemental Indenture and shall have the same effect over the Notes of this Series, in the same manner as if the provisions of the Base Indenture and this Fourth Supplemental Indenture were contained in the same instrument.

(b) In all other respects, the Base Indenture is confirmed by the parties hereto as supplemented by the terms of this Fourth Supplemental Indenture.

 

Section 5.02 Governing Law.

THE INDENTURE AND THE NOTES OF THIS SERIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

-13-


Section 5.03 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS FOURTH SUPPLEMENTAL INDENTURE.

 

Section 5.04 No Adverse Interpretation of Other Agreements.

Subject to Section 5.01, this Fourth Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Subject to Section 5.01, any such other indenture, loan or debt agreement may not be used to interpret this Fourth Supplemental Indenture.

 

Section 5.05 Successors.

All agreements of the Company in this Fourth Supplemental Indenture and the Notes of this Series will bind its successors. All agreements of the Trustee in this Fourth Supplemental Indenture will bind its successors. All agreements of each Guarantor in this Fourth Supplemental Indenture will bind its successors, except as otherwise provided in Section 10.04 of the Base Indenture.

 

Section 5.06 Severability.

In case any provision in this Fourth Supplemental Indenture or in the Notes of this Series is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

Section 5.07 Counterparts.

This Fourth Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Fourth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Fourth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Fourth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

Section 5.08 Table of Contents, Headings, etc.

The Table of Contents and headings of the Articles and Sections of this Fourth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Fourth Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

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Section 5.09 Beneficiaries of this Fourth Supplemental Indenture.

Nothing in this Fourth Supplemental Indenture or in the Notes of this Series, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Notes of this Series, any benefit or any legal or equitable right, remedy or claim under this Fourth Supplemental Indenture.

 

Section 5.10 No Personal Liability of Directors, Officers, Employees and Stockholders.

No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes of this Series, this Fourth Supplemental Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes of this Series by accepting a Note of this Series waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes of this Series.

 

Section 5.11 The Trustee.

The Trustee shall not be responsible or liable for the validity or sufficiency of, or the recitals in, this Fourth Supplemental Indenture and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee and the Agents shall be applicable in respect of the Notes of this Series and of this Fourth Supplemental Indenture as fully and with like effect as set forth in full herein.

[Signatures on following page]

 

-15-


IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed, all as of the date first written above.

 

T-MOBILE USA, INC.
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Senior Vice President & Chief Financial Officer
GUARANTORS:
COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Authorized Person of each of the above named entities

[Signature page to Fourth Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

/s/ Rodney Gaughan

Name:   Rodney Gaughan
Title:   Vice President
By:  

/s/ Annie Jaghatspanyan

Name:   Annie Jaghatspanyan
Title:   Vice President

[Signature page to Fourth Supplemental Indenture]


EXHIBIT A

[Form of Face of Initial Note]

[Global Notes Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE [DEPOSITARY NAME], NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [DEPOSITARY] OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY] (AND ANY PAYMENT IS MADE TO [DEPOSITARY], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [DEPOSITARY], HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [DEPOSITARY] OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE FOURTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Notes Legend for Definitive Notes held by Initial Purchasers]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

[Restricted Notes Legend for Rule 144A Notes or Regulation S Notes]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR

 

Exhibit A-1


PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

[Additional Restricted Notes Legend for Notes Offered in Reliance on Regulation S]

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

[Definitive Notes Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

Exhibit A-2


[CUSIP]

[ISIN]

[Other ID Number]

Senior Reset Notes due 2022

 

No.    $            

T-MOBILE USA, INC.

promises to pay to                      or registered assigns,

the principal sum of                      DOLLARS on April 28, 2022.

Interest Payment Dates: April 28 and October 28

Record Dates: April 15 and October 15

Reset Date: October 28, 2015

 

Exhibit A-3


Dated:             , 20

T-MOBILE USA, INC.

By:  

 

  Name:
  Title:

This is one of the Notes referred to in the within-mentioned Indenture:

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee

By: Deutsche Bank National Trust Company

By:

 

 

  Authorized Signatory

 

Exhibit A-4


[Form of Reverse Side of Initial Note]

Senior Reset Notes due 2022 (the “Notes”)

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Interest (computed on the basis of a 360-day year comprised of twelve 30-day months) shall accrue on the principal amount of this Note from and including April 28, 2013 to, but not including, October 28, 2015 (the “Reset Date”) at 5.845% per annum, and (ii) from and including the Reset Date until maturity at a rate per annum equal to the Reset Rate, as determined by the Calculation Agent according to the Pricing Mechanism set forth in Article IV of the Fourth Supplemental Indenture.

The Company promises to pay interest semi-annually in arrears on April 28 and October 28 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be October 28, 2013. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If an Interest Payment Date or the maturity date falls on a day that is not a Business Day, the related payment of principal or interest will be made on the next succeeding Business Day as if made on the date the payment was due, and no interest shall accrue for the intervening period.

(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the April 15 or October 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the books and records of the Registrar; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium, if any, on, all Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such money of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Holder of a Definitive Note is not required to surrender such Definitive Note to the Trustee in order to receive payment of principal at maturity. Such Definitive Note, after payment has been made, shall be cancelled without the requirement of presentation.

(3) PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

 

Exhibit A-5


(4) INDENTURE. The Company issued the Notes pursuant to an Indenture dated as of April 28, 2013 (the “Base Indenture”) among the Company, the Guarantors and the Trustee, as amended and supplemented with respect to the Notes by the Fourth Supplemental Indenture dated as of April 28, 2013 (the “Fourth Supplemental Indenture”; the Base Indenture as amended and supplemented with respect to the Notes by the Fourth Supplemental Indenture, the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and, to the extent so included in the Indenture, to the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured, unsubordinated obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) OPTIONAL REDEMPTION.

(a) On or after April 28, 2018, the Company may redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of the Depositary to process such redemption on the date specified in such notice), at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed to, but not including, the applicable redemption date, if redeemed during the twelve month period beginning on April 28 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date for periods prior to such redemption date:

 

Year

  Percentage  

2018

    100.000% + ( 1/2 × Reset Rate)   

2019

    100.000% + ( 1/4 × Reset Rate)   

2020 and thereafter

    100.000

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

At any time prior to April 28, 2018, the Company may also redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of Depositary to process such redemption on the date specified in such notice), at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date for periods prior to such date of redemption.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to April 28, 2016, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 105.845%

 

Exhibit A-6


of the principal amount, plus accrued and unpaid interest to, but not including, the redemption date, with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of the Company or contributions to the Company’s common equity capital made with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of Parent; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 180 days of the date of the closing of such sale of Equity Interests by the Company or the date of contribution to the Company’s common equity capital made with net cash proceeds of one or more sales of Equity Interests of Parent.

Applicable Premium” means, as calculated by the Company and provided to the Trustee, with respect to any Note on any redemption date, the greater of:

(1) 1.0% of the principal amount of the Note; or

(2) the excess of:

(a) the present value at such redemption date of (i) the redemption price of the Note at April 28, 2018 (such redemption price being set forth in the table appearing above under Section 5(a) hereof (provided that if the redemption date is prior to the Reset Date, for purposes of calculating the redemption price under this clause (i) the Reset Rate shall be deemed to be 5.845%)), plus (ii) all required interest payments due on the Note (determined, for purposes of calculating such interest payments under this clause (ii), with respect to periods from and after the Reset Date if the redemption date is prior to the Reset Date, as if the Reset Rate would equal 5.845%) through April 28, 2018 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

(b) the principal amount of the Note, if greater.

Treasury Rate” means, with respect to any redemption date, the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 28, 2018; provided, however, that if the period from the redemption date to April 28, 2018 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Company will (1) calculate the Treasury Rate on the third business day preceding the applicable redemption date and (2) prior to such redemption date file with the trustee an officer’s certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.

 

Exhibit A-7


(6) MANDATORY REDEMPTION.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

(7) REPURCHASE AT THE OPTION OF HOLDER.

(a) If there is a Change of Control Triggering Event, the Company will be required to make a Change of Control Offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date for periods prior to such repurchase date pursuant to Section 4.15 of the Base Indenture. Within 30 days following any Change of Control Triggering Event, the Company will send a notice to each Holder and the Trustee describing the transaction or transactions and identify the ratings decline that together constitute the Change of Control Triggering Event, offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent and setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to make an Asset Sale Offer pursuant to Section 4.10 of the Base Indenture to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes (including any Additional Notes) and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds thereof plus accrued and unpaid interest thereon to, but not including, the date of consummation of the purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required by law or applicable stock exchange or depositary requirements. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

 

Exhibit A-8


(8) NOTICE OF REDEMPTION. Notice of redemption will be sent at least 30 days (or, if any Global Notes are outstanding, such shorter period as may be permitted by the eligibility rules of the Depositary) but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed, except that redemption notices may be sent or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer or exchange of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes (i) for a period beginning at the opening of business 15 days immediately preceding the sending of notice of redemption of Notes selected for redemption and ending at the close of business on the day such notice is sent or (ii) during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend and supplement the Indenture as provided in the Base Indenture.

(12) DEFAULTS AND REMEDIES. If an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, in each case, by notice to the Company, may declare the principal of, premium, if any, and accrued but unpaid interest on all the Notes to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary occurs, the principal of, premium, if any, and interest on all the Notes shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.

 

Exhibit A-9


(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.

(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or facsimile signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

 

Exhibit A-10


ASSIGNMENT FORM

 

To assign this Note, fill in the form below:   

 

(I) or (we) assign and transfer this Note to:

  

 

   (Insert assignee’s legal name)

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                      to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date:  

 

 
Your Signature:  

 

 

(Sign exactly as your name appears on the face of this Note)

Signature Guarantee*:  

 

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Base Indenture, check the appropriate box below:

¨ Section 4.10                    ¨ Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$        

 

Date:  

 

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this Note)

 

Tax Identification No.:  

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-12


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES

This certificate relates to $         principal amount of Notes held in definitive form by the undersigned.

The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

¨    (1)    to the Company; or
¨    (2)    to the Registrar for registration in the name of the Holder, without transfer; or
¨    (3)    pursuant to an effective registration statement under the Securities Act of 1933; or
¨    (4)    inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
¨    (5)    outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or
¨    (6)    pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933.

 

Exhibit A-13


Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (4), (5) or (6) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

 

    

 

     Your Signature
Signature Guarantee:     
    
Date:                                              

 

Signature must be guaranteed

by a participant in a recognized

signature guaranty medallion

program or other signature

guarantor acceptable to the

Trustee

     Signature of Signature Guarantee

 

 

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:                                              

 

     NOTICE: To be executed by an executive officer

 

Exhibit A-14


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of

Exchange

   Amount of
decrease in
Principal Amount
of this Global
Note
   Amount of
increase in
Principal Amount
of this Global
Note
   Principal Amount
of this Global
Note following

such
decrease
(or increase)
   Signature of
authorized officer
of Trustee or

Notes Custodian
           
           
           
           

 

* This schedule should be included only if the Note is issued in global form.

 

Exhibit A-15

EX-4.6 9 d527693dex46.htm EX-4.6 EX-4.6

Exhibit 4.6

 

 

 

 

T-MOBILE USA, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

 

 

SENIOR RESET NOTES DUE 2023

FIFTH SUPPLEMENTAL INDENTURE

Dated as of April 28, 2013

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

 

 

 


TABLE OF CONTENTS

 

         Page  

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

  

  

Section 1.01   Definitions.      1   
Section 1.02   Other Definitions.      2   
Section 1.03   Rules of Construction.      2   
ARTICLE II.   
THE NOTES   
Section 2.01   Creation of the Notes; Designations.      3   
Section 2.02   Forms Generally.      3   
Section 2.03   Title and Terms of Notes.      4   
Section 2.04   Transfer and Exchange.      5   
ARTICLE III.   
REDEMPTION AND PREPAYMENT   
Section 3.01   Optional Redemption.      6   
Section 3.02   Redemption Procedures.      6   
ARTICLE IV.   
PRICING MECHANISM   
Section 4.01   Pricing Mechanism Definitions.      6   
Section 4.02   Notice of Rates.      13   
ARTICLE V.   
MISCELLANEOUS   
Section 5.01   Effect of Fifth Supplemental Indenture.      13   
Section 5.02   Governing Law.      13   
Section 5.03   Waiver of Jury Trial.      14   
Section 5.04   No Adverse Interpretation of Other Agreements.      14   
Section 5.05   Successors.      14   
Section 5.06   Severability.      14   
Section 5.07   Counterparts.      14   
Section 5.08   Table of Contents, Headings, etc.      14   
Section 5.09   Beneficiaries of this Fifth Supplemental Indenture.      15   
Section 5.10   No Personal Liability of Directors, Officers, Employees and Stockholders.      15   
Section 5.11   The Trustee.      15   

 

-i-


EXHIBITS

 

Exhibit A    Form of Initial Note

 

-ii-


FIFTH SUPPLEMENTAL INDENTURE (this “Fifth Supplemental Indenture”), dated as of April 28, 2013 (the “Issue Date”), among T-Mobile USA, Inc., a Delaware corporation, the Guarantors party hereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee.

WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of April 28, 2013 (the “Base Indenture”), between the Company, the Guarantors, and the Trustee, providing for the issuance from time to time of one or more Series of the Company’s Notes;

WHEREAS, Section 2.02 of the Base Indenture permits the forms and terms of the Notes of any Series as permitted in Sections 2.01 and 2.02 of the Base Indenture to be established in a supplemental indenture to the Base Indenture;

WHEREAS, the Company has requested the Trustee to join with it and the Guarantors in the execution of this Fifth Supplemental Indenture in order to supplement the Base Indenture by, among other things, establishing the forms and certain terms of a Series of Notes to be known as the Company’s Senior Reset Notes due 2023 and adding certain provisions thereto for the benefit of the Holders of the Notes of such Series;

WHEREAS, the Company has furnished the Trustee with a duly authorized and executed Company Order dated April 28, 2013 authorizing the execution of this Fifth Supplemental Indenture and the issuance of the Notes established hereby; and

WHEREAS, all things necessary to make this Fifth Supplemental Indenture a valid, binding and enforceable agreement of the Company, the Guarantors and the Trustee and a valid supplement to the Base Indenture have been done;

NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes established hereby:

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01 Definitions.

The Base Indenture as amended and supplemented by this Fifth Supplemental Indenture is collectively referred to as the “Indenture.” All capitalized terms which are used herein and not otherwise defined herein are defined in the Base Indenture and are used herein with the same meanings as in the Base Indenture. If a capitalized term is defined both in the Base Indenture and this Fifth Supplemental Indenture, the definition in this Fifth Supplemental Indenture shall apply to the Notes established hereby (and any Note Guarantee in respect thereof).


Section 1.02 Other Definitions.

 

Additional Notes

   2.03

Adjusted Bond Yield

   4.01

Adjusted Index Yield

   4.01

Average Adjusted Company Bond Yield

   4.01

Average Adjusted Comparable Bond Yield

   4.01

Average Adjusted Index Yield

   4.01

Average Bond Price

   4.01

Average Yield to Worst

   4.01

BAML HY Index

   4.01

BAML Successor Index

   4.01

Base Indenture

   Preamble

Bloomberg

   4.01

Calculation Agent

   4.01

Calculation Period

   4.01

Company Bond Weight

   4.01

Comparable Bond Weight

   4.01

Comparable Issuer

   4.01

Component

   4.01

Component Bond

   4.01

Component Index

   4.01

Composite Rating

   4.01

CS HY Index

   4.01

CS Successor Index

   4.01

Daily Bond Price

   4.01

Daily Yield to Worst

   4.01

Effective Yield to Worst Time

   4.01

Fifth Supplemental Indenture

   Preamble

Index Weight

   4.01

Issue Date

   Preamble

Interest Payment Date

   2.03(d)

JPM HY Index

   4.01

Maturity Adjustment

   4.01

Pricing Source

   4.01

Qualified Company Bonds

   4.01

Qualified Comparable Bonds

   4.01

Reference Yield

   4.01

Relevant Exchange

   4.01

Remaining Tenor

   4.01

Reset Date

   4.01

Reset Rate

   4.01

Security

   4.01

Successor Index

   4.01

Trading Day

   4.01

 

Section 1.03 Rules of Construction.

Unless the context otherwise requires:

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

 

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

(3) “or” is not exclusive;

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

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

(6) provisions apply to successive events and transactions;

(7) “including” means “including, without limitation”; and

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

ARTICLE II.

THE NOTES

 

Section 2.01 Creation of the Notes; Designations.

In accordance with Section 2.01 of the Base Indenture, the Company hereby creates a Series of Notes issued pursuant to the Indenture. The Notes of this Series shall be known and designated as the “Senior Reset Notes due 2023” of the Company. The Notes of this Series shall be entitled to the benefits of the Note Guarantee of each Guarantor signatory hereto, or that may hereafter execute a supplemental indenture in accordance with Section 4.17 of the Base Indenture, each such Note Guarantee to be governed by Article X of the Base Indenture (including without limitation the provisions for release of such Note Guarantee in respect of the Notes of this Series pursuant to Section 10.04 of the Base Indenture).

 

Section 2.02 Forms Generally.

(a) General. The Notes of this Series and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes of this Series may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note of this Series will be dated the date of its authentication. The Notes of this Series shall be in minimum denominations of $2,000 and integral multiples of $1,000.

The terms and provisions contained in the Notes of this Series will constitute, and are hereby expressly made, a part of this Fifth Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Fifth Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any such Note conflicts with the express provisions of this Fifth Supplemental Indenture, the provisions of this Fifth Supplemental Indenture shall govern and be controlling.

 

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(b) Global Notes. Notes of this Series issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes of this Series issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes of this Series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes of this Series from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes of this Series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes of this Series represented thereby will be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof.

 

Section 2.03 Title and Terms of Notes.

The aggregate principal amount of Notes of this Series which shall be authenticated and delivered on the Issue Date under the Indenture shall be $600,000,000; provided, however, that subject to the Company’s compliance with Section 4.09 of the Base Indenture, the Company from time to time, without giving notice to or seeking the consent of the Holders of Notes of this Series, may issue additional notes (the “Additional Notes”) in any amount having the same terms as the Notes of this Series in all respects, except for the issue date, the issue price, the initial Interest Payment Date and rights under a related registration rights agreement, if any. Any such Additional Notes shall be authenticated by the Trustee upon receipt of a Company Order to that effect, and when so authenticated, will constitute “Notes” for all purposes of the Indenture and will (together with all other Notes of this Series issued under the Indenture) constitute a single Series of Notes under the Indenture; provided that if such Additional Notes are not fungible with the Notes of this Series for U.S. federal income tax purposes, as applicable, as determined by the Company, such Additional Notes may have a separate CUSIP number.

(a) The Notes of this Series issued on the Issue Date will be issued at an issue price of 100% of the principal amount thereof.

(b) The principal amount of the Notes of this Series is due and payable in full on April 28, 2023 unless earlier redeemed.

(c) The Notes of this Series shall bear interest (computed on the basis of a 360-day year comprised of twelve 30-day months) at the rate of (i) 5.950% per annum from and including the Issue Date to, but not including, the Reset Date, and (ii) from and including the Reset Date until maturity at a rate per annum equal to the Reset Rate, as determined by the Calculation Agent according to the Pricing Mechanism set forth in Article IV of this Fifth Supplemental Indenture, or, in each case, until early redemption; and interest will be payable semi-annually in arrears on April 28 and October 28 of each year (each, an “Interest Payment Date”), commencing October 28, 2013, to the Persons in whose name such Notes of this Series were registered at the close of business on the preceding April 15 or October 15, respectively.

 

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(d) Principal of and interest on the Notes of this Series shall be payable as set forth in Exhibit A.

(e) Other than as provided in Article III of this Fifth Supplemental Indenture, the Notes of this Series shall not be redeemable.

(f) The Notes of this Series shall not be entitled to the benefit of any mandatory redemption or sinking fund.

(g) The Notes of this Series shall not be convertible into any other securities.

(h) The Notes of this Series will be unsubordinated debt securities and will be entitled to unsubordinated Note Guarantees of the Guarantors in accordance with the terms of the Indenture.

(i) The Company initially appoints the Trustee as Registrar and Paying Agent with respect to the Notes of this Series until such time as the Trustee has resigned or a successor has been appointed.

(j) The Notes of this Series will initially be evidenced by one or more Definitive Notes issued in the name of DT.

(k) The Company shall pay principal of, premium, if any, and interest on the Notes of this Series in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.

(l) The terms and provisions of Appendix A of the Base Indenture shall apply to the Notes of this Series.

 

Section 2.04 Transfer and Exchange.

The Notes of this Series shall be issued in registered form and shall be transferable only upon the surrender of a Note of this Series for registration of transfer and in compliance with Appendix A of the Base Indenture.

When Notes of this Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of this Series of other denominations, the Registrar will register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes of this Series at the Registrar’s request. A Holder of Notes of this Series may transfer or exchange Notes of this Series only in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder of Notes of this Series, among other things, to furnish appropriate endorsements or transfer documents. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

 

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Prior to due presentment of any Note of this Series for registration of transfer, the Company, the Trustee, any agent of the Company or the Trustee, the Paying Agent and the Registrar may deem and treat the Person in whose name a Note of this Series is registered as the absolute owner of such Note for all purposes, including for the purpose of receiving payment of principal of, and any premium and any interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

Any holder of a beneficial interest in a Global Note of this Series shall, by acceptance of such beneficial interest, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (a) the holder of such Global Note (or its agent) or (b) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.

All Notes of this Series issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as such Notes surrendered upon such transfer or exchange.

ARTICLE III.

REDEMPTION AND PREPAYMENT

 

Section 3.01 Optional Redemption.

The Notes of this Series may be redeemed, in whole, or from time to time in part, subject to the conditions and at the redemption prices set forth in Section 5 of the form of Note set forth in Exhibit A hereto, which are hereby incorporated by reference and made part of this Fifth Supplemental Indenture, together with accrued and unpaid interest to, but not including, the redemption date.

 

Section 3.02 Redemption Procedures.

The provisions of Article III of the Base Indenture shall apply in the case of a redemption pursuant to this Article III.

ARTICLE IV.

PRICING MECHANISM

 

Section 4.01 Pricing Mechanism Definitions.

Adjusted Bond Yield” means, for any Component Bond as of any date of determination:

 

  (i) the Average Yield to Worst of such Component Bond as of such date, plus

 

  (ii) an amount (which may be negative) equal to the product of (a)(1) the number of days until a date that is eight (8) years from such date of determination, minus (2) the number of days until the date that results in the yield to worst of such Component Bond, and (b) the fraction of 12.5 basis points divided by three hundred sixty-five (365); plus

 

  (iii) an amount (which may be negative) equal to the product of (a)(1) the score set forth in the definition of “Composite Rating” for the Composite Rating of the Notes of this Series, minus (2) the score set forth in the definition of “Composite Rating” for the Composite Rating of such Component Bond, and (b) 50 basis points.

 

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Adjusted Index Yield” means, for any Component Index as of any date of determination:

 

  (i) the Average Yield to Worst of such Component Index as of such date, plus

 

  (ii) an amount (which may be negative) equal to the product of (a)(1) the number of days until a date that is eight (8) years from such date of determination, minus (2) Effective Yield to Worst Time of such Component Index, and (b) the fraction of 12.5 basis points divided by three hundred sixty-five (365).

Average Adjusted Company Bond Yield” means, as of any date of determination, the arithmetic average of the Adjusted Bond Yields for each of the Qualified Company Bonds as of such date.

Average Adjusted Comparable Bond Yield” means, as of any date of determination, the arithmetic average of the Adjusted Bond Yields for each of the Qualified Comparable Bonds as of such date.

Average Adjusted Index Yield” means, as of any date of determination, the arithmetic average of the Adjusted Index Yield for each Component Index as of such date.

Average Bond Price” means, as to any Component Bond on any date of determination, the arithmetic average of the Daily Bond Price of such Component on each Trading Day in the Calculation Period, other than any Trading Day as to which both (A) there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount and (B) there are no Trading Days during the Calculation Period preceding such Trading Day as to which there was such a trade.

Average Yield to Worst” means, as to any Component on any date of determination, the arithmetic average of the Daily Yield to Worst of such Component on each Trading Day in the Calculation Period, other than any Trading Day as to which both (A) there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount and (B) there are no Trading Days during the Calculation Period preceding such Trading Day as to which there was such a trade.

BAML HY Index” means the “Bank of America Merrill Lynch US High Yield Telecommunications (H0TC) Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “BAML Successor Index”), then the Calculation Agent shall substitute the BAML Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the

 

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Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

Bloomberg” means Bloomberg Financial Markets.

Calculation Agent” means such nationally recognized investment bank as is selected by DT.

Calculation Period” means, as to any date of determination, the period that begins on the first Trading Day on or following the day that is 45 days prior to such date and ends on such date.

Company Bond Weight” means: (i) if the number of Qualified Company Bonds is one or more and the number of Qualified Comparable Bonds is zero, one-third; (ii) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-quarter; and (iii) if the number of Qualified Company Bonds is zero, zero.

Comparable Bond Weight” means: (i) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is zero, one-third; (ii) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-quarter; and (iii) if the number of Qualified Comparable Bonds is zero, zero.

Comparable Issuer” means Sprint Nextel Corporation or any successor or assign.

Component” means any Component Bond or any Component Index.

Component Bond” means any Qualified Comparable Bond or any Qualified Company Bond.

Component Index” means the JPM HY Index, the CS HY Index, and the BAML HY Index.

Composite Rating” means (i) if such Security is rated by either S&P or Moody’s, but not both, the composite rating indicated on the chart below as corresponding to the rating given to such Security by S&P or Moody’s; and (ii) if such Security is rated by both S&P and Moody’s, the composite rating indicated on the chart below as corresponding to a score equal to the average (rounded up to the nearest integer) of the scores assigned on the chart below to such Security’s S&P rating and such Security’s Moody’s rating.

 

Moody’s

   S&P    Score      Composite
Rating
Baa1    BBB+      1       BBB+
Baa2    BBB      2       BBB
Baa3    BBB-      3       BBB-
Ba1    BB+      4       BB+
Ba2    BB      5       BB
Ba3    BB-      6       BB-
B1    B+      7       B+
B2    B      8       B
B3    B-      9       B-
Caa1    CCC+      10       CCC+
Caa2    CCC      11       CCC
Caa3    CCC-      12       CCC-

 

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Notwithstanding the foregoing, for purposes of determining the Composite Rating of the Notes of this Series, in the event that, at the time of such determination, neither S&P nor Moody’s has rated the Notes of this Series, then (a) the rating of the Notes of this Series from S&P and/or Moody’s, as applicable, shall be deemed, for purposes of this definition, to be the same as (i) the rating by the applicable rating agency of the Company’s 6.625% Senior Notes due 2023 or (ii) solely in the event that the 6.625% Senior Notes due 2023 are not outstanding, or are not rated by either rating agency, the rating of any other series of unsecured notes issued by the Company which rank pari passu in right of payment with, and are guaranteed on a similar basis as, the Notes of this Series (and, if multiple series of notes issued by the Company and meeting the requirements of this clause (ii) are outstanding, the rating of the Notes of this Series shall be deemed to be the rating of the series of notes issued by the Company with a remaining tenor closest to the remaining tenor of the Notes of this Series) and (b) in the event that ratings from either rating agency in respect of any notes of the types described in clause (a)(i) or (ii) are not available, for purposes of determining the Adjusted Bond Yield of a Component Bond in relation to the Notes of this Series, clause (iii) of the definition of Adjusted Bond Yield shall be deemed to be zero. If neither S&P nor Moody’s has rated a Component Bond, then for purposes of determining the Adjusted Bond Yield of such Component Bond, clause (iii) of the definition of Adjusted Bond Yield shall be deemed to be zero.

CS HY Index” means the “Credit Suisse US Liquid High Yield Telecom Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “CS Successor Index”), then the Calculation Agent shall substitute the CS Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

Daily Bond Price” means, as to any Component Bond on any date of determination, the arithmetic average of the price of each reported trade of such Component Bond in an amount

 

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greater than $500,000 of principal amount on such date (or, if there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount on such date, the arithmetic average of the price of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on the next preceding Trading Day during the Calculation Period on which there was such a trade), determined by reference to the Pricing Source.

Daily Yield to Worst” means:

 

  (i) as to any Component Bond on any date of determination, the arithmetic average of the yield to worst of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on such date (or, if there are no reported trades of such Component Bond in an amount greater than $500,000 of principal amount on such date, the arithmetic average of the yield to worst of each reported trade of such Component Bond in an amount greater than $500,000 of principal amount on the next preceding Trading Day during the Calculation Period on which there was such a trade), determined by reference to the Pricing Source; and

 

  (ii) as to any Component Index on any date of determination, the yield to worst of such Component Index for such date as reported by the Pricing Source.

Effective Yield to Worst Time” means, as to any Component Index, the number of days to the date that results in the yield to worst implied by such Component Index, as reported by the Pricing Source, or if not reported by the Pricing Source, as calculated by the Calculation Agent in good faith.

Index Weight” means: (i) if the number of Qualified Comparable Bonds is one or more and the number of Qualified Company Bonds is one or more, one-half; (ii) if (a) the number of Qualified Comparable Bonds is zero and the number of Qualified Company Bonds is one or more, or (b) the number of Qualified Company Bonds is zero and the number of Qualified Comparable Bonds is one or more, two-thirds; and (iii) if the number of Qualified Comparable Bonds is zero and the number of Qualified Company Bonds is zero, one.

JPM HY Index” means the “JP Morgan Domestic Telecom High Yield Index”; provided, that (i) if the sponsor of such index discontinues calculation of such index, and such sponsor or another entity publishes a successor or substitute index that the Calculation Agent determines, in its sole discretion, to be comparable to such index (such comparable index, the “Successor Index”), then the Calculation Agent shall substitute the Successor Index for such index for all purposes hereunder; and (ii) in the event that the sponsor of such index discontinues publication of such index and the Calculation Agent determines that no suitable successor or substitute index is available for such index, the Calculation Agent will calculate the Daily Yield to Worst and Effective Yield to Worst Time for such index in accordance with the formula for and method of calculation last in effect as to such index prior to its discontinuance, but using only those securities with such weightings as comprised such index immediately prior to its discontinuance.

 

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Maturity Adjustment” means, as of any specified date, an amount (which may be negative) equal to the product of (i)(a) the Remaining Tenor of the Notes of this Series minus (b) the number eight (8) and (ii) 12.5 basis points.

Pricing Source” means (i) with respect to any Component Index, the index sponsor; and (ii) with respect to any Component Bond, TRACE as provided by Bloomberg.

Except where another source or method is specified, the Pricing Source shall be used for all applicable purposes hereunder. If the Pricing Source for any Component is unavailable at any time for any reason, and an alternative source or method is not expressly provided herein, the Calculation Agent shall determine a suitable substitute source in good faith.

Qualified Company Bonds” means, as of any date of determination, each series of publicly-traded unsecured notes that:

 

  (i) is issued by the Issuer (including for the avoidance of doubt, to the extent then outstanding, notes that were issued prior to the Merger Date by MetroPCS Wireless, Inc. and assumed by the Issuer (so long as such notes, in each case, meet the requirements set forth in clauses (ii) through (vi) below));

 

  (ii) has a minimum aggregate principal amount outstanding as of such date of at least $1.0 billion;

 

  (iii) has an Average Bond Price during the Calculation Period of not less than $800.00 or greater than $1200.00 (per $1000.00 of principal amount);

 

  (iv) for which the date that results in the yield to worst is not less than four (4) and not greater than ten (10) years from such date of determination;

 

  (v) for which there are at least five Trading Days in the Calculation Period on which there is a reported trade of such Qualified Comparable Bond in an amount greater than $500,000 of principal amount; and

 

  (vi) which was not subject, on any date during the Calculation Period, to a publicly announced tender offer, exchange offer, or any transaction that would result or has resulted in a change of control.

Qualified Comparable Bonds” means, as of any date of determination, each series of publicly-traded unsecured notes that:

 

  (i) is issued by the Comparable Issuer;

 

  (ii) has a minimum aggregate principal amount outstanding as of such date of at least $1.0 billion;

 

  (iii) has an Average Bond Price during the Calculation Period of not less than $800.00 or greater than $1200.00 (per $1000.00 of principal amount);

 

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  (iv) for which the date that results in the yield to worst is not less than four (4) and not greater than ten (10) years from such date of determination;

 

  (v) for which there are at least five Trading Days in the Calculation Period on which there is a reported trade of such Qualified Comparable Bond in an amount greater than $500,000 of principal amount; and

 

  (vi) which was not subject, on any date during the Calculation Period, to a publicly announced tender offer, exchange offer, or any transaction that would result or has resulted in a change of control.

Reference Yield” means, as of any date of determination, a rate per annum, as determined by the Calculation Agent in a commercially reasonable manner, equal to the sum of:

 

  (i) the product of (a) the Index Weight and (b) the Average Adjusted Index Yield as of such date; plus,

 

  (ii) the product of (a) the Comparable Bond Weight and (b) the Average Adjusted Comparable Bond Yield as of such date; plus,

 

  (iii) the product of (a) the Company Bond Weight and (b) the Average Adjusted Company Bond Yield as of such date.

Relevant Exchange” means, for any Component Bond, the primary exchange or quotation system on which such Component Bond is traded or quoted, as determined by the Calculation Agent.

Remaining Tenor” means, as of any specified date, the number of days from such specified date to the stated maturity of the Notes of this Series, divided by three hundred sixty-five (365).

Reset Date” means April 28, 2016.

Reset Rate” means a rate per annum, rounded to the nearest thousandth of a percent (and, in the event that rate per annum, prior to rounding, is equidistant to the nearest thousandth up and the nearest thousandth down, rounded up to the nearest thousandth of a percent), equal to the sum of:

 

  (i) the Reference Yield as of the Reset Date, plus

 

  (ii) 50.0 bps, plus

 

  (iii) the Maturity Adjustment for the Notes of this Series as of the Reset Date, plus

 

  (iv) 26.9 bps.

Security” means the Notes of this Series or any Component Bond.

Trading Day” means (i) with respect to any Component Index, any date on which the sponsor of such index reports an updated value for such index; and (ii) with respect to any Component Bond, a day, as determined by the Calculation Agent, on which the Relevant Exchange with respect to such Component Bond is scheduled to be open for trading for their respective regular trading sessions or on which such Component Bond is quoted, as applicable.

 

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Section 4.02 Notice of Rates.

The Calculation Agent will calculate the Reset Rate as of the Reset Date and, within five Business Days of the Reset Date, the Company will send (or, if agreed to by the Trustee, shall provide to the Trustee, and the Trustee, as instructed by the Company and at the expense of the Company, shall send) a notice to each Holder of Notes of this Series and the Trustee, specifying the Reset Rate and setting forth in reasonable detail the manner in which the Reset Rate was calculated. The calculation of the Reset Rate by the Calculation Agent will (in the absence of manifest error) be conclusive for all purposes and final and binding on the Holders of Notes of this Series and the Company.

The Company shall provide all cooperation reasonably requested by DT and the Calculation Agent in connection with the calculation of the Reset Rate, including, without limitation, providing any information reasonably requested and the payment of any fees and expenses then due and payable.

In the event that the Calculation Agent shall not have provided the Reset Rate to the Company within such five Business Day period and the Company shall have complied with the foregoing, (x) the Company shall promptly so notify the Trustee and the Holders of such failure, (y) the date on which the Company shall be required to deliver such notice of the Reset Rate will be extended until the date that is two Business Days after the date on which the Company receives such Reset Rate from the Calculation Agent and (z) DT may, in its sole discretion, appoint a replacement Calculation Agent.

ARTICLE V.

MISCELLANEOUS

 

Section 5.01 Effect of Fifth Supplemental Indenture.

(a) This Fifth Supplemental Indenture is a supplemental indenture within the meaning of Section 2.02 of the Base Indenture, and the Base Indenture shall (notwithstanding Section 12.12 thereof or Section 5.04 hereof) be read together with this Fifth Supplemental Indenture and shall have the same effect over the Notes of this Series, in the same manner as if the provisions of the Base Indenture and this Fifth Supplemental Indenture were contained in the same instrument.

(b) In all other respects, the Base Indenture is confirmed by the parties hereto as supplemented by the terms of this Fifth Supplemental Indenture.

 

Section 5.02 Governing Law.

THE INDENTURE AND THE NOTES OF THIS SERIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

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Section 5.03 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS FIFTH SUPPLEMENTAL INDENTURE.

 

Section 5.04 No Adverse Interpretation of Other Agreements.

Subject to Section 5.01, this Fifth Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Subject to Section 5.01, any such other indenture, loan or debt agreement may not be used to interpret this Fifth Supplemental Indenture.

 

Section 5.05 Successors.

All agreements of the Company in this Fifth Supplemental Indenture and the Notes of this Series will bind its successors. All agreements of the Trustee in this Fifth Supplemental Indenture will bind its successors. All agreements of each Guarantor in this Fifth Supplemental Indenture will bind its successors, except as otherwise provided in Section 10.04 of the Base Indenture.

 

Section 5.06 Severability.

In case any provision in this Fifth Supplemental Indenture or in the Notes of this Series is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

Section 5.07 Counterparts.

This Fifth Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Fifth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Fifth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Fifth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

Section 5.08 Table of Contents, Headings, etc.

The Table of Contents and headings of the Articles and Sections of this Fifth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Fifth Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

-14-


Section 5.09 Beneficiaries of this Fifth Supplemental Indenture.

Nothing in this Fifth Supplemental Indenture or in the Notes of this Series, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Notes of this Series, any benefit or any legal or equitable right, remedy or claim under this Fifth Supplemental Indenture.

 

Section 5.10 No Personal Liability of Directors, Officers, Employees and Stockholders.

No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes of this Series, this Fifth Supplemental Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes of this Series by accepting a Note of this Series waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes of this Series.

 

Section 5.11 The Trustee.

The Trustee shall not be responsible or liable for the validity or sufficiency of, or the recitals in, this Fifth Supplemental Indenture and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee and the Agents shall be applicable in respect of the Notes of this Series and of this Fifth Supplemental Indenture as fully and with like effect as set forth in full herein.

[Signatures on following page]

 

-15-


IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed, all as of the date first written above.

 

T-MOBILE USA, INC.
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Senior Vice President & Chief Financial Officer
GUARANTORS:
COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Authorized Person of each of the above named entities

[Signature page to Fifth Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

/s/ Rodney Gaughan

Name:   Rodney Gaughan
Title:   Vice President
By:  

/s/ Annie Jaghatspanyan

Name:   Annie Jaghatspanyan
Title:   Vice President

[Signature page to Fifth Supplemental Indenture]


EXHIBIT A

[Form of Face of Initial Note]

[Global Notes Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE [DEPOSITARY NAME], NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [DEPOSITARY] OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY] (AND ANY PAYMENT IS MADE TO [DEPOSITARY], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [DEPOSITARY], HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [DEPOSITARY] OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE FIFTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Notes Legend for Definitive Notes held by Initial Purchasers]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

[Restricted Notes Legend for Rule 144A Notes or Regulation S Notes]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR

 

Exhibit A-1


PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

[Additional Restricted Notes Legend for Notes Offered in Reliance on Regulation S]

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

[Definitive Notes Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

Exhibit A-2


[CUSIP]

[ISIN]

[Other ID Number]

Senior Reset Notes due 2023

 

No.                 $               

T-MOBILE USA, INC.

promises to pay to                      or registered assigns, the principal sum of                      DOLLARS on April 28, 2023.

Interest Payment Dates: April 28 and October 28

Record Dates: April 15 and October 15

Reset Date: April 28, 2016

 

Exhibit A-3


Dated:             , 20    

T-MOBILE USA, INC.

By:  

 

  Name:
  Title:

 

This is one of the Notes referred to in the within-mentioned Indenture:

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee

By: Deutsche Bank National Trust Company

By:

 

 

  Authorized Signatory

 

Exhibit A-4


[Form of Reverse Side of Initial Note]

Senior Reset Notes due 2023 (the “Notes”)

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Interest (computed on the basis of a 360-day year comprised of twelve 30-day months) shall accrue on the principal amount of this Note from and including April 28, 2013 to, but not including, April 28, 2016 (the “Reset Date”) at 5.950% per annum, and (ii) from and including the Reset Date until maturity at a rate per annum equal to the Reset Rate, as determined by the Calculation Agent according to the Pricing Mechanism set forth in Article IV of the Fifth Supplemental Indenture.

The Company promises to pay interest semi-annually in arrears on April 28 and October 28 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be October 28, 2013. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If an Interest Payment Date or the maturity date falls on a day that is not a Business Day, the related payment of principal or interest will be made on the next succeeding Business Day as if made on the date the payment was due, and no interest shall accrue for the intervening period.

(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the April 15 or October 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the books and records of the Registrar; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium, if any, on, all Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such money of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Holder of a Definitive Note is not required to surrender such Definitive Note to the Trustee in order to receive payment of principal at maturity. Such Definitive Note, after payment has been made, shall be cancelled without the requirement of presentation.

(3) PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

 

Exhibit A-5


(4) INDENTURE. The Company issued the Notes pursuant to an Indenture dated as of April 28, 2013 (the “Base Indenture”) among the Company, the Guarantors and the Trustee, as amended and supplemented with respect to the Notes by the Fifth Supplemental Indenture dated as of April 28, 2013 (the “Fifth Supplemental Indenture”; the Base Indenture as amended and supplemented with respect to the Notes by the Fifth Supplemental Indenture, the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and, to the extent so included in the Indenture, to the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured, unsubordinated obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) OPTIONAL REDEMPTION.

(a) On or after April 28, 2019, the Company may redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of the Depositary to process such redemption on the date specified in such notice), at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed to, but not including, the applicable redemption date, if redeemed during the twelve month period beginning on April 28 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date for periods prior to such redemption date:

 

Year

   Percentage  

2019

     100.000% + ( 1/2 × Reset Rate

2020

     100.000% + ( 1/4 × Reset Rate

2021 and thereafter

     100.000

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

At any time prior to April 28, 2019, the Company may also redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of Depositary to process such redemption on the date specified in such notice), at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date for periods prior to such date of redemption.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to April 28, 2016, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 105.950%

 

Exhibit A-6


of the principal amount, plus accrued and unpaid interest to, but not including, the redemption date, with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of the Company or contributions to the Company’s common equity capital made with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of Parent; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 180 days of the date of the closing of such sale of Equity Interests by the Company or the date of contribution to the Company’s common equity capital made with net cash proceeds of one or more sales of Equity Interests of Parent.

Applicable Premium” means, as calculated by the Company and provided to the Trustee, with respect to any Note on any redemption date, the greater of:

(1) 1.0% of the principal amount of the Note; or

(2) the excess of:

(a) the present value at such redemption date of (i) the redemption price of the Note at April 28, 2019 (such redemption price being set forth in the table appearing above under Section 5(a) hereof (provided that if the redemption date is prior to the Reset Date, for purposes of calculating the redemption price under this clause (i) the Reset Rate shall be deemed to be 5.950%)), plus (ii) all required interest payments due on the Note (determined, for purposes of calculating such interest payments under this clause (ii), with respect to periods from and after the Reset Date if the redemption date is prior to the Reset Date, as if the Reset Rate would equal 5.950%) through April 28, 2019 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

(b) the principal amount of the Note, if greater.

Treasury Rate” means, with respect to any redemption date, the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 28, 2019; provided, however, that if the period from the redemption date to April 28, 2019 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Company will (1) calculate the Treasury Rate on the third business day preceding the applicable redemption date and (2) prior to such redemption date file with the trustee an officer’s certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.

 

Exhibit A-7


(6) MANDATORY REDEMPTION.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

(7) REPURCHASE AT THE OPTION OF HOLDER.

(a) If there is a Change of Control Triggering Event, the Company will be required to make a Change of Control Offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date for periods prior to such repurchase date pursuant to Section 4.15 of the Base Indenture. Within 30 days following any Change of Control Triggering Event, the Company will send a notice to each Holder and the Trustee describing the transaction or transactions and identify the ratings decline that together constitute the Change of Control Triggering Event, offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent and setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to make an Asset Sale Offer pursuant to Section 4.10 of the Base Indenture to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes (including any Additional Notes) and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds thereof plus accrued and unpaid interest thereon to, but not including, the date of consummation of the purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required by law or applicable stock exchange or depositary requirements. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

 

Exhibit A-8


(8) NOTICE OF REDEMPTION. Notice of redemption will be sent at least 30 days (or, if any Global Notes are outstanding, such shorter period as may be permitted by the eligibility rules of the Depositary) but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed, except that redemption notices may be sent or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer or exchange of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes (i) for a period beginning at the opening of business 15 days immediately preceding the sending of notice of redemption of Notes selected for redemption and ending at the close of business on the day such notice is sent or (ii) during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend and supplement the Indenture as provided in the Base Indenture.

(12) DEFAULTS AND REMEDIES. If an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, in each case, by notice to the Company, may declare the principal of, premium, if any, and accrued but unpaid interest on all the Notes to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary occurs, the principal of, premium, if any, and interest on all the Notes shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.

 

Exhibit A-9


(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.

(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or facsimile signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

 

Exhibit A-10


ASSIGNMENT FORM

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:   

 

   (Insert assignee’s legal name)

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                      to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date:

 

 

 

Your Signature:

 

 

(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:

 

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Base Indenture, check the appropriate box below:

¨  Section 4.10                     ¨  Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$        

 

Date:

 

 

 

Your Signature:

 

 

(Sign exactly as your name appears on the face of this Note)

 

Tax Identification No.:

 

 

 

Signature Guarantee*:

 

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-12


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES

This certificate relates to $         principal amount of Notes held in definitive form by the undersigned.

The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

¨    (1)    to the Company; or  
¨    (2)    to the Registrar for registration in the name of the Holder, without transfer; or  
¨    (3)    pursuant to an effective registration statement under the Securities Act of 1933; or  
¨    (4)    inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or  
¨    (5)    outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or  
¨    (6)    pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933.  

 

Exhibit A-13


Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (4), (5) or (6) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

 

     

 

      Your Signature
Signature Guarantee:    
Date:  

 

   

 

Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee     Signature of Signature Guarantee

 

 

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:  

 

    

 

       NOTICE:   To be executed by an executive officer

 

Exhibit A-14


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of Exchange

   Amount of
decrease in
Principal Amount
of this Global
Note
   Amount of
increase in
Principal Amount
of this Global
Note
   Principal Amount
of this Global
Note following
such
decrease
(or increase)
   Signature of
authorized officer
of Trustee or
Notes Custodian
           
           
           
           

 

* This schedule should be included only if the Note is issued in global form.

 

Exhibit A-15

EX-4.7 10 d527693dex47.htm EX-4.7 EX-4.7

Exhibit 4.7

 

 

 

 

T-MOBILE USA, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

 

 

6.464% SENIOR NOTES DUE 2019

SIXTH SUPPLEMENTAL INDENTURE

Dated as of April 28, 2013

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

 

 

 

 


TABLE OF CONTENTS

 

         Page  
ARTICLE I.   
DEFINITIONS AND INCORPORATION BY REFERENCE   
Section 1.01   Definitions.      1   
Section 1.02   Other Definitions.      1   
Section 1.03   Rules of Construction.      2   
ARTICLE II.   
THE NOTES   
Section 2.01   Creation of the Notes; Designations.      2   
Section 2.02   Forms Generally.      2   
Section 2.03   Title and Terms of Notes.      3   
Section 2.04   Transfer and Exchange.      4   
ARTICLE III.   
REDEMPTION AND PREPAYMENT   
Section 3.01   Optional Redemption.      5   
Section 3.02   Redemption Procedures.      5   
ARTICLE IV.   
PRICING MECHANISM   
Section 4.01   Pricing Mechanism Definitions.      7   
Section 4.02   Notice of Rates.      13   
ARTICLE V.   
MISCELLANEOUS   
Section 5.01   Effect of Sixth Supplemental Indenture.      6   
Section 5.02   Governing Law.      6   
Section 5.03   Waiver of Jury Trial.      6   
Section 5.04   No Adverse Interpretation of Other Agreements.      6   
Section 5.05   Successors.      6   
Section 5.06   Severability.      6   
Section 5.07   Counterparts.      7   
Section 5.08   Table of Contents, Headings, etc.      7   
Section 5.09   Beneficiaries of this Sixth Supplemental Indenture.      7   
Section 5.10   No Personal Liability of Directors, Officers, Employees and Stockholders.      7   
Section 5.11   The Trustee.      7   

 

-i-


EXHIBITS

 

Exhibit A    Form of Initial Note

 

-ii-


SIXTH SUPPLEMENTAL INDENTURE (this “Sixth Supplemental Indenture”), dated as of April 28, 2013 (the “Issue Date”), among T-Mobile USA, Inc., a Delaware corporation, the Guarantors party hereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee.

WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of April 28, 2013 (the “Base Indenture”), between the Company, the Guarantors, and the Trustee, providing for the issuance from time to time of one or more Series of the Company’s Notes;

WHEREAS, Section 2.02 of the Base Indenture permits the forms and terms of the Notes of any Series as permitted in Sections 2.01 and 2.02 of the Base Indenture to be established in a supplemental indenture to the Base Indenture;

WHEREAS, the Company has requested the Trustee to join with it and the Guarantors in the execution of this Sixth Supplemental Indenture in order to supplement the Base Indenture by, among other things, establishing the forms and certain terms of a Series of Notes to be known as the Company’s 6.464% Senior Notes due 2019 and adding certain provisions thereto for the benefit of the Holders of the Notes of such Series;

WHEREAS, the Company has furnished the Trustee with a duly authorized and executed Company Order dated April 28, 2013 authorizing the execution of this Sixth Supplemental Indenture and the issuance of the Notes established hereby; and

WHEREAS, all things necessary to make this Sixth Supplemental Indenture a valid, binding and enforceable agreement of the Company, the Guarantors and the Trustee and a valid supplement to the Base Indenture have been done;

NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes established hereby:

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01 Definitions.

The Base Indenture as amended and supplemented by this Sixth Supplemental Indenture is collectively referred to as the “Indenture.” All capitalized terms which are used herein and not otherwise defined herein are defined in the Base Indenture and are used herein with the same meanings as in the Base Indenture. If a capitalized term is defined both in the Base Indenture and this Sixth Supplemental Indenture, the definition in this Sixth Supplemental Indenture shall apply to the Notes established hereby (and any Note Guarantee in respect thereof).

 

Section 1.02 Other Definitions.

 

Additional Notes

     2.03   

Base Indenture

     Preamble   

Sixth Supplemental Indenture

     Preamble   

Issue Date

     Preamble   


Section 1.03 Rules of Construction.

Unless the context otherwise requires:

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

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

(3) “or” is not exclusive;

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

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

(6) provisions apply to successive events and transactions;

(7) “including” means “including, without limitation”; and

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

ARTICLE II.

THE NOTES

 

Section 2.01 Creation of the Notes; Designations.

In accordance with Section 2.01 of the Base Indenture, the Company hereby creates a Series of Notes issued pursuant to the Indenture. The Notes of this Series shall be known and designated as the “6.464% Senior Notes due 2019” of the Company. The Notes of this Series shall be entitled to the benefits of the Note Guarantee of each Guarantor signatory hereto, or that may hereafter execute a supplemental indenture in accordance with Section 4.17 of the Base Indenture, each such Note Guarantee to be governed by Article X of the Base Indenture (including without limitation the provisions for release of such Note Guarantee in respect of the Notes of this Series pursuant to Section 10.04 of the Base Indenture).

 

Section 2.02 Forms Generally.

(a) General. The Notes of this Series and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes of this Series may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note of this Series will be dated the date of its authentication. The Notes of this Series shall be in minimum denominations of $2,000 and integral multiples of $1,000.

 

-2-


The terms and provisions contained in the Notes of this Series will constitute, and are hereby expressly made, a part of this Sixth Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Sixth Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any such Note conflicts with the express provisions of this Sixth Supplemental Indenture, the provisions of this Sixth Supplemental Indenture shall govern and be controlling.

(b) Global Notes. Notes of this Series issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes of this Series issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes of this Series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes of this Series from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes of this Series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes of this Series represented thereby will be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof.

 

Section 2.03 Title and Terms of Notes.

The aggregate principal amount of Notes of this Series which shall be authenticated and delivered on the Issue Date under the Indenture shall be $1,250,000,000; provided, however, that subject to the Company’s compliance with Section 4.09 of the Base Indenture, the Company from time to time, without giving notice to or seeking the consent of the Holders of Notes of this Series, may issue additional notes (the “Additional Notes”) in any amount having the same terms as the Notes of this Series in all respects, except for the issue date, the issue price, the initial Interest Payment Date and rights under a related registration rights agreement, if any. Any such Additional Notes shall be authenticated by the Trustee upon receipt of a Company Order to that effect, and when so authenticated, will constitute “Notes” for all purposes of the Indenture and will (together with all other Notes of this Series issued under the Indenture) constitute a single Series of Notes under the Indenture; provided that if such Additional Notes are not fungible with the Notes of this Series for U.S. federal income tax purposes, as applicable, as determined by the Company, such Additional Notes may have a separate CUSIP number.

(a) The Notes of this Series issued on the Issue Date will be issued at an issue price of 100% of the principal amount thereof.

(b) The principal amount of the Notes of this Series is due and payable in full on April 28, 2019 unless earlier redeemed.

(c) The Notes of this Series shall bear interest (computed on the basis of a 360-day year comprised of twelve 30-day months) at the rate of 6.464% per annum from and including the Issue Date until maturity or early redemption; and interest will be payable semi-annually in arrears on

 

-3-


July 28 and January 28 of each year (each, an “Interest Payment Date”), commencing July 28, 2013, to the Persons in whose name such Notes of this Series were registered at the close of business on the preceding July 15 or January 15, respectively.

(d) Principal of and interest on the Notes of this Series shall be payable as set forth in Exhibit A.

(e) Other than as provided in Article III of this Sixth Supplemental Indenture, the Notes of this Series shall not be redeemable.

(f) The Notes of this Series shall not be entitled to the benefit of any mandatory redemption or sinking fund.

(g) The Notes of this Series shall not be convertible into any other securities.

(h) The Notes of this Series will be unsubordinated debt securities and will be entitled to unsubordinated Note Guarantees of the Guarantors in accordance with the terms of the Indenture.

(i) The Company initially appoints the Trustee as Registrar and Paying Agent with respect to the Notes of this Series until such time as the Trustee has resigned or a successor has been appointed.

(j) The Notes of this Series will initially be evidenced by one or more Definitive Notes issued in the name of DT.

(k) The Company shall pay principal of, premium, if any, and interest on the Notes of this Series in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.

(l) The terms and provisions of Appendix A of the Base Indenture shall apply to the Notes of this Series.

 

Section 2.04 Transfer and Exchange.

The Notes of this Series shall be issued in registered form and shall be transferable only upon the surrender of a Note of this Series for registration of transfer and in compliance with Appendix A of the Base Indenture.

When Notes of this Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of this Series of other denominations, the Registrar will register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes of this Series at the Registrar’s request. A Holder of Notes of this Series may transfer or exchange Notes of this Series only in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder of Notes of this Series, among other things, to furnish appropriate endorsements or transfer documents. No service charge shall be made for any registration of transfer or

 

-4-


exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

Prior to due presentment of any Note of this Series for registration of transfer, the Company, the Trustee, any agent of the Company or the Trustee, the Paying Agent and the Registrar may deem and treat the Person in whose name a Note of this Series is registered as the absolute owner of such Note for all purposes, including for the purpose of receiving payment of principal of, and any premium and any interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

Any holder of a beneficial interest in a Global Note of this Series shall, by acceptance of such beneficial interest, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (a) the holder of such Global Note (or its agent) or (b) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.

All Notes of this Series issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as such Notes surrendered upon such transfer or exchange.

ARTICLE III.

REDEMPTION AND PREPAYMENT

 

Section 3.01 Optional Redemption.

The Notes of this Series may be redeemed, in whole, or from time to time in part, subject to the conditions and at the redemption prices set forth in Section 5 of the form of Note set forth in Exhibit A hereto, which are hereby incorporated by reference and made part of this Sixth Supplemental Indenture, together with accrued and unpaid interest to, but not including, the redemption date.

 

Section 3.02 Redemption Procedures.

The provisions of Article III of the Base Indenture shall apply in the case of a redemption pursuant to this Article III.

ARTICLE IV.

[RESERVED]

 

-5-


ARTICLE V.

MISCELLANEOUS

 

Section 5.01 Effect of Sixth Supplemental Indenture.

(a) This Sixth Supplemental Indenture is a supplemental indenture within the meaning of Section 2.02 of the Base Indenture, and the Base Indenture shall (notwithstanding Section 12.12 thereof or Section 5.04 hereof) be read together with this Sixth Supplemental Indenture and shall have the same effect over the Notes of this Series, in the same manner as if the provisions of the Base Indenture and this Sixth Supplemental Indenture were contained in the same instrument.

(b) In all other respects, the Base Indenture is confirmed by the parties hereto as supplemented by the terms of this Sixth Supplemental Indenture.

 

Section 5.02 Governing Law.

THE INDENTURE AND THE NOTES OF THIS SERIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

Section 5.03 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SIXTH SUPPLEMENTAL INDENTURE.

 

Section 5.04 No Adverse Interpretation of Other Agreements.

Subject to Section 5.01, this Sixth Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Subject to Section 5.01, any such other indenture, loan or debt agreement may not be used to interpret this Sixth Supplemental Indenture.

 

Section 5.05 Successors.

All agreements of the Company in this Sixth Supplemental Indenture and the Notes of this Series will bind its successors. All agreements of the Trustee in this Sixth Supplemental Indenture will bind its successors. All agreements of each Guarantor in this Sixth Supplemental Indenture will bind its successors, except as otherwise provided in Section 10.04 of the Base Indenture.

 

Section 5.06 Severability.

In case any provision in this Sixth Supplemental Indenture or in the Notes of this Series is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

-6-


Section 5.07 Counterparts.

This Sixth Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Sixth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Sixth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Sixth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

Section 5.08 Table of Contents, Headings, etc.

The Table of Contents and headings of the Articles and Sections of this Sixth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Sixth Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

Section 5.09 Beneficiaries of this Sixth Supplemental Indenture.

Nothing in this Sixth Supplemental Indenture or in the Notes of this Series, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Notes of this Series, any benefit or any legal or equitable right, remedy or claim under this Sixth Supplemental Indenture.

 

Section 5.10 No Personal Liability of Directors, Officers, Employees and Stockholders.

No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes of this Series, this Sixth Supplemental Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes of this Series by accepting a Note of this Series waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes of this Series.

 

Section 5.11 The Trustee.

The Trustee shall not be responsible or liable for the validity or sufficiency of, or the recitals in, this Sixth Supplemental Indenture and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee and the Agents shall be applicable in respect of the Notes of this Series and of this Sixth Supplemental Indenture as fully and with like effect as set forth in full herein.

[Signatures on following page]

 

-7-


IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental Indenture to be duly executed, all as of the date first written above.

 

T-MOBILE USA, INC.
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Senior Vice President & Chief Financial Officer
GUARANTORS:
COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Authorized Person of each of the above named entities

[Signature page to Sixth Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

/s/ Rodney Gaughan

Name:   Rodney Gaughan
Title:   Vice President
By:  

/s/ Annie Jaghatspanyan

Name:   Annie Jaghatspanyan
Title:   Vice President

[Signature page to Sixth Supplemental Indenture]


EXHIBIT A

[Form of Face of Initial Note]

[Global Notes Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE [DEPOSITARY NAME], NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [DEPOSITARY] OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY] (AND ANY PAYMENT IS MADE TO [DEPOSITARY], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [DEPOSITARY], HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [DEPOSITARY] OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE SIXTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Notes Legend for Definitive Notes held by Initial Purchasers]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

[Restricted Notes Legend for Rule 144A Notes or Regulation S Notes]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR

 

Exhibit A-1


PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

[Additional Restricted Notes Legend for Notes Offered in Reliance on Regulation S]

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

[Definitive Notes Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

Exhibit A-2


[CUSIP]

[ISIN]

[Other ID Number]

6.464% Senior Notes due 2019

 

No.             

   $               

T-MOBILE USA, INC.

promises to pay to                      or registered assigns, the principal sum of                      DOLLARS on April 28, 2019.

Interest Payment Dates: January 28 and July 28

Record Dates: January 15 and July 15

 

Exhibit A-3


Dated:             , 20    

 

T-MOBILE USA, INC.
By:  

 

  Name:
  Title:

 

This is one of the Notes referred to in the within-mentioned Indenture:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By:   Deutsche Bank National Trust Company
By:  

 

  Authorized Signatory

 

Exhibit A-4


[Form of Reverse Side of Initial Note]

6.464% Senior Notes due 2019 (the “Notes”)

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Interest (computed on the basis of a 360-day year comprised of twelve 30-day months) shall accrue on the principal amount of this Note from and including April 28, 2013 until maturity at a rate per annum equal to 6.464%.

The Company promises to pay interest semi-annually in arrears on January 28 and July 28 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be July 28, 2013. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If an Interest Payment Date or the maturity date falls on a day that is not a Business Day, the related payment of principal or interest will be made on the next succeeding Business Day as if made on the date the payment was due, and no interest shall accrue for the intervening period.

(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the July 15 or January 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the books and records of the Registrar; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium, if any, on, all Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such money of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Holder of a Definitive Note is not required to surrender such Definitive Note to the Trustee in order to receive payment of principal at maturity. Such Definitive Note, after payment has been made, shall be cancelled without the requirement of presentation.

(3) PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

(4) INDENTURE. The Company issued the Notes pursuant to an Indenture dated as of April 28, 2013 (the “Base Indenture”) among the Company, the Guarantors and the Trustee, as

 

Exhibit A-5


amended and supplemented with respect to the Notes by the Sixth Supplemental Indenture dated as of April 28, 2013 (the “Sixth Supplemental Indenture”; the Base Indenture as amended and supplemented with respect to the Notes by the Sixth Supplemental Indenture, the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and, to the extent so included in the Indenture, to the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured, unsubordinated obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) OPTIONAL REDEMPTION.

(a) On or after April 28, 2015, the Company may redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of the Depositary to process such redemption on the date specified in such notice), at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed to, but not including, the applicable redemption date, if redeemed during the twelve month period beginning on April 28 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date for periods prior to such redemption date:

 

Year

   Percentage  

2015

     103.232

2016

     101.616

2017 and thereafter

     100.000

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

At any time prior to April 28, 2015, the Company may also redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of Depositary to process such redemption on the date specified in such notice), at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date for periods prior to such date of redemption.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to April 28, 2016, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 106.464% of the principal amount, plus accrued and unpaid interest to, but not including, the redemption date, with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of the Company or contributions to the Company’s common equity capital made with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of Parent; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 180 days of the date of the closing of such sale of Equity Interests by the Company or the date of contribution to the Company’s common equity capital made with net cash proceeds of one or more sales of Equity Interests of Parent.

 

Exhibit A-6


Applicable Premium” means, as calculated by the Company and provided to the Trustee, with respect to any Note on any redemption date, the greater of:

(1) 1.0% of the principal amount of the Note; or

(2) the excess of:

(a) the present value at such redemption date of (i) the redemption price of the Note at April 28, 2015 (such redemption price being set forth in the table appearing above under Section 5(a) hereof, plus (ii) all required interest payments due on the Note through April 28, 2015 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

(b) the principal amount of the Note, if greater.

Treasury Rate” means, with respect to any redemption date, the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 28, 2015; provided, however, that if the period from the redemption date to April 28, 2015 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Company will (1) calculate the Treasury Rate on the third business day preceding the applicable redemption date and (2) prior to such redemption date file with the trustee an officer’s certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.

(6) MANDATORY REDEMPTION.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

Exhibit A-7


(7) REPURCHASE AT THE OPTION OF HOLDER.

(a) If there is a Change of Control Triggering Event, the Company will be required to make a Change of Control Offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date for periods prior to such repurchase date pursuant to Section 4.15 of the Base Indenture. Within 30 days following any Change of Control Triggering Event, the Company will send a notice to each Holder and the Trustee describing the transaction or transactions and identify the ratings decline that together constitute the Change of Control Triggering Event, offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent and setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to make an Asset Sale Offer pursuant to Section 4.10 of the Base Indenture to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes (including any Additional Notes) and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds thereof plus accrued and unpaid interest thereon to, but not including, the date of consummation of the purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required by law or applicable stock exchange or depositary requirements. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

(8) NOTICE OF REDEMPTION. Notice of redemption will be sent at least 30 days (or, if any Global Notes are outstanding, such shorter period as may be permitted by the eligibility rules of the Depositary) but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed, except that redemption notices may be sent or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

 

Exhibit A-8


(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer or exchange of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes (i) for a period beginning at the opening of business 15 days immediately preceding the sending of notice of redemption of Notes selected for redemption and ending at the close of business on the day such notice is sent or (ii) during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend and supplement the Indenture as provided in the Base Indenture.

(12) DEFAULTS AND REMEDIES. If an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, in each case, by notice to the Company, may declare the principal of, premium, if any, and accrued but unpaid interest on all the Notes to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary occurs, the principal of, premium, if any, and interest on all the Notes shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.

(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.

 

Exhibit A-9


(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or facsimile signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

 

Exhibit A-10


ASSIGNMENT FORM

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:   

 

   (Insert assignee’s legal name)

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                      to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date:

 

 

 

Your Signature:

 

 

(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:

 

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Base Indenture, check the appropriate box below:

¨  Section 4.10                     ¨  Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$         

 

Date:

 

 

 

Your Signature:

 

 

(Sign exactly as your name appears on the face of this Note)

 

Tax Identification No.:

 

 

 

Signature Guarantee*:

 

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-12


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES

This certificate relates to $             principal amount of Notes held in definitive form by the undersigned.

The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

¨    (1)    to the Company; or  
¨    (2)    to the Registrar for registration in the name of the Holder, without transfer; or  
¨    (3)    pursuant to an effective registration statement under the Securities Act of 1933; or  
¨    (4)    inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or  
¨    (5)    outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or  
¨    (6)    pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933.  

 

Exhibit A-13


Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (4), (5) or (6) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

 

     

 

      Your Signature
Signature Guarantee:    
Date:  

 

   

 

Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee     Signature of Signature Guarantee

 

 

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:  

 

    

 

       NOTICE:   To be executed by an executive officer

 

Exhibit A-14


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of Exchange

   Amount of
decrease in
Principal
Amount of this
Global Note
   Amount of
increase in
Principal
Amount of this
Global Note
   Principal
Amount of this
Global Note
following such

decrease
(or increase)
   Signature of
authorized
officer of
Trustee or

Notes Custodian
           
           
           
           

 

* This schedule should be included only if the Note is issued in global form.

 

Exhibit A-15

EX-4.8 11 d527693dex48.htm EX-4.8 EX-4.8

Exhibit 4.8

 

 

 

 

T-MOBILE USA, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

 

 

6.542% SENIOR NOTES DUE 2020

SEVENTH SUPPLEMENTAL INDENTURE

Dated as of April 28, 2013

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

 

 

 


TABLE OF CONTENTS

 

         Page  
ARTICLE I.   
DEFINITIONS AND INCORPORATION BY REFERENCE   
Section 1.01   Definitions.      1   
Section 1.02   Other Definitions.      1   
Section 1.03   Rules of Construction.      2   
ARTICLE II.   
THE NOTES   
Section 2.01   Creation of the Notes; Designations.      2   
Section 2.02   Forms Generally.      2   
Section 2.03   Title and Terms of Notes.      3   
Section 2.04   Transfer and Exchange.      4   
ARTICLE III.   
REDEMPTION AND PREPAYMENT   
Section 3.01   Optional Redemption.      5   
Section 3.02   Redemption Procedures.      5   
ARTICLE IV.   
PRICING MECHANISM   
Section 4.01   Pricing Mechanism Definitions.      7   
Section 4.02   Notice of Rates.      13   
ARTICLE V.   
MISCELLANEOUS   
Section 5.01   Effect of Seventh Supplemental Indenture.      6   
Section 5.02   Governing Law.      6   
Section 5.03   Waiver of Jury Trial.      6   
Section 5.04   No Adverse Interpretation of Other Agreements.      6   
Section 5.05   Successors.      6   
Section 5.06   Severability.      6   
Section 5.07   Counterparts.      7   
Section 5.08   Table of Contents, Headings, etc.      7   
Section 5.09   Beneficiaries of this Seventh Supplemental Indenture.      7   
Section 5.10   No Personal Liability of Directors, Officers, Employees and Stockholders.      7   
Section 5.11   The Trustee.      7   

 

-i-


EXHIBITS

 

Exhibit A    Form of Initial Note

 

-ii-


SEVENTH SUPPLEMENTAL INDENTURE (this “Seventh Supplemental Indenture”), dated as of April 28, 2013 (the “Issue Date”), among T-Mobile USA, Inc., a Delaware corporation, the Guarantors party hereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee.

WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of April 28, 2013 (the “Base Indenture”), between the Company, the Guarantors, and the Trustee, providing for the issuance from time to time of one or more Series of the Company’s Notes;

WHEREAS, Section 2.02 of the Base Indenture permits the forms and terms of the Notes of any Series as permitted in Sections 2.01 and 2.02 of the Base Indenture to be established in a supplemental indenture to the Base Indenture;

WHEREAS, the Company has requested the Trustee to join with it and the Guarantors in the execution of this Seventh Supplemental Indenture in order to supplement the Base Indenture by, among other things, establishing the forms and certain terms of a Series of Notes to be known as the Company’s 6.542% Senior Notes due 2020 and adding certain provisions thereto for the benefit of the Holders of the Notes of such Series;

WHEREAS, the Company has furnished the Trustee with a duly authorized and executed Company Order dated April 28, 2013 authorizing the execution of this Seventh Supplemental Indenture and the issuance of the Notes established hereby; and

WHEREAS, all things necessary to make this Seventh Supplemental Indenture a valid, binding and enforceable agreement of the Company, the Guarantors and the Trustee and a valid supplement to the Base Indenture have been done;

NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes established hereby:

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01 Definitions.

The Base Indenture as amended and supplemented by this Seventh Supplemental Indenture is collectively referred to as the “Indenture.” All capitalized terms which are used herein and not otherwise defined herein are defined in the Base Indenture and are used herein with the same meanings as in the Base Indenture. If a capitalized term is defined both in the Base Indenture and this Seventh Supplemental Indenture, the definition in this Seventh Supplemental Indenture shall apply to the Notes established hereby (and any Note Guarantee in respect thereof).

 

Section 1.02 Other Definitions.

 

Additional Notes

     2.03   

Base Indenture

     Preamble   

Seventh Supplemental Indenture

     Preamble   

Issue Date

     Preamble   


Section 1.03 Rules of Construction.

Unless the context otherwise requires:

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

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

(3) “or” is not exclusive;

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

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

(6) provisions apply to successive events and transactions;

(7) “including” means “including, without limitation”; and

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

ARTICLE II.

THE NOTES

 

Section 2.01 Creation of the Notes; Designations.

In accordance with Section 2.01 of the Base Indenture, the Company hereby creates a Series of Notes issued pursuant to the Indenture. The Notes of this Series shall be known and designated as the “6.542% Senior Notes due 2020” of the Company. The Notes of this Series shall be entitled to the benefits of the Note Guarantee of each Guarantor signatory hereto, or that may hereafter execute a supplemental indenture in accordance with Section 4.17 of the Base Indenture, each such Note Guarantee to be governed by Article X of the Base Indenture (including without limitation the provisions for release of such Note Guarantee in respect of the Notes of this Series pursuant to Section 10.04 of the Base Indenture).

 

Section 2.02 Forms Generally.

(a) General. The Notes of this Series and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes of this Series may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note of this Series will be dated the date of its authentication. The Notes of this Series shall be in minimum denominations of $2,000 and integral multiples of $1,000.

 

-2-


The terms and provisions contained in the Notes of this Series will constitute, and are hereby expressly made, a part of this Seventh Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Seventh Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any such Note conflicts with the express provisions of this Seventh Supplemental Indenture, the provisions of this Seventh Supplemental Indenture shall govern and be controlling.

(b) Global Notes. Notes of this Series issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes of this Series issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes of this Series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes of this Series from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes of this Series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes of this Series represented thereby will be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof.

 

Section 2.03 Title and Terms of Notes.

The aggregate principal amount of Notes of this Series which shall be authenticated and delivered on the Issue Date under the Indenture shall be $1,250,000,000; provided, however, that subject to the Company’s compliance with Section 4.09 of the Base Indenture, the Company from time to time, without giving notice to or seeking the consent of the Holders of Notes of this Series, may issue additional notes (the “Additional Notes”) in any amount having the same terms as the Notes of this Series in all respects, except for the issue date, the issue price, the initial Interest Payment Date and rights under a related registration rights agreement, if any. Any such Additional Notes shall be authenticated by the Trustee upon receipt of a Company Order to that effect, and when so authenticated, will constitute “Notes” for all purposes of the Indenture and will (together with all other Notes of this Series issued under the Indenture) constitute a single Series of Notes under the Indenture; provided that if such Additional Notes are not fungible with the Notes of this Series for U.S. federal income tax purposes, as applicable, as determined by the Company, such Additional Notes may have a separate CUSIP number.

(a) The Notes of this Series issued on the Issue Date will be issued at an issue price of 100% of the principal amount thereof.

(b) The principal amount of the Notes of this Series is due and payable in full on April 28, 2020 unless earlier redeemed.

(c) The Notes of this Series shall bear interest (computed on the basis of a 360-day year comprised of twelve 30-day months) at the rate of 6.542% per annum from and including the Issue Date until maturity or early redemption; and interest will be payable semi-annually in arrears on

 

-3-


July 28 and January 28 of each year (each, an “Interest Payment Date”), commencing July 28, 2013, to the Persons in whose name such Notes of this Series were registered at the close of business on the preceding July 15 or January 15, respectively.

(d) Principal of and interest on the Notes of this Series shall be payable as set forth in Exhibit A.

(e) Other than as provided in Article III of this Seventh Supplemental Indenture, the Notes of this Series shall not be redeemable.

(f) The Notes of this Series shall not be entitled to the benefit of any mandatory redemption or sinking fund.

(g) The Notes of this Series shall not be convertible into any other securities.

(h) The Notes of this Series will be unsubordinated debt securities and will be entitled to unsubordinated Note Guarantees of the Guarantors in accordance with the terms of the Indenture.

(i) The Company initially appoints the Trustee as Registrar and Paying Agent with respect to the Notes of this Series until such time as the Trustee has resigned or a successor has been appointed.

(j) The Notes of this Series will initially be evidenced by one or more Definitive Notes issued in the name of DT.

(k) The Company shall pay principal of, premium, if any, and interest on the Notes of this Series in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.

(l) The terms and provisions of Appendix A of the Base Indenture shall apply to the Notes of this Series.

 

Section 2.04 Transfer and Exchange.

The Notes of this Series shall be issued in registered form and shall be transferable only upon the surrender of a Note of this Series for registration of transfer and in compliance with Appendix A of the Base Indenture.

When Notes of this Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of this Series of other denominations, the Registrar will register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes of this Series at the Registrar’s request. A Holder of Notes of this Series may transfer or exchange Notes of this Series only in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder of Notes of this Series, among other things, to furnish appropriate endorsements or transfer documents. No service charge shall be made for any registration of transfer or

 

-4-


exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

Prior to due presentment of any Note of this Series for registration of transfer, the Company, the Trustee, any agent of the Company or the Trustee, the Paying Agent and the Registrar may deem and treat the Person in whose name a Note of this Series is registered as the absolute owner of such Note for all purposes, including for the purpose of receiving payment of principal of, and any premium and any interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

Any holder of a beneficial interest in a Global Note of this Series shall, by acceptance of such beneficial interest, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (a) the holder of such Global Note (or its agent) or (b) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.

All Notes of this Series issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as such Notes surrendered upon such transfer or exchange.

ARTICLE III.

REDEMPTION AND PREPAYMENT

 

Section 3.01 Optional Redemption.

The Notes of this Series may be redeemed, in whole, or from time to time in part, subject to the conditions and at the redemption prices set forth in Section 5 of the form of Note set forth in Exhibit A hereto, which are hereby incorporated by reference and made part of this Seventh Supplemental Indenture, together with accrued and unpaid interest to, but not including, the redemption date.

 

Section 3.02 Redemption Procedures.

The provisions of Article III of the Base Indenture shall apply in the case of a redemption pursuant to this Article III.

ARTICLE IV.

[RESERVED]

 

-5-


ARTICLE V.

MISCELLANEOUS

 

Section 5.01 Effect of Seventh Supplemental Indenture.

(a) This Seventh Supplemental Indenture is a supplemental indenture within the meaning of Section 2.02 of the Base Indenture, and the Base Indenture shall (notwithstanding Section 12.12 thereof or Section 5.04 hereof) be read together with this Seventh Supplemental Indenture and shall have the same effect over the Notes of this Series, in the same manner as if the provisions of the Base Indenture and this Seventh Supplemental Indenture were contained in the same instrument.

(b) In all other respects, the Base Indenture is confirmed by the parties hereto as supplemented by the terms of this Seventh Supplemental Indenture.

 

Section 5.02 Governing Law.

THE INDENTURE AND THE NOTES OF THIS SERIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

Section 5.03 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SEVENTH SUPPLEMENTAL INDENTURE.

 

Section 5.04 No Adverse Interpretation of Other Agreements.

Subject to Section 5.01, this Seventh Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Subject to Section 5.01, any such other indenture, loan or debt agreement may not be used to interpret this Seventh Supplemental Indenture.

 

Section 5.05 Successors.

All agreements of the Company in this Seventh Supplemental Indenture and the Notes of this Series will bind its successors. All agreements of the Trustee in this Seventh Supplemental Indenture will bind its successors. All agreements of each Guarantor in this Seventh Supplemental Indenture will bind its successors, except as otherwise provided in Section 10.04 of the Base Indenture.

 

Section 5.06 Severability.

In case any provision in this Seventh Supplemental Indenture or in the Notes of this Series is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

-6-


Section 5.07 Counterparts.

This Seventh Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Seventh Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Seventh Supplemental Indenture as to the parties hereto and may be used in lieu of the original Seventh Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

Section 5.08 Table of Contents, Headings, etc.

The Table of Contents and headings of the Articles and Sections of this Seventh Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Seventh Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

Section 5.09 Beneficiaries of this Seventh Supplemental Indenture.

Nothing in this Seventh Supplemental Indenture or in the Notes of this Series, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Notes of this Series, any benefit or any legal or equitable right, remedy or claim under this Seventh Supplemental Indenture.

 

Section 5.10 No Personal Liability of Directors, Officers, Employees and Stockholders.

No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes of this Series, this Seventh Supplemental Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes of this Series by accepting a Note of this Series waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes of this Series.

 

Section 5.11 The Trustee.

The Trustee shall not be responsible or liable for the validity or sufficiency of, or the recitals in, this Seventh Supplemental Indenture and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee and the Agents shall be applicable in respect of the Notes of this Series and of this Seventh Supplemental Indenture as fully and with like effect as set forth in full herein.

[Signatures on following page]

 

-7-


IN WITNESS WHEREOF, the parties hereto have caused this Seventh Supplemental Indenture to be duly executed, all as of the date first written above.

 

T-MOBILE USA, INC.
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Senior Vice President & Chief Financial Officer
GUARANTORS:
COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Authorized Person for each of the above named entities

[Signature page to Seventh Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

/s/ Rodney Gaughan

Name:   Rodney Gaughan
Title:   Vice President
By:  

/s/ Annie Jaghatspanyan

Name:   Annie Jaghatspanyan
Title:   Vice President

[Signature page to Seventh Supplemental Indenture]


EXHIBIT A

[Form of Face of Initial Note]

[Global Notes Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE [DEPOSITARY NAME], NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [DEPOSITARY] OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY] (AND ANY PAYMENT IS MADE TO [DEPOSITARY], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [DEPOSITARY], HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [DEPOSITARY] OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE SEVENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Notes Legend for Definitive Notes held by Initial Purchasers]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

[Restricted Notes Legend for Rule 144A Notes or Regulation S Notes]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR

 

Exhibit A-1


PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

[Additional Restricted Notes Legend for Notes Offered in Reliance on Regulation S]

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

[Definitive Notes Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

Exhibit A-2


[CUSIP]

[ISIN]

[Other ID Number]

6.542% Senior Notes due 2020

 

No.                 $               

T-MOBILE USA, INC.

promises to pay to                      or registered assigns, the principal sum of                      DOLLARS on April 28, 2020.

Interest Payment Dates: January 28 and July 28

Record Dates: January 15 and July 15

 

Exhibit A-3


Dated: ________, 20___

 

T-MOBILE USA, INC.
By:  

 

  Name:
  Title:

 

This is one of the Notes referred to in the within-mentioned Indenture:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By:   Deutsche Bank National Trust Company
By:  

 

  Authorized Signatory

 

Exhibit A-4


[Form of Reverse Side of Initial Note]

6.542% Senior Notes due 2020 (the “Notes”)

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Interest (computed on the basis of a 360-day year comprised of twelve 30-day months) shall accrue on the principal amount of this Note from and including April 28, 2013 until maturity at a rate per annum equal to 6.542%.

The Company promises to pay interest semi-annually in arrears on January 28 and July 28 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be July 28, 2013. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If an Interest Payment Date or the maturity date falls on a day that is not a Business Day, the related payment of principal or interest will be made on the next succeeding Business Day as if made on the date the payment was due, and no interest shall accrue for the intervening period.

(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the July 15 or January 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the books and records of the Registrar; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium, if any, on, all Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such money of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Holder of a Definitive Note is not required to surrender such Definitive Note to the Trustee in order to receive payment of principal at maturity. Such Definitive Note, after payment has been made, shall be cancelled without the requirement of presentation.

(3) PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

(4) INDENTURE. The Company issued the Notes pursuant to an Indenture dated as of April 28, 2013 (the “Base Indenture”) among the Company, the Guarantors and the Trustee, as

 

Exhibit A-5


amended and supplemented with respect to the Notes by the Seventh Supplemental Indenture dated as of April 28, 2013 (the “Seventh Supplemental Indenture”; the Base Indenture as amended and supplemented with respect to the Notes by the Seventh Supplemental Indenture, the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and, to the extent so included in the Indenture, to the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured, unsubordinated obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) OPTIONAL REDEMPTION.

(a) On or after April 28, 2016, the Company may redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of the Depositary to process such redemption on the date specified in such notice), at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed to, but not including, the applicable redemption date, if redeemed during the twelve month period beginning on April 28 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date for periods prior to such redemption date:

 

Year

   Percentage  

2016

     103.271

2017

     101.636

2018 and thereafter

     100.000

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

At any time prior to April 28, 2016, the Company may also redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of Depositary to process such redemption on the date specified in such notice), at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date for periods prior to such date of redemption.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to April 28, 2016, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 106.542% of the principal amount, plus accrued and unpaid interest to, but not including, the redemption date, with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of the Company or contributions to the Company’s common equity capital made with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of Parent; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 180 days of the date of the closing of such sale of Equity Interests by the Company or the date of contribution to the Company’s common equity capital made with net cash proceeds of one or more sales of Equity Interests of Parent.

 

Exhibit A-6


Applicable Premium” means, as calculated by the Company and provided to the Trustee, with respect to any Note on any redemption date, the greater of:

(1) 1.0% of the principal amount of the Note; or

(2) the excess of:

(a) the present value at such redemption date of (i) the redemption price of the Note at April 28, 2016 (such redemption price being set forth in the table appearing above under Section 5(a) hereof, plus (ii) all required interest payments due on the Note through April 28, 2016 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

(b) the principal amount of the Note, if greater.

Treasury Rate” means, with respect to any redemption date, the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 28, 2016; provided, however, that if the period from the redemption date to April 28, 2016 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Company will (1) calculate the Treasury Rate on the third business day preceding the applicable redemption date and (2) prior to such redemption date file with the trustee an officer’s certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.

(6) MANDATORY REDEMPTION.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

Exhibit A-7


(7) REPURCHASE AT THE OPTION OF HOLDER.

(a) If there is a Change of Control Triggering Event, the Company will be required to make a Change of Control Offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date for periods prior to such repurchase date pursuant to Section 4.15 of the Base Indenture. Within 30 days following any Change of Control Triggering Event, the Company will send a notice to each Holder and the Trustee describing the transaction or transactions and identify the ratings decline that together constitute the Change of Control Triggering Event, offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent and setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to make an Asset Sale Offer pursuant to Section 4.10 of the Base Indenture to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes (including any Additional Notes) and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds thereof plus accrued and unpaid interest thereon to, but not including, the date of consummation of the purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required by law or applicable stock exchange or depositary requirements. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

(8) NOTICE OF REDEMPTION. Notice of redemption will be sent at least 30 days (or, if any Global Notes are outstanding, such shorter period as may be permitted by the eligibility rules of the Depositary) but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed, except that redemption notices may be sent or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

 

Exhibit A-8


(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer or exchange of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes (i) for a period beginning at the opening of business 15 days immediately preceding the sending of notice of redemption of Notes selected for redemption and ending at the close of business on the day such notice is sent or (ii) during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend and supplement the Indenture as provided in the Base Indenture.

(12) DEFAULTS AND REMEDIES. If an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, in each case, by notice to the Company, may declare the principal of, premium, if any, and accrued but unpaid interest on all the Notes to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary occurs, the principal of, premium, if any, and interest on all the Notes shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.

(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.

 

Exhibit A-9


(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or facsimile signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

 

Exhibit A-10


ASSIGNMENT FORM

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:   

 

   (Insert assignee’s legal name)

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                      to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date:

 

 

 

Your Signature:

 

 

(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:

 

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Base Indenture, check the appropriate box below:

¨  Section 4.10                     ¨  Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$        

 

Date:

 

 

 

Your Signature:

 

 

(Sign exactly as your name appears on the face of this Note)

 

Tax Identification No.:

 

 

 

Signature Guarantee*:

 

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-12


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES

This certificate relates to $         principal amount of Notes held in definitive form by the undersigned.

The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

¨    (1)    to the Company; or
¨    (2)    to the Registrar for registration in the name of the Holder, without transfer; or
¨    (3)    pursuant to an effective registration statement under the Securities Act of 1933; or
¨    (4)    inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
¨    (5)    outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or
¨    (6)    pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933.

 

Exhibit A-13


Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (4), (5) or (6) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

 

     

 

      Your Signature
Signature Guarantee:    
Date:  

 

   

 

Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee     Signature of Signature Guarantee

 

 

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:  

 

    

 

       NOTICE:   To be executed by an executive officer

 

Exhibit A-14


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of Exchange

   Amount of
decrease in
Principal
Amount of this
Global Note
   Amount of
increase in
Principal
Amount of this
Global Note
   Principal
Amount of this
Global Note
following such
decrease
(or increase)
   Signature of
authorized
officer of
Trustee or
Notes Custodian
           
           
           
           

 

* This schedule should be included only if the Note is issued in global form.

 

Exhibit A-15

EX-4.9 12 d527693dex49.htm EX-4.9 EX-4.9

Exhibit 4.9

 

 

 

 

T-MOBILE USA, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

 

 

6.633% SENIOR NOTES DUE 2021

EIGHTH SUPPLEMENTAL INDENTURE

Dated as of April 28, 2013

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

 

 

 

 


TABLE OF CONTENTS

 

          Page  
ARTICLE I.   
DEFINITIONS AND INCORPORATION BY REFERENCE   

Section 1.01

   Definitions.      1   

Section 1.02

   Other Definitions.      1   

Section 1.03

   Rules of Construction.      2   
ARTICLE II.   
THE NOTES   

Section 2.01

   Creation of the Notes; Designations.      2   

Section 2.02

   Forms Generally.      2   

Section 2.03

   Title and Terms of Notes.      3   

Section 2.04

   Transfer and Exchange.      4   
ARTICLE III.   
REDEMPTION AND PREPAYMENT   

Section 3.01

   Optional Redemption.      5   

Section 3.02

   Redemption Procedures.      5   
ARTICLE IV.   
PRICING MECHANISM   

Section 4.01

   Pricing Mechanism Definitions.      7   

Section 4.02

   Notice of Rates.      13   
ARTICLE V.   
MISCELLANEOUS   

Section 5.01

   Effect of Eighth Supplemental Indenture.      6   

Section 5.02

   Governing Law.      6   

Section 5.03

   Waiver of Jury Trial.      6   

Section 5.04

   No Adverse Interpretation of Other Agreements.      6   

Section 5.05

   Successors.      6   

Section 5.06

   Severability.      6   

Section 5.07

   Counterparts.      7   

Section 5.08

   Table of Contents, Headings, etc.      7   

Section 5.09

   Beneficiaries of this Eighth Supplemental Indenture.      7   

Section 5.10

   No Personal Liability of Directors, Officers, Employees and Stockholders.      7   

Section 5.11

   The Trustee.      7   

 

-i-


EXHIBITS

 

Exhibit A    Form of Initial Note

 

-ii-


EIGHTH SUPPLEMENTAL INDENTURE (this “Eighth Supplemental Indenture”), dated as of April 28, 2013 (the “Issue Date”), among T-Mobile USA, Inc., a Delaware corporation, the Guarantors party hereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee.

WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of April 28, 2013 (the “Base Indenture”), between the Company, the Guarantors, and the Trustee, providing for the issuance from time to time of one or more Series of the Company’s Notes;

WHEREAS, Section 2.02 of the Base Indenture permits the forms and terms of the Notes of any Series as permitted in Sections 2.01 and 2.02 of the Base Indenture to be established in a supplemental indenture to the Base Indenture;

WHEREAS, the Company has requested the Trustee to join with it and the Guarantors in the execution of this Eighth Supplemental Indenture in order to supplement the Base Indenture by, among other things, establishing the forms and certain terms of a Series of Notes to be known as the Company’s 6.633% Senior Notes due 2021 and adding certain provisions thereto for the benefit of the Holders of the Notes of such Series;

WHEREAS, the Company has furnished the Trustee with a duly authorized and executed Company Order dated April 28, 2013 authorizing the execution of this Eighth Supplemental Indenture and the issuance of the Notes established hereby; and

WHEREAS, all things necessary to make this Eighth Supplemental Indenture a valid, binding and enforceable agreement of the Company, the Guarantors and the Trustee and a valid supplement to the Base Indenture have been done;

NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes established hereby:

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01 Definitions.

The Base Indenture as amended and supplemented by this Eighth Supplemental Indenture is collectively referred to as the “Indenture.” All capitalized terms which are used herein and not otherwise defined herein are defined in the Base Indenture and are used herein with the same meanings as in the Base Indenture. If a capitalized term is defined both in the Base Indenture and this Eighth Supplemental Indenture, the definition in this Eighth Supplemental Indenture shall apply to the Notes established hereby (and any Note Guarantee in respect thereof).

 

Section 1.02 Other Definitions.

 

Additional Notes

   2.03

Base Indenture

   Preamble

Eighth Supplemental Indenture

   Preamble

Issue Date

   Preamble


Section 1.03 Rules of Construction.

Unless the context otherwise requires:

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

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

(3) “or” is not exclusive;

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

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

(6) provisions apply to successive events and transactions;

(7) “including” means “including, without limitation”; and

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

ARTICLE II.

THE NOTES

 

Section 2.01 Creation of the Notes; Designations.

In accordance with Section 2.01 of the Base Indenture, the Company hereby creates a Series of Notes issued pursuant to the Indenture. The Notes of this Series shall be known and designated as the “6.633% Senior Notes due 2021” of the Company. The Notes of this Series shall be entitled to the benefits of the Note Guarantee of each Guarantor signatory hereto, or that may hereafter execute a supplemental indenture in accordance with Section 4.17 of the Base Indenture, each such Note Guarantee to be governed by Article X of the Base Indenture (including without limitation the provisions for release of such Note Guarantee in respect of the Notes of this Series pursuant to Section 10.04 of the Base Indenture).

 

Section 2.02 Forms Generally.

(a) General. The Notes of this Series and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes of this Series may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note of this Series will be dated the date of its authentication. The Notes of this Series shall be in minimum denominations of $2,000 and integral multiples of $1,000.

 

-2-


The terms and provisions contained in the Notes of this Series will constitute, and are hereby expressly made, a part of this Eighth Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Eighth Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any such Note conflicts with the express provisions of this Eighth Supplemental Indenture, the provisions of this Eighth Supplemental Indenture shall govern and be controlling.

(b) Global Notes. Notes of this Series issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes of this Series issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes of this Series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes of this Series from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes of this Series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes of this Series represented thereby will be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof.

 

Section 2.03 Title and Terms of Notes.

The aggregate principal amount of Notes of this Series which shall be authenticated and delivered on the Issue Date under the Indenture shall be $1,250,000,000; provided, however, that subject to the Company’s compliance with Section 4.09 of the Base Indenture, the Company from time to time, without giving notice to or seeking the consent of the Holders of Notes of this Series, may issue additional notes (the “Additional Notes”) in any amount having the same terms as the Notes of this Series in all respects, except for the issue date, the issue price, the initial Interest Payment Date and rights under a related registration rights agreement, if any. Any such Additional Notes shall be authenticated by the Trustee upon receipt of a Company Order to that effect, and when so authenticated, will constitute “Notes” for all purposes of the Indenture and will (together with all other Notes of this Series issued under the Indenture) constitute a single Series of Notes under the Indenture; provided that if such Additional Notes are not fungible with the Notes of this Series for U.S. federal income tax purposes, as applicable, as determined by the Company, such Additional Notes may have a separate CUSIP number.

(a) The Notes of this Series issued on the Issue Date will be issued at an issue price of 100% of the principal amount thereof.

(b) The principal amount of the Notes of this Series is due and payable in full on April 28, 2021 unless earlier redeemed.

(c) The Notes of this Series shall bear interest (computed on the basis of a 360-day year comprised of twelve 30-day months) at the rate of 6.633% per annum from and including the Issue Date until maturity or early redemption; and interest will be payable semi-annually in arrears on

 

-3-


July 28 and January 28 of each year (each, an “Interest Payment Date”), commencing July 28, 2013, to the Persons in whose name such Notes of this Series were registered at the close of business on the preceding July 15 or January 15, respectively.

(d) Principal of and interest on the Notes of this Series shall be payable as set forth in Exhibit A.

(e) Other than as provided in Article III of this Eighth Supplemental Indenture, the Notes of this Series shall not be redeemable.

(f) The Notes of this Series shall not be entitled to the benefit of any mandatory redemption or sinking fund.

(g) The Notes of this Series shall not be convertible into any other securities.

(h) The Notes of this Series will be unsubordinated debt securities and will be entitled to unsubordinated Note Guarantees of the Guarantors in accordance with the terms of the Indenture.

(i) The Company initially appoints the Trustee as Registrar and Paying Agent with respect to the Notes of this Series until such time as the Trustee has resigned or a successor has been appointed.

(j) The Notes of this Series will initially be evidenced by one or more Definitive Notes issued in the name of DT.

(k) The Company shall pay principal of, premium, if any, and interest on the Notes of this Series in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.

(l) The terms and provisions of Appendix A of the Base Indenture shall apply to the Notes of this Series.

 

Section 2.04 Transfer and Exchange.

The Notes of this Series shall be issued in registered form and shall be transferable only upon the surrender of a Note of this Series for registration of transfer and in compliance with Appendix A of the Base Indenture.

When Notes of this Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of this Series of other denominations, the Registrar will register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes of this Series at the Registrar’s request. A Holder of Notes of this Series may transfer or exchange Notes of this Series only in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder of Notes of this Series, among other things, to furnish appropriate endorsements or transfer documents. No service charge shall be made for any registration of transfer or

 

-4-


exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

Prior to due presentment of any Note of this Series for registration of transfer, the Company, the Trustee, any agent of the Company or the Trustee, the Paying Agent and the Registrar may deem and treat the Person in whose name a Note of this Series is registered as the absolute owner of such Note for all purposes, including for the purpose of receiving payment of principal of, and any premium and any interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

Any holder of a beneficial interest in a Global Note of this Series shall, by acceptance of such beneficial interest, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (a) the holder of such Global Note (or its agent) or (b) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.

All Notes of this Series issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as such Notes surrendered upon such transfer or exchange.

ARTICLE III.

REDEMPTION AND PREPAYMENT

 

Section 3.01 Optional Redemption.

The Notes of this Series may be redeemed, in whole, or from time to time in part, subject to the conditions and at the redemption prices set forth in Section 5 of the form of Note set forth in Exhibit A hereto, which are hereby incorporated by reference and made part of this Eighth Supplemental Indenture, together with accrued and unpaid interest to, but not including, the redemption date.

 

Section 3.02 Redemption Procedures.

The provisions of Article III of the Base Indenture shall apply in the case of a redemption pursuant to this Article III.

ARTICLE IV.

[RESERVED]

 

-5-


ARTICLE V.

MISCELLANEOUS

 

Section 5.01 Effect of Eighth Supplemental Indenture.

(a) This Eighth Supplemental Indenture is a supplemental indenture within the meaning of Section 2.02 of the Base Indenture, and the Base Indenture shall (notwithstanding Section 12.12 thereof or Section 5.04 hereof) be read together with this Eighth Supplemental Indenture and shall have the same effect over the Notes of this Series, in the same manner as if the provisions of the Base Indenture and this Eighth Supplemental Indenture were contained in the same instrument.

(b) In all other respects, the Base Indenture is confirmed by the parties hereto as supplemented by the terms of this Eighth Supplemental Indenture.

 

Section 5.02 Governing Law.

THE INDENTURE AND THE NOTES OF THIS SERIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

Section 5.03 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS EIGHTH SUPPLEMENTAL INDENTURE.

 

Section 5.04 No Adverse Interpretation of Other Agreements.

Subject to Section 5.01, this Eighth Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Subject to Section 5.01, any such other indenture, loan or debt agreement may not be used to interpret this Eighth Supplemental Indenture.

 

Section 5.05 Successors.

All agreements of the Company in this Eighth Supplemental Indenture and the Notes of this Series will bind its successors. All agreements of the Trustee in this Eighth Supplemental Indenture will bind its successors. All agreements of each Guarantor in this Eighth Supplemental Indenture will bind its successors, except as otherwise provided in Section 10.04 of the Base Indenture.

 

Section 5.06 Severability.

In case any provision in this Eighth Supplemental Indenture or in the Notes of this Series is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

-6-


Section 5.07 Counterparts.

This Eighth Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Eighth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Eighth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Eighth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

Section 5.08 Table of Contents, Headings, etc.

The Table of Contents and headings of the Articles and Sections of this Eighth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Eighth Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

Section 5.09 Beneficiaries of this Eighth Supplemental Indenture.

Nothing in this Eighth Supplemental Indenture or in the Notes of this Series, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Notes of this Series, any benefit or any legal or equitable right, remedy or claim under this Eighth Supplemental Indenture.

 

Section 5.10 No Personal Liability of Directors, Officers, Employees and Stockholders.

No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes of this Series, this Eighth Supplemental Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes of this Series by accepting a Note of this Series waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes of this Series.

 

Section 5.11 The Trustee.

The Trustee shall not be responsible or liable for the validity or sufficiency of, or the recitals in, this Eighth Supplemental Indenture and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee and the Agents shall be applicable in respect of the Notes of this Series and of this Eighth Supplemental Indenture as fully and with like effect as set forth in full herein.

[Signatures on following page]

 

-7-


IN WITNESS WHEREOF, the parties hereto have caused this Eighth Supplemental Indenture to be duly executed, all as of the date first written above.

 

T-MOBILE USA, INC.
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Senior Vice President & Chief Financial Officer
GUARANTORS:
COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Authorized Person of each of the above named entities

[Signature page to Eighth Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By: Deutsche Bank National Trust Company
By:  

/s/ Rodney Gaughan

Name:   Rodney Gaughan
Title:   Vice President
By:  

/s/ Annie Jaghatspanyan

Name:   Annie Jaghatspanyan
Title:   Vice President

[Signature page to Eighth Supplemental Indenture]


EXHIBIT A

[Form of Face of Initial Note]

[Global Notes Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE [DEPOSITARY NAME], NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [DEPOSITARY] OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY] (AND ANY PAYMENT IS MADE TO [DEPOSITARY], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [DEPOSITARY], HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [DEPOSITARY] OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE EIGHTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Notes Legend for Definitive Notes held by Initial Purchasers]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

[Restricted Notes Legend for Rule 144A Notes or Regulation S Notes]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR

 

Exhibit A-1


PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

[Additional Restricted Notes Legend for Notes Offered in Reliance on Regulation S]

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

[Definitive Notes Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

Exhibit A-2


[CUSIP]

[ISIN]

[Other ID Number]

6.633% Senior Notes due 2021

 

No.                   $            

T-MOBILE USA, INC.

promises to pay to                      or registered assigns,

the principal sum of                      DOLLARS on April 28, 2021.

Interest Payment Dates: January 28 and July 28

Record Dates: January 15 and July 15

 

Exhibit A-3


Dated: ________, 20___

 

T-MOBILE USA, INC.

By:

 

 

  Name:
  Title:

This is one of the Notes referred to in the within-mentioned Indenture:

 

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

 

  Authorized Signatory

 

Exhibit A-4


[Form of Reverse Side of Initial Note]

6.633% Senior Notes due 2021 (the “Notes”)

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Interest (computed on the basis of a 360-day year comprised of twelve 30-day months) shall accrue on the principal amount of this Note from and including April 28, 2013 until maturity at a rate per annum equal to 6.633%.

The Company promises to pay interest semi-annually in arrears on January 28 and July 28 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be July 28, 2013. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If an Interest Payment Date or the maturity date falls on a day that is not a Business Day, the related payment of principal or interest will be made on the next succeeding Business Day as if made on the date the payment was due, and no interest shall accrue for the intervening period.

(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the July 15 or January 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the books and records of the Registrar; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium, if any, on, all Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such money of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Holder of a Definitive Note is not required to surrender such Definitive Note to the Trustee in order to receive payment of principal at maturity. Such Definitive Note, after payment has been made, shall be cancelled without the requirement of presentation.

(3) PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

(4) INDENTURE. The Company issued the Notes pursuant to an Indenture dated as of April 28, 2013 (the “Base Indenture”) among the Company, the Guarantors and the Trustee, as

 

Exhibit A-5


amended and supplemented with respect to the Notes by the Eighth Supplemental Indenture dated as of April 28, 2013 (the “Eighth Supplemental Indenture”; the Base Indenture as amended and supplemented with respect to the Notes by the Eighth Supplemental Indenture, the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and, to the extent so included in the Indenture, to the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured, unsubordinated obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) OPTIONAL REDEMPTION.

(a) On or after April 28, 2017, the Company may redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of the Depositary to process such redemption on the date specified in such notice), at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed to, but not including, the applicable redemption date, if redeemed during the twelve month period beginning on April 28 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date for periods prior to such redemption date:

 

Year

   Percentage  

2017

     103.317

2018

     101.658

2019 and thereafter

     100.000

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

At any time prior to April 28, 2017, the Company may also redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of Depositary to process such redemption on the date specified in such notice), at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date for periods prior to such date of redemption.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to April 28, 2016, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 106.633% of the principal amount, plus accrued and unpaid interest to, but not including, the redemption date, with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of the Company or contributions to the Company’s common equity capital made with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of Parent; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 180 days of the date of the closing of such sale of Equity Interests by the Company or the date of contribution to the Company’s common equity capital made with net cash proceeds of one or more sales of Equity Interests of Parent.

 

Exhibit A-6


Applicable Premium” means, as calculated by the Company and provided to the Trustee, with respect to any Note on any redemption date, the greater of:

(1) 1.0% of the principal amount of the Note; or

(2) the excess of:

(a) the present value at such redemption date of (i) the redemption price of the Note at April 28, 2017 (such redemption price being set forth in the table appearing above under Section 5(a) hereof, plus (ii) all required interest payments due on the Note through April 28, 2017 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

(b) the principal amount of the Note, if greater.

Treasury Rate” means, with respect to any redemption date, the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 28, 2017; provided, however, that if the period from the redemption date to April 28, 2017 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Company will (1) calculate the Treasury Rate on the third business day preceding the applicable redemption date and (2) prior to such redemption date file with the trustee an officer’s certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.

(6) MANDATORY REDEMPTION.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

Exhibit A-7


(7) REPURCHASE AT THE OPTION OF HOLDER.

(a) If there is a Change of Control Triggering Event, the Company will be required to make a Change of Control Offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date for periods prior to such repurchase date pursuant to Section 4.15 of the Base Indenture. Within 30 days following any Change of Control Triggering Event, the Company will send a notice to each Holder and the Trustee describing the transaction or transactions and identify the ratings decline that together constitute the Change of Control Triggering Event, offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent and setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to make an Asset Sale Offer pursuant to Section 4.10 of the Base Indenture to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes (including any Additional Notes) and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds thereof plus accrued and unpaid interest thereon to, but not including, the date of consummation of the purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required by law or applicable stock exchange or depositary requirements. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

(8) NOTICE OF REDEMPTION. Notice of redemption will be sent at least 30 days (or, if any Global Notes are outstanding, such shorter period as may be permitted by the eligibility rules of the Depositary) but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed, except that redemption notices may be sent or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

 

Exhibit A-8


(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer or exchange of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes (i) for a period beginning at the opening of business 15 days immediately preceding the sending of notice of redemption of Notes selected for redemption and ending at the close of business on the day such notice is sent or (ii) during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend and supplement the Indenture as provided in the Base Indenture.

(12) DEFAULTS AND REMEDIES. If an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, in each case, by notice to the Company, may declare the principal of, premium, if any, and accrued but unpaid interest on all the Notes to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary occurs, the principal of, premium, if any, and interest on all the Notes shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.

(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.

 

Exhibit A-9


(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or facsimile signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

 

Exhibit A-10


ASSIGNMENT FORM

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:

 

 

  (Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

  

 

 

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                      to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date:  

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Base Indenture, check the appropriate box below:

¨  Section 4.10                      ¨  Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$        

 

Date:

 

 

Your Signature:

 

 

(Sign exactly as your name appears on the face of this Note)

 

Tax Identification No.:

 

 

Signature Guarantee*:

 

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-12


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES

This certificate relates to $         principal amount of Notes held in definitive form by the undersigned.

The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

¨   (1)    to the Company; or
¨   (2)    to the Registrar for registration in the name of the Holder, without transfer; or
¨   (3)    pursuant to an effective registration statement under the Securities Act of 1933; or
¨   (4)    inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
¨   (5)    outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or
¨   (6)    pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933.

 

Exhibit A-13


Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (4), (5) or (6) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

 

      

 

       Your Signature
Signature Guarantee:     
Date:  

 

    

 

Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee      Signature of Signature Guarantee

 

 

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:  

 

    

 

       NOTICE: To be executed by an
                           executive officer

 

Exhibit A-14


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of
Exchange

   Amount of
decrease in
Principal
Amount of this
Global Note
   Amount of
increase in
Principal
Amount of this
Global Note
   Principal
Amount of this
Global Note
following such
decrease
(or increase)
   Signature of
authorized
officer of
Trustee or
Notes Custodian
           
           
           
           

 

* This schedule should be included only if the Note is issued in global form.

 

Exhibit A-15

EX-4.10 13 d527693dex410.htm EX-4.10 EX-4.10

Exhibit 4.10

 

 

 

 

T-MOBILE USA, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

 

 

6.731% SENIOR NOTES DUE 2022

NINTH SUPPLEMENTAL INDENTURE

Dated as of April 28, 2013

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

 

 

 

 


TABLE OF CONTENTS

 

          Page  
ARTICLE I.   
DEFINITIONS AND INCORPORATION BY REFERENCE   

Section 1.01

   Definitions.      1   

Section 1.02

   Other Definitions.      1   

Section 1.03

   Rules of Construction.      2   
ARTICLE II.   
THE NOTES   

Section 2.01

   Creation of the Notes; Designations.      2   

Section 2.02

   Forms Generally.      2   

Section 2.03

   Title and Terms of Notes.      3   

Section 2.04

   Transfer and Exchange.      4   
ARTICLE III.   
REDEMPTION AND PREPAYMENT   

Section 3.01

   Optional Redemption.      5   

Section 3.02

   Redemption Procedures.      5   
ARTICLE IV.   
PRICING MECHANISM   

Section 4.01

   Pricing Mechanism Definitions.      7   

Section 4.02

   Notice of Rates.      13   
ARTICLE V.   
MISCELLANEOUS   

Section 5.01

   Effect of Ninth Supplemental Indenture.      6   

Section 5.02

   Governing Law.      6   

Section 5.03

   Waiver of Jury Trial.      6   

Section 5.04

   No Adverse Interpretation of Other Agreements.      6   

Section 5.05

   Successors.      6   

Section 5.06

   Severability.      6   

Section 5.07

   Counterparts.      7   

Section 5.08

   Table of Contents, Headings, etc.      7   

Section 5.09

   Beneficiaries of this Ninth Supplemental Indenture.      7   

Section 5.10

   No Personal Liability of Directors, Officers, Employees and Stockholders.      7   

Section 5.11

   The Trustee.      7   

 

-i-


EXHIBITS

 

Exhibit A    Form of Initial Note

 

-ii-


NINTH SUPPLEMENTAL INDENTURE (this “Ninth Supplemental Indenture”), dated as of April 28, 2013 (the “Issue Date”), among T-Mobile USA, Inc., a Delaware corporation, the Guarantors party hereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee.

WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of April 28, 2013 (the “Base Indenture”), between the Company, the Guarantors, and the Trustee, providing for the issuance from time to time of one or more Series of the Company’s Notes;

WHEREAS, Section 2.02 of the Base Indenture permits the forms and terms of the Notes of any Series as permitted in Sections 2.01 and 2.02 of the Base Indenture to be established in a supplemental indenture to the Base Indenture;

WHEREAS, the Company has requested the Trustee to join with it and the Guarantors in the execution of this Ninth Supplemental Indenture in order to supplement the Base Indenture by, among other things, establishing the forms and certain terms of a Series of Notes to be known as the Company’s 6.731% Senior Notes due 2022 and adding certain provisions thereto for the benefit of the Holders of the Notes of such Series;

WHEREAS, the Company has furnished the Trustee with a duly authorized and executed Company Order dated April 28, 2013 authorizing the execution of this Ninth Supplemental Indenture and the issuance of the Notes established hereby; and

WHEREAS, all things necessary to make this Ninth Supplemental Indenture a valid, binding and enforceable agreement of the Company, the Guarantors and the Trustee and a valid supplement to the Base Indenture have been done;

NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes established hereby:

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01 Definitions.

The Base Indenture as amended and supplemented by this Ninth Supplemental Indenture is collectively referred to as the “Indenture.” All capitalized terms which are used herein and not otherwise defined herein are defined in the Base Indenture and are used herein with the same meanings as in the Base Indenture. If a capitalized term is defined both in the Base Indenture and this Ninth Supplemental Indenture, the definition in this Ninth Supplemental Indenture shall apply to the Notes established hereby (and any Note Guarantee in respect thereof).

 

Section 1.02 Other Definitions.

 

Additional Notes

     2.03   

Base Indenture

     Preamble   

Ninth Supplemental Indenture

     Preamble   

Issue Date

     Preamble   


Section 1.03 Rules of Construction.

Unless the context otherwise requires:

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

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

(3) “or” is not exclusive;

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

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

(6) provisions apply to successive events and transactions;

(7) “including” means “including, without limitation”; and

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

ARTICLE II.

THE NOTES

 

Section 2.01 Creation of the Notes; Designations.

In accordance with Section 2.01 of the Base Indenture, the Company hereby creates a Series of Notes issued pursuant to the Indenture. The Notes of this Series shall be known and designated as the “6.731% Senior Notes due 2022” of the Company. The Notes of this Series shall be entitled to the benefits of the Note Guarantee of each Guarantor signatory hereto, or that may hereafter execute a supplemental indenture in accordance with Section 4.17 of the Base Indenture, each such Note Guarantee to be governed by Article X of the Base Indenture (including without limitation the provisions for release of such Note Guarantee in respect of the Notes of this Series pursuant to Section 10.04 of the Base Indenture).

 

Section 2.02 Forms Generally.

(a) General. The Notes of this Series and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes of this Series may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note of this Series will be dated the date of its authentication. The Notes of this Series shall be in minimum denominations of $2,000 and integral multiples of $1,000.

 

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The terms and provisions contained in the Notes of this Series will constitute, and are hereby expressly made, a part of this Ninth Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Ninth Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any such Note conflicts with the express provisions of this Ninth Supplemental Indenture, the provisions of this Ninth Supplemental Indenture shall govern and be controlling.

(b) Global Notes. Notes of this Series issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes of this Series issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes of this Series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes of this Series from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes of this Series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes of this Series represented thereby will be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof.

 

Section 2.03 Title and Terms of Notes.

The aggregate principal amount of Notes of this Series which shall be authenticated and delivered on the Issue Date under the Indenture shall be $1,250,000,000; provided, however, that subject to the Company’s compliance with Section 4.09 of the Base Indenture, the Company from time to time, without giving notice to or seeking the consent of the Holders of Notes of this Series, may issue additional notes (the “Additional Notes”) in any amount having the same terms as the Notes of this Series in all respects, except for the issue date, the issue price, the initial Interest Payment Date and rights under a related registration rights agreement, if any. Any such Additional Notes shall be authenticated by the Trustee upon receipt of a Company Order to that effect, and when so authenticated, will constitute “Notes” for all purposes of the Indenture and will (together with all other Notes of this Series issued under the Indenture) constitute a single Series of Notes under the Indenture; provided that if such Additional Notes are not fungible with the Notes of this Series for U.S. federal income tax purposes, as applicable, as determined by the Company, such Additional Notes may have a separate CUSIP number.

(a) The Notes of this Series issued on the Issue Date will be issued at an issue price of 100% of the principal amount thereof.

(b) The principal amount of the Notes of this Series is due and payable in full on April 28, 2022 unless earlier redeemed.

(c) The Notes of this Series shall bear interest (computed on the basis of a 360-day year comprised of twelve 30-day months) at the rate of 6.731% per annum from and including the Issue Date until maturity or early redemption; and interest will be payable semi-annually in arrears on

 

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July 28 and January 28 of each year (each, an “Interest Payment Date”), commencing July 28, 2013, to the Persons in whose name such Notes of this Series were registered at the close of business on the preceding July 15 or January 15, respectively.

(d) Principal of and interest on the Notes of this Series shall be payable as set forth in Exhibit A.

(e) Other than as provided in Article III of this Ninth Supplemental Indenture, the Notes of this Series shall not be redeemable.

(f) The Notes of this Series shall not be entitled to the benefit of any mandatory redemption or sinking fund.

(g) The Notes of this Series shall not be convertible into any other securities.

(h) The Notes of this Series will be unsubordinated debt securities and will be entitled to unsubordinated Note Guarantees of the Guarantors in accordance with the terms of the Indenture.

(i) The Company initially appoints the Trustee as Registrar and Paying Agent with respect to the Notes of this Series until such time as the Trustee has resigned or a successor has been appointed.

(j) The Notes of this Series will initially be evidenced by one or more Definitive Notes issued in the name of DT.

(k) The Company shall pay principal of, premium, if any, and interest on the Notes of this Series in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.

(l) The terms and provisions of Appendix A of the Base Indenture shall apply to the Notes of this Series.

 

Section 2.04 Transfer and Exchange.

The Notes of this Series shall be issued in registered form and shall be transferable only upon the surrender of a Note of this Series for registration of transfer and in compliance with Appendix A of the Base Indenture.

When Notes of this Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of this Series of other denominations, the Registrar will register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes of this Series at the Registrar’s request. A Holder of Notes of this Series may transfer or exchange Notes of this Series only in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder of Notes of this Series, among other things, to furnish appropriate endorsements or transfer documents. No service charge shall be made for any registration of transfer or

 

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exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

Prior to due presentment of any Note of this Series for registration of transfer, the Company, the Trustee, any agent of the Company or the Trustee, the Paying Agent and the Registrar may deem and treat the Person in whose name a Note of this Series is registered as the absolute owner of such Note for all purposes, including for the purpose of receiving payment of principal of, and any premium and any interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

Any holder of a beneficial interest in a Global Note of this Series shall, by acceptance of such beneficial interest, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (a) the holder of such Global Note (or its agent) or (b) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.

All Notes of this Series issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as such Notes surrendered upon such transfer or exchange.

ARTICLE III.

REDEMPTION AND PREPAYMENT

 

Section 3.01 Optional Redemption.

The Notes of this Series may be redeemed, in whole, or from time to time in part, subject to the conditions and at the redemption prices set forth in Section 5 of the form of Note set forth in Exhibit A hereto, which are hereby incorporated by reference and made part of this Ninth Supplemental Indenture, together with accrued and unpaid interest to, but not including, the redemption date.

 

Section 3.02 Redemption Procedures.

The provisions of Article III of the Base Indenture shall apply in the case of a redemption pursuant to this Article III.

ARTICLE IV.

[RESERVED]

 

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ARTICLE V.

MISCELLANEOUS

 

Section 5.01 Effect of Ninth Supplemental Indenture.

(a) This Ninth Supplemental Indenture is a supplemental indenture within the meaning of Section 2.02 of the Base Indenture, and the Base Indenture shall (notwithstanding Section 12.12 thereof or Section 5.04 hereof) be read together with this Ninth Supplemental Indenture and shall have the same effect over the Notes of this Series, in the same manner as if the provisions of the Base Indenture and this Ninth Supplemental Indenture were contained in the same instrument.

(b) In all other respects, the Base Indenture is confirmed by the parties hereto as supplemented by the terms of this Ninth Supplemental Indenture.

 

Section 5.02 Governing Law.

THE INDENTURE AND THE NOTES OF THIS SERIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

Section 5.03 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NINTH SUPPLEMENTAL INDENTURE.

 

Section 5.04 No Adverse Interpretation of Other Agreements.

Subject to Section 5.01, this Ninth Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Subject to Section 5.01, any such other indenture, loan or debt agreement may not be used to interpret this Ninth Supplemental Indenture.

 

Section 5.05 Successors.

All agreements of the Company in this Ninth Supplemental Indenture and the Notes of this Series will bind its successors. All agreements of the Trustee in this Ninth Supplemental Indenture will bind its successors. All agreements of each Guarantor in this Ninth Supplemental Indenture will bind its successors, except as otherwise provided in Section 10.04 of the Base Indenture.

 

Section 5.06 Severability.

In case any provision in this Ninth Supplemental Indenture or in the Notes of this Series is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

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Section 5.07 Counterparts.

This Ninth Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Ninth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Ninth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Ninth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

Section 5.08 Table of Contents, Headings, etc.

The Table of Contents and headings of the Articles and Sections of this Ninth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Ninth Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

Section 5.09 Beneficiaries of this Ninth Supplemental Indenture.

Nothing in this Ninth Supplemental Indenture or in the Notes of this Series, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Notes of this Series, any benefit or any legal or equitable right, remedy or claim under this Ninth Supplemental Indenture.

 

Section 5.10 No Personal Liability of Directors, Officers, Employees and Stockholders.

No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes of this Series, this Ninth Supplemental Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes of this Series by accepting a Note of this Series waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes of this Series.

 

Section 5.11 The Trustee.

The Trustee shall not be responsible or liable for the validity or sufficiency of, or the recitals in, this Ninth Supplemental Indenture and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee and the Agents shall be applicable in respect of the Notes of this Series and of this Ninth Supplemental Indenture as fully and with like effect as set forth in full herein.

[Signatures on following page]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Ninth Supplemental Indenture to be duly executed, all as of the date first written above.

 

T-MOBILE USA, INC.
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Senior Vice President & Chief Financial Officer
GUARANTORS:
COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Authorized Person of each of the above named entities

[Signature page to Ninth Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

/s/ Rodney Gaughan

Name:   Rodney Gaughan
Title:   Vice President
By:  

/s/ Annie Jaghatspanyan

Name:   Annie Jaghatspanyan
Title:   Vice President

[Signature page to Ninth Supplemental Indenture]


EXHIBIT A

[Form of Face of Initial Note]

[Global Notes Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE [DEPOSITARY NAME], NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [DEPOSITARY] OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY] (AND ANY PAYMENT IS MADE TO [DEPOSITARY], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [DEPOSITARY], HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [DEPOSITARY] OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE NINTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Notes Legend for Definitive Notes held by Initial Purchasers]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

[Restricted Notes Legend for Rule 144A Notes or Regulation S Notes]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR

 

Exhibit A-1


PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

[Additional Restricted Notes Legend for Notes Offered in Reliance on Regulation S]

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

[Definitive Notes Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

Exhibit A-2


[CUSIP]

[ISIN]

[Other ID Number]

6.731% Senior Notes due 2022

 

No.                   $            

T-MOBILE USA, INC.

promises to pay to                      or registered assigns,

the principal sum of                      DOLLARS on April 28, 2022.

Interest Payment Dates: January 28 and July 28

Record Dates: January 15 and July 15

 

Exhibit A-3


Dated:             , 20

 

T-MOBILE USA, INC.
By:  

 

  Name:
  Title:

This is one of the Notes referred to in the within-mentioned Indenture:

 

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee

By:   Deutsche Bank National Trust Company
By:  

 

  Authorized Signatory

 

Exhibit A-4


[Form of Reverse Side of Initial Note]

6.731% Senior Notes due 2022 (the “Notes”)

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Interest (computed on the basis of a 360-day year comprised of twelve 30-day months) shall accrue on the principal amount of this Note from and including April 28, 2013 until maturity at a rate per annum equal to 6.731%.

The Company promises to pay interest semi-annually in arrears on January 28 and July 28 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be July 28, 2013. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If an Interest Payment Date or the maturity date falls on a day that is not a Business Day, the related payment of principal or interest will be made on the next succeeding Business Day as if made on the date the payment was due, and no interest shall accrue for the intervening period.

(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the July 15 or January 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the books and records of the Registrar; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium, if any, on, all Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such money of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Holder of a Definitive Note is not required to surrender such Definitive Note to the Trustee in order to receive payment of principal at maturity. Such Definitive Note, after payment has been made, shall be cancelled without the requirement of presentation.

(3) PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

(4) INDENTURE. The Company issued the Notes pursuant to an Indenture dated as of April 28, 2013 (the “Base Indenture”) among the Company, the Guarantors and the Trustee, as

 

Exhibit A-5


amended and supplemented with respect to the Notes by the Ninth Supplemental Indenture dated as of April 28, 2013 (the “Ninth Supplemental Indenture”; the Base Indenture as amended and supplemented with respect to the Notes by the Ninth Supplemental Indenture, the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and, to the extent so included in the Indenture, to the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured, unsubordinated obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) OPTIONAL REDEMPTION.

(a) On or after April 28, 2017, the Company may redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of the Depositary to process such redemption on the date specified in such notice), at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed to, but not including, the applicable redemption date, if redeemed during the twelve month period beginning on April 28 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date for periods prior to such redemption date:

 

Year

   Percentage  

2017

     103.366

2018

     102.244

2019

     101.122

2020 and thereafter

     100.000

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

At any time prior to April 28, 2017, the Company may also redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of Depositary to process such redemption on the date specified in such notice), at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date for periods prior to such date of redemption.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to April 28, 2016, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 106.731% of the principal amount, plus accrued and unpaid interest to, but not including, the redemption date, with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified

 

Exhibit A-6


Stock) of the Company or contributions to the Company’s common equity capital made with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of Parent; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 180 days of the date of the closing of such sale of Equity Interests by the Company or the date of contribution to the Company’s common equity capital made with net cash proceeds of one or more sales of Equity Interests of Parent.

Applicable Premium” means, as calculated by the Company and provided to the Trustee, with respect to any Note on any redemption date, the greater of:

(1) 1.0% of the principal amount of the Note; or

(2) the excess of:

(a) the present value at such redemption date of (i) the redemption price of the Note at April 28, 2017 (such redemption price being set forth in the table appearing above under Section 5(a) hereof, plus (ii) all required interest payments due on the Note through April 28, 2017 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

(b) the principal amount of the Note, if greater.

Treasury Rate” means, with respect to any redemption date, the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 28, 2017; provided, however, that if the period from the redemption date to April 28, 2017 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Company will (1) calculate the Treasury Rate on the third business day preceding the applicable redemption date and (2) prior to such redemption date file with the trustee an officer’s certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.

(6) MANDATORY REDEMPTION.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

Exhibit A-7


(7) REPURCHASE AT THE OPTION OF HOLDER.

(a) If there is a Change of Control Triggering Event, the Company will be required to make a Change of Control Offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date for periods prior to such repurchase date pursuant to Section 4.15 of the Base Indenture. Within 30 days following any Change of Control Triggering Event, the Company will send a notice to each Holder and the Trustee describing the transaction or transactions and identify the ratings decline that together constitute the Change of Control Triggering Event, offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent and setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to make an Asset Sale Offer pursuant to Section 4.10 of the Base Indenture to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes (including any Additional Notes) and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds thereof plus accrued and unpaid interest thereon to, but not including, the date of consummation of the purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required by law or applicable stock exchange or depositary requirements. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

(8) NOTICE OF REDEMPTION. Notice of redemption will be sent at least 30 days (or, if any Global Notes are outstanding, such shorter period as may be permitted by the eligibility rules of the Depositary) but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed, except that redemption notices may be sent or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

 

Exhibit A-8


(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer or exchange of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes (i) for a period beginning at the opening of business 15 days immediately preceding the sending of notice of redemption of Notes selected for redemption and ending at the close of business on the day such notice is sent or (ii) during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend and supplement the Indenture as provided in the Base Indenture.

(12) DEFAULTS AND REMEDIES. If an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, in each case, by notice to the Company, may declare the principal of, premium, if any, and accrued but unpaid interest on all the Notes to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary occurs, the principal of, premium, if any, and interest on all the Notes shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.

(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.

 

Exhibit A-9


(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or facsimile signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

 

Exhibit A-10


ASSIGNMENT FORM

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:

 

 

  (Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                      to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date:  

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Base Indenture, check the appropriate box below:

¨  Section 4.10                     ¨  Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$        

 

Date:  

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this Note)

 

Tax Identification No.:  

 

 
Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-12


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES

This certificate relates to $         principal amount of Notes held in definitive form by the undersigned.

The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

¨    (1)    to the Company; or
¨    (2)    to the Registrar for registration in the name of the Holder, without transfer; or
¨    (3)    pursuant to an effective registration statement under the Securities Act of 1933; or
¨    (4)    inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
¨    (5)    outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or
¨    (6)    pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933.

 

Exhibit A-13


Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (4), (5) or (6) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

 

      

 

       Your Signature
Signature Guarantee:     
Date:  

 

    

 

Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee      Signature of Signature Guarantee

 

 

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:  

 

    

 

       NOTICE: To be executed by an
                           executive officer

 

Exhibit A-14


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of

Exchange

   Amount of
decrease in
Principal
Amount of this
Global Note
   Amount of
increase in
Principal
Amount of this
Global Note
   Principal
Amount of this
Global Note
following such
decrease
(or increase)
   Signature of
authorized
officer of
Trustee or
Notes Custodian
           
           
           
           

 

* This schedule should be included only if the Note is issued in global form.

 

Exhibit A-15

EX-4.11 14 d527693dex411.htm EX-4.11 EX-4.11

Exhibit 4.11

 

 

 

 

T-MOBILE USA, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

 

 

6.836% SENIOR NOTES DUE 2023

TENTH SUPPLEMENTAL INDENTURE

Dated as of April 28, 2013

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

 

 

 


TABLE OF CONTENTS

 

          Page  

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

  

  

Section 1.01    Definitions.      1   
Section 1.02    Other Definitions.      1   
Section 1.03    Rules of Construction.      2   

ARTICLE II.

THE NOTES

  

  

Section 2.01    Creation of the Notes; Designations.      2   
Section 2.02    Forms Generally.      2   
Section 2.03    Title and Terms of Notes.      3   
Section 2.04    Transfer and Exchange.      4   

ARTICLE III.

REDEMPTION AND PREPAYMENT

  

  

Section 3.01    Optional Redemption.      5   
Section 3.02    Redemption Procedures.      5   

ARTICLE IV.

PRICING MECHANISM

  

  

Section 4.01    Pricing Mechanism Definitions.      7   
Section 4.02    Notice of Rates.      13   

ARTICLE V.

MISCELLANEOUS

  

  

Section 5.01    Effect of Tenth Supplemental Indenture.      6   
Section 5.02    Governing Law.      6   
Section 5.03    Waiver of Jury Trial.      6   
Section 5.04    No Adverse Interpretation of Other Agreements.      6   
Section 5.05    Successors.      6   
Section 5.06    Severability.      6   
Section 5.07    Counterparts.      7   
Section 5.08    Table of Contents, Headings, etc.      7   
Section 5.09    Beneficiaries of this Tenth Supplemental Indenture.      7   
Section 5.10    No Personal Liability of Directors, Officers, Employees and Stockholders.      7   
Section 5.11    The Trustee.      7   

 

-i-


EXHIBITS

 

Exhibit A

   Form of Initial Note

 

-ii-


TENTH SUPPLEMENTAL INDENTURE (this “Tenth Supplemental Indenture”), dated as of April 28, 2013 (the “Issue Date”), among T-Mobile USA, Inc., a Delaware corporation, the Guarantors party hereto and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee.

WHEREAS, the Company has heretofore executed and delivered an Indenture, dated as of April 28, 2013 (the “Base Indenture”), between the Company, the Guarantors, and the Trustee, providing for the issuance from time to time of one or more Series of the Company’s Notes;

WHEREAS, Section 2.02 of the Base Indenture permits the forms and terms of the Notes of any Series as permitted in Sections 2.01 and 2.02 of the Base Indenture to be established in a supplemental indenture to the Base Indenture;

WHEREAS, the Company has requested the Trustee to join with it and the Guarantors in the execution of this Tenth Supplemental Indenture in order to supplement the Base Indenture by, among other things, establishing the forms and certain terms of a Series of Notes to be known as the Company’s 6.836% Senior Notes due 2023 and adding certain provisions thereto for the benefit of the Holders of the Notes of such Series;

WHEREAS, the Company has furnished the Trustee with a duly authorized and executed Company Order dated April 28, 2013 authorizing the execution of this Tenth Supplemental Indenture and the issuance of the Notes established hereby; and

WHEREAS, all things necessary to make this Tenth Supplemental Indenture a valid, binding and enforceable agreement of the Company, the Guarantors and the Trustee and a valid supplement to the Base Indenture have been done;

NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes established hereby:

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01 Definitions.

The Base Indenture as amended and supplemented by this Tenth Supplemental Indenture is collectively referred to as the “Indenture.” All capitalized terms which are used herein and not otherwise defined herein are defined in the Base Indenture and are used herein with the same meanings as in the Base Indenture. If a capitalized term is defined both in the Base Indenture and this Tenth Supplemental Indenture, the definition in this Tenth Supplemental Indenture shall apply to the Notes established hereby (and any Note Guarantee in respect thereof).

 

Section 1.02 Other Definitions.

 

Additional Notes

   2.03

Base Indenture

   Preamble

Tenth Supplemental Indenture

   Preamble

Issue Date

   Preamble


Section 1.03 Rules of Construction.

Unless the context otherwise requires:

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

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

(3) “or” is not exclusive;

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

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

(6) provisions apply to successive events and transactions;

(7) “including” means “including, without limitation”; and

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

ARTICLE II.

THE NOTES

 

Section 2.01 Creation of the Notes; Designations.

In accordance with Section 2.01 of the Base Indenture, the Company hereby creates a Series of Notes issued pursuant to the Indenture. The Notes of this Series shall be known and designated as the “6.836% Senior Notes due 2023” of the Company. The Notes of this Series shall be entitled to the benefits of the Note Guarantee of each Guarantor signatory hereto, or that may hereafter execute a supplemental indenture in accordance with Section 4.17 of the Base Indenture, each such Note Guarantee to be governed by Article X of the Base Indenture (including without limitation the provisions for release of such Note Guarantee in respect of the Notes of this Series pursuant to Section 10.04 of the Base Indenture).

 

Section 2.02 Forms Generally.

(a) General. The Notes of this Series and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes of this Series may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note of this Series will be dated the date of its authentication. The Notes of this Series shall be in minimum denominations of $2,000 and integral multiples of $1,000.

 

-2-


The terms and provisions contained in the Notes of this Series will constitute, and are hereby expressly made, a part of this Tenth Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Tenth Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any such Note conflicts with the express provisions of this Tenth Supplemental Indenture, the provisions of this Tenth Supplemental Indenture shall govern and be controlling.

(b) Global Notes. Notes of this Series issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes of this Series issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes of this Series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes of this Series from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes of this Series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes of this Series represented thereby will be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof.

 

Section 2.03 Title and Terms of Notes.

The aggregate principal amount of Notes of this Series which shall be authenticated and delivered on the Issue Date under the Indenture shall be $600,000,000; provided, however, that subject to the Company’s compliance with Section 4.09 of the Base Indenture, the Company from time to time, without giving notice to or seeking the consent of the Holders of Notes of this Series, may issue additional notes (the “Additional Notes”) in any amount having the same terms as the Notes of this Series in all respects, except for the issue date, the issue price, the initial Interest Payment Date and rights under a related registration rights agreement, if any. Any such Additional Notes shall be authenticated by the Trustee upon receipt of a Company Order to that effect, and when so authenticated, will constitute “Notes” for all purposes of the Indenture and will (together with all other Notes of this Series issued under the Indenture) constitute a single Series of Notes under the Indenture; provided that if such Additional Notes are not fungible with the Notes of this Series for U.S. federal income tax purposes, as applicable, as determined by the Company, such Additional Notes may have a separate CUSIP number.

(a) The Notes of this Series issued on the Issue Date will be issued at an issue price of 100% of the principal amount thereof.

(b) The principal amount of the Notes of this Series is due and payable in full on April 28, 2023 unless earlier redeemed.

(c) The Notes of this Series shall bear interest (computed on the basis of a 360-day year comprised of twelve 30-day months) at the rate of 6.836% per annum from and including the Issue Date until maturity or early redemption; and interest will be payable semi-annually in arrears on

 

-3-


July 28 and January 28 of each year (each, an “Interest Payment Date”), commencing July 28, 2013, to the Persons in whose name such Notes of this Series were registered at the close of business on the preceding July 15 or January 15, respectively.

(d) Principal of and interest on the Notes of this Series shall be payable as set forth in Exhibit A.

(e) Other than as provided in Article III of this Tenth Supplemental Indenture, the Notes of this Series shall not be redeemable.

(f) The Notes of this Series shall not be entitled to the benefit of any mandatory redemption or sinking fund.

(g) The Notes of this Series shall not be convertible into any other securities.

(h) The Notes of this Series will be unsubordinated debt securities and will be entitled to unsubordinated Note Guarantees of the Guarantors in accordance with the terms of the Indenture.

(i) The Company initially appoints the Trustee as Registrar and Paying Agent with respect to the Notes of this Series until such time as the Trustee has resigned or a successor has been appointed.

(j) The Notes of this Series will initially be evidenced by one or more Definitive Notes issued in the name of DT.

(k) The Company shall pay principal of, premium, if any, and interest on the Notes of this Series in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.

(l) The terms and provisions of Appendix A of the Base Indenture shall apply to the Notes of this Series.

 

Section 2.04 Transfer and Exchange.

The Notes of this Series shall be issued in registered form and shall be transferable only upon the surrender of a Note of this Series for registration of transfer and in compliance with Appendix A of the Base Indenture.

When Notes of this Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of this Series of other denominations, the Registrar will register the transfer or make the exchange as requested if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes of this Series at the Registrar’s request. A Holder of Notes of this Series may transfer or exchange Notes of this Series only in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder of Notes of this Series, among other things, to furnish appropriate endorsements or transfer documents. No service charge shall be made for any registration of transfer or

 

-4-


exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

Prior to due presentment of any Note of this Series for registration of transfer, the Company, the Trustee, any agent of the Company or the Trustee, the Paying Agent and the Registrar may deem and treat the Person in whose name a Note of this Series is registered as the absolute owner of such Note for all purposes, including for the purpose of receiving payment of principal of, and any premium and any interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

Any holder of a beneficial interest in a Global Note of this Series shall, by acceptance of such beneficial interest, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (a) the holder of such Global Note (or its agent) or (b) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.

All Notes of this Series issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as such Notes surrendered upon such transfer or exchange.

ARTICLE III.

REDEMPTION AND PREPAYMENT

 

Section 3.01 Optional Redemption.

The Notes of this Series may be redeemed, in whole, or from time to time in part, subject to the conditions and at the redemption prices set forth in Section 5 of the form of Note set forth in Exhibit A hereto, which are hereby incorporated by reference and made part of this Tenth Supplemental Indenture, together with accrued and unpaid interest to, but not including, the redemption date.

 

Section 3.02 Redemption Procedures.

The provisions of Article III of the Base Indenture shall apply in the case of a redemption pursuant to this Article III.

ARTICLE IV.

[RESERVED]

 

-5-


ARTICLE V.

MISCELLANEOUS

 

Section 5.01 Effect of Tenth Supplemental Indenture.

(a) This Tenth Supplemental Indenture is a supplemental indenture within the meaning of Section 2.02 of the Base Indenture, and the Base Indenture shall (notwithstanding Section 12.12 thereof or Section 5.04 hereof) be read together with this Tenth Supplemental Indenture and shall have the same effect over the Notes of this Series, in the same manner as if the provisions of the Base Indenture and this Tenth Supplemental Indenture were contained in the same instrument.

(b) In all other respects, the Base Indenture is confirmed by the parties hereto as supplemented by the terms of this Tenth Supplemental Indenture.

 

Section 5.02 Governing Law.

THE INDENTURE AND THE NOTES OF THIS SERIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

Section 5.03 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS TENTH SUPPLEMENTAL INDENTURE.

 

Section 5.04 No Adverse Interpretation of Other Agreements.

Subject to Section 5.01, this Tenth Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Subject to Section 5.01, any such other indenture, loan or debt agreement may not be used to interpret this Tenth Supplemental Indenture.

 

Section 5.05 Successors.

All agreements of the Company in this Tenth Supplemental Indenture and the Notes of this Series will bind its successors. All agreements of the Trustee in this Tenth Supplemental Indenture will bind its successors. All agreements of each Guarantor in this Tenth Supplemental Indenture will bind its successors, except as otherwise provided in Section 10.04 of the Base Indenture.

 

Section 5.06 Severability.

In case any provision in this Tenth Supplemental Indenture or in the Notes of this Series is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

-6-


Section 5.07 Counterparts.

This Tenth Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Tenth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Tenth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Tenth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes.

 

Section 5.08 Table of Contents, Headings, etc.

The Table of Contents and headings of the Articles and Sections of this Tenth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Tenth Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

Section 5.09 Beneficiaries of this Tenth Supplemental Indenture.

Nothing in this Tenth Supplemental Indenture or in the Notes of this Series, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Notes of this Series, any benefit or any legal or equitable right, remedy or claim under this Tenth Supplemental Indenture.

 

Section 5.10 No Personal Liability of Directors, Officers, Employees and Stockholders.

No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes of this Series, this Tenth Supplemental Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes of this Series by accepting a Note of this Series waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes of this Series.

 

Section 5.11 The Trustee.

The Trustee shall not be responsible or liable for the validity or sufficiency of, or the recitals in, this Tenth Supplemental Indenture and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee and the Agents shall be applicable in respect of the Notes of this Series and of this Tenth Supplemental Indenture as fully and with like effect as set forth in full herein.

[Signatures on following page]

 

-7-


IN WITNESS WHEREOF, the parties hereto have caused this Tenth Supplemental Indenture to be duly executed, all as of the date first written above.

 

T-MOBILE USA, INC.
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Senior Vice President & Chief Financial Officer
GUARANTORS:
COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ Michael Morgan

Name:   Michael Morgan
Title:   Authorized Person of each of the above named entities

[Signature page to Tenth Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

/s/ Rodney Gaughan

Name:   Rodney Gaughan
Title:   Vice President
By:  

/s/ Annie Jaghatspanyan

Name:   Annie Jaghatspanyan
Title:   Vice President

[Signature page to Tenth Supplemental Indenture]


EXHIBIT A

[Form of Face of Initial Note]

[Global Notes Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE [DEPOSITARY NAME], NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [DEPOSITARY] OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY] (AND ANY PAYMENT IS MADE TO [DEPOSITARY], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [DEPOSITARY], HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF [DEPOSITARY] OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Notes Legend for Definitive Notes held by Initial Purchasers]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

[Restricted Notes Legend for Rule 144A Notes or Regulation S Notes]

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR

 

Exhibit A-1


PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

[Additional Restricted Notes Legend for Notes Offered in Reliance on Regulation S]

BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.

[Definitive Notes Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

Exhibit A-2


[CUSIP]

[ISIN]

[Other ID Number]

6.836% Senior Notes due 2023

 

No.                   $            

T-MOBILE USA, INC.

promises to pay to                      or registered assigns,

the principal sum of                      DOLLARS on April 28, 2023.

Interest Payment Dates: January 28 and July 28

Record Dates: January 15 and July 15

 

Exhibit A-3


Dated: ________, 20___

 

T-MOBILE USA, INC.

By:

 

 

  Name:
  Title:

This is one of the Notes referred to in the within-mentioned Indenture:

 

DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee

By:

  Deutsche Bank National Trust Company

By:

 

 

  Authorized Signatory

 

Exhibit A-4


[Form of Reverse Side of Initial Note]

6.836% Senior Notes due 2023 (the “Notes”)

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) INTEREST. Interest (computed on the basis of a 360-day year comprised of twelve 30-day months) shall accrue on the principal amount of this Note from and including April 28, 2013 until maturity at a rate per annum equal to 6.836%.

The Company promises to pay interest semi-annually in arrears on January 28 and July 28 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be July 28, 2013. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If an Interest Payment Date or the maturity date falls on a day that is not a Business Day, the related payment of principal or interest will be made on the next succeeding Business Day as if made on the date the payment was due, and no interest shall accrue for the intervening period.

(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the July 15 or January 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.14 of the Base Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the books and records of the Registrar; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium, if any, on, all Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such money of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Holder of a Definitive Note is not required to surrender such Definitive Note to the Trustee in order to receive payment of principal at maturity. Such Definitive Note, after payment has been made, shall be cancelled without the requirement of presentation.

(3) PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

(4) INDENTURE. The Company issued the Notes pursuant to an Indenture dated as of April 28, 2013 (the “Base Indenture”) among the Company, the Guarantors and the Trustee, as

 

Exhibit A-5


amended and supplemented with respect to the Notes by the Tenth Supplemental Indenture dated as of April 28, 2013 (the “Tenth Supplemental Indenture”; the Base Indenture as amended and supplemented with respect to the Notes by the Tenth Supplemental Indenture, the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and, to the extent so included in the Indenture, to the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured, unsubordinated obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) OPTIONAL REDEMPTION.

(a) On or after April 28, 2018, the Company may redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of the Depositary to process such redemption on the date specified in such notice), at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed to, but not including, the applicable redemption date, if redeemed during the twelve month period beginning on April 28 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date for periods prior to such redemption date:

 

Year

   Percentage  

2018

     103.418

2019

     102.279

2020

     101.139

2021 and thereafter

     100.000

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

At any time prior to April 28, 2018, the Company may also redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice (in the case of redemptions upon less than 30 days’ notice, if any Global Notes are outstanding, subject to the ability of Depositary to process such redemption on the date specified in such notice), at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date for periods prior to such date of redemption.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to April 28, 2016, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 106.836% of the principal amount, plus accrued and unpaid interest to, but not including, the redemption date, with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified

 

Exhibit A-6


Stock) of the Company or contributions to the Company’s common equity capital made with the net cash proceeds of one or more sales of Equity Interests (other than Disqualified Stock) of Parent; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 180 days of the date of the closing of such sale of Equity Interests by the Company or the date of contribution to the Company’s common equity capital made with net cash proceeds of one or more sales of Equity Interests of Parent.

Applicable Premium” means, as calculated by the Company and provided to the Trustee, with respect to any Note on any redemption date, the greater of:

(1) 1.0% of the principal amount of the Note; or

(2) the excess of:

(a) the present value at such redemption date of (i) the redemption price of the Note at April 28, 2018 (such redemption price being set forth in the table appearing above under Section 5(a) hereof, plus (ii) all required interest payments due on the Note through April 28, 2018 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

(b) the principal amount of the Note, if greater.

Treasury Rate” means, with respect to any redemption date, the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 28, 2018; provided, however, that if the period from the redemption date to April 28, 2018 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Company will (1) calculate the Treasury Rate on the third business day preceding the applicable redemption date and (2) prior to such redemption date file with the trustee an officer’s certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.

(6) MANDATORY REDEMPTION.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

Exhibit A-7


(7) REPURCHASE AT THE OPTION OF HOLDER.

(a) If there is a Change of Control Triggering Event, the Company will be required to make a Change of Control Offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date for periods prior to such repurchase date pursuant to Section 4.15 of the Base Indenture. Within 30 days following any Change of Control Triggering Event, the Company will send a notice to each Holder and the Trustee describing the transaction or transactions and identify the ratings decline that together constitute the Change of Control Triggering Event, offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent and setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within twenty days of each date on which the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $100.0 million) to make an Asset Sale Offer pursuant to Section 4.10 of the Base Indenture to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes (including any Additional Notes) and purchase or redeem such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds thereof plus accrued and unpaid interest thereon to, but not including, the date of consummation of the purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Company shall select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis unless otherwise required by law or applicable stock exchange or depositary requirements. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

(8) NOTICE OF REDEMPTION. Notice of redemption will be sent at least 30 days (or, if any Global Notes are outstanding, such shorter period as may be permitted by the eligibility rules of the Depositary) but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed, except that redemption notices may be sent or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

 

Exhibit A-8


(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer or exchange of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes (i) for a period beginning at the opening of business 15 days immediately preceding the sending of notice of redemption of Notes selected for redemption and ending at the close of business on the day such notice is sent or (ii) during the period between a record date and the corresponding Interest Payment Date.

(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend and supplement the Indenture as provided in the Base Indenture.

(12) DEFAULTS AND REMEDIES. If an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes, in each case, by notice to the Company, may declare the principal of, premium, if any, and accrued but unpaid interest on all the Notes to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary occurs, the principal of, premium, if any, and interest on all the Notes shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.

(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee.

 

Exhibit A-9


(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, member, manager, partner, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or facsimile signature of the Trustee or an authenticating agent.

(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(17) GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

 

Exhibit A-10


ASSIGNMENT FORM

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:

 

 

  (Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

  

 

 

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                      to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date:  

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Base Indenture, check the appropriate box below:

¨  Section 4.10                     ¨  Section 4.15

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

$        

 

Date:  

 

Your Signature:  

 

(Sign exactly as your name appears on the face of this Note)

 

Tax Identification No.:  

 

Signature Guarantee*:  

 

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

Exhibit A-12


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES

This certificate relates to $            principal amount of Notes held in definitive form by the undersigned.

The undersigned has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

¨    (1)    to the Company; or
¨    (2)    to the Registrar for registration in the name of the Holder, without transfer; or
¨    (3)    pursuant to an effective registration statement under the Securities Act of 1933; or
¨    (4)    inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
¨    (5)    outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or
¨    (6)    pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933.

 

Exhibit A-13


Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (4), (5) or (6) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

 

      

 

       Your Signature
Signature Guarantee:     
Date:  

 

    

 

Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee      Signature of Signature Guarantee

 

 

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:  

 

    

 

       NOTICE: To be executed by an
                           executive officer

 

Exhibit A-14


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of

Exchange

   Amount of
decrease in
Principal
Amount of this
Global Note
   Amount of
increase in
Principal
Amount of this
Global Note
   Principal
Amount of this
Global Note
following such
decrease
(or increase)
   Signature of
authorized
officer of
Trustee or
Notes Custodian
           
           
           
           

 

* This schedule should be included only if the Note is issued in global form.

 

Exhibit A-15

EX-4.12 15 d527693dex412.htm EX-4.12 EX-4.12

Exhibit 4.12

ELEVENTH SUPPLEMENTAL INDENTURE (this “Eleventh Supplemental Indenture”), dated as of May 1, 2013, among T-Mobile USA, Inc. (the “Company”), the new Guarantors party hereto (the “New Guarantors”), the existing Guarantors party hereto (the “Existing Guarantors”), and Deutsche Bank Trust Company Americas, as trustee under the Indenture referred to below (the “Trustee”).

W I T N E S S E T H

WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of April 28, 2013 (the “Base Indenture”) as amended and supplemented with respect to the Company’s (a) Senior Reset Notes due 2019 pursuant to the First Supplemental Indenture, (b) Senior Reset Notes due 2020 pursuant to the Second Supplemental Indenture, (c) Senior Reset Notes due 2021 pursuant to the Third Supplemental Indenture, (d) Senior Reset Notes due 2022 pursuant to the Fourth Supplemental Indenture, (e) Senior Reset Notes due 2023 pursuant to the Fifth Supplemental Indenture, (f) 6.464% Senior Notes due 2019 pursuant to the Sixth Supplemental Indenture, (g) 6.542% Senior Notes due 2020 pursuant to the Seventh Supplemental Indenture, (h) 6.633% Senior Notes due 2021 pursuant to the Eighth Supplemental Indenture, (i) 6.731% Senior Notes due 2022 pursuant to the Ninth Supplemental Indenture, and (j) 6.836% Senior Notes due 2023 pursuant to the Tenth Supplemental Indenture, each dated as of April 28, 2013 (all such Notes, the “Notes”) (the Base Indenture as so amended and supplemented, the “Indenture”);

WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the Company is required to cause the New Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which each of the New Guarantors shall become a Guarantor of the applicable Notes on the terms and conditions set forth herein; and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company, the Existing Guarantors and the New Guarantors are authorized to execute and deliver this Eleventh Supplemental Indenture;

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the New Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the applicable Notes as follows:

1. Defined Terms. As used in this Eleventh Supplemental Indenture, capitalized terms used but not defined herein shall have the meaning set forth in the Indenture. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Eleventh Supplemental Indenture refer to this Eleventh Supplemental Indenture as a whole and not to any particular section hereof.

2. Agreement to Guarantee. The New Guarantors hereby agree, jointly and severally, to unconditionally guarantee the Company’s obligations under the Notes and the Indenture on the terms and subject to the conditions set forth in the Indenture including, but not limited to, Article X thereof.


3. Notices. All notices or other communications to the Company and the New Guarantors shall be given as provided in Section 12.02 of the Indenture.

4. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly contemplated hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

5. Governing Law. THIS ELEVENTH SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

6. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Eleventh Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the New Guarantors and the Company.

7. Counterpart Originals. This Eleventh Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Eleventh Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Eleventh Supplemental Indenture as to the parties hereto and may be used in lieu of the original Eleventh Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes. The parties may sign any number of copies of this Eleventh Supplemental Indenture. Each signed copy will be an original, but all of them together represent the same agreement.

8. Headings, etc. The headings of the Articles and Sections of this Eleventh Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Eleventh Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

[Signatures on following page]


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

 

T-MOBILE US, INC.
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President, Chief Financial Officer, Chief Accounting Officer, and Treasurer

Signature Page to Eleventh Supplemental Indenture


METROPCS AWS, LLC
METROPCS CALIFORNIA, LLC
METROPCS FLORIDA, LLC
METROPCS GEORGIA, LLC
METROPCS MASSACHUSETTS, LLC
METROPCS MICHIGAN, INC.
METROPCS NEVADA, LLC
METROPCS NEW YORK, LLC
METROPCS PENNSYLVANIA, LLC
METROPCS TEXAS, LLC
METROPCS 700 MHz, LLC
METROPCS NETWORKS, LLC
METROPCS NETWORKS CALIFORNIA, LLC
METROPCS NETWORKS FLORIDA, LLC
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President, Chief Financial Officer, Chief Accounting Officer, and Treasurer

Signature Page to Eleventh Supplemental Indenture


T-MOBILE USA, INC.
By:  

/s/ David A. Miller

  Name:   David A. Miller
  Title:   Executive Vice President, General Counsel, and Secretary

Signature Page to Eleventh Supplemental Indenture


COOK INLET/VS GSM IV PCS HOLDINGS, LLC
GSV LLC
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL/MEMPHIS, INC.
SUNCOM WIRELESS HOLDINGS, INC.
SUNCOM WIRELESS INVESTMENT COMPANY LLC
SUNCOM WIRELESS LICENSE COMPANY, LLC
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
SUNCOM WIRELESS OPERATING COMPANY, L.L.C.
SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.
SUNCOM WIRELESS, INC.
T-MOBILE CENTRAL LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV CORPORATION
T-MOBILE WEST LLC
TRITON NETWORK NEWCO, LLC
TRITON PCS FINANCE COMPANY, INC.
TRITON PCS HOLDINGS COMPANY L.L.C.
VOICESTREAM PCS I IOWA CORPORATION
VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.
VOICESTREAM PITTSBURGH, L.P.
WALLC LICENSE, LLC
WIRELESS ALLIANCE, LLC
By:  

/s/ David A. Miller

  Name:   David A. Miller
  Title:   Authorized Person for each of the above named entities

Signature Page to Eleventh Supplemental Indenture


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:   Deutsche Bank National Trust Company
By:  

/s/ Rodney Gaughan

  Authorized Signatory
  Vice President
By:  

/s/ Annie Jaghatspanyan

  Authorized Signatory
  Vice President

Signature Page to Eleventh Supplemental Indenture

EX-4.13 16 d527693dex413.htm EX-4.13 EX-4.13

Exhibit 4.13

NOTEHOLDER AGREEMENT

by and between

DEUTSCHE TELEKOM AG

and

T-MOBILE USA, INC.

DATED AS OF APRIL 28, 2013


TABLE OF CONTENTS

 

          Page  

ARTICLE I DEFINITIONS

     2   

Section 1.1

  Definitions      2   

Section 1.2

  Other Definitional Provisions      5   

ARTICLE II REPRESENTATIONS AND WARRANTIES

     6   

Section 2.1

  Representations and Warranties of the Company      6   

Section 2.2

  Representations and Warranties of DT      6   

ARTICLE III DT REDEMPTION EVENT

     7   

Section 3.1

  DT Redemption Event      7   

Section 3.2

  Notices      7   

Section 3.3

  Payment      8   

ARTICLE IV SPECIFIED CHANGE OF CONTROL

     8   

Section 4.1

  Limitation on Tendering      8   

Section 4.2

  Transferees      8   

ARTICLE V AMENDMENTS

     8   

Section 5.1

  Amendments      8   

ARTICLE VI RESTRICTIONS ON OPTIONAL REDEMPTION OF DT NOTES

     9   

ARTICLE VII MUTUAL COOPERATION

     9   

ARTICLE VIII MERGER, CONSOLIDATION OR SALE OF ASSETS

     9   

ARTICLE IX MISCELLANEOUS

     9   

Section 9.1

  Injunctive Relief      10   

Section 9.2

  Assignment      10   

Section 9.3

  Amendments; Waiver      10   

Section 9.4

  Termination      10   

Section 9.5

  Notices      10   

Section 9.6

  Governing Law; Jurisdiction; Forum; Waiver of Trial by Jury      11   

Section 9.7

  Interpretation      11   

Section 9.8

  Entire Agreement; No Other Representations      12   

Section 9.9

  No Third-Party Beneficiaries      12   

Section 9.10

  Severability      12   

Section 9.11

  Counterparts      12   

 

-i-


NOTEHOLDER AGREEMENT, dated as of April 28, 2013 (this “Agreement”), by and between DEUTSCHE TELEKOM AG, an Aktiengesellschaft organized and existing under the Laws of the Federal Republic of Germany (“DT”), and T-MOBILE USA, INC., a Delaware corporation (the “Company”, as further defined below).

W I T N E S S E T H:

WHEREAS, the Company, DT, T-Mobile Global Zwischenholding GmbH, T-Mobile Global Holding GmbH, and MetroPCS Communications, Inc. have entered into that certain Business Combination Agreement, dated as of October 3, 2012 (as amended from time to time, the “Business Combination Agreement”);

WHEREAS, in accordance with the Business Combination Agreement, on the date hereof, the Company is issuing, and DT is purchasing, $1,250,000,000 principal amount of the Company’s Senior Reset Notes due 2019, $1,250,000,000 principal amount of the Company’s Senior Reset Notes due 2020, $1,250,000,000 principal amount of the Company’s Senior Reset Notes due 2021, $1,250,000,000 principal amount of the Company’s Senior Reset Notes due 2022, $600,000,000 principal amount of the Company’s Senior Reset Notes due 2023, $1,250,000,000 principal amount of the Company’s 6.464% Senior Notes due 2019, $1,250,000,000 principal amount of the Company’s 6.542% Senior Notes due 2020, $1,250,000,000 principal amount of the Company’s 6.633% Senior Notes due 2021, $1,250,000,000 principal amount of the Company’s 6.731% Senior Notes due 2022 and $600,000,000 principal amount of the Company’s 6.836% Senior Notes due 2023 (together, along with any registered notes exchanged for any of such notes that have substantially identical terms, the “DT Notes”), pursuant to the Indenture (the “Base Indenture”) dated as of April 28, 2013, among the Company, the guarantors party thereto, and Deutsche Bank Trust Company Americas, as Trustee (the “Trustee”), as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh Supplemental Indenture, the Eighth Supplemental Indenture, the Ninth Supplemental Indenture, and the Tenth Supplemental Indenture, each dated as of April 28, 2013 (the Base Indenture, as so supplemented, the “Indenture”); and

WHEREAS, as required by and in accordance with Section 4.13(d) of the Business Combination Agreement, and Exhibit J thereto, the Company and DT desire to enter into and deliver this Agreement, which establishes certain rights and obligations in respect of any DT Notes held by any DT Entity (as defined below), and certain other related matters;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:


ARTICLE I

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, the following terms shall have the meanings indicated below:

Agreement” shall have the meaning set forth in the Preamble.

Base Indenture” shall have the meaning set forth in the Preamble.

Board of Directors” shall mean:

(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

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

(3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

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

Business Combination Agreement” shall have the meaning set forth in the Preamble.

Business Day” shall mean any day except a Saturday, Sunday, or a legal holiday in the City of New York or in any place of payment with respect to the DT Notes on which banking institutions are authorized or required by law, regulation or executive order to close.

Capital Stock” shall mean:

(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 interests (whether general or limited) or membership interests, respectively; 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, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

-2-


Change of Control” shall have the meaning ascribed thereto in the Indenture, as in effect on the date hereof.

Change of Control Offer” shall have the meaning ascribed thereto in the Indenture, as in effect on the date hereof.

Change of Control Triggering Event” shall have the meaning ascribed thereto in the Indenture, as in effect on the date hereof.

Chosen Courts” shall have the meaning set forth in Section 9.6.

Company” shall mean T-Mobile USA, Inc. and any successor thereto permitted under the terms of the Indenture.

DT” shall have the meaning set forth in the Preamble.

DT Entities” shall mean DT or any of its Subsidiaries (other than Parent, the Company or any of their Subsidiaries).

DT Notes” shall have the meaning set forth in the Preamble.

DT Redemption Event” shall mean the occurrence of any of the following:

(1) a Change of Control;

(2) so long as DT owns, directly or indirectly, more than 50% of the Voting Stock of the Company immediately prior to such transaction, the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that DT ceases to own, directly or indirectly, more than 50% of the Voting Stock of the Company (or its successor by merger, consolidation or purchase of all or substantially all of its assets or its equity), measured by voting power rather than number of shares; or

(3) the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that the owners directly or indirectly of the Voting Stock of the Company immediately prior to such consummation cease to be the owners, directly or indirectly, of more than 50% of the Voting Stock of the Company (or its successor by merger, consolidation or purchase of all or substantially all of its assets or its equity), measured by voting power rather than number of shares.

Notwithstanding the foregoing, no Specified Change of Control shall constitute a DT Redemption Event.

DT Redemption Event Payment” shall have the meaning set forth in Section 3.1.

DT Redemption Event Payment Date” shall have the meaning set forth in Section 3.2.

 

-3-


Encumbrance” shall mean any lien, pledge, charge, claim, encumbrance, hypothecation, security interest, option, lease, license, mortgage, easement or other restriction or third-party right of any kind, including any right of first refusal, tag-along or drag-along rights or restriction on voting, transferring, lending, disposing or assigning, in each case other than pursuant to this Agreement.

Equity Interests” shall mean 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).

Governmental Entity” shall mean any domestic or foreign governmental or regulatory authority, agency, commission, body or other governmental entity.

Indenture” shall have the meaning set forth in the Preamble.

Laws” shall mean federal, state, local and foreign laws, statutes and ordinances, common law and all rules, regulations, guidelines, standards, judgments, orders, writs, injunctions, decrees, arbitration awards, agency requirements, licenses and permits of any Governmental Entity.

Moody’s” means Moody’s Investors Service, Inc.

Organizational Documents” shall mean, with respect to any Person, such Person’s articles or certificate of association, incorporation, formation or organization, by-laws, limited liability company agreement, partnership agreement or other constituent document or documents, each in its currently effective form as amended from time to time.

Parent” shall mean T-Mobile US, Inc. (formerly known as MetroPCS Communications, Inc.).

Paying Agent” shall have the meaning ascribed thereto in the Indenture, as in effect on the date hereof.

Person” shall mean any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

S&P” means Standard & Poor’s Ratings Group.

Specified Change of Control” shall mean any direct or indirect transfer of any Voting Stock of the Company by any DT Entity to a third party the result of which (to the knowledge of DT following reasonable inquiry) is the occurrence of a DT Redemption Event, other than in connection with a transaction in which all holders of Voting Stock of the Company are required to or are entitled to participate on the same terms.

Subsidiary” shall mean, with respect to any specified Person:

 

-4-


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

(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

Trustee” shall have the meaning set forth in the Preamble.

Voting Stock” of any specified Person as of any date shall mean the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person (and, in the case of a partnership, the Capital Stock of the general partner of such Person that is entitled to vote in the election of the Board of Directors of the general partner of the partnership).

Section 1.2 Other Definitional Provisions. Unless the express context otherwise requires:

(a) the words “hereof”, “herein”, and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

(b) the words “date hereof”, when used in this Agreement, shall refer to the date set forth in the Preamble;

(c) the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

(d) the terms defined in the present tense have a comparable meaning when used in the past tense, and vice versa;

(e) any references herein to a specific Section shall refer to Sections of this Agreement;

(f) wherever the word “include”, “includes”, or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;

(g) references herein to any gender includes each other gender; and

(h) the word “or” shall not be exclusive.

 

-5-


ARTICLE II

REPRESENTATIONS AND WARRANTIES

Section 2.1 Representations and Warranties of the Company. The Company represents and warrants to DT that, as of the date hereof:

(A) The Company is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware.

(B) The Company has all requisite power and authority and has taken all action necessary in order to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by the Company of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action of the Company. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by DT, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws affecting the enforcement of creditors’ rights generally or, as to enforceability, by general equitable principles.

(C) The execution and delivery of this Agreement by the Company and the performance of its obligations hereunder will not constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of the Company, (ii) a breach or violation of, a termination (or right of termination) or default under, the creation or acceleration of any obligations under, or the creation of an Encumbrance on any of the assets of the Company (with or without notice, lapse of time or both) pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation binding upon the Company, or (iii) conflict with, breach or violate any Law applicable to the Company or by which its properties are bound or affected, except, in the case of clause (ii) or (iii) above, for any breach, violation, termination, conflict, default, creation or acceleration that would not, individually or in the aggregate, reasonably be likely to impair in any material respect the ability of the Company to perform its obligations under this Agreement.

Section 2.2 Representations and Warranties of DT. DT represents and warrants to the Company that, as of the date hereof:

(A) DT is an Aktiengesellschaft organized and existing under the Laws of the Federal Republic of Germany.

(B) DT has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by DT of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action of DT. This Agreement has been duly executed and delivered by DT and, assuming the due authorization, execution and delivery of this Agreement by the Company, constitutes the legal, valid and binding obligation of DT, enforceable against DT in accordance with its terms, except as limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws affecting the enforcement of creditors’ rights generally or, as to enforceability, by general equitable principles.

 

-6-


(C) The execution and delivery of this Agreement by DT and the performance of its obligations hereunder will not constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of DT, (ii) a breach or violation of, a termination (or right of termination) or default under, the creation or acceleration of any obligations under, or the creation of an Encumbrance on any of the assets of DT (with or without notice, lapse of time or both) pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation binding upon DT, or (iii) conflict with, breach or violate any Law applicable to DT or by which its properties are bound or affected, except, in the case of clause (ii) or (iii) above, for any breach, violation, termination, conflict default, creation or acceleration that would not, individually or in the aggregate, reasonably be likely to impair in any material respect the ability of DT to perform its obligations under this Agreement.

ARTICLE III

DT REDEMPTION EVENT

Section 3.1 DT Redemption Event. If a DT Redemption Event occurs, any DT Entity which holds any DT Notes will have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000) of such DT Notes held thereby for cash equal to 101% of the aggregate principal amount of DT Notes repurchased plus accrued and unpaid interest on the DT Notes repurchased to, but not including, the date of purchase (the “DT Redemption Event Payment”).

Section 3.2 Notices. Within thirty days following any DT Redemption Event, the Company will send a written notice to DT, describing the transaction or transactions constituting the DT Redemption Event and stating: (1) that the Company is offering to repurchase all or any part of the DT Notes held by any DT Entity in accordance with this Article III; (2) the purchase price and the purchase date, which shall be no earlier than 10 days and no later than 60 days from the date such notice is sent (the “DT Redemption Event Payment Date”); (3) that any DT Note not repurchased will continue to accrue interest; (4) that, unless the Company defaults in the payment of the DT Redemption Event Payment, all DT Notes repurchased by the Company will cease to accrue interest on and after the DT Redemption Event Payment Date; (5) that any DT Entities electing to have any DT Notes repurchased will be required to surrender the DT Notes, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day preceding the DT Redemption Event Payment Date; (6) that each DT Entity will be entitled to withdraw its election if the Paying Agent receives, not later than the close of business on the Business Day preceding the DT Redemption Event Payment Date, a facsimile transmission or letter setting forth the name of the DT Entity, the series and principal amount of DT Notes delivered for purchase, and a statement that such DT Entity is withdrawing its election to have its DT Notes purchased; and (7) that any DT Entities whose DT Notes of any series are being purchased only in part will be issued new DT Notes equal in principal amount to the unpurchased portion of the DT Notes of the applicable series surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.

 

-7-


Section 3.3 Payment. On the DT Redemption Event Payment Date, the Company will: (1) accept for payment all DT Notes delivered by any DT Entity to the Paying Agent in connection with such DT Redemption Event; (2) deposit with the Paying Agent an amount equal to the DT Redemption Event Payment in respect of all DT Notes or portions of DT Notes delivered by any DT Entity to the Paying Agent and (3) deliver or cause to be delivered to the Trustee for cancellation in accordance with the Indenture the DT Notes properly accepted, together with any other deliverables required under the DT Notes or the Indenture. The Paying Agent will promptly make payment to each DT Entity in respect of any DT Notes repurchased therefrom, and the Company will cause the Trustee to promptly authenticate and mail (or cause to be transferred by book entry) to each DT Entity a new DT Note of the applicable series equal in principal amount to any unpurchased portion of the DT Notes of such series surrendered, if any; provided that each new DT Note will be in a principal amount of $2,000 or an integral amount of $1,000 in excess thereof.

ARTICLE IV

SPECIFIED CHANGE OF CONTROL

Section 4.1 Limitation on Tendering. Notwithstanding anything to the contrary in the Indenture or in this Agreement, in case of any Change of Control Triggering Event based upon a Change of Control that is a Specified Change of Control, DT will not, nor will it permit any DT Entity to, tender any DT Notes into the related Change of Control Offer.

Section 4.2 Transferees. If a DT Entity transfers any DT Notes to any third party after the earlier of the first public announcement or consummation of a transaction that constitutes a Specified Change of Control, and before the Change of Control Offer that the Company is required to make in connection therewith expires, DT shall cause, and shall cause each other applicable DT Entity to cause, the transferee of such DT Notes to agree that it will not tender any such DT Notes to the Company in such Change of Control Offer.

ARTICLE V

AMENDMENTS

Section 5.1 Amendments.

(A) For so long as the DT Entities hold, in the aggregate, directly or indirectly, a majority in principal amount of any series of the DT Notes, the Company shall not agree to any waiver or amendment of any provision or term of such series of DT Notes or the Indenture or any other indenture or other instrument governing such series of DT Notes without the prior written consent of DT, which may be withheld in DT’s sole discretion.

(B) After such time as the DT Entities no longer hold, in the aggregate, directly or indirectly, a majority in principal amount of any series of the DT Notes, the Company shall not agree to any waiver or amendment of any provision or term of such series of the DT Notes or the Indenture or any other indenture or other instrument governing such series of DT Notes without the consent of holders of at least 50.1% of the aggregate principal amount of such series of DT Notes.

 

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ARTICLE VI

RESTRICTIONS ON OPTIONAL REDEMPTION OF DT NOTES

For so long as any DT Entity holds, directly or indirectly, any DT Notes, the Company shall not, without the prior written consent of DT, which consent may be withheld in DT’s sole discretion, (a) issue any Equity Interests of the Company for the purpose of redeeming or otherwise purchasing any DT Notes, or (b) use the proceeds of any sale of Equity Interests of the Company or contributions to the Company’s common equity capital made with the proceeds of one or more sales of Equity Interests of Parent or any other Person to directly or indirectly redeem or otherwise repurchase any DT Notes, provided that, from and after the first date on which the DT Entities, taken together, hold an aggregate principal amount of DT Notes that is less than $560 million, the restrictions set forth in this Article VI shall not apply to any DT Notes held by a Person which is not a DT Entity.

ARTICLE VII

MUTUAL COOPERATION

For so long as any DT Entity holds, directly or indirectly, any DT Notes, the Company, Parent, and DT shall take all actions commercially reasonably required to, upon the request of DT, (a) submit the DT Notes for electronic book-entry delivery and settlement through DTC, including, if necessary, through the use of one or more DTC Participants and (b) obtain and maintain public corporate family ratings of the Company with each of Moody’s and S&P, provided that the out of pocket costs of such actions shall be paid by the Company. The Company and Parent shall take all actions reasonably required in order to effectuate any offering of DT Notes held by a DT Entity in reliance on Rule 144A, Regulation S or any other exemption under the Securities Act of 1933, as amended.

ARTICLE VIII

MERGER, CONSOLIDATION OR SALE OF ASSETS

Notwithstanding anything to the contrary in this Agreement, in the event that any Person assumes, or is required to assume, as provided for in Article V of the Base Indenture, the obligations of the Company under the DT Notes, the Company will cause such Person to, and such Person shall, expressly assume all obligations of the Company under this Agreement pursuant to a joinder agreement in form and substance reasonably satisfactory to DT.

 

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ARTICLE IX

MISCELLANEOUS

Section 9.1 Injunctive Relief. Each party hereto acknowledges that it would be impossible to determine the amount of damages that would result from any breach of any of the provisions of this Agreement and that the remedy at law for any breach, or threatened breach, of any of such provisions would likely be inadequate and, accordingly, agrees that the other party shall, in addition to any other rights or remedies which it may have, be entitled to such equitable and injunctive relief as may be available from any court of competent jurisdiction to compel specific performance of, or restrain any party from violating, any of such provisions. In connection with any action or proceeding for injunctive relief, each party hereto hereby waives the claim or defense that a remedy at law alone is adequate and agrees, to the maximum extent permitted by Law, to have each provision of this Agreement specifically enforced against it, without the necessity of posting bond or other security against it, and consents to the entry of injunctive relief against it enjoining or restraining any breach or threatened breach of such provisions of this Agreement.

Section 9.2 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, legal representatives and permitted assigns. Neither party may directly or indirectly assign any of its rights or delegate any of its obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other party other than, for the avoidance of doubt, to any successor to DT in connection with a change in control of DT. Any purported direct or indirect assignment in violation of this Section 9.2 shall be null and void ab initio.

Section 9.3 Amendments; Waiver. No amendment, modification or discharge of this Agreement, and no waiver hereunder, and no extension of time for the performance of any of the obligations hereunder, shall be valid or binding unless set forth in writing and duly executed by (a) the Company where enforcement of the amendment, modification, discharge, waiver or extension is sought against the Company or (b) DT where enforcement of the amendment, modification, discharge, waiver or extension is sought against DT. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by the Company or DT of a breach of, or a default under, any of the provisions hereof, or to exercise any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. Except as expressly provided in this Agreement, the rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity.

Section 9.4 Termination. This Agreement shall terminate at any time after which all DT Notes have been repaid in full; provided, however, that the provisions of this Article IX shall survive any termination of this Agreement or any provision hereof. Nothing in this Agreement shall be deemed to release any party from any liability for any willful and material breach of this Agreement occurring prior to any termination hereof or to impair the right of a party to compel specific performance by the other party of its obligations under this Agreement.

Section 9.5 Notices. Any notice, request, instruction or other document to be given hereunder by any party to the others shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested and postage prepaid, or by facsimile (providing confirmation of such facsimile transmission):

 

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if to the Company, to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

if to DT, to:

Deutsche Telekom AG

Friedrich-Ebert-Alle 140

53113 Bonn, Germany

Attention: General Counsel

Fax: +49-228-181-74008

or to such other Persons or addresses as may be designated in writing by the party to receive such notice as provided above.

Section 9.6 Governing Law; Jurisdiction; Forum; Waiver of Trial by Jury.

(A) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THEREOF. EACH PARTY HERETO AGREES THAT IT SHALL BRING ANY ACTION OR PROCEEDING IN RESPECT OF ANY CLAIM ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, EXCLUSIVELY IN ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK CITY, BOROUGH OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY THEREOF (THE “CHOSEN COURTS”), AND SOLELY IN CONNECTION WITH CLAIMS ARISING UNDER THIS AGREEMENT (A) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE CHOSEN COURTS, (B) WAIVES ANY OBJECTION TO LAYING VENUE IN ANY SUCH ACTION OR PROCEEDING IN THE CHOSEN COURTS, (C) WAIVES ANY OBJECTION THAT THE CHOSEN COURTS ARE AN INCONVENIENT FORUM OR DO NOT HAVE JURISDICTION OVER ANY PARTY HERETO, AND (D) AGREES THAT SERVICE OF PROCESS UPON SUCH PARTY IN ANY SUCH ACTION OR PROCEEDING SHALL BE EFFECTIVE IF NOTICE IS GIVEN IN ACCORDANCE WITH SECTION 9.5. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF, OR RELATING TO, THIS AGREEMENT.

Section 9.7 Interpretation. The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 

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Section 9.8 Entire Agreement; No Other Representations. This Agreement constitutes the entire agreement, and supersedes all other prior and contemporaneous agreements, understandings, undertakings, arrangements, representations and warranties, both written and oral, among the parties with respect to the subject matter hereof.

Section 9.9 No Third-Party Beneficiaries. This Agreement is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder, provided that, notwithstanding the foregoing, the provisions of Article III, V, VI, VII and VIII and this Article IX are intended for the benefit of, and shall be enforceable by, any DT Entity (solely for so long as such Person is a DT Entity) in connection with any DT Notes held thereby, provided further, that no holder of DT Notes other than a DT Entity shall have any rights under this Agreement in its capacity as a holder of DT Notes.

Section 9.10 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision; and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

Section 9.11 Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart (including any facsimile or electronic document transmission of such counterpart) being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective authorized officers as of the date first written above.

 

T-MOBILE USA, INC.
By:     /s/ Michael Morgan
 

Name: Michael Morgan

Title: Senior Vice President & Chief

          Financial Officer

 

DEUTSCHE TELEKOM AG
By:     /s/ Dirk Wehrse
 

Name: Dirk Wehrse

Title: VP Treasury

 

By:     /s/ Igor Soczynski
 

Name: Igor Soczynski

Title: VP Treasury

EX-4.14 17 d527693dex414.htm EX-4.14 EX-4.14

EXHIBIT 4.14

$500,000,000.00

CREDIT AGREEMENT

Dated as of May 1, 2013

among

T-MOBILE USA, INC.,

as Borrower,

DEUTSCHE TELEKOM AG,

as a Lender,

the other Lenders party hereto from time to time,

and

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent.

 


TABLE OF CONTENTS

 

         Page  
SECTION 1. DEFINITIONS      1   

1.1.

 

Defined Terms

     1   

1.2.

 

Other Definitional Provisions

     41   
SECTION 2. [RESERVED]      42   
SECTION 3. AMOUNT AND TERMS OF REVOLVING COMMITMENTS      42   

3.1.

 

Revolving Commitments

     42   

3.2.

 

Procedure for Borrowing

     42   

3.3.

 

[Reserved]

     42   

3.4.

 

[Reserved]

     42   

3.5.

 

Commitment Fees, etc.

     43   

3.6.

 

Termination or Reduction of Revolving Commitments

     43   
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS      43   

4.1.

 

Optional Prepayments

     43   

4.2.

 

[Reserved]

     43   

4.3.

 

Conversion and Continuation Options

     43   

4.4.

 

Limitations on Eurodollar Tranches

     44   

4.5.

 

Interest Rates and Payment Dates

     44   

4.6.

 

Computation of Interest and Fees

     45   

4.7.

 

Inability to Determine Interest Rate

     45   

4.8.

 

Pro Rata Treatment and Payments

     46   

4.9.

 

Requirements of Law

     47   

4.10.

 

Taxes

     48   

4.11.

 

Indemnity

     51   

4.12.

 

Change of Lending Office

     52   

4.13.

 

Replacement of Lenders

     52   

4.14.

 

Evidence of Debt.

     52   

4.15.

 

Illegality

     53   

4.16.

 

Defaulting Lenders

     53   
SECTION 5. REPRESENTATIONS AND WARRANTIES      53   

5.1.

 

Financial Condition

     53   

5.2.

 

No Change

     54   

5.3.

 

Corporate Existence; Compliance with Law

     54   

5.4.

 

Power; Authorization; Enforceable Obligations

     54   

5.5.

 

No Legal Bar

     55   

5.6.

 

Litigation

     55   

 

-i-


5.7.

 

No Default

     55   

5.8.

 

Ownership of Property; Liens, etc.

     55   

5.9.

 

Intellectual Property

     56   

5.10.

 

Taxes

     56   

5.11.

 

Federal Regulations

     56   

5.12.

 

Labor Matters

     56   

5.13.

 

ERISA

     56   

5.14.

 

Investment Company Act

     58   

5.15.

 

[Reserved]

     58   

5.16.

 

Use of Proceeds

     58   

5.17.

 

Environmental Matters

     58   

5.18.

 

Accuracy of Information, etc.

     59   

5.19.

 

[Reserved]

     59   

5.20.

 

Solvency

     59   

5.21.

 

Maintenance of Properties

     59   
SECTION 6. CONDITIONS PRECEDENT      59   

6.1.

 

Conditions to the Closing Date

     59   

6.2.

 

Conditions to Each Extension of Credit

     60   

6.3.

 

Confirmation by Agent and Lenders

     60   
SECTION 7. AFFIRMATIVE COVENANTS      61   

7.1.

 

Financial Statements

     61   

7.2.

 

Certificates; Other Information

     62   

7.3.

 

Payment of Obligations

     64   

7.4.

 

Maintenance of Existence; Compliance

     64   

7.5.

 

Maintenance of Property; Insurance

     64   

7.6.

 

Inspection of Property; Books and Records; Discussions

     65   

7.7.

 

Notices

     65   

7.8.

 

Environmental Laws

     65   

7.9.

 

[Reserved]

     66   

7.10.

 

New Subsidiaries.

     66   

7.11.

 

Further Assurances

     67   

7.12.

 

ERISA Compliance

     67   

7.13.

 

Lender Meetings

     67   
SECTION 8. NEGATIVE COVENANTS      68   

8.1.

 

[Reserved]

     68   

8.2.

 

Indebtedness

     68   

8.3.

 

Liens

     72   

8.4.

 

Fundamental Changes

     72   

8.5.

 

Disposition of Property

     73   

8.6.

 

Restricted Payments

     73   

8.7.

 

Modifications of Certain Debt Instruments

     76   

 

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8.8.

 

Transactions with Affiliates

     76   

8.9.

 

[Reserved]

     78   

8.10.

 

Hedge Agreements

     78   

8.11.

 

Changes in Fiscal Year

     78   

8.12.

 

Negative Pledge Clauses; Subsidiary Distributions.

     78   

8.13.

 

[Reserved]

     81   

8.14.

 

[Reserved]

     81   

8.15.

 

ERISA Compliance

     81   

8.16.

 

Environmental Matters

     82   

8.17.

 

Subsidiaries

     82   

8.18.

 

Financial Condition Covenant

     82   

8.19.

 

Lines of Business

     82   

8.20.

 

Compliance with Stockholder Agreement

     83   

8.21.

 

Change in Covenants When Certain Senior Notes Rated Investment Grade

     83   
SECTION 9. EVENTS OF DEFAULT      83   
SECTION 10. THE ADMINISTRATIVE AGENT      86   

10.1.

 

Appointment

     86   

10.2.

 

Delegation of Duties

     86   

10.3.

 

Exculpatory Provisions

     86   

10.4.

 

Reliance by Administrative Agent

     87   

10.5.

 

Notice of Default

     87   

10.6.

 

Non Reliance on Administrative Agent and Other Lenders

     88   

10.7.

 

Indemnification

     88   

10.8.

 

Agent in Its Individual Capacity

     89   

10.9.

 

Successor Administrative Agent

     89   

10.10.

 

The Administrative Agent Generally

     89   
SECTION 11. MISCELLANEOUS      90   

11.1.

 

Amendments and Waivers

     90   

11.2.

 

Notices

     91   

11.3.

 

No Waiver; Cumulative Remedies

     92   

11.4.

 

Survival of Representations and Warranties

     92   

11.5.

 

Payment of Expenses

     93   

11.6.

 

Successors and Assigns; Participations and Assignments

     94   

11.7.

 

Adjustments; Set-off

     97   

11.8.

 

Counterparts

     98   

11.9.

 

Severability

     98   

11.10.

 

Integration

     98   

11.11.

 

GOVERNING LAW

     98   

11.12.

 

Submission To Jurisdiction; Waivers

     98   

11.13.

 

Acknowledgments

     99   

11.14.

 

Releases of Guarantees

     99   

11.15.

 

Confidentiality

     100   

 

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11.16.

 

[Reserved]

     101   

11.17.

 

WAIVERS OF JURY TRIAL

     101   

11.18.

 

Designation of Restricted and Unrestricted Subsidiaries

     101   

11.19.

 

USA PATRIOT Act

     102   

11.20.

 

Certain Regulatory Requirements

     102   

ANNEXES:

 

A Pricing Grid
B Revolving Commitments

SCHEDULES:

 

5.3 Governmental Requirements
5.4 Consents, Authorizations, Filings and Notices
5.8 Title; Liens
5.9 Intellectual Property

EXHIBITS:

 

A Form of Guarantee Agreement
B Form of Compliance Certificate
C Form of Closing Date Certificate
D Assignment and Assumption
E Form of Revolving Credit Note
F Forms of U.S. Tax Certificates
G Form of Secretary’s Certificate

 

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CREDIT AGREEMENT, dated as of May 1, 2013, by and among T-MOBILE USA, INC., a Delaware corporation (the “Borrower”), DEUTSCHE TELEKOM AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany (“DT”), as the initial Lender, the other Lenders party hereto from time to time, and JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity and together with its successors in such capacity, the “Administrative Agent”).

WHEREAS, the Borrower has requested that the Lenders extend credit in the form of Loans, from time to time, in an aggregate principal amount not in excess of $500,000,000 at any time outstanding, to be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes; and

WHEREAS, the Lenders are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein;

NOW, THEREFORE, in consideration of the foregoing, and for other consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, hereby agree as follows:

SECTION 1. DEFINITIONS

1.1. Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

Acquired Debt” 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, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and

(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

The term “Acquired Debt” does not include Indebtedness of a Person that is redeemed, defeased, retired or otherwise repaid at the time of, or immediately upon, consummation of the transactions by which such Person becomes a Restricted Subsidiary or acquires such asset, as the case may be.

Adjustment Date” has the meaning given to such term in the Pricing Grid.

Administrative Agent” has the meaning given to such term in the preamble to this Agreement.

Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

 

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Aggregate Exposure” means, with respect to any Lender at any time, an amount equal to the sum of the amount of such Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.

Aggregate Exposure Percentage” means, with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time.

Agreement” means this Credit Agreement.

Applicable Margin” means, for any day, with respect to any Base Rate Loan or Eurodollar Loan, the Applicable Margin with respect to such Loans as determined pursuant to the Pricing Grid.

Applicable Reserve Requirement” means, at any time for any Eurodollar Loan, the maximum rate, expressed as a decimal, at which reserves (including, any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by member banks with respect to (a) any category of liabilities which includes deposits by reference to which the applicable Eurodollar Rate or any other interest rate of a Eurodollar Loan is to be determined, or (b) any category of extensions of credit or other assets which include Eurodollar Loans. A Eurodollar Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurodollar Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.

Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a fund that invests in commercial loans, any other fund that invests in commercial loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

Asset Acquisition” means (a) an Investment by the Borrower (or any predecessor thereto) or any of its Restricted Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary of the Borrower or shall be merged into or consolidated with the Borrower or any of its Restricted Subsidiaries, but only if (i) such Person’s primary business constitutes a Permitted Business and (ii) the financial condition and results of operations of such Person are not already consolidated with those of the Borrower and its Restricted Subsidiaries immediately prior to such Investment; or (b) an acquisition by the Borrower or any of its Restricted Subsidiaries of the Property of any Person other than the Borrower or any of its Restricted Subsidiaries that constitute all or substantially all of a division, operating unit or line of business of such Person, but only (i) if the Property so acquired constitutes a Permitted Business and (ii) the financial condition and results of operations of such Person are not already consolidated with those of the Borrower and its Restricted Subsidiaries immediately prior to such acquisition.

 

-2-


For the avoidance of doubt, the Merger shall be deemed to be an Asset Acquisition.

Asset Disposition” means the sale or other disposition by the Borrower or any of its Restricted Subsidiaries other than to the Borrower or another Restricted Subsidiary of the Borrower of (a) all or substantially all of the Capital Stock owned by the Borrower or any of its Restricted Subsidiaries of any Restricted Subsidiary or of any Person that is a Permitted Joint Venture Investment or (b) all or substantially all of the assets that constitute a division, operating unit or line of business of the Borrower or any of its Restricted Subsidiaries.

Asset Sale” means:

(1) the sale, lease, conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries taken as a whole will be governed by Section 8.4 hereof and not by the provisions of Section 8.5 hereof; and

(2) the issuance of Equity Interests in any of the Borrower’s Restricted Subsidiaries or the sale by the Borrower or any Restricted Subsidiary thereof of Equity Interests in any of its Restricted Subsidiaries.

Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:

(1) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $100.0 million;

(2) a sale, lease, conveyance or other disposition of assets or Equity Interests between or among the Borrower and/or its Restricted Subsidiaries;

(3) an issuance or sale of Equity Interests by a Restricted Subsidiary of the Borrower to the Borrower or to a Restricted Subsidiary of the Borrower;

(4) the sale, lease, sublease, conveyance or other disposition of (a) assets, products, services or accounts receivable in the ordinary course of business, (b) equipment or other assets pursuant to a program for the maintenance or upgrading of such equipment or assets, or (c) any sale, conveyance or other disposition of damaged, worn-out, uneconomic or obsolete assets in the ordinary course of business;

(5) the sale, conveyance or other disposition of cash or Cash Equivalents;

(6) a surrender or waiver of contract rights or settlement, release or surrender of contract, tort or other claims in the ordinary course of business or a grant of a Lien not prohibited by this Agreement;

(7) a Restricted Payment that does not violate Section 8.6 hereof;

 

-3-


(8) arms-length sales, leases or subleases (as lessor or sublessor), sale and leasebacks, assignments, conveyances, transfers or other dispositions of assets or rights to a Person that is a Permitted Joint Venture Investment;

(9) licenses and sales of intellectual property or other general intangibles (other than FCC Licenses) in the ordinary course of business;

(10) a Permitted Investment;

(11) dispositions of assets to the ISIS Joint Venture;

(12) one or more sales, conveyances, leases, subleases, licenses, contributions, or other dispositions, assignments or transfers made as part of, or in connection with, the Towers Transaction; or

(13) the settlement or early termination of any Permitted Bond Hedge Transaction.

Assignee” has the meaning given to such term in Section 11.6(b)(i).

Assignment and Assumption” means an Assignment and Assumption, substantially in the form of Exhibit D or such other form acceptable to the Administrative Agent.

Authorized Officer” means any individual holding the position of chairman of the board (if an officer), chief executive officer, president or one of its vice presidents (or the equivalent thereof), chief financial officer or treasurer of any Group Member. Unless otherwise specified, all references herein to an Authorized Officer mean an Authorized Officer of the Borrower.

Available Revolving Commitment” means, as to any Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over (b) such Lender’s Revolving Extensions of Credit then outstanding.

Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof; provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

 

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Base Rate” means, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 0.50%. For purposes hereof: “Prime Rate” shall mean the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate in effect at its principal office in New York City (the Prime Rate not being intended to be the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit to debtors). Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.

Base Rate Loans” means Loans the rate of interest applicable to which is based upon the Base Rate.

Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that (a) in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time and (b) in the case of a “group” pursuant to Rule 13d-5(b)(1) of the Exchange Act which group includes one or more Permitted Holders (or one or more Permitted Holders is deemed to share Beneficial Ownership with one or more other persons of any shares of Capital Stock), (i) such “group” shall be deemed not to have Beneficial Ownership of any shares held by such Permitted Holder and (ii) any person (other than such Permitted Holder) that is a member of such group (or sharing such Beneficial Ownership) shall be deemed not to have Beneficial Ownership of any shares held by such Permitted Holder (or in which any such Person shares beneficial ownership). The terms “Beneficially Owns”, “Beneficially Owned”, and “Beneficial Ownership” have corresponding meanings.

Benefited Lender” has the meaning given to such term Section 11.7(a).

Board” means the Board of Governors of the Federal Reserve System of the United States of America or any successor Governmental Authority.

Board of Directors” means:

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

(b) with respect to a partnership, the board of directors of the general partner of the partnership;

(c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

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

Borrower” has the meaning given to such term in the preamble to this Agreement.

 

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Borrower Credit Agreement Obligations” has the meaning given to such term in the Guarantee Agreement.

Borrower Hedge Agreement Obligations” has the meaning given to such term in the Guarantee Agreement.

Borrowing Date” means any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.

Business Combination Agreement” means that certain Business Combination Agreement, dated as of October 3, 2012, as amended from time to time, by and among DT, T-Mobile Global Zwischenholding GmbH, T-Mobile Global Holding GmbH, the Borrower and MetroPCS Communications, Inc.

Business Day” means: (a) any day except a Saturday, Sunday, or a legal holiday in the City of New York or Bonn, Germany or a day on which banking institutions located in such state or city are authorized or required by law, regulation or executive order to close, and (b) with respect to all notices, determinations, fundings and payments in connection with the Eurodollar Rate or any Eurodollar Loans, the term “Business Day” means any day that is a Business Day described in clause (a) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.

Capital Lease”, as applied to any Person, means any lease of any Property by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.

Capital Lease Obligations”, means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

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 interests (whether general or limited) or membership interests, respectively; and

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, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

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Cash” means liquid marketable securities, certificates of deposit, money, currency or a credit balance in any Deposit Account.

Cash Equivalents” means:

(a) United States dollars;

(b) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of those securities) having maturities of not more than two years from the date of acquisition;

(c) demand deposits, certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any Lender or with any domestic commercial bank having capital and surplus in excess of $500,000,000 and a Thomson Bank Watch Rating of “B” or better at the time of deposit for any maturities other than demand maturities;

(d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c) above;

(e) commercial paper having one of the two highest ratings obtainable from a Rating Agency at the date of acquisition and, in each case, maturing within one year after the time of purchase;

(f) securities issued and fully guaranteed by any state, commonwealth or territory of the United States, or by any political subdivision or agency or instrumentality thereof, rated at least “A” by a Rating Agency at the date of acquisition and having maturities of not more than two years after the date of acquisition;

(g) auction rate securities rated at least “AA-” or “Aa3” by at Rating Agency at the date of acquisition and with reset dates of one year or less from the time of purchase;

(h) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (a) through (g) of this definition;

(i) investments, classified in accordance with GAAP as current assets of the Borrower or any of its Restricted Subsidiaries, in money market funds, mutual funds or investment programs registered under the Investment Company Act of 1940, at least 90% of the portfolios of which constitute investments of the character, quality and maturity described in clauses (a) through (g) of this definition;

(j) in the case of any Person that is operating outside the United States or anticipates operating outside the United States within the next 12 months, any substantially similar investment to the kinds described in clauses (a) through (g) of this definition rated at least “P-2” by Moody’s or “A-2” by S&P or the equivalent thereof; and

 

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(k) deposits or payments made to the FCC in connection with the auction or licensing of Governmental Authorizations that are fully refundable.

Change of Control” means the occurrence of any of the following:

(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended) other than any such disposition to a Restricted Subsidiary or a Permitted Holder;

(2) the adoption of a plan relating to the liquidation or dissolution of the Borrower;

(3) the consummation of any transaction (including any merger or consolidation), the result of which is that any “person” (as defined above) other than a Permitted Holder, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of Parent (or its successor by merger, consolidation or purchase of all or substantially all of its assets or its equity), measured by voting power rather than number of shares;

(4) during any period of 12 consecutive months, a majority of the members of the Board of Directors or other equivalent governing body of the Borrower or Parent cease to be composed of individuals (i) who were members of that Board of Directors or equivalent governing body on the first day of such period, (ii) whose election or nomination to that Board of Directors or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that Board of Directors or equivalent governing body, (iii) whose election or nomination to that Board of Directors or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that Board of Directors or equivalent governing body, or (iv) in the case of Borrower, whose election or nomination to that Board of Directors or equivalent governing body was approved by Parent;

(5) the Borrower ceases to be a direct or indirect Wholly Owned Subsidiary of Parent; or

(6) any “change of control” as defined in the Senior Notes Indentures;

provided, that the Transaction and other transactions pursuant to the Business Combination Agreement (including the changes to the Beneficial Ownership of the Voting Stock of Parent contemplated therein) shall not be a Change of Control.

CLO” means any entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course and is administered or managed by a Lender or an Affiliate of such Lender.

Closing Date” means May 1, 2013.

Code” means the Internal Revenue Code of 1986, as amended from time to time.

 

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Commitment Fee Rate” means a rate per annum determined pursuant to the Pricing Grid.

Commitment Period” means the period from and including the Closing Date to the Termination Date.

Compliance Certificate” means a certificate duly executed by a Financial Officer substantially in the form of Exhibit B or such other form acceptable to the Administrative Agent.

Conduit Lender” means any special purpose entity organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument, subject to the consent of the Administrative Agent and the Borrower (which consent shall not be unreasonably withheld); provided, that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender; and provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Section 4.9, 4.10, 4.11 or 11.5 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b) be deemed to have any Revolving Commitment.

Consolidated Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:

(1) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

(2) the Consolidated Interest Expense of such Person and its Restricted Subsidiaries for such period, to the extent that such Consolidated Interest Expense was deducted in computing such Consolidated Net Income; plus

(3) depreciation, amortization (including noncash impairment charges and any write-off or write-down or amortization of intangibles but excluding amortization of ordinary course prepaid cash expenses that were paid in a prior period) and other noncash expenses or charges (excluding any such noncash expense to the extent that it represents an ordinary course accrual of or reserve for cash expenses in any future period or amortization of any ordinary course prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other noncash expenses or charges were deducted in computing such Consolidated Net Income; plus

(4) any net after-tax extraordinary, nonrecurring or unusual gains or losses or income, expenses or charges (including all fees and expenses relating thereto), including (a) any fees, expenses and costs relating to the Towers Transaction, (b) any fees, expenses or charges related to any sale or offering of Equity Interests of such Person or Parent, any acquisition or disposition or any Indebtedness, in each case that is permitted to be incurred hereunder (in each case, whether or not successful), or the offering, amendment or modification of any debt instrument, including the offering, any amendment or other modification of the DT Notes or the Senior Notes; provided that

 

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Consolidated Cash Flow shall not be deemed to be increased by more than $250.0 million in any twelve-month period pursuant to this clause (b), (c) any premium, penalty or fee paid in relation to any repayment, prepayment or repurchase of Indebtedness, (d) any fees or expenses relating to the Transaction and the offering, issuance and sale (in each case whether or not successful) of the DT Notes and the “Permitted MetroPCS Notes”, as defined in the Business Combination Agreement, and (e) restructuring charges, integration costs (including retention, relocation and contract termination costs) and related costs and charges; provided such costs and charges under this clause (e) shall not exceed $300.0 million in any twelve-month period, plus, for the first four years after the Closing Date, up to an additional $300.0 million in any twelve-month period related to the Transaction); plus

(5) New Market Losses, up to a maximum aggregate amount of $300.0 million in any twelve-month period; minus

(6) noncash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business, in each case, on a consolidated basis and determined in accordance with GAAP.

Notwithstanding the preceding, the provision for taxes based on the income or profits of, and the depreciation and amortization and other noncash expenses of, a Restricted Subsidiary of the Borrower that is not a Subsidiary Guarantor will be added to Consolidated Net Income to compute Consolidated Cash Flow of the Borrower only to the extent that a corresponding amount would be permitted at the date of determination to be dividended to the Borrower by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders.

For the avoidance of doubt, calculations of “Consolidated Cash Flow” of the Borrower for any period prior to the Closing Date for purposes of calculating the Debt to Cash Flow Ratio shall be on a pro forma basis as described in the last paragraph of the definition of “Debt to Cash Flow Ratio”.

Consolidated Indebtedness” means, with respect to any Person as of any date of determination, the sum, without duplication, of (a) the total amount of Indebtedness of such Person and its Restricted Subsidiaries, plus (b) the total amount of Indebtedness of any other Person, to the extent that such Indebtedness has been Guaranteed by the referent Person or one or more of its Restricted Subsidiaries, plus (c) the aggregate liquidation value of all Disqualified Stock of such Person and all Preferred Stock of Subsidiaries of such Person, in each case, determined on a consolidated basis in accordance with GAAP.

Consolidated Interest Expense” means, with respect to any Person for any period, the sum of without duplication:

(1) the consolidated interest expense of such Person and its Subsidiaries for such period, whether paid or accrued (including amortization of debt issuance costs or original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of payments (if any) pursuant to Hedge Agreements); plus

 

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(2) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

(3) any interest expense on that portion of Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries (whether or not such Guarantee or Lien is called upon); plus

(4) the product of (a) all dividend payments on any series of Preferred Stock of such Person or any of its Restricted Subsidiaries, times (b) a fraction, the numerator of which is one and the denominator of which is one, minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal;

in each case, on a consolidated basis and in accordance with GAAP; excluding, however, any amount of such interest of any Restricted Subsidiary of the referent Person if the net income of such Restricted Subsidiary is excluded in the calculation of Consolidated Net Income pursuant to clause (2) of the definition thereof (but only in the same proportion as the net income of such Restricted Subsidiary is excluded from the calculation of Consolidated Net Income pursuant to clause (2) of the definition thereof). Notwithstanding the foregoing, if any lease or other liability is reclassified as indebtedness or as a Capital Lease Obligation due to a change in accounting principles or the application thereof after the Closing Date, the interest component of all payments associated with such lease or other liability shall be excluded from Consolidated Interest Expense.

Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

(1) the positive Net Income of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;

 

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(2) the Net Income of any Restricted Subsidiary that is not a Guarantor will be excluded solely for the purpose of determining the Restricted Payment Cap to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;

(3) the effect of a change in accounting principles or in the application thereof (including any change to IFRS and any cumulative effect adjustment), in each case, will be excluded;

(4) unrealized losses and gains attributable to Hedge Agreements, including those resulting from the application of the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) 815, will be excluded; and

(5) any non-cash compensation charge or expense realized from grants of stock, stock appreciation or similar rights, stock option or other rights to officers, directors and employees will be excluded.

Consolidated Subsidiaries” means, with respect to any Person, each other Person (whether now existing or hereafter created or acquired) the financial statements of which shall be (or should have been) consolidated with the financial statements of such first Person in accordance with GAAP.

Consolidated Total Assets” means, with respect to any Person, at any date of determination, the total assets of such Person and its Subsidiaries as set forth on the most recent balance sheet of such Person prepared in accordance with GAAP.

Contribution Indebtedness” means, Indebtedness in an aggregate principal amount at any one time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge such Indebtedness, not to exceed 150% of the aggregate amount of all Net Equity Proceeds.

Convertible Debt” means Indebtedness of the Borrower (which may be Guaranteed by the Guarantors) permitted to be incurred hereunder that is either (a) convertible or exchangeable into common stock of Parent (and Cash in lieu of fractional shares) and/or Cash (in an amount determined by reference to the price of such common stock) or (b) sold as units with call options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for common stock of Parent and/or cash (in an amount determined by reference to the price of such common stock).

Credit Party” means the Administrative Agent and the Lenders.

Debt to Cash Flow Ratio” means, with respect to any Person as of any date of determination, the ratio of (a) the Consolidated Indebtedness of such Person as of such date to (b) the Consolidated Cash Flow of such Person for the four most recent full Fiscal Quarters ending immediately prior to such date for which internal financial statements are available.

 

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For purposes of making the computation referred to above:

(1) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions (including the Merger and including giving pro forma effect to any related financing transactions and the application of proceeds of any Asset Disposition) that occur during such four-quarter period or subsequent to such four-quarter period but on or prior to the date on which the Debt to Cash Flow Ratio is to be calculated as if they had occurred and such proceeds had been applied on the first day of such four-quarter period;

(2) pro forma effect shall be given to asset dispositions and, asset acquisitions (including giving pro forma effect to any related financing transactions and the application of proceeds of any asset disposition) that have been made by any Person that has become a Restricted Subsidiary of the Borrower or has been merged with or into the Borrower (including MetroPCS Wireless, Inc.) or any Restricted Subsidiary during such four-quarter period or subsequent to such four-quarter period, but on or prior to the date on which the Debt to Cash Flow Ratio is to be calculated and that would have constituted Asset Dispositions or Asset Acquisitions had such transactions occurred when such Person was a Restricted Subsidiary, as if such asset dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that occurred on the first day of such four-quarter period;

(3) to the extent that the pro forma effect of any transaction is to be made pursuant to clause (1) or (2) above, such pro forma effect shall be determined in good faith on a reasonable basis by a responsible financial or accounting officer of the specified Person, whose determination shall be conclusive, as if the subject transaction(s) had occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period shall be calculated without giving effect to clause (3) of the proviso set forth in the definition of Consolidated Net Income;

(4) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of (without duplication of clauses (1) and (2) above) prior to the date on which the Debt to Cash Flow Ratio is to be calculated, shall be excluded;

(5) any Person that is a Restricted Subsidiary on the date on which the Debt to Cash Flow Ratio is to be calculated will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period; and

(6) any Person that is not a Restricted Subsidiary on the date on which the Debt to Cash Flow Ratio is to be calculated will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period.

For the avoidance of doubt, for any period commencing prior to the date that is four Fiscal Quarters after the Fiscal Quarter during which the Closing Date occurs, the Debt to Cash Flow Ratio shall be calculated giving pro forma effect to the Transaction as if the Transaction had occurred on the first day of the four Fiscal Quarter reference period.

Default” means any of the events specified in Section 9 that is, or with the passage of time or the giving of notice, or both, would be, an Event of Default.

 

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Defaulting Lender” means, subject to Section 4.16, any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, or (ii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans when requested; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject of a Bankruptcy Event.

Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.

Designated Entity” means (i) Iowa Wireless Services LLC, a Delaware limited liability company, (ii) TMUS Assurance Corporation, a Hawaii corporation and any successor thereto, and (iii) any Designated Tower Entity.

Designated Tower Entity” means any entity established solely or primarily for the limited purpose of holding wireless communications sites, towers, and related contracts, equipment, improvements, real estate, and other assets, and performing other activities incidental thereto or in connection with the Towers Transaction. For the avoidance of doubt, T-Mobile USA Tower LLC and T-Mobile West Tower LLC are each Designated Tower Entities.

Discretionary Guarantor” has the meaning given to such term in Section 7.10.

Disqualified Institution” means those institutions identified by the Borrower in writing to the Administrative Agent prior to the Closing Date as Disqualified Institutions.2

Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable,

 

2 

The following entities are to be deemed Disqualified Institutions: Sprint Nextel Corporation, SoftBank Corp., AT&T Inc., Cellco Partnership d/b/a Verizon Wireless, Leap Wireless International, Inc., United States Cellular Corporation, Dish Network Corporation, EchoStar Corporation, and Sound Point Capital Management LP, Icahn Enterprises and (i) any successors thereof or (ii) any affiliates thereof which control 10% or more of the voting stock thereof.

 

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pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the Termination Date; provided that any class of Capital Stock of such Person that, by its terms, requires such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Capital Stock, and that is not convertible, puttable or exchangeable for cash, Disqualified Stock or Indebtedness, will not be deemed to be Disqualified Stock, so long as such Person satisfies its obligations with respect thereto solely by the delivery of Capital Stock. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Borrower to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Borrower may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 8.6. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Borrower and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

Dollars” and “$” mean dollars in lawful currency of the United States.

Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.

DT” has the meaning given to such term in the preamble to this Agreement.

DT Entities” means DT or any of its Subsidiaries (other than Parent, the Borrower or any of their Subsidiaries).

DT Notes” means $1,250,000,000 principal amount of the Company’s Senior Reset Notes due 2019, $1,250,000,000 principal amount of the Company’s Senior Reset Notes due 2020, $1,250,000,000 principal amount of the Company’s Senior Reset Notes due 2021, $1,250,000,000 principal amount of the Company’s Senior Reset Notes due 2022, $600,000,000 principal amount of the Company’s Senior Reset Notes due 2023, $1,250,000,000 principal amount of the Company’s 6.464% Senior Notes due 2019, $1,250,000,000 principal amount of the Company’s 6.542% Senior Notes due 2020, $1,250,000,000 principal amount of the Company’s 6.633% Senior Notes due 2021, $1,250,000,000 principal amount of the Company’s 6.731% Senior Notes due 2022 and $600,000,000 principal amount of the Company’s 6.836% Senior Notes due 2023.

Eligible Assignee” means (a) any Lender, any Affiliate of any Lender and any Approved Fund, and (b) any commercial bank, insurance company, investment or mutual fund or other entity, that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans, provided that a natural person shall not be an Eligible Assignee.

environment” means ambient air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, the workplace or as otherwise defined in any Environmental Law.

Environmental Laws” means any and all applicable Governmental Requirements pertaining in any way to health, safety, the environment or the preservation or reclamation of natural resources,

 

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in effect at any time, including the Clean Air Act, as amended, the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980 (“CERCLA”), as amended, the Federal Water Pollution Control Act, as amended, the Occupational Safety and Health Act of 1970, as amended, the Resource Conservation and Recovery Act of 1976 (“RCRA”), as amended, the Safe Drinking Water Act, as amended, the Toxic Substances Control Act, as amended, the Superfund Amendments and Reauthorization Act of 1986, as amended, the Hazardous Materials Transportation Act, as amended, and other environmental conservation or protection Governmental Requirements.

Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statutes, and all regulations and guidance promulgated thereunder.

ERISA Affiliate” means each trade or business (whether or not incorporated) which, together with Borrower or any of its Subsidiaries, would (at any relevant time) be deemed to be a “single employer” within the meaning of section 4001(b)(1) of ERISA or subsections (b), (c), (m) or (o) of section 414 of the Code; provided that during any period in which all of the Lenders are DT Entities, no DT Entity shall be considered an “ERISA Affiliate” of Borrower or its Subsidiaries.

ERISA Event” means: (a) a Reportable Event, (b) the withdrawal of the Borrower, a Subsidiary or any ERISA Affiliate from a Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, (c) the filing of a notice of intent to terminate a Plan or the treatment of a Plan amendment as a termination under section 4041 of ERISA, (d) the institution of proceedings to terminate a Plan by the PBGC, (e) receipt of a notice of withdrawal liability pursuant to Section 4202 of ERISA or (f) any other event or condition which would be reasonably likely to constitute grounds under section 4042 of ERISA for the termination of, or appointment of a trustee to administer, any Plan.

Eurodollar Loans” means Loans the rate of interest applicable to which is based upon the Eurodollar Rate.

Eurodollar Rate” means, with respect to each day during an Interest Period for a Eurodollar Loan, the rate per annum obtained by dividing (and rounding up to the next whole multiple of 1/100 of 1%) (a) the rate per annum determined on the basis of the rate for deposits in Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on LIBOR01 of the Reuters screen as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period by (b) an amount equal to (i) one minus (ii) the Applicable Reserve Requirement. In the event that such rate does not appear on LIBOR01 of the Reuters screen (or otherwise on such screen), clause (a) of the “Eurodollar Rate” shall be determined by reference to such other comparable publicly available service for displaying eurodollar rates as may be reasonably selected by the Administrative Agent or, in the absence of such availability, then clause (a) of the Eurodollar Rate will be replaced by another rate of interest which the Administrative Agent shall determine in its reasonable discretion represents a comparable rate of interest for such Interest Period in Dollars at or about 11:00 A.M., New York City time, two Business Days prior to the beginning of such Interest Period. If the Administrative Agent decides that another rate of interest is to replace clause (a) of the Eurodollar Rate, the Administrative Agent will notify the Borrower in writing promptly after making such decision.

 

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Eurodollar Tranche” means the collective reference to Eurodollar Loans the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).

Event of Default” means each of the conditions or events set forth in Section 9.

Excepted Liens” means:

(a) Liens for Taxes, assessments or other governmental charges, claims or levies which are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves are maintained in accordance with GAAP;

(b) Liens in connection with workers’ compensation, unemployment insurance or other social security, old age pension or public liability obligations which are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves are maintained in accordance with GAAP;

(c) landlord’s liens, operators’, vendors’, carriers’, warehousemen’s, repairmen’s, mechanics’, suppliers’, workers’, materialmen’s, construction or other similar Liens, arising by operation of law or otherwise in the ordinary course of business;

(d) (i) banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depository institution, and (ii) Liens, deposits (including upfront payments, down payments and other deposits with the FCC) or pledges to secure the performance of bids, tenders, trade or governmental contracts, leases, licenses, statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business;

(e) Liens arising by reason of a judgment, attachment, decree or court order, to the extent covered by a bond or to the extent not otherwise resulting in an Event of Default, and any Liens that are required to protect or enforce any rights in any administrative, arbitration or other court proceedings in the ordinary course of business;

(f) survey exceptions, encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(g) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Borrower or any of its Subsidiaries in the ordinary course of business covering only the Property under lease (plus improvements and accessions to such Property and proceeds or distributions of such Property and improvements and accessions thereto);

 

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(h) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by Section 8.2(m), covering only the assets (including the proceeds thereof, accessions thereto and upgrades thereof) acquired with, or financed by, such Indebtedness;

(i) Liens on Property (including Capital Stock) existing at the time of acquisition of the Property by the Borrower or any Subsidiary of the Borrower, covering only the assets (including the proceeds thereof, accessions thereto and upgrades thereof) so acquired; provided that such Liens were in existence prior to such acquisition and not incurred in contemplation of such acquisition;

(j) Liens on Property of a Person existing at the time such Person becomes a Restricted Subsidiary or is merged with or into or consolidated with the Borrower or any Subsidiary of the Borrower; provided that such Liens were in existence prior to such acquisition, merger or consolidation and not incurred in contemplation of such merger or consolidation and do not extend to any assets (other than proceeds of such Property, accessions thereto and upgrades thereof) other than those of the Person that becomes a Restricted Subsidiary or is merged into or consolidated with the Borrower or such Subsidiary;

(k) (i) Liens contained in purchase and sale agreements or lease agreements limiting the transfer of assets pending the closing of the transactions contemplated thereby or the termination of the lease, respectively, (ii) spectrum leases or other similar lease or licensing arrangements contained in, or entered into in connection with, purchase and sale agreements, and (iii) Liens relating to deposits or escrows established in connection with purchase and sale agreements;

(l) Liens existing on the Closing Date (including Liens on the assets of MetroPCS Wireless, Inc. and its Subsidiaries existing immediately prior to the Merger);

(m) Liens securing Indebtedness and other obligations under Indebtedness permitted by Section 8.2(g), (n) and clause (i) of Section 8.2(o) hereof, provided that any secured Permitted Refinancing Indebtedness incurred in respect of Indebtedness or other obligations previously secured pursuant to this clause (m) will be treated as Indebtedness secured pursuant to this clause (m) in making any determination as to whether additional Indebtedness or other obligations may be secured pursuant to this clause (m);

(n) Liens to secure any Permitted Refinancing Indebtedness permitted under this Agreement; provided, however, that: (i) the new Lien shall be limited to all or part of the same Property or type of Property that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien that secured the Indebtedness being refinanced (plus improvements and accessions to such Property and proceeds or distributions of such Property and upgrades and replacements thereof); and (ii) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount of Indebtedness being refinanced, or, if greater, committed amount of the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal, refunding, refinancing, replacement, defeasance or discharge;

 

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(o) Liens that may be deemed to exist by virtue of contractual provisions that restrict the ability of the Borrower or any of its Subsidiaries from granting or permitting to exist Liens on their respective assets;

(p) Liens in favor of the trustee under any indenture (as provided for therein) or administrative agent under any credit agreement (as provided for therein) on money or Property held or collected by the trustee or administrative agent thereunder in its capacity as trustee or administrative agent;

(q) Liens on Cash or Cash Equivalents securing (i) workers’ compensation claims, self-insurance obligations, unemployment insurance or other social security, old age pension, bankers’ acceptances, performance bonds, completion bonds, bid bonds, appeal bonds, indemnity bonds, specific performance or injunctive relief bonds, surety bonds, public liability obligations, or other similar bonds or obligations, or securing any guarantees or letters of credit functioning as or supporting any of the foregoing, in each case incurred in the ordinary course of business, (ii) letters of credit required to be issued for the benefit of any Person or Persons that control a Permitted Joint Venture Investment to secure any put right for the benefit of such Person or Persons controlling the Permitted Joint Venture Investment; or (iii) reimbursement obligations under letters of credit incurred in the ordinary course of business;

(r) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Person that is a Permitted Joint Venture Investment owned by the Borrower or any Restricted Subsidiary to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Person;

(s) Liens with respect to obligations that do not exceed at any time the greater of $500,000,000 and 1.0% of the Borrower’s Consolidated Total Assets, as determined on the date of incurrence of such Liens after giving pro forma effect to such incurrence and the application of any proceeds of any Indebtedness secured by such Liens (for the avoidance of doubt, any Liens once incurred pursuant to this clause (r) shall be deemed permitted for all time).

(t) Liens in favor of the Borrower or any Guarantor;

(u) Liens securing any Hedge Agreement entered into by the Borrower or any of its Restricted Subsidiaries as permitted by this Agreement;

(v) Liens on Cash relating to escrows established for an adjustment in purchase price or liabilities or indemnities relating to Asset Sales (or any sale, assignment, transfer, conveyance or other disposition of any Property described in clauses (1)-(13) of the exclusions set forth in the definition of Asset Sale);

(w) any interest or title of a lessor, licensor or sublicensor in the Property subject to any lease, license or sublicense entered into in the ordinary course of business;

(x) Liens arising under operating agreements, Joint Venture agreements, partnership agreements, contracts for sale and other agreements arising in the ordinary course of business that are customary in the business of the Borrower and its Subsidiaries, and applicable only to the assets that are the subject of such agreements or contracts;

 

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(y) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

(z) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

(aa) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(bb) Liens securing any arrangement for treasury, depositary or cash management services provided to the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;

(cc) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements;

(dd) Liens securing the Obligations; and

(ee) Liens, if any, incurred in connection with the Towers Transaction.

Excluded Indebtedness” means all Indebtedness incurred pursuant to Section 8.2.

Excluded Taxes” means, with respect to any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower or any other Loan Party under this Agreement or any other Loan Document, (a) Taxes imposed on or measured by its overall net income (however denominated) and franchise Taxes imposed on it (in lieu of net income Taxes) by a jurisdiction (or any political subdivision thereof) as a result of such Lender or other recipient being organized or having its principal office or, in the case of a Lender, its applicable lending office, in such jurisdiction, or as a result of a present or former connection between the recipient and the taxing jurisdiction or any political subdivision thereof (other than a connection arising solely from such Lender or other recipient entering into, delivering, performing its obligations under, enforcing, receiving payments under, receiving or perfecting a security interest under or engaging in any other transaction pursuant to this Agreement or any other Loan Document), (b) any branch profits Taxes imposed by the United States and any similar Tax imposed by any other jurisdiction described in clause (a), (c) any U.S. Federal withholding Tax imposed pursuant to any Requirement of Law in effect at the time such Lender or other recipient becomes a party hereto (or designates a new lending office other than pursuant to a request by the Borrower under Section 4.12), except to the extent that such Lender or other recipient (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding Tax pursuant to Section 4.10(a), (d) any withholding Tax resulting from such Lender’s or other recipient’s failure to comply with Section 4.10(e) and (e) any U.S. Federal withholding Taxes imposed under FATCA.

Existing Indebtedness” means (a) Indebtedness of the Borrower and its Subsidiaries in existence

 

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on the Closing Date, until such amounts are repaid, (b)(1) the Senior Notes in existence on the Closing Date (and any exchange notes relating thereto) and the Loans, and (2) all other Indebtedness of MetroPCS Wireless, Inc. and its Subsidiaries in existence on the Closing Date that was not incurred in violation of the terms of the Business Combination Agreement as in effect as of the Closing Date, in each case until such amounts are repaid.

Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of Directors of the Borrower or a senior officer of the Borrower, which determination shall be conclusive.

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement, and any amendment or successor provisions that are substantively comparable and which do not impose criteria that are materially more onerous than those contained in such Sections, and any regulations or official interpretations thereof.

FCC” means the United States Federal Communications Commission and any successor agency that is responsible for regulating the United States telecommunications industry.

Federal Funds Effective Rate” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

Financial Officer” means, for any Person, the chief financial officer, principal accounting officer, treasurer or controller of such Person. Unless otherwise specified, all references herein to a Financial Officer means a Financial Officer of the Borrower.

First Merger” means the merger of MetroPCS, Inc. with and into MetroPCS Wireless, Inc. with MetroPCS Wireless, Inc. as the surviving Person, as contemplated by, and pursuant to, the Business Combination Agreement.

Fiscal Quarter” means a fiscal quarter of any Fiscal Year.

Fiscal Year” means the fiscal year of Parent and its Subsidiaries ending on December 31 of each calendar year.

Fitch” means Fitch Inc., a Subsidiary of Fimalac, S.A., and its successors.

Foreign Subsidiary” means any Subsidiary of Parent other than a Subsidiary organized under the laws of the United States or any state of the United States or the District of Columbia, or any direct or indirect subsidiary thereof.

Funding Office” means the office of the Administrative Agent specified in Section 11.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders.

 

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GAAP” means generally accepted accounting principles as in effect on the Closing Date. At any time, the Borrower may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP (or parts of the Accounting Standards Codification or “ASC”) shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided that any such election, once made, shall be irrevocable; provided further, that any calculation or determination in this Agreement that requires the application of GAAP for periods that include Fiscal Quarters ended prior to the Borrower’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Borrower shall give notice of any such election made in accordance with this definition to the Administrative Agent.

Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof, including, but not limited to, the FCC, or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.

Governmental Authorization” means any permit, license, authorization, plan, directive, consent, permission, consent order or consent decree of or from any Governmental Authority.

Governmental Requirement” means any applicable law, statute, code, ordinance, order, determination, rule, regulation, common law, judgment, decree, injunction, franchise, Governmental Authorization, certificate, or other directive or requirement, whether now or hereinafter in effect, including, Environmental Laws, energy regulations and occupational, safety and health standards or controls, of any Governmental Authority.

Group Members” means the collective reference to the Borrower and the Subsidiary Guarantors.

Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).

Guarantee Agreement” means the Guarantee Agreement executed and delivered by each Loan Party dated as of the Closing Date, a form of which is attached hereto as Exhibit A.

Guarantee Obligation” means, as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases or dividends (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the

 

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purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term “Guarantee Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (x) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (y) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith, which determination shall be conclusive.

Guarantors” means Parent and each Subsidiary of the Borrower that is a party to the Guarantee Agreement as of the Closing Date, and any other Subsidiary of Parent that becomes party to the Guarantee Agreement after the Closing Date, and, in each case, their respective successors and assigns, until such Person’s guarantee of the Obligations under the Loan Documents has been released in accordance with the provisions of this Agreement.

Hazardous Materials” means any chemical, material waste or substance, exposure to which is, or which is otherwise, prohibited, limited or regulated by any Governmental Authority or Environmental Law, or which may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Property or to the indoor or outdoor environment.

Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.

Hedge Agreement” means, with respect to any specified Person, the obligations of such Person under:

 

  (1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

 

  (2) other agreements or arrangements designed to manage interest rates or interest rate risk; and

 

  (3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

 

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IFRS” means the international accounting standards promulgated by the International Accounting Standards Board and its predecessors, as adopted by the European Union, as in effect from time to time.

Immaterial Subsidiary” means any Subsidiary of the Borrower that at any time has less than $100.0 million in Consolidated Total Assets; provided that the aggregate Consolidated Total Assets of all Immaterial Subsidiaries shall not at any time exceed $300.0 million.

Indebtedness” means, with respect to any specified Person, without duplication, (a) any indebtedness of such Person, whether or not contingent:

 

  (1) in respect of borrowed money;

 

  (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

  (3) in respect of banker’s acceptances;

 

  (4) representing Capital Lease Obligations;

 

  (5) representing the balance deferred and unpaid of the purchase price of any Property or services due more than six months after such Property is acquired or such services are completed, except any such balance that constitutes an accrued expense or a trade payable or escrow for obligations, including indemnity obligations; or

 

  (6) in respect of Hedge Agreements permitted under this Agreement; and

(b) any financial liabilities recorded in respect of the upfront proceeds received in connection with the Towers Transaction,

in each case, if and only to the extent any of the preceding items (other than letters of credit and indebtedness in respect of Hedge Agreements) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes (i) all Indebtedness of others, of the types described above in clauses (a)(1) through (a)(6), secured by a Lien on any asset of the specified Person (even if such indebtedness is not assumed by the specified Person) but limited to the lesser of (x) the Fair Market Value of such assets at the date of determination and (y) the amount of Indebtedness of the other Person so secured) and (ii) to the extent not otherwise included, the Guarantee by the specified Person of any indebtedness of any other Person, of the types described above in clauses (a)(1) through (a)(6). Indebtedness shall also include any Disqualified Stock of the Borrower and any Preferred Stock of any Subsidiary Guarantor; provided that the principal amount of any such Indebtedness will be deemed to be equal to the liquidation preference of such Disqualified Stock or Preferred Stock, and the maturity of any such Indebtedness will be deemed to be any mandatory redemption date (including any such mandatory redemption at the option of the holder) of such Disqualified Stock or Preferred Stock. Notwithstanding the foregoing, the following shall not constitute Indebtedness: (1) accrued expenses and trade accounts payable arising in the ordinary course of business; (2) any indebtedness that has been defeased in accordance with GAAP or defeased pursuant to the deposit

 

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of Cash (in an amount sufficient to satisfy all obligations relating thereto at maturity or redemption, as applicable, including all payments of interest and premium, if any) in a trust, escrow or account created or pledged for the sole benefit of the holders of such indebtedness, and in accordance with the other applicable terms of the instrument governing such indebtedness; (3) any obligation arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such obligation is extinguished within five Business Days of its incurrence; and (4) any obligation arising from any agreement providing for indemnities, Guarantees, escrows, purchase price adjustments, holdbacks, contingency payment obligations based on the performance of the acquired or disposed assets or similar obligations (other than Guarantees of Indebtedness) incurred by any Person in connection with the acquisition or disposition of assets. For purposes of clause (a)(6) above and clause (n) of Section 9, the principal amount of Indebtedness in respect of Hedge Agreements shall equal the amount that would be payable (giving effect to netting) at such time if such Hedge Agreement were terminated. Notwithstanding the foregoing, in no event shall the reclassification of any lease or other liability as indebtedness due to a change in accounting principles or the application thereof after the Closing Date be deemed to be Indebtedness for any purpose under this Agreement.

Indemnified Liabilities” has the meaning given to such term in Section 11.5.

Indemnitee” has the meaning given to such term in Section 11.5.

Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

Interest Payment Date” means: (a) as to any Base Rate Loan, the last day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period, and (d) as to any Loan the date of any repayment or prepayment made in respect thereof.

Interest Period” means, as to any Eurodollar Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one, two, three or six months (or, with the consent of each Lender at such time, nine or twelve months) thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent no later than 10:00 A.M., New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:

 

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(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;

(ii) the Borrower may not select an Interest Period that would extend beyond the Termination Date; and

(iii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.

Investment” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees), advances (excluding commission, entertainment, travel, drawing accounts and similar advances to directors, officers and employees made in the ordinary course of business and excluding the purchase of equipment, Property or accounts receivables created or acquired in the ordinary course of business) or capital contributions, and purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities. If the Borrower or any of its Restricted Subsidiaries sells or otherwise disposes of any Capital Stock of any direct or indirect Restricted Subsidiary of the Borrower such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Borrower, the Borrower will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Borrower’s Investments in such Restricted Subsidiary that were not sold or disposed of in an amount determined as provided in the final paragraph of Section 8.6(b) hereof. The acquisition by the Borrower or any of its Subsidiaries of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Borrower or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of Section 8.6(b) hereof. The amount of any Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.

Investment Grade” means

(1) with respect to Moody’s (or any successor company acquiring all or substantially all of its assets), a rating of Baa3 (or its equivalent under any successor rating category of Moody’s) or better;

(2) with respect to S&P (or any successor company acquiring all or substantially all of its assets), a rating of BBB- (or its equivalent under any successor rating category of S&P) or better;

(3) with respect to Fitch (or any successor company acquiring all or substantially all of its assets), a rating of BBB- (or its equivalent under any successor rating category of Fitch) or better; and

 

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(4) if any Rating Agency ceases to exist or ceases to rate the Senior Notes for reasons outside of the control of the Borrower, the equivalent investment grade credit rating from any other nationally recognized statistical rating organization selected by the Borrower as a replacement agency.

ISIS Joint Venture” means Amended and Restated LLC Agreement of JVL Ventures, LLC dated October 1, 2010, as amended.

Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided, in no event shall any Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.

Lenders” means DT and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, in each case other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption; provided, that unless the context otherwise requires, each reference herein to the Lenders shall be deemed to include any Conduit Lender.

Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement and any lease in the nature thereof.

Loan Documents” means this Agreement, the Guarantee Agreement, the Notes, and any fee letters entered into with the Administrative Agent.

Loan Parties” means the collective reference to Borrower and the Guarantors.

Loans” has the meaning given to such term in Section 3.1(a).

Material Adverse Effect” means a material adverse effect on and/or material adverse developments with respect to (a) the business, assets, property, financial condition, or results of operations of Borrower and its Subsidiaries taken as a whole, or (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.

Material Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.

Merger” means the merger of MetroPCS Wireless, Inc. with and into the Borrower with Borrower as the surviving Person, pursuant to the Business Combination Agreement.

Moody’s” means Moody’s Investors Service, Inc., and its successors.

Multiemployer Plan” means any employee pension benefit plan, as described in Section 3(2) of ERISA which is a “multiemployer plan,” as defined in Section 4001(a)(3) of ERISA that is subject to Title IV of ERISA, to which the Borrower, a Subsidiary of the Borrower or an ERISA Affiliate maintains, administers, makes or is obligated to make contributions, or at any time during the six consecutive year period ending on the date hereof maintained, administered, made or was obligated to make contributions.

 

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NAIC” means The National Association of Insurance Commissioners, and any successor thereto.

Net Cash Proceeds” means: (a) with respect to any Asset Sale, an amount equal to: (i) Cash payments (including any Cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received by the Borrower or any of its Restricted Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset Sale, including (A) income, sales, gains, transfer or other Taxes payable by the seller as a result of such Asset Sale, (B) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale, (C) any amounts to be set aside in any reserve established in accordance with GAAP or any amount placed in escrow, in either case for adjustment in respect of the sale price of such properties or assets or for liabilities associated with such Asset Sale and retained by the Borrower or any of its Restricted Subsidiaries until such time as such reserve is reversed or such escrow arrangement is terminated, in which case Net Cash Proceeds shall include the amount of the reserve so reversed or the amount returned to the Borrower or its Restricted Subsidiaries from such escrow arrangement, as the case may be, (D) all legal, accounting, tax advisor, and investment banking fees, sales commissions, brokers or finders fees, employee severance costs, and any relocation expenses incurred as a result of the Asset Sale, and (E) all distributions and other payments required to be made to minority interest holders in Subsidiaries as a result of such Asset Sale; and (b) with respect to any issuance or sale of Capital Stock or issuance or incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, tax advisor fees, other professional fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.

Net Equity Proceeds” means the Net Cash Proceeds received by the Borrower since the Closing Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Borrower (other than Disqualified Stock).

Net Income” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock accretion or dividends, excluding however:

 

  (1) any gain (or loss), together with any related provision for taxes on such gain (or loss) realized in connection with : (a) dispositions of assets (other than in the ordinary course of business); or (b) the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

 

  (2) any extraordinary gain (or loss), together with any related provision for taxes on such extraordinary gain (or loss).

New Market” means the collective reference to any wireless telephone markets other than the metropolitan areas of Las Vegas, Nevada; Los Angeles, San Francisco and Sacramento, California; Detroit, Michigan; Dallas/Fort Worth, Texas; Tampa/Sarasota, Orlando, Miami and Jacksonville, Florida; Atlanta, Georgia; Philadelphia, Pennsylvania; New York, New York; Boston, Massachusetts; and Hartford, Connecticut.

 

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New Market Losses” means, for any period, to the extent such losses were deducted in computing such Consolidated Net Income during the applicable period, an amount equal to any extraordinary loss plus any net loss (without duplication) realized by the Borrower or any of its Restricted Subsidiaries incurred in connection with construction, launch and operations in any New Market for such period, so long as such net losses are incurred on or prior to the fourth anniversary after the initial commencement of commercial operations in the applicable New Market.

Non-Consenting Lender”: as defined in Section 11.1(b).

Non-Excluded Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made under this Agreement or any other Loan Document and (b) Other Taxes.

Non-Recourse Debt” means Indebtedness:

(1) as to which neither the Borrower nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), subject to customary “bad-boy” exceptions, (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 of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Borrower or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness 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 the Borrower or any of its Restricted Subsidiaries.

Notes” means the collective reference to any promissory note evidencing Loans.

Obligations” means the collective reference to the unpaid principal of and interest on the Loans and all other obligations and liabilities of the Borrower (including, interest accruing at the then applicable rate provided hereunder after the maturity of the Loans and interest accruing at the then applicable rate provided herein after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to the Administrative Agent or any Lender (or former Administrative Agent or Lender), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, or the other Loan Documents, or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, fees, indemnities, costs, expenses or otherwise (including, all fees and disbursements of counsel to the Administrative Agent or to the Lenders that are required to be paid by the Borrower pursuant to the terms of any of the foregoing agreements).

 

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Optional Prepayment” has the meaning given to such term in Section 4.1.

Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes, charges or levies arising from any payment made hereunder or from the execution, delivery, perfection of any security interest under or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

Parent” means T-Mobile US, Inc., a Delaware corporation (formerly known as MetroPCS Communications, Inc.), and its successors and assigns.

Participant” has the meaning given to such term in Section 11.6(c)(i).

Patriot Act” has the meaning given to such term in Section 11.19.

PBGC” means the Pension Benefit Guaranty Corporation or any successor.

Permitted Bond Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) on Parent’s common stock purchased by the Borrower in connection with the issuance of any Convertible Debt; provided that the purchase price for such Permitted Bond Hedge Transaction, does not exceed the Net Cash Proceeds received by the Borrower from the sale of such Convertible Debt issued in connection with the Permitted Bond Hedge Transaction.

Permitted Business” means those businesses in which the Borrower and its Subsidiaries were engaged on the Closing Date, or any business similar, related, incidental or ancillary thereto or that constitutes a reasonable extension or expansion thereof, or any business reasonably related to the telecommunications industry, and the acquisition, holding or exploitation of any license relating to the delivery of those services.

Permitted Holder” means (i) DT and (ii) any direct or indirect Subsidiary of DT.

Permitted Investments” means:

(a) any Investment in the Borrower or any Restricted Subsidiary of the Borrower;

(b) any Investment in Cash or Cash Equivalents;

(c) any Investment by the Borrower or any Subsidiary in a Person, if as a result of such Investment: (i) such Person becomes a Restricted Subsidiary of the Borrower; or (ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary of the Borrower;

(d) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale (or any sale, assignment, transfer, conveyance or other disposition of any Property described in clauses (1)-(13) of the exclusions set forth in the definition of Asset Sale) that was not prohibited by Section 8.5;

 

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(e) any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Borrower or Equity Interests of Parent;

(f) any Investments received in compromise or resolution of (i) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Borrower or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or upon enforcement of any Lien in favor of the Borrower or any Restricted Subsidiary; or (ii) litigation, arbitration or other disputes with Persons who are not Affiliates;

(g) Investments related to Hedge Agreements;

(h) loans or advances to employees or directors made in the ordinary course of business of the Borrower or any Restricted Subsidiary of the Borrower in an aggregate principal amount not to exceed $50,000,000 at any one time outstanding;

(i) advances and prepayments for asset purchases in the ordinary course of business in a line of business permitted by Section 8.19;

(j) Investments existing on the Closing Date, and Investments held by MetroPCS Wireless, Inc., the Borrower, and their Subsidiaries immediately prior to the Merger;

(k)(1) Permitted Joint Venture Investments and (2) other Investments in any Person other than an Affiliate of the Borrower (excluding any Person that is an Affiliate of the Borrower solely by reason of Parent’s ownership, directly or indirectly, of Equity Interests, or control, of such Person or which becomes an Affiliate as a result of such Investment), to the extent such Investment under (1) or (2) has an aggregate Fair Market Value that, when taken together with all other Investments made pursuant to this clause (k) (in each case, measured on the date each such Investment was made and without giving effect to subsequent changes in value), does not exceed 12.5% of the Consolidated Total Assets of the Borrower and its Subsidiaries on the date of such Investment;

(l) accounts receivable arising in the ordinary course of business;

(m) [reserved];

(n) Investments in a Person primarily engaged in a Permitted Business having an aggregate Fair Market Value, when taken together with all other Investments made pursuant to this clause (n) since the Closing Date that are at that time outstanding, not to exceed $250,000,000 (with the Fair Market Value of each Investment being measured on the date each such Investments was made and without giving effect to subsequent changes in value);

(o) deposits, upfront payments, down payments or other payments required to be made with the FCC in connection with the auction or licensing of Governmental Authorizations;

(p) any payment on or with respect to, or purchase, redemption, defeasement or other acquisition or retirement for value of (i) the Senior Notes, or (ii) any Indebtedness that is pari passu with the Senior Notes;

 

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(q) Investments in the ISIS Joint Venture having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (q) since the Closing Date that are at any time outstanding, not to exceed $300.0 million;

(r) Guarantees permitted under Section 8.2 and incurred after the consummation of the Merger;

(s) Permitted Bond Hedge Transactions which constitute Investments;

(t) any Investment deemed made from time to time pursuant to Section 11.18 in connection with a Specified Unrestricted Subsidiary Designation, in an amount equal to the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the Subsidiaries designated as Unrestricted Subsidiaries pursuant to such Specified Unrestricted Subsidiary Designation, but only to the extent not in excess of the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in such designated Subsidiaries as of the Closing Date (for this purpose, it shall be assumed, as regards to Investments in any Designated Tower Entity, that all wireless communications sites, towers, and related contracts, equipment, improvements, real estate, and other assets of the Borrower and its Subsidiaries subject to the Towers Transaction that are contemplated to be transferred to the Designated Tower Entities in accordance with the terms of the Towers Transaction, as contemplated in the Towers Transaction Agreements as in effect as of the Closing Date, had been transferred to the Designated Tower Entities, whether or not all such transfers have in fact then taken place, but disregarding any transfers of assets not part of the Towers Transaction as contemplated in the Towers Transaction Agreements as in effect as of the Closing Date); and

(u) any other Investments made in connection with the Towers Transaction, as contemplated in the Towers Transaction Agreements as in effect as of the Closing Date.

Notwithstanding any other provision to the contrary, no Permitted Investment shall be deemed to be a Restricted Payment. In the event that an Investment meets the criteria of more than one of the categories or subcategories described in the clauses above, the Borrower will be permitted to classify all or a portion of such Investment on the date it is made, or later reclassify all or a portion of such Investment, in any manner that complies with this definition.

Permitted Joint Venture Investment” means, with respect to any specified Person, Investments in any other Person engaged in a business permitted by Section 8.19 of which at least 40% of the outstanding Capital Stock of such other Person is at the time owned directly or indirectly by the specified Person.

Permitted Payments to Parent” means, without duplication as to amounts:

(1) payments to Parent to permit Parent to pay reasonable accounting, legal, investment banking fees and administrative expenses of Parent when due; and

(2) for so long as Borrower is a member of a group filing a consolidated or combined tax return with Parent, payments to Parent in respect of an allocable portion of the tax

 

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liabilities of such group that is attributable to Borrower and its Subsidiaries (“Tax Payments”). The Tax Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any penalties and interest) that Borrower would owe if Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of Borrower and such Subsidiaries from other taxable years and (ii) the net amount of the relevant tax that Parent actually owes to the appropriate taxing authority.

Permitted Refinancing Indebtedness” means any Indebtedness of the Borrower or any of its Restricted Subsidiaries (a) issued in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, replace, defease, discharge or otherwise retire for value, in whole or in part, or (b) constituting an amendment, modification or supplement to or a deferral or renewal of ((a) and (b) above, collectively, a “Permitted Refinancing”), any other Indebtedness of the Borrower or any of its Restricted Subsidiaries (other than intercompany Indebtedness) in a principal amount not to exceed (after deduction of reasonable and customary fees and expenses incurred in connection with the Permitted Refinancing) the lesser of:

(i) the principal amount of the Indebtedness so refinanced (plus the amount of accrued interest and premium, if any, paid in connection therewith), and

(ii) if the Indebtedness being refinanced was issued with any original issue discount, the accreted value of such Indebtedness (as determined in accordance with GAAP) at the time of such Permitted Refinancing;

in each case, except to the extent that any such excess principal amount (or accreted value, as applicable) would be then permitted by other provisions of Section 8.2 hereof; provided, that such excess principal amount of Indebtedness shall be deemed to be incurred under such other provision.

Notwithstanding the preceding, no Indebtedness will be deemed to be Permitted Refinancing Indebtedness, unless:

(1) such Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being refinanced;

(2) if the Indebtedness being refinanced is Subordinated Indebtedness, such Indebtedness is contractually subordinated or otherwise junior in right of payment to, the Obligations, on terms at least as favorable to the holders of the Obligations as those contained in the documentation governing the Indebtedness being refinanced at the time of the Permitted Refinancing; and

(3) such Indebtedness is incurred by the Borrower or the Subsidiary who is the obligor on the Indebtedness being refinanced, or a Restricted Subsidiary of such obligor.

Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

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Plan” means any employee pension benefit plan, as defined in section 3(2) of ERISA that is not a Multiemployer Plan, that is subject to Title IV of ERISA, Section 302 or 303 of ERISA or Section 412 or 430 of the Code and that (a) is currently or hereafter sponsored, maintained or contributed to by the Borrower, a Subsidiary or an ERISA Affiliate or (b) was at any time during the six consecutive year period ending on the date hereof, sponsored, maintained or contributed to by the Borrower or a Subsidiary or an ERISA Affiliate.

Preferred Stock” means, with respect to any Person, any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or payments upon liquidation.

Pricing Grid” means the pricing grid attached hereto as Annex A.

Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including cash, securities, accounts and contract rights.

Qualified Counterparty” means, with respect to any Specified Hedge Agreement or any Specified Cash Management Agreement (as defined in the Guarantee Agreement), any counterparty thereto that, at the time such Specified Hedge Agreement or Specified Cash Management Agreement was entered into, was a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative Agent.

Rating Agency” means each of Moody’s, S&P, Fitch and, if any of Moody’s, S&P or Fitch ceases to exist or ceases to rate the Senior Notes for reasons outside of the control of the Borrower, any other nationally recognized statistical rating organization selected by the Borrower as a replacement agency.

Register” has the meaning given to such term in Section 11.6(b)(iv).

Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.

Remedial Work” has the meaning given to such term in Section 7.8(a)(iv).

Reportable Event” means any of the events set forth in Section 4043 of ERISA, other than those events as to which the thirty-day notice period is waived under PBGC Reg. § 4043.

Required Lenders” means, at any time, the holders of more than 50% of the Total Revolving Commitments then in effect or, if the Revolving Commitments have been terminated, the Total Revolving Extensions of Credit then outstanding.

 

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Requirement of Law” means, as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Restricted Investment” means an Investment other than a Permitted Investment.

Restricted Payment” means, (a) the declaration or payment of any dividend or the making of any other payment or distribution on account of the Borrower or any of its Restricted Subsidiaries’ Capital Stock (including, any payment in connection with any merger or consolidation involving the Borrower or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Borrower’s or any of its Restricted Subsidiaries’ Capital Stock in their capacity as such (other than dividends or distributions payable in Capital Stock (other than Disqualified Stock) of the Borrower and other than dividends or distributions payable to the Borrower or a Restricted Subsidiary); (b) the purchase, redemption or other acquisition or retirement for value (including, in connection with any merger or consolidation involving the Borrower) of, any Capital Stock of the Borrower or any direct or indirect parent by the Borrower or any of its Restricted Subsidiaries; (c) any payment on or with respect to, or purchase, redemption, defeasement or other acquisition or retirement for value of any Subordinated Indebtedness (excluding any intercompany Indebtedness between or among the Borrower and any of its Restricted Subsidiaries), except a payment of interest or principal at the stated maturity thereof or in connection with a Permitted Refinancing thereof; or (d) any Restricted Investment.

Restricted Payment Cap” means, as of the date of any determination thereof, the sum of:

(a) 100% of the Consolidated Cash Flow of the Borrower for the period (taken as one accounting period) from and after the Closing Date to the end of the Borrower’s most recently ended Fiscal Quarter for which internal financial statements are available at the time of such Restricted Payment, less the product of 1.4 times the Borrower’s Consolidated Interest Expense for the same period; plus

(b) 100% of the aggregate net cash proceeds, and the Fair Market Value of any property other than cash, in each case received by the Borrower after the Closing Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Borrower (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Borrower that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Borrower); plus

(c) to the extent that any Restricted Investment that was made after the Closing Date, or any Restricted Investment that was made by MetroPCS Wireless, Inc. or any of its Restricted Subsidiaries after November 3, 2006 and prior to the Closing Date (provided that, and solely to the extent that, such Restricted Investment made prior to the Closing Date, at the time made, reduced the amount that would be calculated pursuant to clause (g) below), is sold for Cash or Cash Equivalents, or otherwise is liquidated or repaid for Cash or Cash Equivalents, after the Closing Date, an amount equal to such Cash and Cash Equivalents; plus

 

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(d) to the extent that any Unrestricted Subsidiary of the Borrower is redesignated as a Restricted Subsidiary after the Closing Date, the Fair Market Value of the Borrower’s Investment in such Subsidiary as of the date of such redesignation, other than to the extent such Investment constituted a Permitted Investment; plus

(e) 100% of any cash dividends or cash distributions, and the Fair Market Value of any property other than Cash, in each case actually received directly or indirectly by the Borrower or a Restricted Subsidiary of the Borrower that is a Guarantor after the Closing Date from an Unrestricted Subsidiary of the Borrower, in each case, to the extent that such dividends, cash distributions or other property were not otherwise included in the Consolidated Net Income of the Borrower for such period and other than to the extent such Investment constituted a Permitted Investment; minus

(f) the aggregate amount of any Net Equity Proceeds taken into account for purposes of incurring Indebtedness pursuant to clause (p) of Section 8.2 after the Closing Date; plus

(g) the amount that would be calculated immediately prior to the consummation of the Merger on the Closing Date pursuant to clause (3) of the second paragraph of Section 4.07(a) of the Supplemental Indentures governing the Borrower’s (as successor by merger to MetroPCS Wireless, Inc.) 7-7/8% Senior Notes due 2018 and 6-5/8% Senior Notes due 2020, as in effect immediately prior to the execution of the Fifth and Sixth Supplemental Indentures on December 14, 2012 (provided, that any calculation of cumulative Consolidated Cash Flow and Consolidated Interest Expense in sub-clause (A) of such clause (3) shall include (x) the Borrower’s last Fiscal Quarter ending prior to the Closing Date, and (y) the period from the beginning of the Borrower’s Fiscal Quarter during which the Closing Date occurs to the Closing Date, in each case, if internal financial statements are available for such period at the time of calculation, even if they are not available immediately prior to the consummation of the Merger on the Closing Date).

Restricted Subsidiary” of a Person means any Subsidiary of the referenced Person that is not an Unrestricted Subsidiary. If not otherwise expressly stated, the term “Restricted Subsidiary” shall refer to a Restricted Subsidiary of the Borrower.

Revolving Commitment” means as to any Lender, the obligation of such Lender, to make Loans in an aggregate principal not to exceed the amount set forth under the heading “Revolving Commitment” on Annex B or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof.

Revolving Extensions of Credit” means, as to any Lender at any time, an amount equal to the sum of the aggregate principal amount of all Loans held by such Lender then outstanding.

Revolving Percentage” means, as to any Lender at any time, the percentage which such Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments (or, at any time after the Revolving Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Loans then outstanding constitutes of the aggregate principal amount of the Loans then outstanding).

S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation, and its successors.

 

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SEC” means the U.S. Securities and Exchange Commission or any successor Governmental Authority.

Secured Indebtedness” means, with respect to any specified Person, any Indebtedness (other than Indebtedness consisting of surety, construction, performance and other similar bonds or letters of credit, in each case that would not appear as indebtedness on a consolidated balance sheet prepared in accordance with GAAP) of such Person that is secured by a Lien on the assets of such Person (in the case of Indebtedness of a Loan Party, other than any such Liens that are in favor of another Loan Party), plus any Indebtedness of any other Person to the extent that such Indebtedness is secured by a Lien on the assets of the specified Person (but if such Indebtedness is not assumed by the specified Person, limited to the lesser of (i) the Fair Market Value of such assets at the date of determination and (ii) the amount of Indebtedness of the other Person so secured).

Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.

Senior Notes” means the Borrower’s (i) 7 7/8% Senior Notes due 2018, (ii) 6 5/8% Senior Notes due 2020, (iii) 6.25% Senior Notes due 2021, (iv) 6.625% Senior Notes due 2023 and the DT Notes. For purposes of this definition, “Borrower” includes the Borrower, as successor by merger to MetroPCS Wireless, Inc.

Senior Notes Indentures” means (i) the Indenture, dated as of September 20, 2010, among the Borrower, each of the guarantors party thereto, and Wells Fargo Bank, N.A., as Trustee, as supplemented by First Supplemental Indenture thereto, dated as of September 20, 2010, the Third Supplemental Indenture thereto, dated as of December 23, 2010, and the Fifth Supplemental Indenture thereto, dated as of December 14, 2012, governing the Borrower’s 7-7/8% Senior Notes due 2018; (ii) the Indenture, dated as of September 20, 2010, among the Borrower (as successor by merger to MetroPCS Wireless, Inc.), each of the guarantors party thereto, and Wells Fargo Bank, N.A., as Trustee, as supplemented by Second Supplemental Indenture thereto, dated as of September 20, 2010, the Fourth Supplemental Indenture thereto, dated as of December 23, 2010, the Sixth Supplemental Indenture thereto, dated as of December 14, 2012, governing the Borrower’s 6-5/8% Senior Notes due 2020, and the Seventh Supplemental Indenture thereto dated as of May 1, 2013; (iii) the Indenture, dated as of March 19, 2013, among the Borrower (as successor by merger to MetroPCS Wireless, Inc.), each of the guarantors party thereto and Deutsche Bank Trust Company Americas, as Trustee, as supplemented by the First Supplemental Indenture thereto, governing the Borrower’s 6-1/4% Senior Notes due 2021, and the Second Supplemental Indenture thereto, governing the Borrower’s 6-5/8% Senior Notes due 2023, each dated as of March 19, 2013, the Third Supplemental Indenture thereto, dated as of April 29, 2013, and the Fourth Supplemental Indenture thereto, dated as of May 1, 2013; and (iv) the Base Indenture, dated as of April 28, 2013, among the Borrower, each of the guarantors party thereto and Deutsche Bank Trust Company Americas, as Trustee, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh Supplemental Indenture, the Eighth Supplemental Indenture, the Ninth Supplemental Indenture and the Tenth Supplemental Indenture thereto, each dated as of April 28, 2013, and by the Eleventh Supplemental Indenture thereto, dated as of May 1, 2013. For purposes of this definition, “Borrower” includes the Borrower, as successor by merger to MetroPCS Wireless, Inc.

 

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Senior Officer” means any individual holding the position of chief executive officer, president, chief financial officer or chief operating officer of any Group Member. Unless otherwise specified, all references herein to a Senior Officer mean a Senior Officer of the Borrower.

Significant Subsidiary” means any Restricted Subsidiary that as of the end of the most recent Fiscal Quarter for which financial statements are available, would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Exchange Act of 1934, as amended, as such regulation was in effect on the Closing Date.

Solvent” means, with respect to any Person, that as of the date of determination, both (i) (a) the sum of such Person’s Indebtedness (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date or with respect to any transaction contemplated herein to be undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that would reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

Specified Hedge Agreement” means any Hedge Agreement (a) entered into by (i) the Borrower or any of its Subsidiaries and (ii) any Qualified Counterparty, as counterparty and (b) that has been designated by such Qualified Counterparty and the Borrower, by notice to the Administrative Agent, as a Specified Hedge Agreement; provided, that (i) subject to Section 11.14, obligations of the Borrower or any Subsidiary under any Specified Hedge Agreement shall be guaranteed pursuant to the Guarantee Agreement and (ii) any release of Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements. The designation of any Hedge Agreement as a Specified Hedge Agreement shall not create in favor of any Qualified Counterparty that is a party thereto any rights in connection with the management or release of the obligations of any Guarantor under the Guarantee Agreement except as provided in Section 11.14.

Specified Indebtednessmeans any Indebtedness of the Borrower in a principal amount of $250 million or more.

Specified Unrestricted Subsidiary Designation” has the meaning assigned to such term in Section 11.18 hereof.

Subordinated Indebtedness” means any unsecured Indebtedness of the Borrower or a Subsidiary Guarantor, no part of the principal of which is required to be paid (whether by way of mandatory

 

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sinking fund, mandatory redemption or mandatory prepayment), prior to the Termination Date (it being understood that any required offer to purchase such Indebtedness as a result of a change of control or asset sale shall not violate the foregoing restriction) and the payment of principal and interest of which and other obligations of the Borrower or such Subsidiary in respect thereof are subordinated to the prior payment in full of the Obligations on terms and conditions satisfactory to the Administrative Agent. Notwithstanding the fact that intercompany Indebtedness permitted by Section 8.2(c) is contractually subordinated to the Obligations pursuant to the Subordinated Intercompany Note, such intercompany Indebtedness shall not constitute “Subordinated Indebtedness.”

Subordinated Intercompany Note” means the promissory note dated as of the Closing Date, evidencing Indebtedness owed by any Group Member to the Borrower and the Subsidiaries of the Borrower party thereto.

Subsidiary” means, with respect to any specified Person:

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

(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

Subsidiary Guarantor” means, collectively, the Guarantors that are Subsidiaries of the Borrower.

Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding of any nature and whatever called, imposed by any Governmental Authority, including any interest, additions to tax or penalties imposed with respect thereto.

Termination Date” means the Business Day prior to the fifth anniversary of the Closing Date.

Total Revolving Commitments” means, at any time, the aggregate amount of the Revolving Commitments then in effect. The amount of the Total Revolving Commitments is $500,000,000 as of the Closing Date.

Total Revolving Extensions of Credit” means, at any time, the aggregate amount of the Revolving Extensions of Credit of the Lenders outstanding at such time.

Towers Transaction” means the transactions contemplated by the Towers Transaction Agreements.

 

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Towers Transaction Agreements” means: (i) the Master Agreement, dated as of September 28, 2012 (as the same may be amended, modified, or supplemented from time to time), among the Borrower, Crown Castle International Corp., a Delaware corporation, and certain subsidiaries of the Borrower; and (ii) each of the other transaction documents entered into in connection therewith or contemplated thereby, as they may be amended, modified or supplemented from time to time.

Transaction” means (i) the Merger, (ii) the First Merger, (iii) the offering of all DT Notes, the “Permitted MetroPCS Notes”, and the incurrence of this “TMUS Working Capital Facility”, as defined in the Business Combination Agreement, (iv) the refinancing of Existing Indebtedness on or prior to the Closing Date, (v) the “Cash Payment” and the “MetroPCS Reverse Stock Split”, each as defined in the Business Combination Agreement, and (vi) all other transactions consummated in connection therewith.

Type” means, as to any Loan, its nature as a Base Rate Loan or Eurodollar Loan.

U.S. Tax Certificate” has the meaning given to such term in Section 4.10(e)(ii)(D).

United States” means the United States of America.

Unrestricted Subsidiary” means any Subsidiary of the Borrower that is designated by the Board of Directors of the Borrower as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that:

(1) except as permitted by Section 8.8 hereof, such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary of the Borrower unless the terms of any such agreement, contract, arrangement or understanding are, taken as a whole, no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrower;

(2) such Subsidiary does not hold any Liens on any property of Parent, the Borrower or any of its Restricted Subsidiaries; and

(3) such Subsidiary has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Borrower or any of its Restricted Subsidiaries, except to the extent that such guarantee or credit support would be released upon such designation.

Voting Stock” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing (a) the sum of the products obtained by multiplying (x) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment, by (b) the then outstanding principal amount of such Indebtedness.

Wholly Owned Subsidiary” means, of any specified Person, a Subsidiary of such Person, all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) will at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person. Except if expressly otherwise specified, Wholly Owned Subsidiary means a Wholly Owned Subsidiary of the Borrower.

 

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1.2. Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

(b) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” (ii) the word “incur” shall be construed to mean incur, create, issue, assume, or become liable in respect of (and the words “incurred” and “incurrence” shall have correlative meanings), and (iii) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including Cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights, and (iv) references to agreements or other Material Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Material Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time (subject to any applicable restrictions hereunder).

(c) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(e) The expressions, “payment in full,” “paid in full” and any other similar terms or phrases when used herein with respect to the Obligations shall mean the payment in full, in immediately available funds, of all the Obligations.

(f) Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by the Borrower to Lenders pursuant to Sections 7.1(a) and 7.1(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in Section 7.1(c), if applicable). If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders, which shall not be unreasonably conditioned, withheld or delayed); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

 

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SECTION 2. [RESERVED]

SECTION 3. AMOUNT AND TERMS OF REVOLVING COMMITMENTS

3.1. Revolving Commitments. (a) Subject to the terms and conditions hereof, each Lender severally agrees to make revolving credit loans (“Loans”) to the Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the amount of such Lender’s Revolving Commitment. During the Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying and reborrowing the Loans in whole or in part, all in accordance with the terms and conditions hereof. The Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 3.2 and 4.3 and subject to the limitations therein.

(b) The Borrower shall repay all outstanding Loans on the Termination Date.

3.2. Procedure for Borrowing. The Borrower may borrow under the Revolving Commitments during the Commitment Period on any Business Day; provided that the Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 12:00 P.M., New York City time, three Business Days prior to the requested Borrowing Date, in the case of Eurodollar Loans or Base Rate Loans), specifying (i) the amount and Type of Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of Eurodollar Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Period therefor. Each borrowing under the Revolving Commitments shall be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Available Revolving Commitments are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans, $25,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Lender thereof. Each Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Borrower at the Funding Office prior to 12:00 P.M., New York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower on such Borrowing Date by the Administrative Agent crediting the account of the Borrower on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received by the Administrative Agent. Notwithstanding anything to the contrary herein, if all of the Lenders are DT Entities, the Borrower may not request, and the Lenders shall have no obligation to provide, borrowings in the form of Base Rate Loans without the prior written consent of the Required Lenders for each such borrowing.

3.3. [Reserved]

3.4. [Reserved]

 

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3.5. Commitment Fees, etc. (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a commitment fee for the period from and including the Closing Date to the last day of the Commitment Period, computed at the Commitment Fee Rate on the average daily amount of the Available Revolving Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on the last day of each March, June, September and December and on the Termination Date, commencing on the first of such dates to occur after the date hereof.

(b) The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates previously agreed to in writing by the Borrower and the Administrative Agent.

(c) Within one Business Day following the Closing Date, the Borrower shall pay to DT, in immediately available funds, a fee for its commitments hereunder in the amount of $2,500,000.00, which fee shall not be subject to reduction by way of setoff or counterclaim and will not be refundable under any circumstances.

3.6. Termination or Reduction of Revolving Commitments. The Borrower shall have the right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments; provided that no such termination or reduction of Revolving Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving Commitments. Any such reduction shall be in an amount equal to $10,000,000, or a whole multiple thereof, and shall reduce permanently the Revolving Commitments then in effect.

SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS

4.1. Optional Prepayments. The Borrower may at any time and from time to time prepay the Loans in whole or in part, without premium or penalty (“Optional Prepayment”), except as provided below, upon notice delivered to the Administrative Agent no later than 12:00 P.M., New York City time, three Business Days prior thereto in the case of Eurodollar Loans and no later than 12:00 P.M., New York City time, one Business Day prior thereto in the case of Base Rate Loans, which notice shall specify (a) the date and amount of prepayment, and (b) whether the prepayment is of Eurodollar Loans or Base Rate Loans; provided that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 4.11. Upon receipt of any such notice the Administrative Agent shall promptly notify each Lender thereof. Partial prepayments of Loans shall be in an aggregate principal amount of $10,000,000 or a whole multiple thereof (in the case of Base Rate Loans) or $10,000,000 or a whole multiple thereof (in the case of Eurodollar Loans).

4.2. [Reserved]

4.3. Conversion and Continuation Options.

(a) The Borrower may elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M., New York City time, on the Business Day preceding the proposed conversion date; provided that any such conversion of Eurodollar Loans may only be made on the last day of

 

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an Interest Period with respect thereto; and, provided further, that, if all of the Lenders are DT Entities, the Borrower may not convert Eurodollar Loans to Base Rate Loans without the prior written consent of the Required Lenders for each such conversion. The Borrower may elect from time to time to convert Base Rate Loans to Eurodollar Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M., New York City time, three Business Days preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor); provided that no Base Rate Loan may be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Required Lenders have determined in its or their sole discretion not to permit such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

(b) Any Eurodollar Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans; provided that no Eurodollar Loan may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuations, and provided, further, that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso then such Loans shall be automatically converted to Base Rate Loans on the last day of such then expiring Interest Period (unless all of the Lenders are DT Entities, in which case such Loans shall be automatically converted on the last day of such then expiring Interest Period to Eurodollar Loans with an Interest Period of one month or to Base Rate Loans, as decided by the Required Lenders in their sole discretion). Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

4.4. Limitations on Eurodollar Tranches. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and continuations of Eurodollar Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than ten Eurodollar Tranches shall be outstanding at any one time.

4.5. Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the Applicable Margin.

(b) Each Base Rate Loan shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin.

(c)(i) If all or a portion of the principal amount of any Loan shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section 4.5 plus 200 basis points, and (ii) if all or a portion of

 

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any interest payable on any Loan or any commitment fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to Base Rate Loans plus 200 basis points, in each case, with respect to clauses (i) and (ii) above, from the date of such nonpayment until such amount is paid in full (as well after as before judgment).

(d) Interest shall be payable in arrears on each Interest Payment Date; provided that interest accruing pursuant to paragraph (c) of this Section 4.5 shall be payable from time to time on demand.

4.6. Computation of Interest and Fees. (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to Base Rate Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a change in the Base Rate or the Applicable Reserve Requirement shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.

(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower or any Lender, deliver to the Borrower or such Lender, as applicable, a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 4.5.

4.7. Inability to Determine Interest Rate. If prior to the first day of any Interest Period,

(a) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or

(b) the Administrative Agent shall have received written notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period, the Administrative Agent shall give written notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (y) any Loans that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans shall be converted, on the last day of the then-current Interest Period, to Base Rate Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans shall be made or continued as such, nor shall the Borrower have the right to convert Loans to Eurodollar Loans.

 

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4.8. Pro Rata Treatment and Payments.

(a) Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the Lenders.

(b) [Reserved.]

(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Loans shall be made pro rata according to the respective outstanding principal amounts of the Loans then held by the Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest solely on the Loans shall be made pro rata according to the respective outstanding principal amounts of the Loans then held by the Lenders.

(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 10:00 A.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds, and the Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received; provided, that for so long as all of the Lenders are DT Entities, upon written notice from DT to the Borrower, all payments to be made by the Borrower hereunder shall be made directly to the account or accounts designated by DT for each Lender and the Borrower shall provide notice of such payments to the Administrative Agent. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

(e) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent on the Borrowing Date, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount on the Borrowing Date. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such

 

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borrowing is not made available to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans, on demand, from the Borrower.

(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 4.8(e) or (g), or Section 11.5, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid.

(g) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.

4.9. Requirements of Law. (a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made or issued subsequent to the date hereof:

(i) shall subject any Lender to any Tax of any kind whatsoever with respect to this Agreement or any Eurodollar Loan made by it (except for Non-Excluded Taxes and changes in the rate of, or imposition of, any Excluded Tax);

(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the Eurodollar Rate hereunder; or

(iii) shall impose on such Lender any other condition (other than Taxes);

and the result of any of the foregoing is to increase the cost to such Lender, by an amount that such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar Loans then, in any such case, the Borrower shall promptly pay such Lender, upon its demand accompanied by the certificate and information required by clause (c) below, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable. If any Lender becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.

 

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(b) If any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation by the relevant Governmental Authority or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy) by an amount reasonably deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor accompanied by the certificate and information required by clause (c) below, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction.

(c) Any request by a Lender for compensation under clauses (a) or (b) above shall be accompanied by a certificate, accompanied by such supporting information as Borrower may reasonably request, as to any additional amounts payable pursuant to this Section 4.9 and such certificate shall be submitted by such Lender to the Borrower (with a copy to the Administrative Agent). Notwithstanding anything to the contrary in this Section 4.9, the Borrower shall not be required to compensate a Lender pursuant to this Section 4.9 for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such six-month period shall be extended to include the period of such retroactive effect. The obligations of the Borrower pursuant to this Section 4.9 shall survive the termination of this Agreement and all other amounts payable hereunder.

4.10. Taxes.

(a) All payments made by or on account of the Borrower or any other Loan Party under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except pursuant to a Requirement of Law. If the Borrower or any other Loan Party is so required to withhold Taxes pursuant to a Requirement of Law, then the Borrower or such other Loan Party may so withhold and shall timely pay the full amount of withheld Taxes to the relevant Governmental Authority in accordance with applicable law. If such withheld Taxes are Non-Excluded Taxes, then the amount payable by the Borrower or such other Loan Party shall be increased as necessary so that, net of such withholding (including such withholding applicable to additional amounts payable under this Section 4.10), the Administrative Agent or the applicable Lender receives the amount it would have received had no such withholding been made.

(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

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(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower or any other Loan Party, as promptly as possible thereafter the Borrower or such other Loan Party shall send to the Administrative Agent for its own account or for the account of the relevant Lender, as the case may be, a certified copy of an original official receipt received by the Borrower or such other Loan Party from the applicable Governmental Authority showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate Governmental Authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the Borrower shall indemnify the Administrative Agent, the Lenders for any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure, except to the extent such failure results from the Administrative Agent’s or such Lender’s gross negligence or willful misconduct.

(d) The Borrower and any other Loan Party shall indemnify the Administrative Agent and each Lender for any Non-Excluded Taxes that are paid or payable by the Administrative Agent or such Lender in connection with this Agreement (including amounts paid or payable under this Section 4.10(d)) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this Section 4.10(d) shall be paid within 10 days after the Administrative Agent or such Lender, as applicable, delivers to the Borrower or such other Loan Party a certificate stating the amount of any Non-Excluded Taxes so paid or payable by the Administrative Agent or such Lender. A certificate as to the amount of such payment or liability delivered to the Borrower or such other Loan Party by the Administrative Agent or such Lender shall be conclusive absent manifest error. Such Lender shall deliver a copy of such certificate to the Administrative Agent.

(e) (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable withholding Tax with respect to any payments hereunder or under any other Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without, or at a reduced rate of, withholding. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 4.10(e)(ii)(A) through (E) and (iii) below) shall not be required if in the Lender’s judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Upon the reasonable request of such Borrower or the Administrative Agent, any Lender shall update any form or certification previously delivered pursuant to this Section 4.10(e). If any form or certification previously delivered pursuant to this Section 4.10(e) expires or becomes obsolete or inaccurate in any respect with respect to a Lender, such Lender shall promptly (and in any event within ten (10) days after such expiration, obsolescence or inaccuracy) notify such Borrower and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so.

 

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(ii) Without limiting the generality of the foregoing, any Lender shall, if it is legally eligible to do so, deliver to such Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a party hereto, two original copies of duly completed and executed copies of whichever of the following is applicable:

(A) IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax (in the case of a Lender that is a “United States person” as defined in Section 7701(a)(30) of the Code);

(B) IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to an income tax treaty to which the United States is a party;

(C) IRS Form W-8ECI;

(D) (1) IRS Form W-8BEN and (2) a certificate substantially in the form of Exhibit F-1, F-2, F-3 or F-4 (each, a “U.S. Tax Certificate”), as applicable, to the effect that such Lender is not (a) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (c) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code;

(E) (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (e)(ii) that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; provided, however, that if the Lender is a partnership and one or more of its partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide a U.S. Tax Certificate on behalf of such partners; or

(F) to the extent legally permitted, any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. Federal withholding Tax together with such supplementary documentation necessary to enable the Borrower or the Administrative Agent to determine the amount of Tax (if any) required by law to be withheld.

(iii) If a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation and information reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and/or the Administrative Agent to comply with its obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 4.10(e)(iii), “FATCA” shall include any amendments made to FATCA after the Closing Date.

 

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(f) If any Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 4.10, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 4.10 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all reasonable and documented out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund) within ten (10) Business Days of such determination; provided, that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other Person.

(g) The agreements in this Section 4.10 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder or under any other Loan Document.

4.11. Indemnity. The Borrower agrees to indemnify each Lender and to hold each Lender harmless from any loss or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from Eurodollar Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of Eurodollar Loans on a day that is not the last day of an Interest Period with respect thereto. Such indemnification shall include an amount equal to the excess, if any, of (i) the amount of interest that would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Loans provided for herein (excluding, however, the Applicable Margin and default interest included therein, if any (unless such Interest Period had an initial period of greater than six months, in which case Applicable Margin and default interest, if any, will be included)) over (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section 4.11 submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

 

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4.12. Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 4.9 or 4.10(a) with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event with the object of avoiding the consequences of such event; provided, that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 4.12 shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 4.9 or 4.10(a).

4.13. Replacement of Lenders. The Borrower shall be permitted to replace any Lender that (a) requests reimbursement for amounts owing pursuant to Section 4.9, 4.10 or 4.15 or (b) becomes a Defaulting Lender, with a replacement financial institution; provided that (i) such replacement does not conflict with any Requirement of Law and is an Eligible Assignee, (ii) prior to any such replacement, such Lender shall have taken no action under Section 4.12 so as to eliminate the continued need for payment of amounts owing pursuant to Section 4.9 or 4.10, (iii) the replacement financial institution shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (iv) the Borrower shall be liable to such replaced Lender under Section 4.11 if any Eurodollar Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (v) the replacement financial institution, if not already a Lender and if it is to be a Lender upon such replacement, shall be reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 11.6 (provided that the Borrower shall be obligated to pay the registration and processing fee referred to therein), (viii) until such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 4.9 or 4.10, as the case may be, and (ix) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender.

4.14. Evidence of Debt.

(a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing Indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

(b) The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant to Section 11.6(b) and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type of such Loan and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.

 

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(c) The entries made in the Register and the accounts of each Lender maintained pursuant to Section 4.14(a) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded absent manifest error; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.

(d) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing any Loans of such Lender, substantially in the form of Exhibit E, with appropriate insertions as to date and principal amount.

4.15. Illegality. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and (b) such Lender’s Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Loan occurs on a day that is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 4.11.

4.16. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender, to the extent permitted by applicable law:

(a) fees shall cease to accrue and be payable on the unfunded portion of the Revolving Commitments of such Defaulting Lender pursuant to Section 3.5; and

(b) the Revolving Commitments of such Defaulting Lender shall not be included in determining whether the Required Lenders or all Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected (or adversely affected) thereby.

SECTION 5. REPRESENTATIONS AND WARRANTIES

To induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Loans, the Borrower hereby represents and warrants to the Administrative Agent and each Lender that:

5.1. Financial Condition. The audited consolidated balance sheet of Parent as of December 31, 2012, and the consolidated statements of income and comprehensive income and stockholders’ equity for the Fiscal Year ended on such date, reported on by and accompanied by

 

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unqualified reports from Deloitte & Touche LLP, present fairly in all material respects the consolidated financial condition of Parent as of such date, and the consolidated results of its operations and its consolidated cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein).

5.2. No Change. Since December 31, 2012, there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect.

5.3. Corporate Existence; Compliance with Law. Each Group Member is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority, and has all material governmental licenses, authorizations, consents and approvals necessary, to own its assets and to carry on its business as now conducted, and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where failure to have such good standing, power, authority, licenses, authorizations, consents, approvals and qualifications could not reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 5.3, each Group Member is in compliance with all Governmental Requirements applicable to it or its Property and all agreements and other instruments binding upon it or its Property, and possesses all licenses, permits, franchises, exemptions, approvals and other Governmental Authorizations necessary for the ownership of its Property and the conduct of its business, except in any of the foregoing cases where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

5.4. Power; Authorization; Enforceable Obligations. The execution and delivery of this Agreement are within each Group Member’s corporate, limited liability company or partnership (as applicable) powers and have been duly authorized by all necessary corporate, limited liability company or partnership (as applicable) and, if required, stockholder, member or partner (as applicable) action (including, any action required to be taken by any class of directors of the Borrower, whether interested or disinterested, in order to ensure the due authorization of this Agreement). Each Loan Document has been duly executed and delivered by each Group Member thereto and constitutes a legal, valid and binding obligation of such Group Member enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. The execution and delivery of this Agreement does not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any other third Person (including shareholders, or any class of directors, whether interested or disinterested, of the Borrower or any other person), nor is any such consent, approval, registration, filing or other action necessary for the validity or enforceability of any Loan Document, except (i) such as have been obtained or made and are in full force and effect, (ii) those third-party approvals or consents listed on Schedule 5.4 which, if not made or obtained, would not cause a Default or Event of Default hereunder, (iii) such consents, approvals, registrations, filings or other actions, other than those specified in clause (iv) below, the absence of which or failure to obtain, could not reasonably be expected to have a Material Adverse Effect, and (iv) to the extent that the exercise of certain of the rights, powers, privileges and remedies of the Administrative Agent or the Lenders may constitute a de jure or de facto voluntary or involuntary assignment of an FCC license or a voluntary or involuntary transfer of de jure or de facto control of the holder of any such FCC license, the FCC’s prior consent thereto.

 

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5.5. No Legal Bar. The execution, delivery and performance of this Agreement and the other Loan Documents, the borrowings hereunder and the use of the proceeds thereof (a) will not violate any applicable law, regulation or any order of any Governmental Authority (except for any violation that could not reasonably be expected to have a Material Adverse Effect) or the charter, bylaws or other organizational documents of any Group Member, (b) will not violate or result in a default under any Material Contractual Obligation binding upon any Group Member or its Properties, or give rise to a right thereunder to require any payment to be made by such Group Member (except for any of the foregoing that could not reasonably be expected to have a Material Adverse Effect) and (c) will not result in the creation or imposition of any Lien on any Property of any Group Member (other than Excepted Liens).

5.6. Litigation. Except as disclosed to the Administrative Agent prior to the Closing Date, there are no actions, suits, investigations or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened in writing against or affecting any Group Member (i) that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve any Loan Document.

5.7. No Default. No Group Member is in default under or with respect to any of its Material Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse Effect and no Default or Event of Default has occurred and is continuing.

5.8. Ownership of Property; Liens, etc.

(a) Except as disclosed on Schedule 5.8, each Group Member has good and defensible title to its Properties which constitute real property and good title to all its personal Properties, in each case, (i) free and clear of all Liens except Liens permitted by Section 8.3 or (ii) where the exceptions to such title should not reasonably be expected to result in a Material Adverse Effect.

(b) All material leases and agreements necessary for the conduct of the business of each Group Member are valid and subsisting, in full force and effect, and there exists no default or event or circumstance which with the giving of notice or the passage of time or both would give rise to a default under any such lease or leases and which failure to be valid, in full force and effect, subsisting, or in default thereof could reasonably be expected to result in a Material Adverse Effect.

(c) The rights and Properties presently owned, leased or licensed by each Group Member including, all easements and rights of way, include all rights and Properties necessary to permit such Group Member to conduct its business in all respects in the same manner as its business has been conducted prior to the date hereof, except where the failure to have such rights and Properties could not reasonably be expected to have a Material Adverse Effect.

(d) No Group Member’s Properties are subject to any Liens other than Liens permitted by Section 8.3.

 

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5.9. Intellectual Property. Except as disclosed in Schedule 5.9, each Group Member owns, or is licensed to use, all trademarks, trade names, copyrights, patents and other Intellectual Property material to its business, and, to the extent the Group Member holds title to such Intellectual Property, the use thereof by such Group Member does not infringe upon the rights of any other Person, except for any such failure to own, be licensed or infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

5.10. Taxes. Each Group Member has timely filed or caused to be filed all federal and other material Tax returns and reports required to have been filed by it and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which adequate reserves have been set aside in accordance with GAAP or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect. The charges, accruals and reserves on the books of the Group Members in respect of Taxes and other governmental charges are, in the reasonable opinion of the Borrower, adequate. No Tax Lien has been filed and, to the knowledge of the Borrower, no claim is being asserted with respect to any material Tax of any Group Member, in each case that does not constitute an Excepted Lien.

5.11. Federal Regulations. The Group Members are not engaged principally, or as one of its or their important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying margin stock. No part of the proceeds of any Loan will be used for any purpose which violates the provisions of Regulations T, U or X of the Board. None of the Group Members is subject to any statute, rule or regulation limiting its ability to incur indebtedness for borrowed money.

5.12. Labor Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge of any Senior Officer of the Borrower, threatened; (b) hours worked by and payment made to employees of any Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of employee health and welfare insurance have been paid or accrued as a liability on the books of such Group Member.

5.13. ERISA.

(a) Except as could not reasonably be expected to result in a Material Adverse Effect, the Group Members and each ERISA Affiliate have complied in all respects with ERISA and, where applicable, the Code regarding each Plan.

(b) Except as could not reasonably be expected to result in a Material Adverse Effect, each Plan is, and has been, maintained in compliance with ERISA and, where applicable, the Code.

(c) To the knowledge of any Senior Officer of the Borrower, no act, omission or transaction has occurred which could reasonably be expected to result in imposition on any Group Member or any ERISA Affiliate (whether directly or indirectly) of (i) either a material civil penalty assessed pursuant to subsections (c), (i) or (l) of section 502 of ERISA or a material tax imposed pursuant to Chapter 43 of Subtitle D of the Code or (ii) material breach of fiduciary duty liability damages under section 409 of ERISA.

 

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(d) No Plan or any trust created under any such Plan has been terminated in the six consecutive year period ending on the date hereof and no steps have been taken to terminate any Plan where such termination could reasonably be expected to result in a Material Adverse Effect. No liability to the PBGC (other than for the payment of current premiums which are not past due) has been or is reasonably expected to be incurred by any Group Member or any ERISA Affiliate with respect to any Plan that could reasonably be expected to result in a Material Adverse Effect. No ERISA Event with respect to any Plan has occurred where such ERISA Event could reasonably be expected to result in a Material Adverse Effect.

(e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) full payment when due has been made of all amounts which any Group Member or any ERISA Affiliate is required under the terms of each Plan or applicable law to have paid as contributions to such Plan as of the date hereof, and (ii) no failure to meet the minimum funding standard under section 303 of ERISA or section 430 of the Code, whether or not waived, exists with respect to any Plan.

(f) The actuarial present value of the benefit liabilities under each Plan does not, as of the end of the Borrower’s most recently ended Fiscal Year, exceed the current value of the assets (computed on a plan termination basis in accordance with Title IV of ERISA) of such Plan allocable to such benefit liabilities by any amount in excess of $100,000,000. The term “actuarial present value of the benefit liabilities” shall have the meaning specified in section 4041 of ERISA.

(g) No contribution failure has occurred with respect to any Plan sufficient to give rise to a material lien under section 303(k) of ERISA in an amount in excess of $100,000,000.

(h) Neither any Group Member nor any ERISA Affiliate sponsors, maintains, or contributes to an employee welfare benefit plan, as defined in section 3(1) of ERISA, including, any such plan maintained to provide benefits to former employees of such entities, that may not be terminated by any Group Member or any ERISA Affiliate in its sole discretion at any time without any material current liability in excess of $100,000,000, other than any shared responsibility payments that would become payable under Section 4980H of the Code by virtue of such plan termination.

(i) Neither any Group Member nor any ERISA Affiliate maintains or contributes to, or has at any time in the six-year period immediately preceding the date hereof maintained or contributed to, any Multiemployer Plan, except to the extent a withdrawal from such Multiemployer Plan could not reasonably be expected to result in material liability in excess of $100,000,000.

(j) Neither any Group Member nor any ERISA Affiliate is required to provide material security in excess of $100,000,000 under section 436 of the Code due to a Plan amendment that results in a material increase in current liability for the Plan.

 

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(k) Except as could not reasonably be expected to result in a Material Adverse Effect, there are no going-concern unfunded actuarial liabilities, past service unfunded liabilities or solvency deficiencies with respect to any employee benefit plan that is exempt from ERISA by reason of section 4(b)(4) thereof and is sponsored, maintained, or contributed to by any Group Member or any ERISA Affiliate.

5.14. Investment Company Act. No Group Member is an “investment company” or a company “controlled” by an “investment company,” within the meaning of, or subject to regulation under, the Investment Company Act of 1940, as amended.

5.15. [Reserved].

5.16. Use of Proceeds. The proceeds of the Loans shall be used for working capital and other general corporate purposes of the Borrower and its Subsidiaries.

5.17. Environmental Matters. Except as could not in the aggregate, be reasonably expected to have a Material Adverse Effect (or with respect to clauses (c), (d) and (e) below, where the failure to take such actions could not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect):

(a) neither any Property of any Group Member nor the operations conducted thereon violate (i) any decree, order or requirement of any Governmental Authority or (ii) any Environmental Laws or any related Governmental Authorization.

(b) no Property of any Group Member nor the operations currently conducted thereon or, to the knowledge of the Borrower, by any prior owner or operator of such Property or operation, are in violation of any Environmental Law or any remedial obligations under Environmental Law.

(c) all notices, or similar Governmental Authorizations, if any, required to be obtained or filed in connection with the operation or use of any and all Property of each Group Member, including, past or present treatment, storage, disposal or Release of a Hazardous Material or solid waste into the environment, have been duly obtained or filed, and each Group Member is in compliance with the terms and conditions of all such notices, and Governmental Authorizations.

(d) all Hazardous Materials and solid waste, if any, generated at any and all Property of any Group Member have in the past been Released, stored, transported, treated and disposed of in accordance with Environmental Laws and so as not to pose an imminent and substantial endangerment to public health or welfare or the environment.

(e) the Borrower has taken all steps reasonably necessary to determine and has determined that no Hazardous Materials or solid waste, have been disposed of or otherwise Released and there has been no threatened Release, on or to any Property of any Group Member except in compliance with Environmental Laws and so as not to pose an imminent and substantial endangerment to public health or welfare or the environment.

(f) no Group Member has any known contingent liability or Remedial Work in connection with any Release or threatened Release into the environment.

 

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(g) no Hazardous Materials Activity has been conducted either by or on behalf of Borrower, or on any Property of any Group Member in a location or manner that could require any Remedial Work.

5.18. Accuracy of Information, etc. None of the reports, certificates or other written information (other than projected financial information and other forward-looking information, and information of a general economic or industry specific nature) furnished by or on behalf of any Group Member to the Administrative Agent or any Lender or any of their Affiliates in connection with the negotiation of this Agreement or any other Loan Document or delivered hereunder or under any other Loan Document (as modified or supplemented by other information so furnished), as of the date so furnished, contained any material misstatement of fact or omitted to state any material fact necessary to make the statements therein, taken as a whole, in the light of the circumstances under which they were made, not misleading; provided that with respect to financial statements other than projected financial information and other forward-looking information, the Borrower represents only that such financial statements present fairly in all material respects the consolidated financial condition of Parent as at the dates of such financial statements; provided, further, that with respect to projected financial information and any other projections and other forward-looking information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made.

5.19. [Reserved].

5.20. Solvency. The Borrower, on a consolidated basis together with its Restricted Subsidiaries, is Solvent.

5.21. Maintenance of Properties. Except for such acts or failures to act as could not be reasonably expected to have a Material Adverse Effect, the Group Members’ Properties have been maintained, operated and developed in a good and workmanlike manner and in conformity with all Governmental Requirements and in conformity with the provisions of all leases, subleases or other contracts to which they are bound. All material improvements, fixtures and equipment owned in whole or in part by any Group Member that are necessary to conduct normal operations (ordinary wear and tear excepted) are being maintained in a state adequate to conduct normal operations (other than those the failure of which to maintain in accordance with this Section 5.21 could not reasonably be expected to have a Material Adverse Effect).

SECTION 6. CONDITIONS PRECEDENT

6.1. Conditions to the Closing Date. The effectiveness of this Agreement is subject to the satisfaction (or waiver in writing in accordance with Section 11.1), prior to or concurrently with the Closing Date, of the following conditions precedent:

(a) Loan Documents. All legal matters incident to this Agreement and the other Loan Documents shall be satisfactory to the Lenders, and the Administrative Agent and the Lenders shall have received an executed counterpart of this Agreement from the Borrower, each Guarantor and the Administrative Agent.

 

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(b) Closing Date Certificate. The Administrative Agent and the Lenders shall have received a certificate of the Borrower, dated as of the Closing Date, substantially in the form of Exhibit C (or such other form acceptable to the Administrative Agent).

(c) [Reserved]

(d) [Reserved].

(e) Secretary’s Certificate. The Administrative Agent and the Lenders shall have received a certificate of each Loan Party, dated as of the Closing Date, substantially in the form of Exhibit G, with appropriate insertions and attachments including (i) the certificate of incorporation of each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of organization of such Loan Party, and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.

(f) [Reserved].

(g) Conditions to Each Extension of Credit. The conditions to each extension of credit set forth in Section 6.2 shall be satisfied.

(h) [Reserved]

6.2. Conditions to Each Extension of Credit. The agreement of each Lender to make any extension of credit requested to be made by it on any date (including on the Closing Date) is subject to the satisfaction (or waiver in writing in accordance with Section 11.1) of the following conditions precedent:

(a) Representations and Warranties. Each of the representations and warranties made by any Group Member in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date.

(b) No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.

(c) Financial Covenant Compliance. The Debt to Cash Flow Ratio of the Borrower as of such date, on a pro forma basis for such extension of credit, shall not be greater than 4.00 to 1.00.

Each borrowing by the Borrower hereunder shall constitute a representation and warranty by the Borrower as of the date of such extension of credit that the conditions contained in this Section 6.2 have been satisfied.

6.3. Confirmation by Agent and Lenders. The Administrative Agent and DT hereby confirm the satisfaction (without any waiver) of all conditions specified in Section 6.1 above to the effectiveness of this Agreement concurrently with or prior to the occurrence of the Closing Date (including the receipt of all documents, certificates, copies and counterparts specified in Section 6.1), and such confirmation shall be conclusive and binding.

 

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SECTION 7. AFFIRMATIVE COVENANTS

The Borrower hereby agrees that, so long as any Revolving Commitments remain in effect or any Loan or other amount is owing to any Lender or the Administrative Agent hereunder, the Borrower shall and shall cause each of its Restricted Subsidiaries to:

7.1. Financial Statements. Furnish to the Administrative Agent (except for those documents or other information filed with the SEC and which are publicly available):

(a) Annual Financial Statements. As soon as available, but in any event in accordance with then applicable law and not later than 90 days after the end of each Fiscal Year of Parent, Parent’s and its Consolidated Subsidiaries’ audited consolidated balance sheet and related statements of income and comprehensive income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by Deloitte & Touche LLP, PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Parent and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (except as approved by the Parent’s accountants and disclosed therein).

(b) Quarterly Financial Statements. As soon as available, but in any event in accordance with then applicable law and not later than 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of Parent, in each case, Parent’s and its Consolidated Subsidiaries’ consolidated balance sheet and related statements of income and comprehensive income, stockholders’ equity and cash flows as of the end of and for such Fiscal Quarter and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of Parent and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (except as approved by Parent’s accountants and disclosed therein), subject to normal year-end audit adjustments.

(c) Statements of Reconciliation after Change in Accounting Principles. If, as a result of any change in accounting principles and policies from those used in the preparation of the audited financial statements of Parent for the Fiscal Year ended December 31, 2012, the consolidated financial statements of Parent and its Consolidated Subsidiaries delivered pursuant to Section 7.1(a) or 7.1(b) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance reasonably satisfactory to the Administrative Agent.

 

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(d) [Reserved]

(e) Stand Alone Information. In the case of financial statements delivered pursuant to Sections 7.1(a) and (b), if the combined operations of Parent and its Consolidated Subsidiaries, excluding the operations of the Borrower and its Consolidated Subsidiaries and excluding Cash and Cash Equivalents, would, if held by a single Subsidiary of the Borrower, constitute a Significant Subsidiary of the Borrower , then the quarterly and annual financial information required by the preceding paragraphs will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and its Consolidated Subsidiaries separate from the financial condition and results of operations of Parent and its other Consolidated Subsidiaries; provided, that the requirements of this paragraph shall not apply if Parent files with the SEC reports that contain the information required in this clause (e).

7.2. Certificates; Other Information. Furnish to the Administrative Agent (or, in the case of clause (h), to the relevant Lender):

(a) concurrently with the delivery of any financial statements pursuant to Section 7.1(a) or (b), a Compliance Certificate of a Financial Officer (i) containing all information and calculations necessary for determining compliance with the covenant set forth in Section 8.18, (ii) certifying as to whether a Default or Event of Default has occurred and, if a Default or Event of Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) if Parent or the Borrower is not a public reporting company, stating whether any change in GAAP or in the application thereof has occurred since Parent’s and its Consolidated Subsidiaries’ audited consolidated financial statements for the year ended December 31, 2013 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, and (iv) certifying that the amount of any New Market Losses added back to Consolidated Cash Flow in connection with any covenant calculation set forth in Section 8.2 or 8.18 is in accordance with the definition of New Market Losses.

(b) as soon as available, and in any event no later than 45 days after the end of each Fiscal Year of Parent, a detailed consolidated budget of Parent and its Subsidiaries for the following Fiscal Year on a Fiscal Quarter basis (including a projected consolidated balance sheet of Parent and its Subsidiaries as of the end of the following Fiscal Year, the related consolidated statements of projected cash flow, projected changes in financial position and projected income and a description of the underlying assumptions applicable thereto).

(c) as soon as available, and in any event within 45 days after the end of each Fiscal Quarter of Parent (90 days, in the case of the fourth Fiscal Quarter of any Fiscal Year), a narrative discussion and analysis of the financial condition and results of operations of Parent and its Consolidated Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, as compared to the comparable periods of the previous year. Such analysis and narrative shall include operating data of the nature that would be required to be contained in a filing with the SEC on Forms 10-Q or Form 10-K if Parent were required to file such reports, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (which shall include, revenues, service revenues, ARPU, CPU, CPGA, adjusted EBITDA, subscriber counts, penetration, churn, covered POPS and capital

 

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expenditures); provided that this clause (c) shall not apply, and the Borrower need not comply with this clause (c), at any time that Parent or the Borrower is then a reporting company under the Securities Exchange Act of 1934, as amended; provided further, however, if the combined operations of Parent and its Consolidated Subsidiaries, excluding the operations of the Borrower and its Consolidated Subsidiaries and excluding Cash and Cash Equivalents, would, if held by a single Subsidiary of the Borrower, constitute a Significant Subsidiary of the Borrower, then the quarterly and annual financial information required by the preceding paragraphs will include a reasonably detailed presentation of the narrative discussion and analysis of the financial condition and results of operations of the Borrower and its Consolidated Subsidiaries separate from the financial condition and results of operations of Parent and its other Consolidated Subsidiaries; and provided, further, that the requirements of this paragraph shall not apply if Parent files with the SEC the reports referred to in this covenant, and any such report contains the information required in this paragraph.

(d) promptly upon receipt thereof, a copy of each other report or letter (except standard and customary correspondence or requests for information) submitted to Parent or any of its Subsidiaries by independent accountants in connection with any annual, interim or special audit made by them of the books of Parent or any such Subsidiary, and a copy of any response by Parent or any such Subsidiary, or the Board of Directors of Parent or any such Subsidiary, to such letter or report.

(e) promptly after the furnishing thereof, copies of any material financial statement, report or notice furnished to or by any Person pursuant to the terms of any preferred stock designation (other than capital call notices and communications related thereto), indenture, loan or credit or other similar agreement to which a Group Member is the borrower or the issuer, other than this Agreement and not otherwise required to be furnished to the Lenders pursuant to any other provision of this Section 7.2.

(f) [Reserved]

(g) prompt written notice of any change (i) in Parent or any Group Member’s corporate name or in any trade name used to identify such Person in the conduct of its business or in the ownership of its Properties, (ii) in the location of Parent’s or any Group Member’s chief executive office or principal place of business, (iii) in Parent’s or any Group Member’s identity or corporate structure or in the jurisdiction in which such Person is incorporated or formed, (iv) in Parent’s or any Group Member’s jurisdiction of organization or such Person’s organizational identification number in such jurisdiction of organization, and (v) in Parent’s or any Group Member’s federal taxpayer identification number.

(h) promptly following any request therefor, make reasonable efforts to provide such other information regarding the operations, business affairs and financial condition of any Group Member (including, any Plan or Multiemployer Plan and any reports or other information required to be filed under ERISA), or compliance with the terms of this Agreement or any other Loan Document, as the Administrative Agent or any Lender may reasonably request in a written notice given in accordance with Section 11.2.

 

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7.3. Payment of Obligations. Pay its obligations, including Tax liabilities before the same shall become delinquent or in default, except where (a) (i) the validity or amount thereof is being contested in good faith by appropriate proceedings and (ii) the applicable Group Member has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect or result in the seizure or levy of any material Property of any Group Member.

7.4. Maintenance of Existence; Compliance. (a) Preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business and maintain, if necessary, its qualification to do business in each other jurisdiction in which its Properties are located or the ownership of its Properties requires such qualification, except where the failure to do any of the foregoing could not reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, conversion, consolidation, liquidation or dissolution permitted under Section 8.4; and (b) comply with Material Contractual Obligations and all laws, rules, regulations and orders of any Governmental Authority applicable to it or its Property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

7.5. Maintenance of Property; Insurance.

(a) Operate its Properties or cause such Properties to be operated in compliance with all Material Contractual Obligations and in compliance with all Governmental Requirements, including, applicable pro ration requirements and Environmental Laws, and all applicable laws, rules and regulations of every other Governmental Authority from time to time constituted to regulate the development and operation of its Properties, except, in each case, where the failure to comply could not reasonably be expected to have a Material Adverse Effect.

(b) Keep and maintain all Property used in to the conduct of its business in good working order and condition (ordinary wear and tear excepted) and preserve, maintain and keep in good repair and working order (ordinary wear and tear excepted) all of its Properties, including, all equipment, machinery and facilities, except where such a failure could not reasonably be expected to result in a Material Adverse Effect.

(c) Promptly pay and discharge, or make reasonable and customary efforts to cause to be paid and discharged, all rentals, royalties, expenses and indebtedness due and accruing (and not disputed) under the leases or other agreements affecting or pertaining to its Properties and will do all commercially reasonable things necessary to keep unimpaired their rights with respect thereto and prevent any forfeiture or termination thereunder, except where such a failure could not reasonably be expected to result in a Material Adverse Effect.

(d) Promptly perform or make reasonable and customary efforts to cause to be performed, in accordance with industry standards, the obligations required by each and all of the assignments, deeds, leases, subleases, contracts and agreements affecting its interests in its Properties, except where such a failure could not reasonably be expected to result in a Material Adverse Effect.

 

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(e) To the extent the Borrower is not the operator of any Property, use reasonable efforts to cause the operator to comply with this Section 7.5, except where such a failure could not reasonably be expected to result in a Material Adverse Effect.

(f) Maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks which in the reasonable business judgment of the Borrower are appropriate for companies engaged in the same or similar businesses operating in the same or similar locations.

7.6. Inspection of Property; Books and Records; Discussions.

(a) Keep proper books of record and account in which full, true and correct entries in conformity with (i) GAAP and (ii) in all material respects Requirements of Law, are made of all dealings and transactions in relation to its business and activities; and

(b) permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior written notice, and as coordinated by each Lender through the Administrative Agent, to visit and inspect its Properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times during normal business hours and as often as reasonably requested on an individual and aggregate basis.

7.7. Notices. Promptly give notice to the Administrative Agent of:

(a) the occurrence of any Default or Event of Default;

(b) the filing or commencement of, or the threat in writing of, any action, suit, proceeding, investigation or arbitration by or before any arbitrator or Governmental Authority against any Group Member not previously disclosed in writing to the Lenders or any material adverse development in any action, suit, proceeding, investigation or arbitration previously disclosed to the Lenders that, if adversely determined, could reasonably be expected to result in liability in excess of $100,000,000;

(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Group Members in an aggregate amount exceeding $100,000,000; and

(d) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.

Each notice pursuant to this Section 7.7 shall be accompanied by a statement of an Authorized Officer setting forth details of the occurrence referred to therein and stating what action the Borrower or the relevant Subsidiary proposes to take with respect thereto.

7.8. Environmental Laws.

(a) At the Borrower’s sole expense:

 

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(i) cause its Properties and operations to comply with all applicable Environmental Laws, the breach of which could be reasonably expected to have a Material Adverse Effect;

(ii) not perform any Hazardous Materials Activity or dispose of or otherwise Release any Hazardous Material or solid waste on, under, about or from any of the Group Members’ Properties or any other Property to the extent caused by the Group Members’ operations except in compliance with applicable Environmental Laws, the performance, disposal or Release of which could reasonably be expected to have a Material Adverse Effect;

(iii) timely obtain or file all notices, or Governmental Authorizations, if any, required under applicable Environmental Laws to be obtained or filed in connection with the operation or use of the Group Members’ Properties, which failure to obtain or file could reasonably be expected to have a Material Adverse Effect; and

(iv) promptly commence and diligently prosecute to completion any assessment, evaluation, investigation, monitoring, containment, cleanup, removal, repair, restoration, remediation or other remedial obligations (collectively, the “Remedial Work”) in the event any Remedial Work is required or reasonably necessary under applicable Environmental Laws because of, or in connection with, the actual or suspected past, present or future disposal or other Release of any Hazardous Materials or solid waste on, under, about or from any of the Group Members’ Properties or by any Group Member, which failure to commence and diligently prosecute to completion could reasonably be expected to have a Material Adverse Effect.

(b) Promptly, but in no event later than ten (10) Business Days after any Senior Officer becomes aware thereof, notify the Administrative Agent in writing of any threatened action, investigation or inquiry by any Governmental Authority or any threatened demand or lawsuit by any landowner or other third party against the Group Members or their Properties of which the Borrower has knowledge in connection with any applicable Environmental Laws (excluding routine testing and corrective action) that, if adversely determined, could reasonably be expected to result in liability (whether individually or in the aggregate) in excess of $100,000,000 not fully covered by insurance, subject to normal deductibles.

(c) Use commercially reasonable efforts to undertake reasonable environmental audits and tests in accordance with reasonable industry standards upon the request of the Administrative Agent or the Required Lenders no more than once per year in the absence of any Event of Default (or as otherwise required to be obtained by the Administrative Agent or the Lenders by any Governmental Authority).

7.9. [Reserved]

7.10. New Subsidiaries. Cause (i) any Domestic Subsidiary of the Borrower or of any Restricted Subsidiary acquired or formed on or after the Closing Date that is a Wholly Owned Subsidiary (other than any Designated Entities, any Unrestricted Subsidiaries or any Immaterial Subsidiaries), (ii) any Restricted Subsidiary of the Borrower that guarantees any Specified

 

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Indebtedness after the Closing Date, (iii) any Subsidiary of Parent acquired or formed on or after the Closing Date that directly or indirectly owns Equity Interests of the Borrower and (iv) any Subsidiary (whether a Foreign Subsidiary or a Domestic Subsidiary) of Parent that the Borrower (in its sole discretion) elects to make a guarantor hereunder (a “Discretionary Guarantor”), promptly (I) (A) to become a party to the Guarantee Agreement, and (B) to deliver to the Administrative Agent a certificate of such Person, substantially in the form of Exhibit C (or such other form acceptable to the Administrative Agent), with appropriate insertions and attachments, and (II) other than in connection with the Merger, if reasonably requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance reasonably satisfactory to the Administrative Agent.

7.11. Further Assurances. Promptly execute and deliver to the Administrative Agent all such other documents, agreements and instruments reasonably requested by the Administrative Agent or the Required Lenders to comply with, cure any defects or accomplish the conditions precedent, covenants and agreements of the Group Members in the Loan Documents, including the Notes, or to correct any omissions in this Agreement.

7.12. ERISA Compliance.

(a) Promptly furnish to the Administrative Agent (i) promptly after the filing thereof with the United States Secretary of Labor, the Internal Revenue Service or the PBGC, copies of each annual and other report with respect to each Plan or any trust created thereunder, (ii) promptly upon any Senior Officer becoming aware of the occurrence of any ERISA Event or of any material non-exempt “prohibited transaction,” as described in section 406 of ERISA or in section 4975 of the Code, in connection with any Plan or any trust created thereunder, a written notice signed by the President or the principal Financial Officer, the Subsidiary or the ERISA Affiliate, as the case may be, specifying the nature thereof, what action the Borrower, the Subsidiary or the ERISA Affiliate is taking or proposes to take with respect thereto, and, when known, any action taken or proposed by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto, and (iii) promptly upon receipt thereof, copies of any notice of the PBGC’s intention to terminate or to have a trustee appointed to administer any Plan.

(b) With respect to each Plan, the Borrower will, and will cause each Subsidiary and ERISA Affiliate to, (i) satisfy in full and in a timely manner in all material respects, without incurring any material late payment or underpayment charge or penalty and without giving rise to any lien in an amount in excess of $100,000,000, the contribution and funding requirements of section 430 of the Code and of section 303 of ERISA in all material respects, and (ii) pay, or cause to be paid, to the PBGC in a timely manner in all material respects, without incurring any material late payment or underpayment charge or penalty, all premiums required pursuant to sections 4006 and 4007 of ERISA and (iii) maintain each Plan in material compliance with ERISA and the Code, as applicable.

7.13. Lender Meetings. Upon the prior written request of Administrative Agent or the Required Lenders, participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year to be held at the Borrower’s corporate offices (or at such other location as may be agreed to by the Borrower and Administrative Agent) at such time as may be agreed to by the Borrower and Administrative Agent.

 

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SECTION 8. NEGATIVE COVENANTS

The Borrower hereby agrees that, so long as any Revolving Commitments remain in effect or any Loan or other amount is owing to any Lender or the Administrative Agent hereunder, the Borrower shall not, and shall not permit any of its Restricted Subsidiaries (and, in the case of Section 8.20, any of its Restricted Subsidiaries or its Unrestricted Subsidiaries) to, directly or indirectly:

8.1. [Reserved].

8.2. Indebtedness. Create, issue, incur, assume, become liable in respect of or suffer to exist any Indebtedness, except:

(a) Indebtedness of the Borrower or any Subsidiary Guarantor pursuant to any Loan Document;

(b) Indebtedness associated with worker’s compensation claims, self-insurance obligations, bankers’ acceptances, deposits, performance bonds, completion bonds, bid bonds, appeal bonds and surety bonds, indemnity bonds, specific performance or injunctive relief bonds or similar bonds or obligations in the ordinary course of business, and any guarantees or letters of credit functioning as or supporting any of the foregoing;

(c) intercompany Indebtedness incurred by the Borrower or any Subsidiary in connection with a loan made by any Loan Party or Restricted Subsidiary to the Borrower or such Subsidiary, evidenced, in the case of any such loan by the Borrower or any Subsidiary of the Borrower to a Group Member, by the Subordinated Intercompany Note; provided that such Indebtedness is not held as collateral, or collaterally assigned, transferred, or negotiated, or pledged, to any Person other than the Lenders;

(d) endorsements of negotiable instruments for collection in the ordinary course of business;

(e) Guarantee Obligations incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries of obligations of the Borrower or any Restricted Subsidiary (with respect to any Restricted Subsidiary that is not a Subsidiary Guarantor to be no more than $100,000,000 in the aggregate at any time outstanding);

(f) Existing Indebtedness;

(g) Indebtedness and obligations in respect of Hedge Agreements permitted under Section 8.10;

(h) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of letters of credit required to be issued in connection with any Permitted Joint Venture Investment;

 

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(i) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its Restricted Subsidiaries of shares of Preferred Stock; provided, however, that: (i) any subsequent issuance or transfer of Capital Stock that results in any such Preferred Stock being held by a Person other than Parent, the Borrower or a Restricted Subsidiary of the Borrower or a Guarantor; and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either Parent, the Borrower or a Restricted Subsidiary of the Borrower, or a Guarantor, will be deemed, in each case, to constitute an issuance of such Preferred Stock by such Restricted Subsidiary that was not permitted by this clause;

(j) Indebtedness for relocation or clearing obligations relating to the Borrower’s or any Restricted Subsidiary’s FCC licenses in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $400,000,000;

(k) Indebtedness secured by Liens permitted by clauses (d)(ii), (i), (j), and (q) of the definition of Excepted Liens;

(l) the guarantee by the Borrower or any of its Restricted Subsidiaries of Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower that was permitted by another provision of this Section 8.2;

(m) Indebtedness of the Borrower or any Restricted Subsidiary represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing (whether prior to or within 270 days after) all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment or the Capital Stock of any Person owning such assets used in the business of the Borrower or any Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (m), not to exceed the greater of (a) $2,500,000,000 and (b) 5.0% of the Consolidated Total Assets of the Borrower and its Subsidiaries on the date such Indebtedness in incurred, at any time outstanding;

(n) additional Indebtedness of the Borrower or any Subsidiary Guarantor (or, in an aggregate amount, at any one time outstanding of no more than $100,000,000, of any other Restricted Subsidiary) in an aggregate amount of no more at any one time outstanding than the greater of (i) $9,000,000,000 and (ii) 150% of the Consolidated Cash Flow of the Borrower and its Subsidiaries for the most recently ended four Fiscal Quarters for which internal financial statements are available at the time of incurrence thereof, determined on a pro forma basis in the manner described in the definition of Debt to Cash Flow Ratio (including a pro forma application of the net proceeds therefrom), as if (x) the additional Indebtedness to be incurred pursuant to this clause (n) and (y) any other Indebtedness incurred after the last day of the most recently ended Fiscal Quarter for which internal financial statements are available had been incurred at the beginning of the applicable four Fiscal Quarter period and assuming the Lenders had made Loans to the Borrower in an amount equal to the amount of the Loans outstanding on the date on which such additional Indebtedness is incurred at all times during such Fiscal Quarter;

(o) additional Indebtedness of the Borrower or any Restricted Subsidiary (i) in an aggregate principal amount at any time outstanding, including all Permitted Refinancing

 

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Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (o), not to exceed the greater of (x) $1.0 billion and (y) 2.0% of the Borrower’s Consolidated Total Assets as of the time of incurrence, and, in addition, (ii) so long as at the time of incurrence, the Debt to Cash Flow Ratio of the Borrower for the most recently ended four Fiscal Quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would have been no greater than 4.0 to 1, determined on a pro forma basis, as if (x) the additional Indebtedness to be incurred pursuant to this clause (o) and (y) any other Indebtedness incurred after the last day of the most recently ended Fiscal Quarter for which internal financial statements are available had been incurred at the beginning of the applicable four Fiscal Quarter period;

(p) Contribution Indebtedness;

(q) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Borrower or any of its Restricted Subsidiaries pursuant to such agreements, in any case incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), so long as the amount does not exceed the gross proceeds actually received by the Borrower or any Restricted Subsidiary thereof in connection with such disposition;

(r) Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided that, upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;

(s) Indebtedness evidenced by promissory notes subordinated to the Obligations issued to current or former employees, officers or directors of Parent, the Borrower or any Restricted Subsidiary (or their respective spouses or estates) in lieu of cash payments for Capital Stock being repurchased from such Persons, not to exceed, in any twelve-month period, an amount equal to the amount of Restricted Payments that could be made during such twelve-month period pursuant to clause (5) of Section 8.6(b) less the amount of Restricted Payments that have been made during such twelve-month period pursuant to such clause;

(t) Indebtedness consisting of take-or-pay obligations contained in supply agreements entered into in the ordinary course of business;

(u) to the extent that deposits with, or payments owed to, the FCC in connection with the auction or licensing of Governmental Authorizations are deemed to be Indebtedness, the incurrence by the Borrower or any Restricted Subsidiary of such Indebtedness;

(v) additional Indebtedness of the Borrower or any Subsidiary Guarantor in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (v), not to exceed $400,000,000;

 

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(w) Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted under clauses (f), (j), (m), (o), (p), (w), (y), (z) or (aa) of this Section 8.2;

(x) the incurrence by the Borrower or any Subsidiary Guarantor of Indebtedness (1) in respect of netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Borrower or any Subsidiary Guarantor maintains an overdraft, cash pooling or other similar facility or arrangement or (2) in respect of the financing of insurance premiums in the ordinary course of business; provided that the aggregate principal amount of Indebtedness incurred pursuant to clauses (x)(1) and (2) shall not, at any time outstanding, exceed $250 million;

(y) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness (including Acquired Debt) used to finance an acquisition of or a merger with another Person, provided that, on the date of such transaction after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the applicable four Fiscal Quarter period for which internal financial statements are available (calculated as if the additional Indebtedness to be incurred pursuant to this clause (y) and any related financing transactions had been incurred at the beginning of the applicable four Fiscal Quarter period), the Borrower would either (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in clause (o)(ii) above or (b) have a Debt to Cash Flow Ratio no greater than the Debt to Cash Flow Ratio of the Borrower immediately prior to such transaction;

(z) Indebtedness incurred in connection with the Towers Transaction; and

(aa) the incurrence by Restricted Subsidiaries that are not Guarantors of Indebtedness; provided, however, that the aggregate principal amount of all Indebtedness incurred under this clause (aa), when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (aa), including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (aa), does not exceed $250 million as of the time of incurrence.

For purposes of determining compliance with this Section 8.2, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories or subcategories described in the clauses above, or is otherwise entitled to be incurred pursuant to this Section, the Borrower will be permitted to classify all or a portion of such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section, and once such Indebtedness is properly incurred pursuant to this Section 8.2, it shall at all times thereafter be permitted to exist pursuant to this Section 8.2. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of Preferred Stock as Indebtedness due to a change in accounting principles or the application thereof, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness for purposes of this Section 8.2. For purposes of determining the amount of

 

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Indebtedness that may be incurred and is thereafter permitted pursuant to clause (m) of Section 8.2, the Borrower may elect, pursuant to an officers’ certificate delivered to the Administrative Agent, to treat all or any portion of the commitment under any Indebtedness (and any refinancing with respect thereto) as being incurred at such time, in which case any subsequent incurrence of Indebtedness under such commitment or refinancing, as the case may be, shall not be deemed, for purposes of this calculation, to be an incurrence at such subsequent time, and such Indebtedness will be permitted to be outstanding at any time in a principal amount of up to an amount that includes such commitment or portion thereof. Notwithstanding any other provision of this Section, the maximum amount of Indebtedness that the Borrower or any of its Restricted Subsidiaries may incur pursuant to this Section shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values, and in no event shall the reclassification of any lease or other liability as indebtedness due to a change in accounting principles after the Closing Date be deemed to be an incurrence of Indebtedness. The amount of any Indebtedness outstanding as of any date will be: (i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; (ii) in respect of Indebtedness of another Person secured by a Lien on assets of a Group Member, the lesser of (A) the Fair Market Value of such assets at the date of determination and (B) the amount of the Indebtedness of the other Person; and (iii) the principal amount of the Indebtedness, in the case of any other Indebtedness. In determining the amount of Indebtedness outstanding under one of the clauses of Section 8.2, the outstanding principal amount of any particular Indebtedness of any Person shall be counted only once and any obligation of such Person or any other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as it is permitted to be incurred by the Person or Persons incurring such obligation.

8.3. Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, whether now owned or hereafter acquired, except for Excepted Liens, unless the Obligations are equally and ratably secured (except that a Lien securing Indebtedness that is contractually subordinated to the Loans shall be expressly subordinate to any Lien securing the Obligations to at least the same extent that such Indebtedness is subordinate to the Loans).

8.4. Fundamental Changes. Merge into or with or consolidate with any other Person, or sell, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the Property of the Group Members, taken as a whole, to any other Person (any such transaction, a “consolidation”), provided that (a) any Restricted Subsidiary may participate in a consolidation, merger, sale or other disposition with the Borrower (provided that the Borrower shall be the continuing or surviving Person or the Person that acquires the Property in question) or with any Person (provided that the continuing or surviving Person or Person that acquires the Property in question is a Restricted Subsidiary and is or becomes a Subsidiary Guarantor to the extent required by Section 7.10), (b) the Borrower may participate in a consolidation, merger, sale or otherwise with any Person (provided that (x) the Borrower shall be the continuing or surviving Person or the Person that acquires the Property in question or (y) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or to which such sale or other disposition has been made (i) is a corporation, limited liability company or partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia, (ii) shall expressly assume the payment of the Obligations and the performance or observance of every covenant of this Agreement on the part of the Borrower to be performed or observed, and (iii) would, on the date of such transaction after giving effect thereto

 

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and to any related financing transactions on a pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, either (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in clause (o)(ii) of Section 8.2 or (B) have a Debt to Cash Flow Ratio no greater than the Debt to Cash Flow Ratio of the Borrower immediately prior to such transaction), provided that, in the case of this clause (y) (I) immediately after such transaction, no Default or Event of Default exists and (II) the Borrower shall have delivered to the Administrative Agent an officer’s certificate, signed by a Senior Officer of the Borrower, and a legal opinion (which may be subject to customary assumptions, qualifications and exclusions, and which may be given by an employee of or counsel to the Borrower or any Subsidiary of the Borrower), each stating that, in the opinion of the signers, all conditions precedent and covenants provided for in this Agreement and any other Loan Document relating to such transaction have been satisfied, and (c) the Transaction shall be permitted under this Section 8.4.

8.5. Disposition of Property. Sell, assign, transfer, convey or otherwise dispose of all or substantially all of its properties or assets, to another Person, except:

(a) to the Borrower or any Restricted Subsidiary (or a Person that becomes a Restricted Subsidiary immediately following such sale, assignment or transfer);

(b) in a transaction which is subject to, and permitted by, Section 8.4;

(c) Property described in clauses (1)-(13) of the exclusions set forth in the definition of Asset Sale;

(d) the substantially concurrent purchase and sale of Property between the Borrower or any of its Restricted Subsidiaries, on one hand, and another Person that is not the Borrower or a Subsidiary Guarantor, on the other hand; provided that the Borrower or such Restricted Subsidiary receives no less than Fair Market Value in connection with such transaction; and

(e) Asset Sales and sales of Capital Stock; provided, that the Borrower complies with any “Asset Sale” provisions with respect thereto pursuant to section 4.10 of the Senior Notes Indentures .

8.6. Restricted Payments. Permit any Restricted Payment, except that:

(a) so long as (i) no Default has occurred or is continuing or would result from such Restricted Payment, (ii) after giving effect to such Restricted Payment, the Borrower’s Debt to Cash Flow Ratio as of such date would have been no greater than 6.00 to 1.00 determined on a pro forma basis as if such Restricted Payment had been made at the beginning of such period, and (iii) such Restricted Payment, together with all other Restricted Payments (excluding Restricted Payments made pursuant to Sections 8.6(b)(2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13) and (14)) since the beginning of the most recent Fiscal Quarter commencing after the Closing Date, is less than the Restricted Payment Cap, then the Borrower and its Restricted Subsidiaries may make Restricted Payments.

 

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(b) Notwithstanding the provisions of Section 8.6(a), so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make, do, take or otherwise effectuate the following actions:

(1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement;

(2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Capital Stock of the Borrower (other than Disqualified Stock) or from the substantially concurrent contribution of common equity capital to the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (b) of the definition of Restricted Payment Cap, provided, further, that any Net Equity Proceeds (x) used for making a Restricted Investment pursuant to clause (10) of this Section 8.6(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (p) of Section 8.2, may not also be used to make a Restricted Payment pursuant to this clause (2);

(3) the defeasance, redemption, repurchase, retirement or other acquisition of any Subordinated Indebtedness with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness;

(4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by any Restricted Subsidiary of the Borrower to the holders of its Capital Stock on a pro rata basis;

(5) the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Parent, the Borrower, any Restricted Subsidiary or any direct or indirect parent of the Borrower held by any current or former officer, director, employee or consultant of Parent, the Borrower or any Restricted Subsidiary of the Borrower pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock shall not exceed $50,000,000 in any Fiscal Year; provided further, that such amount in any Fiscal Year may be increased by an amount equal to (a) the Net Cash Proceeds from the sale of Capital Stock of Parent to current or former members of management, directors, consultants or employees that occurs after the Closing Date plus (b) the net cash proceeds of key man life insurance policies received by Parent, the Borrower or its Restricted Subsidiaries after the Closing Date; provided further, that such amount in any Fiscal Year shall be reduced by the amount of Indebtedness incurred in such Fiscal Year pursuant to clause (s) of Section 8.2;

(6) the repurchase, redemption or other acquisition or retirement of Capital Stock deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Capital Stock represent a portion of the exercise or exchange price of those stock options, warrants or other similar rights, and the repurchase, redemption or other acquisition or retirement of Capital Stock made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights or from the vesting of restricted stock or other awards;

 

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(7) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Borrower or any Restricted Subsidiary of the Borrower, or any class or series of Preferred Stock of a Subsidiary of the Borrower, in each case issued after Closing Date, so long as the Borrower’s Debt to Cash Flow Ratio on the date on which such dividend payment is made would have been no greater than the ratio set forth in Section 8.6(a) for the applicable four Fiscal Quarter period, determined on a pro forma basis, as if such dividend payment had been made at the beginning of such four Fiscal Quarter period;

(8) Permitted Payments to Parent;

(9) the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Parent to the extent necessary to comply with law or to prevent the loss or to secure the renewal or reinstatement of any FCC license held by Parent or any of its Subsidiaries;

(10) Restricted Investments in an amount equal to 100% of the aggregate amount of any Net Equity Proceeds, less the aggregate amount of any Net Equity Proceeds (a) used for making a Restricted Payment pursuant to clause (2) of this Section 8.6(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (p) of Section 8.2;

(11) payments made to DT or its Subsidiaries from the proceeds of the Towers Transaction;

(12) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to mandatory redemption provisions relating to asset sales and changes of control;

(13) the making of cash payments in connection with any conversion of Convertible Debt in an aggregate amount since the Closing Date not to exceed the sum of (a) the principal amount of such Convertible Debt plus (b) any payments received by the Borrower or any of its Restricted Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transactions;

(14) other Restricted Payments in an aggregate amount since the Closing Date not to exceed $375.0 million;

(15) Restricted Payments in connection with the “Cash Payment”, as defined in the Business Combination Agreement.

The amount of all Restricted Payments (other than Cash) will be the Fair Market Value on the date of the Restricted Payment of the assets or securities proposed to be transferred or issued by the Borrower or its Restricted Subsidiaries pursuant to the Restricted Payment.

 

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8.7. Modifications of Certain Debt Instruments. Amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to any of the material terms of the Senior Notes or any Subordinated Indebtedness or any related documents providing for the subordination thereof in any manner that is, taken as a whole, materially adverse to the Lenders or the Administrative Agent.

8.8. Transactions with Affiliates. Enter into any transaction or series of related transactions involving aggregate payments or consideration in excess of $50,000,000, including, any purchase, sale, lease or exchange of Property or the rendering of any service, in each case involving payments or consideration in such amount, with any Affiliate of the Borrower unless such transactions are otherwise not prohibited by this Agreement and are, taken as a whole, upon fair and reasonable terms no less favorable to it than it would obtain in a comparable arm’s length transaction with a Person not an Affiliate (it being understood that transactions with any Affiliate involving the transfer of Property (including sale-leaseback transactions) at book value shall be deemed to be fair and reasonable). Notwithstanding the preceding sentence, the following items will not be prohibited by the provisions of the preceding sentence:

(1) any employment agreement, severance agreement or plan, change in control agreement or plan, employee benefit plan, agreement or plan relating to employee, officer or director compensation, officer or director indemnification agreement or any similar arrangement entered into by the Borrower or any of its Restricted Subsidiaries or a direct or indirect parent of the Borrower existing on the Closing Date, or entered into thereafter in the ordinary course of business, and any indemnitees or other transactions permitted or required by bylaw, statutory provisions or any of the foregoing agreements, plans or arrangements and payments pursuant thereto;

(2) transactions between or among Parent, the Borrower and its Restricted Subsidiaries;

(3) [reserved];

(4) any issuance of Capital Stock (other than Disqualified Stock) of the Borrower;

(5) any receipt of any capital contribution from any Affiliate of the Borrower;

(6) transactions with a Person (other than an Unrestricted Subsidiary of the Borrower) that is an Affiliate of the Borrower solely because the Borrower owns, directly or through a Subsidiary, Capital Stock in, or controls, such Person;

(7) any Permitted Investments or Restricted Payments that do not violate the other provisions of this Agreement, and any transactions in connection with a Permitted Joint Venture Investment;

(8) any contracts, agreements or understandings existing as of the Closing Date or the date of the consummation of the Merger, including any agreement listed (x) on Schedule 3.2(r) – Related-Party Agreements — to the “TMUS Disclosure Letter” to the Business Combination Agreement and (y) under the section entitled “Transactions with

 

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Related Persons and Approval” in the proxy statement of Parent filed with the SEC under cover of Schedule 14A on April 16, 2012, and any amendments to, replacements of, or orders pursuant to such contracts, agreements and understandings so long as any such amendments, replacements, or orders, taken as a whole, are not, in the good faith determination of the Borrower’s Board of Directors or a senior financial officer of the Borrower, whose determination shall be conclusive, more disadvantageous to the Borrower or to the Lenders in any material respect than the original contracts, agreements or understandings as in effect on the Closing Date;

(9) transactions with customers, clients, suppliers or purchasers or sellers of goods and services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Credit Agreement, provided that in the good faith determination of the Borrower’s Board of Directors or a senior financial officer of the Borrower, whose determination shall be conclusive, such transactions are on terms, taken as a whole, not materially less favorable to the Borrower or the applicable Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s length basis from a Person that is not an Affiliate of the Borrower;

(10) issuances, purchases or repurchases of Indebtedness of the Borrower or its Restricted Subsidiaries or solicitations of amendments, waivers or consents in respect of such Indebtedness, if such issuance, purchase, repurchase or solicitation is approved by a majority of the disinterested members of the Board of Directors of the Borrower;

(11) reasonable payments made for any financial advisory, financing, underwriting, placement or syndication services approved by the Borrower’s Board of Directors or a senior financial officer of the Borrower in good faith;

(12) amendments, extensions, replacements and other modifications of transactions with Affiliates otherwise permitted by this Agreement, provided that, in the good faith determination of the Borrower’s Board of Directors or a senior financial officer of the Borrower, whose determination shall be conclusive, such amendments, extensions, replacements or other modifications, taken as a whole, are no less favorable in any material respect to the Borrower or the applicable Restricted Subsidiary than the transaction or transactions being amended, extended, replaced or modified;

(13) [Reserved];

(14) (i) the Business Combination Agreement and any Ancillary Agreements, as defined in the Business Combination Agreement, in each case, as the same may be amended, modified, supplemented or replaced from time to time on terms that, taken as a whole, in the good faith determination of the Borrower’s Board of Directors or a senior financial officer of the Borrower, whose determination shall be conclusive, are not materially less favorable to the Borrower or the applicable Subsidiary than those of the agreement being amended, modified, supplemented or replaced, (ii) transactions or agreements relating to the DT Notes and this Agreement, each as may be amended, modified, or supplemented from time to time, and any Indebtedness incurred in connection

 

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with the refinancing of the foregoing, on terms that, taken as a whole, in the good faith determination of the Borrower’s Board of Directors or a senior financial officer of the Borrower, whose determination shall be conclusive, are not materially less favorable to the Borrower than those of the DT Notes or this Agreement, as applicable, and (iii) transactions between the Borrower and its Restricted Subsidiaries, on the one hand, and any Designated Tower Entities that have been designated Unrestricted Subsidiaries, on the other hand, in connection with the Towers Transaction;

(15) if DT Entities are the sole Lenders under this Agreement, any transactions between the Borrower or any Restricted Subsidiary of the Borrower, on the one hand, and any DT Entity, on the other hand, and thereafter any agreements evidencing such transactions.

8.9. [Reserved]

8.10. Hedge Agreements. Enter into any Hedge Agreement, except (a) Hedge Agreements entered into to hedge or mitigate risks to which the Borrower or any Restricted Subsidiary has actual exposure (other than those in respect of Capital Stock), (b) Hedge Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Restricted Subsidiary, and (c) any Eurodollar cap purchased with respect to any Eurodollar Loan.

8.11. Changes in Fiscal Year. Change its Fiscal Year end from December 31.

8.12. Negative Pledge Clauses; Subsidiary Distributions. Create, incur, assume or suffer to exist (except as may exist as of the date hereof) any contract, agreement or understanding which in any way prohibits or restricts:

(i) the ability of the Borrower or any Restricted Subsidiary of the Borrower to create, incur or permit any Lien upon any of its Property (other than Liens permitted by Section 8.3);

(ii) any Restricted Subsidiary of the Borrower from paying dividends or making distributions, loans or advances to the Borrower or any Restricted Subsidiary of the Borrower, or which requires the consent of other Persons in connection with the paying of dividends or the making of distributions; or

(iii) the ability of any Restricted Subsidiary to transfer any of its assets to the Borrower or any other Restricted Subsidiary.

provided, however, that the preceding restrictions will not apply to encumbrances or restrictions arising under or by reason of:

(a) this Agreement;

(b) any leases or licenses or similar contracts as they affect any Property or Lien subject to a lease or license;

 

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(c) the Senior Notes Indentures;

(d) agreements or instruments governing Excluded Indebtedness and Capital Stock and any amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings of these agreements or instruments permitted hereunder; provided that the amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings are (in the good faith judgment of the Board of Directors or a senior financial officer of the Borrower, whose determination shall be conclusive) not materially more restrictive, taken as a whole, with respect to such dividend, other payment and asset transfer restrictions than those contained in those agreements or instruments on the Closing Date;

(e) applicable law, rule, regulation or order;

(f) any agreement or instrument to which a Person acquired by the Borrower or any of its Restricted Subsidiaries is bound, as in effect at the time of such acquisition (except to the extent such instrument governs Indebtedness or Capital Stock that was incurred or issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired (and any refinancing, replacement, or extension of any such instrument, so long as such restrictions are, in the good faith judgment of the Board of Directors or a Financial Officer of the Borrower, whose determination shall be conclusive, not materially more restrictive, taken as a whole, than those in effect in such instrument on the date of acquisition); provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Agreement to be incurred;

(g) customary non-assignment provisions in contracts, leases and licenses entered into in the ordinary course of business and customary contractual restrictions on transfers of all or substantially all assets of a Person;

(h) any instrument governing any Secured Indebtedness or Capital Lease Obligation that imposes restrictions on the assets securing such Indebtedness or the subject of such lease of the nature described in clause (iii) above;

(i) Excepted Liens that limit the right of the debtor to dispose of the assets subject to such Liens;

(j) customary provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements;

(k) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business;

 

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(l) agreements or instruments governing Indebtedness, Disqualified Stock or Preferred Stock not in effect on the Closing Date so long as either (i) the encumbrances and restrictions contained therein, in the good faith judgment of the Borrower’s Board of Directors or a Financial Officer of the Borrower, whose determination shall be conclusive, do not impair the ability of any Restricted Subsidiary of the Borrower to pay dividends or make any other distributions or payments directly or indirectly to the Borrower in an amount sufficient to permit the Borrower to pay the Obligations, or (ii) the encumbrances and restrictions contained therein, taken as a whole, are, in the good faith judgment of the Borrower’s Board of Directors or a Financial Officer of the Borrower, whose determination shall be conclusive, not materially more restrictive than those contained in this Agreement or the Senior Notes;

(m) any agreement for the sale or other disposition of a Restricted Subsidiary that imposes restrictions of the nature described in clauses (i), (ii) and/or (iii) hereof on the Restricted Subsidiary pending the sale or other disposition;

(n) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

(o) restrictions in other Indebtedness incurred in compliance with Section 8.2 hereof; provided that such restrictions, taken as a whole, are, in the good faith judgment of the Board of Directors of Borrower or a Financial Officer of the Borrower, whose determination shall be conclusive, no more materially restrictive than those contained in the existing agreements referenced in clause (d) above;

(p) the issuance of Preferred Stock by a Restricted Subsidiary of the Borrower or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 8.2 hereof and the terms of such Preferred Stock do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);

(q) any agreement or instrument with respect to Indebtedness incurred, or Preferred Stock issued, by any Restricted Subsidiary, provided that the restrictions contained in the agreements or instruments governing such Indebtedness or Preferred Stock (i) either (x) apply only in the event of a payment default or a default with respect to a financial covenant in such agreement or instrument or (y) will not materially affect the Borrower’s ability to pay the Obligations, as determined in good faith by the Board of Directors of the Borrower or a Financial Officer of the Borrower, whose determination shall be conclusive; and (ii) are not materially more disadvantageous to the Lenders than is customary in comparable financings;

(r) any agreement or instrument of the Borrower, MetroPCS Wireless, Inc. or their respective Subsidiaries existing prior to, or entered into or assumed by the Borrower,

 

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MetroPCS, Wireless, Inc. or any of their respective Subsidiaries in connection with, the Transaction, in each case, as such agreements or instruments may be amended, restated, modified, renewed or replaced from time to time; provided that the amendments, restatements, modifications, renewals, and replacements are (in the good faith judgment of the Borrower’s Board of Directors or a Financial Officer of the Borrower, whose determination shall be conclusive) not materially more restrictive, taken as a whole, with respect to such encumbrances and restrictions than those agreements or instruments as in effect as of the Closing Date; and

(s) restrictions arising from the Towers Transaction.

8.13. [Reserved]

8.14. [Reserved]

8.15. ERISA Compliance. (a) Engage in, or permit any ERISA Affiliate to engage in, any transaction in connection with which the Borrower, any of its Subsidiaries or any ERISA Affiliate could be subjected to either a civil penalty assessed pursuant to subsections (c), (i) or (l) of section 502 of ERISA or a tax imposed by Chapter 43 of Subtitle D of the Code, if either of which could reasonably be expected to have a Material Adverse Effect.

(b) Terminate, or permit any ERISA Affiliate to terminate, any Plan in a manner, or take any other action with respect to any Plan, which could reasonably be expected to result in any liability of any Group Member or any ERISA Affiliate to the PBGC if any such liability could reasonably be expected to result in a Material Adverse Effect.

(c) Fail to make, or permit any ERISA Affiliate to fail to make, full payment when due of all amounts which, under the provisions of any Plan, agreement relating thereto or applicable law, the Borrower or any of its Subsidiaries or any ERISA Affiliate is required to pay as contributions thereto if such failure could reasonably be expected to have a Material Adverse Effect.

(d) Permit to exist, or allow any ERISA Affiliate to permit to exist, any failure to meet the minimum funding standard under section 303 of ERISA or section 430 of the Code, whether or not waived, with respect to any Plan which exceeds $100,000,000.

(e) Permit, or allow any ERISA Affiliate to permit the actuarial present value of the benefit liabilities under any Plan, as of the end of the Borrower’s most recently ended Fiscal Year to exceed the current value of the assets (computed on a plan termination basis in accordance with Title IV of ERISA) of such Plan allocable to such benefit liabilities by an amount in excess of $100,000,000. The term “actuarial present value of the benefit liabilities” shall have the meaning specified in section 4041 of ERISA.

(f) Contribute to or assume an obligation to contribute to, or permit any ERISA Affiliate to contribute to or assume an obligation to contribute to, any Multiemployer Plan, to the extent a withdrawal from such Multiemployer Plan could reasonably be expected to result in, or has resulted in, a Material Adverse Effect.

 

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(g) Acquire, or permit any ERISA Affiliate to acquire, an interest in any Person that causes such Person to become an ERISA Affiliate with respect to the Borrower, any of its Subsidiaries or any ERISA Affiliate if such Person sponsors, maintains or contributes to, or at any time in the six-year period preceding such acquisition has sponsored, maintained, or contributed to, (i) any Multiemployer Plan, to the extent a withdrawal from such Multiemployer Plan could reasonably be expected to result in, or has resulted in, a Material Adverse Effect, or (ii) any other Plan that would otherwise fail to meet the applicable requirements set forth in Section 8.15(e) above.

(h) Incur, or permit any ERISA Affiliate to incur, a liability to or on account of a Plan under sections 515, 4062, 4063, 4064, 4201 or 4204 of ERISA if such liability could reasonably be expected to have a Material Adverse Effect.

(i) Contribute to or assume an obligation to contribute to, or permit any ERISA Affiliate to contribute to or assume an obligation to contribute to, any employee welfare benefit plan, as defined in section 3(1) of ERISA, including, any such plan maintained to provide benefits to former employees of such entities, that may not be terminated by such entities in their sole discretion at any time without any material current liability in excess of $100,000,000, other than any shared responsibility payments that would become payable under Code Section 4980H by virtue of such plan termination.

(j) Amend, or permit any ERISA Affiliate to amend, a Plan resulting in a material increase in current liability such that any Group Member or any ERISA Affiliate is required to provide material security in excess of $100,000,000 to such Plan under section 436 of the Code.

8.16. Environmental Matters. (a) Cause or permit any of its Property by its Hazardous Materials Activities or other actions or by Hazardous Materials Activities or other actions of third parties under its control, to be in violation of, or do anything or permit anything to be done which will subject any such Property to any Remedial Work under any applicable Environmental Laws, assuming disclosure to the applicable Governmental Authority of all relevant facts, conditions and circumstances, if any, pertaining to such Property where such violations or remedial obligations could reasonably be expected to have a Material Adverse Effect and (b) take reasonable actions to prevent their respective Property from being in violation or the subject of remedial obligations in clause (a) above.

8.17. Subsidiaries. Sell, assign or otherwise dispose of any Capital Stock in any Subsidiary in violation of Section 8.5.

8.18. Financial Condition Covenant. Permit the Debt to Cash Flow Ratio as of the last day of any period of four consecutive Fiscal Quarters of the Borrower ending after the Closing Date to be greater than 4.00 to 1.00; provided however, that the Debt to Cash Flow Ratio shall be tested at the last day of any such four Fiscal Quarter period only if any Loans are outstanding as of such date.

8.19. Lines of Business. Engage in any business other than Permitted Businesses, except to such extent as would not be material to the Borrower and its Restricted Subsidiaries taken as a whole.

 

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8.20. Compliance with Stockholder Agreement. Take any action or enter into any transaction prohibited by Section 3.2(b) of the Stockholder’s Agreement by and between DT and the Borrower, dated as of the Closing Date.

8.21. Change in Covenants When Certain Senior Notes Rated Investment Grade. If on any date following the Closing Date:

(1) any series of Senior Notes is, as of such date (i) unsecured, (ii) guaranteed on a similar basis as the Loans, (iii) not defeased, called for redemption, subject to any pending repurchase or redemption offer, or subject to any pending exchange offer, (iv) scheduled to mature not earlier than the Termination Date, (v) outstanding in an aggregate principal amount of at least $500,000,000 and (vi) rated Investment Grade by two out of the three Rating Agencies; and

(2) no Default or Event of Default shall have occurred and be continuing (other than with respect to sections of this Agreement listed in the following list),

then, beginning on that day, the provisions of the following sections of this Agreement will cease to apply and will not be later reinstated even if the ratings of the Loans should subsequently decline: 8.2, sub-clause (y)(iii) of the proviso to 8.4(b), 8.5, 8.6, 8.7, 8.8, 8.10, 8.11, 8.12, 8.17, 8.18 and 11.18.

SECTION 9. EVENTS OF DEFAULT

If any of the following events shall occur and be continuing:

(a) Failure to Make Payments When Due. Failure by the Borrower to pay (i) when due, any principal of any Loan, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise, or (ii) any interest on any Loan or any fee or any other amount due hereunder, within five days after the date due; or

(b) Default in Other Agreements. (i) Failure of the Borrower or any Significant Subsidiary to pay when due any principal of or interest on or any other amount payable in respect of one or more items of Indebtedness (including any Hedge Agreement, but excluding any Indebtedness referred to in Section 9(a)), in each case beyond the grace period, if any, provided therefor and aggregating $100,000,000 or more, or (ii) breach or default by any Loan Party with respect to any other material term of (1) one or more items of Indebtedness in the individual or aggregate principal amount referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness in the individual or aggregate principal amount referred to in clause (i) above, in each case beyond the grace period, if any, provided therefor, if as a result of such breach or default such Indebtedness becomes or is declared due and payable (or redeemable or subject to a mandatory offer to purchase by the obligor thereon) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; or

(c) Breach of Certain Covenants. Failure of any Group Member to perform or comply with any term or condition contained in (i) Section 5.16, Section 7.4(a) (with respect to the Borrower only), Section 7.7(a), Section 7.10 or Section 8 of this Agreement or (ii) Section 5.13 of

 

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the Guarantee Agreement; provided, however, that a failure to perform or comply with any term or condition in Section 8.3 which occurs solely by reason of the existence of purchase money Liens on Property (other than real property) purchased by any Group Member, securing amounts payable related to such Property in an amount exceeding the amount of Indebtedness permitted by Section 8.2(m), shall not constitute an Event of Default if such failure is remedied not later than 10 days from the date of such failure; or

(d) Breach of Representations, etc. Any representation, warranty, certification or other statement made or deemed made by any Loan Party in any Loan Document or in any statement or certificate at any time given by any Loan Party in writing pursuant hereto or thereto or in connection herewith or therewith shall be inaccurate in any material respect as of the date made or deemed made; or

(e) Other Defaults Under Loan Documents. Any Loan Party shall default in the performance of or compliance with any term contained herein or any of the other Loan Documents, other than any such term referred to in any other Section of this Section 9, and such default shall not have been remedied or waived within thirty days after the earlier of (i) a Financial Officer of the Borrower obtaining actual knowledge of such default or (ii) receipt by the Borrower of notice from Administrative Agent or any Lender of such default; or

(f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent jurisdiction shall enter a final decree or order for relief in respect of any Loan Party in an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against any Loan Party under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any Loan Party, or over all or a substantial part of the property of any Loan Party, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of any Loan Party for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of any Loan Party, and any such event described in this clause (ii) shall continue for forty-five days without having been stayed, dismissed, bonded or discharged; or

(g) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Any Loan Party shall have an order for relief entered with respect to it or shall commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or any Loan Party shall make any assignment for the benefit of creditors; or (ii) any Loan Party shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the Board of Directors (or similar governing body) of any Loan Party (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 9(f); or

 

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(h) Judgments and Attachments. Any money judgment, writ or warrant of attachment or similar process involving in the aggregate at any time an amount in excess of $100,000,000 (in either case to the extent not adequately covered by insurance as to which a solvent insurance company has not denied coverage) shall be entered or filed against any Loan Party or any of their respective assets and shall remain undischarged, unpaid, unvacated, unappealed, unbonded or unstayed for a period of forty-five days (or in any event later than five days prior to the date of any proposed sale thereunder); or

(i) Dissolution. Any order, judgment or decree shall be entered against any Group Member decreeing the dissolution or split-up of such Group Member and such order shall remain undischarged, unvacated or unstayed for a period in excess of thirty days; or

(j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which individually or in the aggregate results in or could reasonably be expected to result in liability of any Loan Party or any of their respective ERISA Affiliates in excess of $100,000,000 during the term hereof or (ii) there exists any fact or circumstance that could reasonably be expected to result in the imposition of a material lien or security interest under Section 430(k) of the Code or under section 303(k) of ERISA in an amount equal to $100,000,000 or more; or

(k) Loan Documents. At any time after the execution and delivery thereof, (i) the Guarantee Agreement for any reason, other than the satisfaction in full of all Obligations, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void or any Group Member shall repudiate its obligations thereunder, (ii) this Agreement ceases to be in full force and effect (other than by reason of the satisfaction in full of the Obligations in accordance with the terms hereof) or shall be declared null and void, or (iii) any Group Member shall contest the validity or enforceability of any Loan Document in writing or deny in writing that it has any further liability, including with respect to future advances by Lenders, under any Loan Document to which it is a party; or

(l) a Change of Control shall occur; or

(m) any material Subordinated Indebtedness or the guarantees thereof shall cease, for any reason, to be validly subordinated to the Obligations or the obligations of the Subsidiary Guarantors under the Guarantee Agreement, as the case may be, as provided in any document governing any Subordinated Indebtedness; or

(n) any Group Member (i) defaults in making any payment or delivery due on the last payment, delivery or exchange date of, or any payment due on early termination of, any Specified Hedge Agreement, in each case beyond the period of grace, if any, provided in such Specified Hedge Agreement; or (ii) defaults in the observance or performance of any other agreement or condition relating to any such Specified Hedge Agreement, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, after the giving of notice if required or the elapse of any grace period, a liquidation, acceleration or early termination of such Specified Hedge Agreement; provided, that a default, event or condition described in clause (i) or (ii) of this paragraph (n) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i) and (ii) of this paragraph (n) shall have occurred and be continuing under Specified Hedge Agreements which have an outstanding principal amount of Indebtedness thereunder which exceeds $100,000,000; or

 

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(o) any Loan Party or any Subsidiary thereof takes any action or enters into any transaction prohibited by Section 3.2(b) of the Stockholder’s Agreement by and between DT and the Borrower, dated as of the Closing Date;

then, and in any such event, (A) if such event is an Event of Default specified in paragraph (f) or (g) above as to the Borrower, automatically the Revolving Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall immediately become due and payable, and (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the Revolving Commitments to be terminated forthwith, whereupon the Revolving Commitments shall immediately terminate; and (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable. Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrower.

SECTION 10. THE ADMINISTRATIVE AGENT

10.1. Appointment. Each Lender hereby designates and appoints the Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents, and each Lender authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent.

10.2. Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys in fact and shall be entitled to obtain and rely on advice of counsel (which may be counsel for the Borrower or any of the Guarantors) concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys in fact selected by it with reasonable care.

10.3. Exculpatory Provisions. Neither the Administrative Agent nor any of its respective officers, directors, employees, agents, attorneys in fact or Affiliates shall be (i) liable for any action

 

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lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or any Specified Hedge Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document or any Specified Hedge Agreement for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or any Specified Hedge Agreement, or for any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document or any Specified Hedge Agreement or any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document or any Specified Hedge Agreement, or to inspect the properties, books or records of any Loan Party.

10.4. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases (including for the avoidance of doubt, in any determination of the Administrative Agent’s satisfaction with any document or condition) be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents with the consent (and such consent may be requested by the Administrative Agent if it deems necessary for any determination by the Administrative Agent for the purposes of this Agreement or any other Loan Document) or in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all Lenders), and such consent or request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.

10.5. Notice of Default. The Administrative Agent shall be deemed not to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent receives such a notice, the Administrative

 

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Agent shall promptly give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement); provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.

10.6. Non Reliance on Administrative Agent and Other Lenders. Each Lender expressly acknowledges that neither the Administrative Agent nor any of its respective officers, directors, employees, agents, attorneys in fact or Affiliates have made any representations or warranties to it and that no act by the Administrative Agent previously or hereafter taken, including any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender also represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates and made its own decision to make its Loans hereunder and enter into this Agreement or any Specified Hedge Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents or any Specified Hedge Agreement, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to disclose or otherwise provide to any Lender any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of the Person serving as Administrative Agent or any of its officers, directors, employees, agents, attorneys in fact or Affiliates in any capacity.

10.7. Indemnification. The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the date on which indemnification is sought under this Section 10.7 (or, if indemnification is sought after the date upon which the Revolving Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of the Revolving Commitments, this Agreement, any of the other Loan Documents, any Specified Hedge Agreement or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the

 

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Administrative Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the Administrative Agent’s gross negligence or willful misconduct. The agreements in this Section shall survive the payment of the Loans and all other amounts payable hereunder.

10.8. Agent in Its Individual Capacity. The Administrative Agent and its Affiliates may make loans to, accept deposits from, and generally engage in any kind of business with, any Loan Party as though the Administrative Agent were not an agent of the Lenders. With respect to its Loans made or renewed by it, the Administrative Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an agent of the Lenders, and the terms “Lender” and “Lenders” shall include the Administrative Agent in its individual capacity.

10.9. Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the Lenders and the Borrower; provided, however, that if DT (together with any DT Entities) is not the sole Lender, then the Administrative Agent may resign upon notice to the Borrower and DT effective upon 5 Business Days’ notice to the Lenders and the Borrower. Additionally, upon 5 Business Days’ notice to the Lenders, the Borrower, and the Administrative Agent, the Required Lenders may require the Administrative Agent to resign at any time. If the Administrative Agent resigns as Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default under Section 9(a) or Section 9(f) with respect to the Borrower shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is 10 Business Days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. After any retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 10 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.

10.10. The Administrative Agent Generally. Except as expressly set forth herein, the Administrative Agent shall have no duties or responsibilities hereunder in its capacity as such.

 

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SECTION 11. MISCELLANEOUS

11.1. Amendments and Waivers. (a) Neither this Agreement, any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section 11.1. The Required Lenders and each Group Member party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent and each Group Member party to the relevant Loan Document may, from time to time, (x) enter into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Group Members hereunder or thereunder or (y) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that, in addition, no such waiver and no such amendment, supplement or modification shall:

(i) forgive the principal amount or extend the final scheduled date of maturity of any Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in connection with any waiver of the applicability of any post-default increase in interest rates, which waiver shall be effective with the consent of the Required Lenders and (y) that any amendment or modification of defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or extend the scheduled date of any payment thereof, or increase the amount or extend the expiration date of any Lender’s Revolving Commitment, in each case without the written consent of each Lender directly affected thereby;

(ii) eliminate or reduce the voting rights of any Lender under this Section 11.1 without the written consent of such Lender;

(iii) reduce any percentage specified in the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or substantially all of the Subsidiary Guarantors from their obligations under the Guarantee Agreement or modify the provisions of Section 11.6, in each case without the written consent of all Lenders;

(iv) [Reserved];

(v) amend, modify or waive any provision of Section 4.8 without the written consent of each Lender adversely affected thereby;

(vi) [Reserved];

(vii) [Reserved];

(viii) amend, modify or waive any provision of Section 10, Section 11.6(b)(i)(B) and Section 11.6(b)(ii)(A) through (C) without the written consent of the Administrative Agent;

(ix) [Reserved];

 

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(x) [Reserved];

(xi) [Reserved]; or

(xii) amend, modify or waive (A) any Loan Document so as to alter the ratable treatment of the Borrower Hedge Agreement Obligations and the Borrower Credit Agreement Obligations or (B) the definition of “Qualified Counterparty,” “Specified Hedge Agreement,” “Obligations,” “Borrower Credit Agreement Obligations,” or “Borrower Hedge Agreement Obligations,” in each case in a manner adverse to any Qualified Counterparty with Obligations then outstanding without the written consent of any such Qualified Counterparty.

Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Group Members, the Lenders, the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Group Members, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.

(b) If, in connection with any proposed amendment, modification, waiver or termination requiring the consent of all Lenders, the consent of Required Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained being referred to as a “Non-Consenting Lender”), then the Borrower may, at its sole expense and effort, upon notice to such Non-Consenting Lender and the Administrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions of Section 11.6), all its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment), provided that (a) the Borrower shall have received the prior written consent of the Administrative Agent to the extent such consent would be required under Section 11.6(b) for an assignment of Loans or Revolving Commitments, as applicable, which consent shall not unreasonably be withheld, (b) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding par principal amount of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (c) unless waived, the Borrower or such Eligible Assignee shall have paid to the Administrative Agent the processing and recordation fee specified in Section 11.6(b)(ii)(B).

11.2. Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three Business Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received, addressed as follows in the case of the Borrower and the Administrative Agent, and as set forth in an administrative questionnaire delivered to the Administrative Agent in the case of the Lender, or to such other address as may be hereafter notified by the respective parties hereto; provided that any notice, request or demand to or upon the Administrative Agent or any Lender shall not be effective until received.

 

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If to the Borrower, at:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

If to the Administrative Agent, at:

JPMorgan Chase Bank, N.A.

500 Stanton Christiana Road

Ops 2, Floor 03

Newark, DE, 19713-2107

Attention: Brian Lunger (Transaction Processing Specialist)

Fax: (302) 634-3301

Copied to:

JPMorgan Chase Bank, N.A.

383 Madison Avenue, 24th Floor

New York, NY 10179

Attention: Tasvir Hasan (Credit Risk Management)

Fax: (866) 686-6480

Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

11.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

11.4. Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans and other extensions of credit hereunder so long as any Obligations are outstanding.

 

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11.5. Payment of Expenses. The Borrower agrees (a) to pay or reimburse the Administrative Agent for all its reasonable and documented out-of-pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees and disbursements of outside counsel to the Administrative Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender and the Administrative Agent for all its actual out-of-pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any such other documents, including the fees and disbursements of one firm of outside counsel to all Lenders and the Administrative Agent, and (c) to pay, indemnify, and hold each Lender and the Administrative Agent and their respective officers, directors, employees, Affiliates, trustees, advisors, agents and controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or the violation of, noncompliance with or liability under, or remedial actions required or reasonably necessary pursuant to, any Environmental Law applicable to the operations of any Group Member or any of the Properties or the unauthorized use by Persons of information or other materials sent through electronic, telecommunications or other information transmission systems that are intercepted by such Persons and the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Group Member under any Loan Document (all the foregoing in this clause (c), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities (i) to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee or (ii) to the extent arising from any dispute solely among Indemnitees (other than with respect to JPMorgan Chase Bank, N.A. and its officers, directors, employees, Affiliates, trustees, advisors, agents and controlling persons (as Indemnitees), in connection with JPMorgan Chase Bank, N.A. acting in its capacity as Administrative Agent hereunder). Without limiting the foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee. All amounts due under this Section 11.5 shall be payable not later than ten (10) Business Days after written demand therefor and submission to the Borrower of statements payable by the Borrower pursuant to this Section 11.5 at the address of the Borrower set forth in Section 11.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 11.5 shall survive repayment of the Loans and all other amounts payable hereunder. This Section 11.5 shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim.

 

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11.6. Successors and Assigns; Participations and Assignments.

(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section.

(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign (other than to any Disqualified Institution) to one or more Eligible Assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Revolving Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:

(A) the Borrower, provided that no consent of the Borrower shall be required for (y) an assignment to a Lender, an affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Person, or (z) any assignment by the Administrative Agent (or its affiliates); and

(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment to an Assignee that is a Lender, an affiliate of a Lender or an Approved Fund with respect to such Lender immediately prior to giving effect to such assignment, provided that, notwithstanding the foregoing, the consent of the Administrative Agent shall be required for an assignment made by any DT Entity to an affiliate thereof, unless such affiliate is either (i) DT or (ii) Deutsche Telekom International Finance B.V.

(ii) Assignments shall be subject to the following additional conditions:

(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;

(B) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500, provided that only one such fee shall be payable in respect of contemporaneous assignments to or from related Approved Funds;

 

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(C) the Assignee, if it is not already a Lender, shall deliver to the Administrative Agent an administrative questionnaire; and

(D) in the case of an assignment by a Lender to a CLO that is an Affiliate of the assigning Lender, the assigning Lender shall retain the sole right to approve any amendment, modification or waiver of any provision of this Agreement and the other Loan Documents, provided that the Assignment and Assumption between such Lender and such CLO may provide that such Lender will not, without the consent of such CLO, agree to any amendment, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 11.1 and (2) directly affects such CLO.

(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from and after the effective date specified in each Assignment and Assumption the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of, and shall be subject to the requirements imposed on it under, Sections 4.9, 4.10, 4.11 and 11.5). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.

(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Revolving Commitments of, and principal amount of the Loans owing to each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive (absent manifest error), and the Borrower, the Administrative Agent, and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.

(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b)(ii) of this Section, and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

 

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(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations (other than to any Disqualified Institution) to one or more Eligible Assignees (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Revolving Commitments and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 11.1 and (2) directly affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of, and shall be subject to the requirements imposed on it under, Sections 4.9, 4.10, and 4.11 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.7(b) as though it were a Lender, provided such Participant shall be subject to Section 11.7(a) as though it were a Lender. Each Lender that sells a participation shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement; provided that no Lender shall have any obligation to disclose any portion of such register to any Person except to the extent such disclosure is necessary to establish that the Loans, Revolving Commitment or other interests hereunder or any other Loan Document are in registered form for United States federal income tax purposes.

(ii) A Participant shall not be entitled to receive any greater payment under Section 4.9 or 4.10 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Section 4.10 unless such Participant complies with Section 4.10(e) (which shall apply in the same manner as if such Participant were a Lender).

(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.

(e) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (d) above.

 

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(f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it may have funded hereunder to its designating Lender without the consent of the Borrower or the Administrative Agent and without regard to the limitations set forth in Section 11.6(b). The Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

(g) Notwithstanding the foregoing, no assignment may be made or participation sold to a Disqualified Institution, and any such purported assignment or participation shall be null and void and such Disqualified Institution shall have no voting or other rights under this Agreement.

11.7. Adjustments; Set-off.

(a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender, if any Lender (a “Benefited Lender”) shall, at any time after the Loans and other amounts payable hereunder shall immediately become due and payable pursuant to Section 9, receive any payment of all or part of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set off, pursuant to events or proceedings of the nature referred to in Section 9(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.

(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off and application.

 

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11.8. Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent.

11.9. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

11.10. Integration. This Agreement and the other Loan Documents represent the entire agreement of the Borrower, the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.

11.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

11.12. Submission To Jurisdiction; Waivers. The Borrower, the Administrative Agent and each Lender hereby irrevocably and unconditionally:

(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of New York, the courts of the United States for the Southern District of New York, and appellate courts from any thereof;

(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the Borrower, at its address set forth in Section 11.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto;

(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and

 

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(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 11.12 any special, exemplary, punitive or consequential damages.

11.13. Acknowledgments. The Borrower hereby acknowledges that:

(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents;

(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or duty to the Borrower arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Administrative Agent and the Lenders, on one hand, and the Borrower, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and

(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Borrower and the Lender.

11.14. Releases of Guarantees.

(a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably authorized by the Lenders (upon five Business Days prior written notice to the Lenders) to take any action requested by the Borrower having the effect of releasing any guarantee obligations, and the Administrative Agent shall take any such action requested by the Borrower in a timely manner, (i) to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section 11.1 or (ii) under the circumstances described in paragraph (b) or (c) below.

(b) At such time as the Loans and the other Obligations (other than obligations under or in respect of a Borrower Hedge Agreements Obligation and other contingent Obligations) shall have been paid in full (or cash collateralized in a manner satisfactory to the Administrative Agent), the Revolving Commitments have been terminated and, except as otherwise agreed by the affected Qualified Counterparties, the net termination liability under or in respect of, and other amounts due and payable under, Specified Hedge Agreements at such time shall have been paid in full or secured by a collateral arrangement satisfactory to the Qualified Counterparty in its reasonable discretion, all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and each Group Member under the Loan Documents shall terminate, all without delivery of any instrument or performance of any act by any Person.

(c) Upon notice from the Borrower to the Administrative Agent that a Subsidiary Guarantor shall thereafter (x) be considered an Immaterial Subsidiary or a Designated Entity or an Unrestricted Subsidiary or cease to be a Subsidiary in a transaction permitted by the Loan Documents, and (y) be released from its obligations hereunder, such Subsidiary Guarantor shall be automatically released from its guarantee of the Obligations under the Loan Documents, and such Subsidiary Guarantor shall automatically cease to be a Loan Party and Group Member; provided that at the time of any such release and after giving effect to such release, such Subsidiary Guarantor is not otherwise required to be a Guarantor. In connection with any release pursuant to this clause (c), the Administrative Agent shall promptly execute and deliver to the Borrower, at the Borrower’s expense, all documents that the Borrower shall reasonably request to evidence such release.

 

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(d) Upon notice from the Borrower to the Administrative Agent that a Discretionary Guarantor shall be released from its obligations hereunder, such Discretionary Guarantor shall be automatically released from its guarantee of the Obligations under the Loan Documents, and such Discretionary Guarantor shall automatically cease to be a Loan Party; provided that at the time of any such release and after giving effect to such release, the Fair Market Value of the Investments (determined in accordance with Section 8.6(b)) in, and Indebtedness of, such Discretionary Guarantor would be permitted under this Agreement and such Discretionary Guarantor is not otherwise required to be a Guarantor. In connection with any release pursuant to this clause (d), the Administrative Agent shall promptly execute and deliver to the Borrower, at the Borrower’s expense, all documents that the Borrower shall reasonably request to evidence such release.

11.15. Confidentiality. Each Lender shall hold all nonpublic information regarding Parent and its Subsidiaries and their businesses identified as such by the Borrower and obtained by such Lender pursuant to the requirements hereof in accordance with such Lender’s customary procedures for handling confidential information of such nature, it being understood and agreed by the Borrower that, in any event, a Lender may make (i) disclosures of such information to Affiliates of such Lender and to their agents and advisors (and to other persons authorized by a Lender or the Administrative Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 11.15) on a need to know basis, (ii) disclosures of such information reasonably required by any bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation by such Lender of any Loans or any participations therein, (iii) disclosure to any rating agency when required by it, provided that, prior to any disclosure, such rating agency shall undertake in writing to preserve the confidentiality of any confidential information relating to the Group Members received by it from the Administrative Agent or any Lender, (iv) disclosure necessary in connection with the defense of any action, suit or investigation brought against a Lender, provided, that such Lender shall make reasonable efforts to provide the Borrower with notice of such disclosure request so that the Borrower may seek a protective order or other appropriate remedy, and (v) disclosures required or requested by any governmental or regulatory agency or representative thereof, and self-regulatory organization or representative thereof, or by the NAIC or pursuant to legal or judicial process; provided, unless specifically prohibited by applicable law or court order, each Lender shall make reasonable efforts to notify the Borrower of any request by any governmental agency or representative thereof or any self regulatory organization or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of such Lender by such governmental or regulatory agency) for disclosure of any such non-public information prior to disclosure of such information. The Administrative Agent and each Lender acknowledges that the information received from any Loan Party or any Affiliate thereof relating to any Loan Party or any Affiliate thereof or their respective businesses, other than any such information that is available to the Administrative Agent or Lender on a nonconfidential basis prior to disclosure by any Loan Party or any Affiliate thereof, may include material non-public information concerning the Loan Parties or an Affiliate of the Loan Parties, as the case may be. Notwithstanding anything

 

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to the contrary herein, no DT Entity shall have any obligation under this Section 11.15 with respect to any information that (x) was within any DT Entity’s possession or furnished to any DT Entity prior to its being furnished pursuant hereto, (y) is or becomes available to any DT Entity by means other than pursuant to a requirement of this Agreement, or (z) any DT Entity has any right to receive, other than or in addition to any such right under this Agreement.

11.16. [Reserved]

11.17. WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.

11.18. Designation of Restricted and Unrestricted Subsidiaries

The Board of Directors of the Borrower may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, (i) the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 8.6 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Borrower in its discretion and (ii) any Guarantee by the Borrower or any Restricted Subsidiary thereof of any Indebtedness of the Restricted Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Borrower or such Restricted Subsidiary (or both, if applicable) at the time of such designation. That designation will only be permitted if the Investment and/or incurrence of Indebtedness would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Borrower may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default.

Any designation of a Subsidiary of the Borrower as an Unrestricted Subsidiary will be evidenced to the Administrative Agent by sending to the Administrative Agent a certified copy of a resolution of the Board of Directors giving effect to such designation and an officers’ certificate certifying that such designation complied with the preceding conditions and was permitted by Section 8.6 hereof. The Board of Directors of the Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Borrower; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 8.2 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following, and as a result of, such designation.

Notwithstanding the foregoing, the Borrower may at any time and from time to time designate any Designated Entity, by written notice to the Administrative Agent, as an Unrestricted Subsidiary,

 

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and any such Subsidiary shall upon such notice immediately be designated and deemed an Unrestricted Subsidiary, without any further action by the Borrower (and, for the avoidance of doubt, shall not require delivery of a resolution of the Board of Directors or of an officers’ certificate) (each, a “Specified Unrestricted Subsidiary Designation”). The aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in such Designated Entities so designated as Unrestricted Subsidiaries will, as calculated and to the extent permitted by clause (t) of the definition of Permitted Investments, be deemed to be an Investment made as of the time of such Specified Unrestricted Subsidiary Designation under such clause (t), and not reduce the amount available for Restricted Payments under Section 8.6 hereof.

11.19. USA PATRIOT Act. Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Publ. L. 107-56 (signed into law October 26, 2001)), (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the Patriot Act.

11.20. Certain Regulatory Requirements. Any provision herein or in any other Loan Document to the contrary notwithstanding, neither the Administrative Agent nor any Lender will take any action pursuant to this Agreement, the Guarantee Agreement, or any other agreement between any Loan Party and the Administrative Agent or such Lender, as applicable, that would constitute or result in any de facto or de jure assignment of an FCC license or transfer of control of any Loan Party, if such assignment of license or transfer of control would require under then existing law (including the written rules and regulations promulgated by, and published policies of, the FCC), the prior approval of the FCC, without first obtaining such approval of the FCC.

[Remainder of page intentionally left blank. Signature pages follow.]

 

-102-


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first written above.

 

T-MOBILE USA, INC.
By:   /S/ David A. Miller
  Name:   David A. Miller
  Title:   Executive Vice President, General Counsel, and Secretary

Signature Page to Credit Agreement


JPMORGAN CHASE BANK, N.A.

as Administrative Agent

By:   /s/ Tasvir Hasan
Name:   Tasvir Hasan
Title:   Vice President

Signature Page to Credit Agreement


DEUTSCHE TELEKOM AG

as Lender

By:   /s/ Igor Soczynski
Name:   Igor Soczynski
Title:   VP Treasury
By:   /s/ Dirk Wehrse
Name:   Dirk Wehrse
Title:   VP Treasury

Signature Page to Credit Agreement


Annex A

PRICING GRID FOR LOANS AND COMMITMENT FEES

 

Pricing Level

   Applicable Margin
for Eurodollar
Loans
     Applicable
Margin for
Base Rate Loans
     Commitment
Fee Rate
 

I

     250 bps         150 bps         25.0 bps   

II

     275 bps         175 bps         37.5 bps   

III

     300 bps         200 bps         50.0 bps   

The Applicable Margin for Loans and the Commitment Fee Rate shall be adjusted, based on changes in the Debt to Cash Flow Ratio, with such adjustments to become effective on the date (the “Adjustment Date”) that is three Business Days after the date on which the relevant financial statements are delivered to the Lenders pursuant to Section 7.1 and to remain in effect until the next adjustment to be effected pursuant to this paragraph. If any financial statements referred to above are not delivered within the time periods specified in Section 7.1, then, until the date that is three Business Days after the date on which such financial statements are delivered, the highest rate set forth in each column of the Pricing Grid shall apply. On each Adjustment Date, the Applicable Margin for Loans and the Commitment Fee Rate shall be adjusted to be equal to the Applicable Margins and Commitment Fee Rate opposite the Pricing Level determined to exist on such Adjustment Date from the financial statements relating to such Adjustment Date.

As used herein, the following rules shall govern the determination of Pricing Levels on each Adjustment Date:

Pricing Level I” shall exist on an Adjustment Date if the Debt to Cash Flow Ratio for the relevant period is less than or equal to 1.50 to 1.00.

Pricing Level II” shall exist on an Adjustment Date if the Debt to Cash Flow Ratio for the relevant period is less than or equal to 2.50 to 1.00 but greater than 1.50 to 1.00.

Pricing Level III” shall exist on an Adjustment Date if the Debt to Cash Flow Ratio for the relevant period is greater than 2.50 to 1.00.

Annex A

EX-4.15 18 d527693dex415.htm EX-4.15 EX-4.15

Exhibit 4.15

SEVENTH SUPPLEMENTAL INDENTURE (this “Seventh Supplemental Indenture”), dated as of May 1, 2013, among T-Mobile USA, Inc. (“TMUS”), the new Guarantors party hereto (the “New Guarantors”), the existing Guarantors party hereto (the “Existing Guarantors”), and Wells Fargo Bank, N.A., as trustee under the Indenture referred to below (the “Trustee”).

W I T N E S S E T H:

WHEREAS, MetroPCS Wireless, Inc. (the “Company”) has heretofore executed and delivered to the Trustee an Indenture (the “Base Indenture”), dated as of September 21, 2010, among the Company, the Guarantors party thereto and the Trustee, as amended and supplemented in respect of the Company’s 7 7/8% Senior Notes due 2018 (the “2018 Notes”) by the First Supplemental Indenture thereto dated as of September 21, 2010 (the “First Supplemental Indenture”), the Third Supplemental Indenture thereto dated as of December 23, 2010 (the “Third Supplemental Indenture”), and the Fifth Supplemental Indenture thereto dated as of December 14, 2012 (the “Fifth Supplemental Indenture”), and as amended and supplemented in respect of the Company’s 7 7/8% Senior Notes due 2020 (the “2020 Notes”, together with the 2018 Notes, the “Notes”) by the Second Supplemental Indenture thereto dated as of November 17, 2010 (the “Second Supplemental Indenture”), the Fourth Supplemental Indenture thereto dated as of December 23, 2010 (the “Fourth Supplemental Indenture”), and the Sixth Supplemental Indenture thereto dated as of December 13, 2012 (the “Sixth Supplemental Indenture”; the Base Indenture, as amended and supplemented in respect of the 2020 Notes by the Second Supplemental Indenture, the Fourth Supplemental Indenture and the Sixth Supplemental Indenture thereto, and as amended and supplemented in respect of the 2018 Notes by the First Supplemental Indenture, the Third Supplemental Indenture and the Fifth Supplemental Indenture thereto, the “Indenture”), each among the Company, the Guarantors party thereto and the Trustee;

WHEREAS, Sections 5.01 and 9.01 of the Indenture provide that TMUS (as the “Company” under the Indenture) may execute and deliver to the Trustee a supplemental indenture pursuant to which TMUS assumes the payment of the principal of and any premium and interest on the Notes and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;

WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances TMUS (as the “Company” under the Indenture) is required to cause the New Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which each of the New Guarantors shall become a Guarantor of the applicable Notes on the terms and conditions set forth herein; and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, TMUS, the Existing Guarantors and the New Guarantors are authorized to execute and deliver this Seventh Supplemental Indenture;

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, TMUS, the New Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the Notes as follows:


1.    Defined Terms. As used in this Seventh Supplemental Indenture, capitalized terms used but not defined herein shall have the meaning set forth in the Indenture . The words “herein,” “hereof” and “hereby” and other words of similar import used in this Seventh Supplemental Indenture refer to this Seventh Supplemental Indenture as a whole and not to any particular section hereof.

2.    Agreement to Assume Obligations. TMUS hereby assumes the principal of, and any premium and interest on, the Notes and the performance or observance of every covenant of the Indenture on the part of the Company to be performed or observed on the terms and subject to the conditions set forth in the Indenture.

3.    Agreement to Guarantee. The New Guarantors hereby agree, jointly and severally, to unconditionally guarantee the obligations of TMUS (as the “Company” under the Indenture) under the Notes and the Indenture on the terms and subject to the conditions set forth in the Indenture including but not limited to Article X thereof.

4.    Notices. All notices or other communications to TMUS and the New Guarantors shall be given as provided in Section 12.02 of the Indenture; in accordance with Section 12.02 of the Base Indenture, notice is hereby given to the parties hereto that notices to TMUS (as the “Company” under the Indenture) and to all Guarantors under the Indenture (including, without limitation, the New Guarantors) shall be sent to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

5.    Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly contemplated hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

6.    Substitution of Successor. Upon execution of this Seventh Supplemental Indenture, TMUS will succeed to, and be substituted for the Company as the “Company” under the Indenture and may exercise every right and power of the Company under the Indenture with the same effect as if TMUS had been so named therein.

7.    Governing Law. THIS SEVENTH SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

8.    The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Seventh Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the New Guarantors and TMUS.

9.    Counterpart Originals. This Seventh Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute


one and the same agreement. The exchange of copies of this Seventh Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Seventh Supplemental Indenture as to the parties hereto and may be used in lieu of the original Seventh Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes. The parties may sign any number of copies of this Seventh Supplemental Indenture. Each signed copy will be an original, but all of them together represent the same agreement.

10.    Headings, etc. The headings of the Articles and Sections of this Seventh Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Seventh Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

[Signatures on following page]


IN WITNESS WHEREOF, the parties hereto have caused this Seventh Supplemental Indenture to be duly executed, as of the date first above written.

 

T-MOBILE USA, INC.
By:   /s/ David A. Miller
 

Name:  

  David A. Miller
 

Title:    

  Executive Vice President, General Counsel, and Secretary

 

[Signature Page — Seventh Supplemental Indenture]


T-MOBILE US, INC.
By:   /s/ J. Braxton Carter
 

Name:  

  J. Braxton Carter
 

Title:    

  Executive Vice President, Chief Financial Officer, Chief Accounting Officer, and Treasurer

 

[Signature Page — Seventh Supplemental Indenture]


COOK INLET/VS GSM IV PCS HOLDINGS, LLC

GSV LLC

POWERTEL MEMPHIS LICENSES, INC.

POWERTEL/MEMPHIS, INC.

SUNCOM WIRELESS HOLDINGS, INC.

SUNCOM WIRELESS INVESTMENT COMPANY LLC

SUNCOM WIRELESS LICENSE COMPANY, LLC

SUNCOM WIRELESS MANAGEMENT COMPANY, INC.

SUNCOM WIRELESS OPERATING COMPANY, L.L.C.

SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.

SUNCOM WIRELESS, INC.

T-MOBILE CENTRAL LLC

T-MOBILE LICENSE LLC

T-MOBILE NORTHEAST LLC

T-MOBILE PCS HOLDINGS LLC

T-MOBILE PUERTO RICO HOLDINGS LLC

T-MOBILE PUERTO RICO LLC

T-MOBILE RESOURCES CORPORATION

T-MOBILE SOUTH LLC

T-MOBILE SUBSIDIARY IV CORPORATION

T-MOBILE WEST LLC

TRITON NETWORK NEWCO, LLC

TRITON PCS FINANCE COMPANY, INC.

TRITON PCS HOLDINGS COMPANY L.L.C.

VOICESTREAM PCS I IOWA CORPORATION

VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.

VOICESTREAM PITTSBURGH, L.P.

WALLC LICENSE, LLC

WIRELESS ALLIANCE, LLC

By:   /s/ David A. Miller
 

Name:  

  David A. Miller
 

Title:    

  Authorized Person of each of the above named entities

 

 

 

[Signature Page — Seventh Supplemental Indenture]


METROPCS AWS, LLC

METROPCS CALIFORNIA, LLC

METROPCS FLORIDA, LLC

METROPCS GEORGIA, LLC

METROPCS MASSACHUSETTS, LLC

METROPCS MICHIGAN, INC.

METROPCS NEVADA, LLC

METROPCS NEW YORK, LLC

METROPCS PENNSYLVANIA, LLC

METROPCS TEXAS, LLC

METROPCS 700 MHz, LLC

METROPCS NETWORKS, LLC

METROPCS NETWORKS CALIFORNIA, LLC

METROPCS NETWORKS FLORIDA, LLC

By:   /s/ J. Braxton Carter
 

Name:  

  J. Braxton Carter
 

Title:    

  Executive Vice President, Chief Financial Officer, Chief Accounting Officer, and Treasurer

 

[Signature Page — Seventh Supplemental Indenture]


WELLS FARGO BANK, N.A., as Trustee
By:   /s/ Lynn M. Steiner
 

Name:  Lynn M. Steiner

 

Title:    Vice President

 

 

 

 

 

[Signature Page — Seventh Supplemental Indenture]

EX-4.16 19 d527693dex416.htm EX-4.16 EX-4.16

Exhibit 4.16

FOURTH SUPPLEMENTAL INDENTURE (this “Fourth Supplemental Indenture”), dated as of May 1, 2013, among T-Mobile USA, Inc. (“TMUS”), the new Guarantors party hereto (the “New Guarantors”), the existing Guarantors party hereto (the “Existing Guarantors”), and Deutsche Bank Trust Company Americas, as trustee under the Indenture referred to below (the “Trustee”).

W I T N E S S E T H:

WHEREAS, MetroPCS Wireless, Inc. (the “Company”) has heretofore executed and delivered to the Trustee an Indenture, dated as of March 19, 2013 (the “Base Indenture”);

WHEREAS, the Company has heretofore executed and delivered to the Trustee a First Supplemental Indenture, dated as of March 19, 2013 (the “First Supplemental Indenture”), providing for the issuance of its 6.250% Senior Notes due 2021 (the “2021 Notes”);

WHEREAS, the Company has heretofore executed and delivered to the Trustee a Second Supplemental Indenture, dated as of March 19, 2013 (the “Second Supplemental Indenture”), providing for the issuance of its 6.625% Senior Notes due 2023 (together with the 2021 Notes, the “Notes”);

WHEREAS, the Company has heretofore executed and delivered to the Trustee a Third Supplemental Indenture, dated as of April 29, 2013 (the “Third Supplemental Indenture”; and the Base Indenture, as supplemented by the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture, the “Indenture”);

WHEREAS, Sections 5.01 and 9.01 of the Base Indenture provide that TMUS (as the “Company” under the Indenture) may execute and deliver to the Trustee a supplemental indenture pursuant to which TMUS assumes the payment of the principal of and any premium and interest on the Notes and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;

WHEREAS, Section 4.17 of the Base Indenture provides that under certain circumstances TMUS (as the “Company” under the Indenture) is required to cause the New Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which each of the New Guarantors shall become a Guarantor of the applicable Notes on the terms and conditions set forth herein; and

WHEREAS, pursuant to Section 9.01 of the Base Indenture, the Trustee, TMUS, the Existing Guarantors and the New Guarantors are authorized to execute and deliver this Fourth Supplemental Indenture;

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, TMUS, the New Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the Notes as follows:

1. Defined Terms. As used in this Fourth Supplemental Indenture, capitalized terms used but not defined herein shall have the meaning set forth in the Indenture. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Fourth Supplemental Indenture refer to this Fourth Supplemental Indenture as a whole and not to any particular section hereof.


2. Agreement to Assume Obligations. TMUS hereby assumes the principal of, and any premium and interest on, the Notes and the performance or observance of every covenant of the Indenture on the part of the Company to be performed or observed on the terms and subject to the conditions set forth in the Indenture.

3. Agreement to Guarantee. The New Guarantors hereby agree, jointly and severally, to unconditionally guarantee the obligations of TMUS (as the “Company” under the Indenture) under the Notes and the Indenture on the terms and subject to the conditions set forth in the Indenture including but not limited to Article X thereof.

4. Notices. All notices or other communications to TMUS and the New Guarantors shall be given as provided in Section 12.02 of the Base Indenture; in accordance with Section 12.02 of the Base Indenture, notice is hereby given to the parties hereto that notices to TMUS (as the “Company” under the Indenture) and to all Guarantors under the Indenture (including, without limitation, the New Guarantors) shall be sent to:

T-Mobile USA, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

5. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly contemplated hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

6. Substitution of Successor. Upon execution of this Fourth Supplemental Indenture, TMUS will succeed to, and be substituted for the Company as the “Company” under the Indenture and may exercise every right and power of the Company under the Indenture with the same effect as if TMUS had been so named therein.

7. Governing Law. THIS FOURTH SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Fourth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the New Guarantors and TMUS.

9. Counterpart Originals. This Fourth Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Fourth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Fourth Supplemental Indenture as to the parties hereto and may be used in lieu of


the original Fourth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes. The parties may sign any number of copies of this Fourth Supplemental Indenture. Each signed copy will be an original, but all of them together represent the same agreement.

10. Headings, etc. The headings of the Articles and Sections of this Fourth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Fourth Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

[Signatures on following page]

 


IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed, as of the date first above written.

 

T-MOBILE USA, INC.
By:   /s/ David A. Miller
 

Name:  

  David A. Miller
 

Title:    

  Executive Vice President, General Counsel, and Secretary

 

[Signature Page — Fourth Supplemental Indenture]


T-MOBILE US, INC.
By:   /s/ J. Braxton Carter
 

Name:  

  J. Braxton Carter
 

Title:    

  Executive Vice President, Chief Financial Officer, Chief Accounting Officer, and Treasurer

 

[Signature Page — Fourth Supplemental Indenture]


COOK INLET/VS GSM IV PCS HOLDINGS, LLC

GSV LLC

POWERTEL MEMPHIS LICENSES, INC.

POWERTEL/MEMPHIS, INC.

SUNCOM WIRELESS HOLDINGS, INC.

SUNCOM WIRELESS INVESTMENT COMPANY LLC

SUNCOM WIRELESS LICENSE COMPANY, LLC

SUNCOM WIRELESS MANAGEMENT COMPANY, INC.

SUNCOM WIRELESS OPERATING COMPANY, L.L.C.

SUNCOM WIRELESS PROPERTY COMPANY, L.L.C.

SUNCOM WIRELESS, INC.

T-MOBILE CENTRAL LLC

T-MOBILE LICENSE LLC

T-MOBILE NORTHEAST LLC

T-MOBILE PCS HOLDINGS LLC

T-MOBILE PUERTO RICO HOLDINGS LLC

T-MOBILE PUERTO RICO LLC

T-MOBILE RESOURCES CORPORATION

T-MOBILE SOUTH LLC

T-MOBILE SUBSIDIARY IV CORPORATION

T-MOBILE WEST LLC

TRITON NETWORK NEWCO, LLC

TRITON PCS FINANCE COMPANY, INC.

TRITON PCS HOLDINGS COMPANY L.L.C.

VOICESTREAM PCS I IOWA CORPORATION

VOICESTREAM PITTSBURGH GENERAL PARTNER, INC.

VOICESTREAM PITTSBURGH, L.P.

WALLC LICENSE, LLC

WIRELESS ALLIANCE, LLC

 

By:   /s/ David A. Miller
 

Name:  

  David A. Miller
 

Title:    

  Authorized Person of each of the above named entities

 

[Signature Page — Fourth Supplemental Indenture]


METROPCS AWS, LLC

METROPCS CALIFORNIA, LLC

METROPCS FLORIDA, LLC

METROPCS GEORGIA, LLC

METROPCS MASSACHUSETTS, LLC

METROPCS MICHIGAN, INC.

METROPCS NEVADA, LLC

METROPCS NEW YORK, LLC

METROPCS PENNSYLVANIA, LLC

METROPCS TEXAS, LLC

METROPCS 700 MHz, LLC

METROPCS NETWORKS, LLC

METROPCS NETWORKS CALIFORNIA, LLC

METROPCS NETWORKS FLORIDA, LLC

 

By:   /s/ J. Braxton Carter
 

Name:  

  J. Braxton Carter
 

Title:    

  Executive Vice President, Chief Financial Officer, Chief Accounting Officer, and Treasurer

 

[Signature Page — Fourth Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee

By: DEUTSCHE BANK NATIONAL TRUST COMPANY

 

By:   /s/ Rodney Gaughan
 

Name:  Rodney Gaughan

 

Title:    Vice President

 

By:   /s/ Annie Jaghatspanyan
 

Name:  Annie Jaghatspanyan

 

Title:    Vice President

 

[Signature Page — Fourth Supplemental Indenture]

EX-10.1 20 d527693dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

EXECUTION COPY

STOCKHOLDER’S AGREEMENT

by and between

DEUTSCHE TELEKOM AG

and

METROPCS COMMUNICATIONS, INC.

DATED AS OF APRIL 30, 2013


TABLE OF CONTENTS

 

          Page  
Article I DEFINITIONS      1   

Section 1.1

   Definitions      1   

Section 1.2

   Other Definitional Provisions      6   
Article II REPRESENTATIONS AND WARRANTIES      7   

Section 2.1

   Representations and Warranties of the Company      7   

Section 2.2

   Representations and Warranties of the Stockholder      7   
Article III CORPORATE GOVERNANCE      8   

Section 3.1

   Board Representation      8   

Section 3.2

   Specified Actions      10   

Section 3.3

   Organizational Documents Actions      11   

Section 3.4

   Debt Amendments      11   

Section 3.5

   Information      11   

Section 3.6

   Director Consent Rights      13   
Article IV TRANSFERS OF COMMON STOCK      13   

Section 4.1

   Certain Acquisitions      13   

Section 4.2

   Certain Dispositions      14   
Article V REGISTRATION RIGHTS      14   

Section 5.1

   Shelf Registration      14   

Section 5.2

   Demand Registration      15   

Section 5.3

   Registration Obligations      15   

Section 5.4

   Piggy-Back Registration      16   

Section 5.5

   Cutbacks      17   

Section 5.6

   Termination of Registration Obligation      17   

Section 5.7

   Registration Procedures      18   

Section 5.8

   Registration Expenses      23   

Section 5.9

   Indemnification; Contribution      23   

Section 5.10

   Indemnification Procedures      24   

Section 5.11

   Transferee Registration Rights      25   
Article VI NON-COMPETITION      26   

Section 6.1

   Non-Competition      26   

Section 6.2

   Reasonable Scope      27   
Article VII MISCELLANEOUS      27   

Section 7.1

   Injunctive Relief      27   

Section 7.2

   Assignment      27   

Section 7.3

   Amendments; Waiver      27   

Section 7.4

   Termination      28   

Section 7.5

   Notices      28   

Section 7.6

   Governing Law; Jurisdiction; Forum; Waiver of Trial by Jury      29   

Section 7.7

   Interpretation      29   

Section 7.8

   Entire Agreement; No Other Representations      30   

Section 7.9

   No Third-Party Beneficiaries      30   

Section 7.10

   Severability      30   

Section 7.11

   Counterparts      30   

 

i


STOCKHOLDER’S AGREEMENT, dated as of April 30, 2013 (this “Agreement”), by and between DEUTSCHE TELEKOM AG, an Aktiengesellschaft organized and existing under the Laws of the Federal Republic of Germany (the “Stockholder”), and METROPCS COMMUNICATIONS, INC., a Delaware corporation (the “Company”). Capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to such terms in that certain Business Combination Agreement, dated as of October 3, 2012 (the “Business Combination Agreement”), by and among the Stockholder, the Company, T-Mobile Global Zwischenholding GmbH, T-Mobile Global Holding GmbH (“Holding”), and T-Mobile USA, Inc. (“TMUS”).

W I T N E S S E T H:

WHEREAS, the Company and the Stockholder have entered into the Business Combination Agreement, pursuant to which, among other things, Holding desires to sell to the Company, and the Company desires to purchase from Holding, all of the issued and outstanding equity interests of TMUS in exchange for the issuance of a certain amount of shares of Common Stock (as defined below) to Holding and other consideration, all upon the terms and subject to the conditions set forth therein; and

WHEREAS, the Company and the Stockholder desire to establish in this Agreement certain rights and obligations in respect of the shares of common stock, par value $0.0001 per share, of the Company (the “Common Stock”) received by Holding, and related matters concerning the Stockholder’s relationship with and investment in the Company.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, the following terms shall have the meanings indicated below:

Acquiror Purchase Offer” shall have the meaning set forth in Section 4.2(c).

Affiliate” shall mean with respect to any Person, a Person that directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with such Person, provided that the Stockholder shall not be deemed to be an Affiliate of the Company and vice versa.

Affiliated Directors” shall mean Directors who are also officers, employees, directors or Affiliates of the Stockholder.

Agreement” shall have the meaning set forth in the Preamble.


Beneficially Own” shall mean, with respect to any securities, (i) having “beneficial ownership” of such securities for purposes of Rule 13d-3 or 13d-5 under the Exchange Act (or any successor statute or regulation), (ii) having the right to become the Beneficial Owner of such securities (whether such right is exercisable immediately or only after the passage of time or the occurrence of conditions) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise, or (iii) having an exercise or conversion privilege or a settlement payment or mechanism with respect to any option, warrant, convertible security, stock appreciation, swap agreement or other security, contract right or derivative position, whether or not currently exercisable, at a price related to the value of the securities for which Beneficial Ownership is being determined or a value determined in whole or part with reference to, or derived in whole or in part from, the value of the securities for which Beneficial Ownership is being determined that increases in value as the value of the securities for which Beneficial Ownership is being determined increases or that provides to the holder an opportunity, directly or indirectly, to profit or share in any profit derived from any increase in the value of the securities for which Beneficial Ownership is being determined (excluding any interests, rights, options or other securities set forth in Rule 16a-1(c)(1)-(5) or (7) promulgated pursuant to the Exchange Act).

Blackout Period” shall have the meaning set forth in Section 5.3(c).

Board” shall mean, as of any date, the Board of Directors of the Company in office on that date.

Business Combination Agreement” shall have the meaning set forth in the Preamble.

Business Day” shall mean any day other than a Saturday, a Sunday, a federal holiday or a day on which banks in the City of New York or in Bonn, Germany are authorized or obligated by Law to close.

Chosen Courts” shall have the meaning set forth in Section 7.6.

Claim Notice” shall have the meaning set forth in Section 5.10(a).

Claims” shall have the meaning set forth in Section 5.9(a).

Common Stock” shall have the meaning set forth in the Recitals.

Company” shall have the meaning set forth in the Preamble.

Company Information” shall have the meaning set forth in Section 3.5(b).

Competing Business” shall have the meaning set forth in Section 6.1.

Control” shall mean the possession, direct or indirect, of the power to direct, or cause the direction of, the management and policies of a Person, whether through the ownership of voting securities, voting equity, limited liability company interests, general partner interests, or voting interests, by contract or otherwise.

 

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Debt to Cash Flow Ratio” shall have the meaning set forth in the indenture or other instrument governing the terms of the Stockholder Notes, as in effect on the date hereof.

Demand Registration Statement” shall have the meaning set forth in Section 5.2.

Demand Request” shall have the meaning set forth in Section 5.2.

Director” shall mean any member of the Board.

EDGAR” shall have the meaning set forth in Section 5.7(a)(ii).

Effective Period” shall have the meaning set forth in Section 5.7(a)(iii).

Encumbrance” shall mean any lien, pledge, charge, claim, encumbrance, hypothecation, security interest, option, lease, license, mortgage, easement or other restriction or third-party right of any kind, including any right of first refusal, tag-along or drag-along rights or restriction on voting, transferring, lending, disposing or assigning, in each case other than pursuant to this Agreement.

Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

Existing Registration Rights Agreement” shall mean the Registration Rights Agreement, effective as of April 24, 2007, by and among MetroPCS and the stockholders listed therein.

Holding” shall have the meaning set forth in the Preamble.

Indebtedness” shall have the meaning set forth in the indenture or other instrument governing the terms of the Stockholder Notes, as in effect on the date hereof.

Indemnifying Party” shall have the meaning set forth in Section 5.10(a).

Lock-Up Period” shall have the meaning set forth in Section 4.2(a).

Maximum Number” shall have the meaning set forth in Section 5.5.

Non-Affiliated Directors” shall mean any Directors who are not Affiliated Directors.

NYSE” shall mean the New York Stock Exchange.

Organizational Documents” shall mean, with respect to any Person, such Person’s articles or certificate of association, incorporation, formation or organization, by-laws, limited liability company agreement, partnership agreement or other constituent document or documents, each in its currently effective form as amended from time to time.

Other Holder” shall have the meaning set forth in Section 5.5.

 

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Permitted Debt” shall have the meaning set forth in the indenture or other instrument governing the terms of the Stockholder Notes, as in effect on the date hereof.

Permitted Liens” shall have the meaning set forth in the indenture or other instrument governing the terms of the Stockholder Notes, as in effect on the date hereof.

Person” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, governmental entity or other entity of any kind or nature.

Piggy-Back Registration” shall have the meaning set forth in Section 5.4.

Piggy-Back Request” shall have the meaning set forth in Section 5.4.

Piggy-Back Securities” shall have the meaning set forth in Section 5.4.

Potential Default” shall have the meaning set forth in Section 3.4.

Proposed Acquiror” shall have the meaning set forth in Section 4.2(b).

Proposed Acquisition” shall have the meaning set forth in Section 4.1(b).

Proposed Sale” shall have the meaning set forth in Section 4.2(b).

Purchaser Shares” shall mean the shares of Common Stock Beneficially Owned, as of the date of determination, by the Stockholder and any other securities issued in respect thereof or into which such shares of Common Stock shall be converted or exchanged in connection with stock dividends or distributions, combinations or any similar recapitalizations on or after the date hereof.

Registrable Debt” shall mean, at any time, notes, debentures or other debt securities of the Company or any of its Subsidiaries that are Beneficially Owned by the Stockholder.

Registrable Securities” shall mean the Registrable Shares and the Registrable Debt.

Registrable Securities Transferee” shall have the meaning set forth in Section 5.11(a).

Registrable Shares” shall mean, at any time, the Purchaser Shares that are Beneficially Owned by the Stockholder.

Required Approval” shall have the meaning set forth in Section 4.1(b).

Representatives” shall have the meaning set forth in Section 3.5(b).

 

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Rule 144” shall mean Rule 144 promulgated under the Securities Act or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such rule.

S-3 Eligible” shall have the meaning set forth in Section 5.1.

Stockholder” shall have the meaning set forth in the Preamble.

Stockholder Designees” shall have the meaning set forth in Section 3.1(b).

Stockholder Notes” shall mean the DT Notes, as defined in the Business Combination Agreement.

Stockholder Purchase Offer” shall have the meaning set forth in Section 4.1(b).

Subsidiary” shall mean, with respect to any Person, any entity, whether incorporated or unincorporated, of which (i) voting power to elect a majority of the board of directors, management committee or others performing similar functions with respect to such other Person is held by the first mentioned Person and/or by any one or more of its Subsidiaries, (ii) a general partnership interest is held by such first mentioned Person and/or by any one or more of its Subsidiaries (excluding partnerships where such first mentioned Person (A) does not Beneficially Own a majority of the general partnership interests or voting interests and (B) does not otherwise Control such entity, directly or indirectly, by contract, arrangement or otherwise), or (iii) at least 50% of the Equity Interests of such other Person is, directly or indirectly, owned or Controlled by such first mentioned Person and/or by any one or more of its Subsidiaries.

Takedown Prospectus Supplement” shall have the meaning set forth in Section 5.1.

Takedown Request” shall have the meaning set forth in Section 5.1.

TMUS” shall have the meaning set forth in the Preamble.

Transfer” shall mean any direct or indirect sale, transfer, assignment, pledge, hypothecation, mortgage, license, gift, creation of a security interest in or lien on, placement in trust (voting or otherwise), encumbrance or other disposition to any Person, including those by way of spin-off (such as through a dividend), hedging or derivative transactions or otherwise; provided, however, that any tender or exchange offer, merger (other than a merger by the Stockholder to effect a reorganization or recapitalization), amalgamation, plan of arrangement or consolidation or any similar transaction in which each holder of capital stock of the Stockholder (other than, if applicable, the Person proposing such transaction) disposes, sells, transfers or assigns or is offered the opportunity to dispose, sell, transfer or assign some or all of the capital stock of the Stockholder Beneficially Owned by each such holder or which otherwise results in the acquisition of some or all of the capital stock of the Stockholder Beneficially Owned by each such holder shall not be deemed to be the Transfer of any Purchaser Shares Beneficially Owned by the Stockholder.

 

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Votes” shall mean the number of votes entitled to be cast generally in the election of Directors.

Voting Percentage” of a Person shall mean, as of the date of determination, the ratio, expressed as a percentage, of (i) the Votes entitled to be cast by the holders of the Voting Securities Beneficially Owned by such Person to (ii) the aggregate Votes entitled to be cast by all holders of the then-outstanding Voting Securities.

Voting Securities” shall mean, together, (i) the Common Stock and (ii) any class of capital stock or other securities of the Company other than the Common Stock that are entitled to vote generally in the election of Directors.

Section 1.2 Other Definitional Provisions. Unless the express context otherwise requires:

(a) the words “hereof”, “herein”, and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

(b) the words “date hereof”, when used in this Agreement, shall refer to the date set forth in the Preamble;

(c) the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

(d) the terms defined in the present tense have a comparable meaning when used in the past tense, and vice versa;

(e) any references herein to “Dollars” and “$” are to United States Dollars;

(f) any references herein to a specific Section, Schedule, Annex or Exhibit shall refer, respectively, to Sections, Schedules, Annexes or Exhibits of this Agreement;

(g) wherever the word “include”, “includes”, or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;

(h) references herein to any gender includes each other gender; and

(i) the word “or” shall not be exclusive.

 

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ARTICLE II

REPRESENTATIONS AND WARRANTIES

Section 2.1 Representations and Warranties of the Company. The Company represents and warrants to the Stockholder that, as of the date hereof:

(a) The Company is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware.

(b) The Company has all requisite power and authority and has taken all action necessary in order to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by the Company of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action of the Company. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Stockholder, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws affecting the enforcement of creditors’ rights generally or, as to enforceability, by general equitable principles.

(c) The execution and delivery of this Agreement by the Company and the performance of its obligations hereunder will not constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of the Company, (ii) a breach or violation of, a termination (or right of termination) or default under, the creation or acceleration of any obligations under, or the creation of an Encumbrance on any of the assets of the Company (with or without notice, lapse of time or both) pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation binding upon the Company, or (iii) conflict with, breach or violate any Law applicable to the Company or by which its properties are bound or affected, except, in the case of clause (ii) or (iii) above, for any breach, violation, termination, default, creation or acceleration that would not, individually or in the aggregate, reasonably be likely to impair in any material respect the ability of the Company to perform its obligations under this Agreement.

(d) The Company is a “well-known seasoned issuer” (as defined in Rule 405 promulgated under the Securities Act) eligible to register the Registrable Shares for resale by the Stockholder on a registration statement on Form S-3 under the Securities Act. The Company is subject to the reporting requirements of the Exchange Act.

Section 2.2 Representations and Warranties of the Stockholder. The Stockholder represents and warrants to the Company that, as of the date hereof:

(a) The Stockholder is an Aktiengesellschaft organized and existing under the Laws of the Federal Republic of Germany.

(b) The Stockholder has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by the Stockholder of this Agreement and the performance of its obligations hereunder have been

 

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duly authorized by all necessary action of the Stockholder. This Agreement has been duly executed and delivered by the Stockholder and, assuming the due authorization, execution and delivery of this Agreement by the Company, constitutes the legal, valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws affecting the enforcement of creditors’ rights generally or, as to enforceability, by general equitable principles.

(c) The execution and delivery of this Agreement by the Stockholder and the performance of its obligations hereunder will not constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of the Stockholder, (ii) a breach or violation of, a termination (or right of termination) or default under, the creation or acceleration of any obligations under, or the creation of an Encumbrance on any of the assets of the Stockholder (with or without notice, lapse of time or both) pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation binding upon the Stockholder, or (iii) conflict with, breach or violate any Law applicable to the Stockholder or by which its properties are bound or affected, except, in the case of clause (ii) or (iii) above, for any breach, violation, termination, default, creation or acceleration that would not, individually or in the aggregate, reasonably be likely to impair in any material respect the ability of the Stockholder to perform its obligations under this Agreement.

ARTICLE III

CORPORATE GOVERNANCE

Section 3.1 Board Representation. At all times when the Stockholder’s Voting Percentage is 10% or more:

(a) The Company and the Stockholder shall use their reasonable best efforts to cause at least three of the Directors to be considered “independent” under the rules of the SEC, the NYSE and any other or additional exchange on which the securities of the Company are listed, including for purposes of Rule 10A-3 promulgated under the Exchange Act (or any successor rule thereto).

(b) The Stockholder shall have the right to designate a number of individuals to be nominees for election to the Board (“Stockholder Designees”) equal to the Stockholder’s Voting Percentage multiplied by the total number of Directors that the Company would have if there were no vacancies, rounded to the nearest whole number (and in any event not less than one), and the Company and the Stockholder shall use their reasonable best efforts to cause such Stockholder Designees to be elected to the Board; provided that the number of Directors who are Affiliated Directors shall not in any event exceed a number equal to the Stockholder’s Voting Percentage multiplied by the total number of Directors that the Company would have if there were no vacancies, rounded to the nearest whole number greater than zero. If at any time the Stockholder’s Voting Percentage is less than 10%, the Stockholder shall promptly cause all of the Stockholder Designees then serving as Directors to resign from the Board, and the contractual rights of the Stockholder to designate one or more Stockholder Designees pursuant to this Article III shall forever terminate.

 

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(c) The Company shall cause any committee of the Board to include in its membership a number of Stockholder Designees then serving as Directors equal to the Stockholder’s Voting Percentage multiplied by the total number of members that such committee would have if there were no vacancies on such committee, rounded to the nearest whole number, except to the extent that such membership would violate the rules of the SEC, the NYSE and any other or additional exchange on which the securities of the Company are listed, or any other applicable securities Laws; provided, however, that no committee may consist solely of Affiliated Directors. If at any time the number of Stockholder Designees then serving as Directors or as members of any committee of the Board exceeds the number of Stockholder Designees the Stockholder is entitled to designate to the Board or any committee thereof pursuant to this Article III, the Stockholder shall cause the number of Stockholder Designees then serving as Directors or as members of such committee of the Board representing such excess to resign immediately as Directors or committee members, as applicable.

(d) Each Stockholder Designee shall not be prohibited or disqualified from serving as a Director pursuant to any rule or regulation of the SEC, the NYSE or any other or additional exchange on which securities of the Company are listed or by applicable Law. The Stockholder shall, and shall cause the Stockholder Designees to, timely provide the Company with accurate and complete information relating to the Stockholder and the Stockholder Designees that may be required to be disclosed by the Company under the Securities Act or the Exchange Act, including such information required to be furnished by the Company with respect to the Stockholder Designees in a proxy statement pursuant to Rule 14a-101 promulgated under the Exchange Act, and the nationality of such Stockholder Designee. In addition, at the Company’s request, the Stockholder shall cause the Stockholder Designees to complete and execute the Company’s director and officer questionnaire prior to being elected to the Board or standing for reelection at an annual meeting of stockholders or at such other time as may be reasonably requested by the Company.

(e) With respect to each meeting of stockholders of the Company at which Directors are to be elected, the Company shall provide the Stockholder with notice of such meeting not less than 120 days prior to the date thereof, and the Stockholder shall provide the Company with written notice of the names (together with all other information requested by the Company pursuant to Section 3.1(d)) of the Stockholder Designees to be nominated for election at such meeting not more than 30 days following the delivery of such notice. If the Stockholder shall fail to timely provide the Company with the names of that number of Stockholder Designees equal to the number of Stockholder Designees the Stockholder is entitled to designate pursuant to this Article III, the Nominating Committee of the Board may select alternative nominees for such positions. If any Stockholder Designee is not qualified, available or eligible to stand for election, then the Stockholder may name an acceptable and available replacement Stockholder Designee and any such Stockholder Designee will be included as a nominee for election at such meeting if written notice of the name of such Stockholder Designee is provided to the Company within a reasonable period of time prior to the mailing of the proxy statement for such meeting. The Company shall cause the Stockholder Designees to be included in the slate of Directors approved and recommended by the Board for election at such meeting and shall use its reasonable best efforts to cause the election of each such Stockholder Designee, including soliciting proxies in favor of the election of such Stockholder Designees at such meeting.

 

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(f) In the event the size of the Board is increased at any time and as a result of such increase, the Stockholder shall be entitled to designate one or more additional Stockholder Designees based upon the increased size of the Board and its then Voting Percentage pursuant to this Section 3.1, (i) the Stockholder shall be entitled promptly to designate such Stockholder Designees, and (ii) the Company shall cause the prompt appointment or election of such Stockholder Designee(s) as Director(s).

(g) Upon the resignation, retirement, death or other removal (with or without cause) from office of any Stockholder Designee serving as a Director at a time when the Stockholder has the right under this Section 3.1 to designate a replacement Stockholder Designee, (i) the Stockholder shall be entitled promptly to designate a replacement Stockholder Designee and (ii) the Company shall cause the prompt appointment or election of such replacement Stockholder Designee as a Director.

Section 3.2 Specified Actions. In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable Law, for so long as the Stockholder’s Voting Percentage is 30% or greater, the Company shall not, and shall cause its Subsidiaries not to, take or agree to take any of the following actions, in each case without the prior written consent of the Stockholder, which consent the Stockholder may withhold in its sole discretion:

(a) create, incur, issue, assume or otherwise become liable for (including through a merger, acquisition or otherwise) or refinance or guarantee any Indebtedness (excluding any Permitted Debt) that would result in the Company and its subsidiaries, on a consolidated basis, having or being liable for Indebtedness in an aggregate principal amount that would result in the Debt to Cash Flow Ratio for the Company’s most recently ended four full fiscal quarters for which financial statements are available to be greater than 5.25 to 1.0 on a pro forma basis as if the additional Indebtedness had been incurred at the beginning of such four-quarter period;

(b) take any action or enter into any transaction that would reasonably be expected to result in a breach of or default under any credit agreement, indenture, note, or similar instrument or security to which the Stockholder or any of its Affiliates is a party or is bound;

(c) acquire (including by way of merger, recapitalization, reorganization, liquidation or dissolution) any business, debt or equity interests, operations or assets of any Person, or make any investment in or loan to any Person, in any single transaction or series of related transactions (excluding the acquisition of products and equipment in the ordinary course of business), for consideration in excess of $1,000,000,000;

(d) sell, lease, transfer, Encumber (other than Permitted Liens) or otherwise dispose of (including by way of merger, recapitalization, reorganization, liquidation or dissolution) any division, business, or operations of the Company or any of its Subsidiaries, or any equity interests of the Company or any of its Subsidiaries, in any single transaction or series of related transactions, for consideration in excess of $1,000,000,000;

(e) change the size of the Board;

 

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(f) issue any equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries, in any single transaction or series of related transactions, (i) constituting 10% or more of the then outstanding shares of Common Stock (other than grants of incentive awards to officers or employees of the Company or its Subsidiaries that are approved by the Board or the applicable committee thereof or issuances of securities to the Company or any of its wholly-owned Subsidiaries) or (ii) for the purpose of redeeming or purchasing any indebtedness of the Company held by the Stockholder or its Affiliates;

(g) (i) except as required in the Organizational Documents, repurchase or redeem any equity (or equity-based) securities of the Company or any of its non-wholly owned Subsidiaries, or (ii) make any extraordinary or in-kind dividend with respect to any of the equity (or equity-based) securities of the Company or any of its Subsidiaries, other than a dividend on a pro rata basis with respect to all stockholders of the Company, or a dividend to the Company or any of its wholly owned Subsidiaries; or

(h) hire, or terminate without cause, its Chief Executive Officer, or agree to do so.

Section 3.3 Organizational Documents Actions. In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable Law, for so long as the Stockholder’s Voting Percentage is 5% or greater, the Company shall not amend or seek to amend its Organizational Documents (including, for the avoidance of doubt, the creation of any shareholder rights plan or other amendment intended to limit the Stockholder’s ownership or acquisition of securities of the Company) in any manner that could limit, restrict or adversely affect the Stockholder or its rights thereunder without the prior written consent of the Stockholder, which consent may be withheld in its sole discretion.

Section 3.4 Debt Defaults. The Company shall notify the Stockholder any time it is reasonably likely that the Company will default on any Indebtedness (as defined in the Business Combination Agreement) with a principal amount greater than $75 million (a “Potential Default”). Thereupon, the Stockholder shall have the right, but not the obligation, to provide new debt financing to the Company up to the amount of the Indebtedness that is the subject of the Potential Default plus any applicable prepayment or other penalties, on the same terms and conditions as such Indebtedness (together with any waiver of the Potential Default). If Stockholder elects to provide the Company with new debt financing, the Company shall take any actions reasonably requested by the Stockholder (i) to prepare documentation reflecting the terms and conditions of the new debt financing; (ii) to repay the Indebtedness that is the subject of the Potential Default; and (iii) to take any other action necessary or desirable to avert the Potential Default.

Section 3.5 Information.

(a) For so long as the Stockholder’s Voting Percentage is 10% or greater, the Stockholder shall be entitled to the information and consultation rights set forth in this Section 3.5 with respect to the Company and its Subsidiaries, in addition to any other vote, consent or approval rights set forth herein, in the Company’s Organizational Documents or otherwise: (i) the Stockholder shall be entitled to consult with the officers of the Company with respect to

 

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the Company’s business and financial matters, including management’s proposed annual operating plans, and, upon request, members of management will meet with representatives of the Stockholder at mutually agreeable times and places for such consultation, including to review progress in achieving said plans; provided that such consultation shall not unreasonably disrupt the normal operations of the Company or its Subsidiaries and the Stockholder shall be responsible for any out-of-pocket costs and expenses incurred by the Company in connection with such consultation; (ii) the Company shall furnish the Stockholder with such available financial and operating data and other information with respect to the business and properties of the Company and its Subsidiaries as the Stockholder may reasonably request; provided that such request must be made through the Company’s chief financial officer or one or more individuals designated by such person, and in any event, if a Stockholder Designee is then serving as a Director, with all information provided to members of the Board; and (iii) the Stockholder shall be entitled to inspect all books and records and facilities and properties of the Company at reasonable times and intervals.

(b) Subject to the requirements of applicable Law, regulations and rules (including the regulations and rules of the NYSE and any other or additional exchange on which the securities of the Company are listed), the Stockholder shall, and shall cause its officers, directors, employees, accountants, counsel and consultants (“Representatives”) and the Stockholder Designees to, keep confidential all information and documents of the Company and its Affiliates obtained by the Stockholder and the Stockholder Designees (the “Company Information”) unless the Company Information (i) is or becomes publicly available other than as a result of a breach of this Section 3.5 by the Stockholder, including by way of actions taken by its Representatives or the Stockholder Designees; (ii) was within the possession of the Stockholder or the Stockholder Designees prior to being furnished such information by or on behalf of the Company on a non-confidential basis; provided that the source of such information was not known by the Stockholder, its Representatives or the Stockholder Designees to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any of its Subsidiaries with respect to the Company Information; (iii) was available to the Stockholder or the Stockholder Designees on a non-confidential basis from a source other than the Company, any of its Subsidiaries or any of its or their Representatives; provided that such source was not known to the Stockholder or the Stockholder Designees to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any of its Subsidiaries with respect to such Company Information; or (iv) was independently developed by or on behalf of the Stockholder without violating any of the obligations under this Section 3.5. The Stockholder shall, and shall cause its controlled Affiliates, Representatives, and the Affiliated Directors to, comply with applicable law regarding insider trading in the Company’s securities to the extent any of them is in possession of Company Information.

(c) The Stockholder hereby acknowledges that it is aware and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities Laws prohibit any Person who is in possession of material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling securities of the Company or from communicating such information to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell securities.

 

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(d) From the date hereof until the next subsequent filing of the Company’s annual report on Form 10-K, the Stockholder agrees to use its commercially reasonable efforts to assist the Company with the integration of TMUS and its Subsidiaries into the Company’s internal control structure and procedures for financial reporting compliance with the requirements of Rule 404 of the Sarbanes-Oxley Act of 2002.

Section 3.6 Director Consent Rights.

(a) In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement, applicable Law or otherwise, during the term of this Agreement, the Stockholder agrees not to, and shall cause the Stockholder Designees then serving as Directors not to, support, enter into or vote in favor of any transaction between, or involving both (A) the Company and (B) the Stockholder or an Affiliate of the Stockholder unless such transaction is approved by a majority of the Directors, which majority includes a majority of the Non-Affiliated Directors (it being understood that such approval or similar approvals in this Agreement shall not require any separate vote or consent of the Non-Affiliated Directors).

(b) From and after the Closing, the Stockholder agrees that the Non-Affiliated Directors shall direct and make any determinations with respect to the Company’s post-Closing actions under Section 2.4 of the Business Combination Agreement.

ARTICLE IV

TRANSFERS OF COMMON STOCK

Section 4.1 Certain Acquisitions. (a) The Stockholder shall not, and shall cause each of its Affiliates not to, directly or indirectly, alone or in concert with any other Person, acquire, offer to acquire or agree to acquire (including from the Company) Beneficial Ownership of any Common Stock that would cause the Stockholder’s and its Affiliates’ Voting Percentage to exceed 80.1%, except in accordance with the following provisions of this Section 4.1.

(b) If the Stockholder or its Affiliates proposes to acquire Common Stock that would cause the Stockholder’s Voting Percentage to exceed 80.1% (the “Proposed Acquisition”), the Stockholder or its Affiliates shall offer to acquire all of the then-outstanding Common Stock at the same price and on the same terms and conditions as the Proposed Acquisition (the “Stockholder Purchase Offer”). For the avoidance of doubt, the Stockholder Purchase Offer may contemplate a merger or other consolidation, a tender offer, or any other transaction that could permit the acquisition of all of the then-outstanding Common Stock. The Stockholder shall not, and shall cause its Affiliates not to, consummate, in whole or in part, any Proposed Acquisition or Stockholder Purchase Offer unless such Stockholder Purchase Offer is either (i) accepted and approved by a majority of the Directors, which majority includes a majority of the Non-Affiliated Directors, or (ii) accepted or approved by holders of a majority of the Common Stock held by stockholders of the Company other than the Stockholder and its Affiliates (either of clause (i) or (ii), the “Required Approval”). The Stockholder may, in its sole discretion, withdraw any Stockholder Purchase Offer and terminate any Proposed Acquisition at any time.

 

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Section 4.2 Certain Dispositions. (a) The Stockholder shall not Transfer any Registrable Shares during the 18-month period commencing at the Closing (the “Lock-Up Period”) other than Transfers (i) approved by a majority of the Directors, which majority includes a majority of the Non-Affiliated Directors, (ii) in connection with any transaction (including any merger or other consolidation or reorganization, tender or exchange offer, or any other similar transaction) generally available to holders of Common Stock, or to which shares of Common Stock are subject, on terms at least as favorable to such holders of Common Stock as those on which the Stockholder participates in such transaction, or (iii) following the 183-day period commencing at the Closing, in transactions not involving the public offer or sale of Registrable Shares and in which the applicable transferee(s) shall be subject to the restrictions set forth in this Section 4.2(a).

(b) Subject to Section 4.2(a), the Stockholder and its Affiliates may freely Transfer their Common Stock subject to applicable Law, provided that if the Stockholder intends to Transfer any Common Stock to a third party (the “Proposed Acquiror”), as a result of which Transfer (to the knowledge of Stockholder following reasonable inquiry) the Proposed Acquiror’s Voting Percentage would be greater than 30% (the “Proposed Sale”), then the Stockholder shall not effect such Proposed Sale other than in accordance with Section 4.2(c).

(c) No Proposed Sale shall be consummated unless the Proposed Acquiror shall contemporaneously make a binding offer to acquire all of the then-outstanding Common Stock of the Company, at the same price and on the same terms and conditions as the Proposed Sale (the “Acquiror Purchase Offer”). For the avoidance of doubt, the Acquiror Purchase Offer may contemplate a merger or other consolidation, a tender offer, or any other transaction that permits the acquisition of all of the then-outstanding Common Stock.

ARTICLE V

REGISTRATION RIGHTS

Section 5.1 Shelf Registration. As soon as reasonably practicable following the Closing, and in any event within 30 days thereof, the Company shall file, and shall thereafter use its commercially reasonable efforts to make and keep effective (including by renewing or refiling upon expiration), a shelf registration statement permitting the resale from time to time on a delayed or continuous basis pursuant to Rule 415 of the Securities Act by the Stockholder of the Registrable Securities, which registration statement shall be filed on (i) Form S-3, if the Company is then eligible to file a registration statement on Form S-3 (pursuant to the General Instructions to Form S-3) (“S-3 Eligible”), or (ii) any other appropriate form under the Securities Act for the type of offering contemplated by the Stockholder, if the Company is not then S-3 Eligible. Thereafter, the Company shall, as promptly as reasonably practicable following the written request of the Stockholder for a resale of Registrable Securities (a “Takedown Request”), file a prospectus supplement (a “Takedown Prospectus Supplement”) to such shelf registration statement filed under Rule 424 promulgated under the Securities Act with respect to resales of the Registrable Securities pursuant to the Stockholder’s intended method of distribution thereof, and to the extent such Takedown Prospectus Supplement is not automatically effective upon filing, shall, subject to the terms of this Article V, use its commercially reasonable efforts to cause such prospectus supplement to be declared effective under the Securities Act promptly

 

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after the filing thereof. Each Takedown Request shall specify the Registrable Securities to be registered, their aggregate amount, and the intended method or methods of distribution thereof. The Stockholder agrees to provide the Company with such information in connection with a Takedown Request as may be reasonably requested by the Company to ensure that the Takedown Prospectus Supplement complies with the requirements of the Securities Act.

Section 5.2 Demand Registration. At any time after the end of the Lock-Up Period and at which time the shelf registration statement required pursuant to Section 5.1 shall not be available for the resale of the Registrable Securities, including if for any reason the Company shall be ineligible to maintain or use a shelf registration statement, the Company shall, as promptly as reasonably practicable following the written request of the Stockholder for registration under the Securities Act of all or part of the Registrable Securities (a “Demand Request”), file a registration statement with the SEC (a “Demand Registration Statement”) with respect to resales of the Registrable Securities pursuant to the Stockholder’s intended method of distribution thereof, and shall, subject to the terms of this Article V, use its commercially reasonable efforts to cause such Demand Registration Statement to be declared effective under the Securities Act promptly after the filing thereof; provided that such Demand Registration Statement shall be filed on (i) Form S-3, if the Company is then S-3 Eligible, or (ii) any other appropriate form under the Securities Act for the type of offering contemplated by the Stockholder, if the Company is not then S-3 Eligible. Each Demand Request shall specify the Registrable Securities to be registered, their aggregate amount, and the intended method or methods of distribution thereof. The Stockholder agrees to provide the Company with such information in connection with a Demand Request as may be reasonably requested by the Company to ensure that the Demand Registration Statement complies with the requirements of the Securities Act.

Section 5.3 Registration Obligations.

(a) Notwithstanding anything to the contrary set forth in Section 5.1 or Section 5.2, the Company shall not be obligated to prepare, file or cause a Demand Registration Statement or Takedown Prospectus Supplement to become effective:

(i) unless the expected proceeds from the sale of the Registrable Securities to be included in such Demand Registration Statement or Takedown Prospectus Supplement is $100,000,000 or greater; and

(ii) in the case of Registrable Shares, within 90 days after the effective date of a Takedown Prospectus Supplement, a Demand Registration Statement or a registration statement in which the Stockholder participated pursuant to its piggy-back rights pursuant to Section 5.4 (provided that the number of Registrable Shares included in such Piggy-Back Registration was not less than 60% of the number of Registrable Shares requested to be registered by the Stockholder pursuant to the Piggy-Back Request related to such Piggy-Back Registration), in each case with respect to Registrable Shares.

(b) Any Takedown Request or Demand Request may be revoked by notice from the Stockholder to the Company at any time prior to the effective date of the corresponding Takedown Prospectus Supplement or Demand Registration Statement; provided that (i) the

 

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Stockholder reimburses the Company for all reasonable, out-of-pocket expenses incurred by the Company in connection with such Takedown Request or Demand Request, and (ii) the Stockholder shall not make another Takedown Request or Demand Request with respect to Registrable Shares during the 45 days following the date of a revocation with respect to Registrable Shares.

(c) Notwithstanding anything in this Agreement to the contrary, the Company shall be entitled to postpone and delay, for reasonable periods of time not in excess of 60 days, but in no event more than twice in any 12-month period (a “Blackout Period”), the filing or effectiveness of any Takedown Prospectus Supplement or Demand Registration Statement or the offer or sale of any Registrable Securities thereunder if one or more executive officers of the Company shall determine in good faith that any such filing or the offering or sale of any Registrable Securities thereunder would (i) impede, delay or otherwise interfere with any pending or contemplated material acquisition, disposition, corporate reorganization or other similar material transaction involving the Company, (ii) based upon advice from the Company’s investment banker or financial advisor, materially and adversely impede, delay or otherwise interfere with any pending or contemplated financing, offering or sale of any class of securities by the Company, (iii) require disclosure of material non-public information which, if disclosed at such time, would not be in the best interests of the Company and its stockholders, or (iv) have a material adverse effect on the Company; provided, that in the event that the Company proposes to register Common Stock, whether or not for sale for its own account, during a Blackout Period, the Stockholder shall have the right to exercise its rights under Section 5.4 with respect to such registration, subject to the limitations contained in this Agreement on the exercise of such rights. Upon notice by the Company to the Stockholder of any such determination, the Stockholder shall, except as required by applicable Law, including any disclosure obligations under Section 13 of the Exchange Act, keep the fact of any such notice strictly confidential, and during any Blackout Period, promptly halt any offer, sale, trading or Transfer by it of any Common Stock for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of any prospectus or prospectus supplement covering such Registrable Securities for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed by the Company, shall deliver to the Company any copies then in its possession of any such prospectus or prospectus supplement.

(d) The Stockholder agrees that any rights granted pursuant to this Article V shall be subject to any rights pursuant to the Existing Registration Rights Agreement to the extent such rights remain in effect after the Closing.

(e) In connection with any offering pursuant to a Takedown Prospectus Supplement or a Demand Registration Statement, the managing underwriter for such offering shall be selected by the Stockholder; provided, however, that the managing underwriter must be a nationally recognized investment banking firm.

Section 5.4 Piggy-Back Registration. If the Company at any time proposes or is required to register any Common Stock or Company debt securities under the Securities Act on its behalf or on behalf of any of its stockholders, on a form and in a manner that would permit registration of the Registrable Securities (other than in connection with dividend reinvestment

 

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plans, rights offerings or a registration statement on Form S-4 or S-8 or any similar successor form), the Company shall give the Stockholder prompt written notice of its intent to do so not less than 15 Business Days prior to the contemplated filing date for such registration statement. Upon the written request of the Stockholder (a “Piggy-Back Request”), given within five Business Days following the time that the Stockholder was given any such written notice (which request shall specify the number of Registrable Securities requested to be registered on behalf of the Stockholder) (the “Piggy-Back Securities”), the Company shall include in such registration statement (a “Piggy-Back Registration”), subject to the provisions of this Section 5.4 and, in the case of a registration on behalf of any of the Company’s stockholders, subject to the rights of such stockholders, the number of Registrable Securities set forth in such Piggy-Back Request.

Section 5.5 Cutbacks. In the event that (x) the Company proposes or is required (other than pursuant to a Takedown Request or Demand Request) to register Common Stock or Company debt securities in connection with an underwritten offering, (y) the Stockholder has made a Piggy-Back Request with respect to such offering, and (z) a nationally recognized investment banking firm selected by the Company to act as managing underwriter thereof reasonably and in good faith shall have advised the Company, the Stockholder or any other holder of Common Stock or Company debt securities intending to offer Common Stock or Company debt securities in the offering, as applicable (each, an “Other Holder”) in writing that, in its opinion, the inclusion in the registration statement of some or all of the Common Stock or Company debt securities sought to be registered by the Company, the Stockholder or the Other Holder(s) would adversely affect the price or success of the offering, the Company shall include in such registration statement such number of shares of Common Stock or principal amount of Company debt securities as the Company is advised can be sold in such offering without such an effect (the “Maximum Number”) as follows and in the following order of priority:

(a) if such registration is by the Company for its own account, (i) first, such number of shares of Common Stock or principal amount of Company debt securities as the Company proposes to register for its own account, (ii) second, to the extent the number of shares of Common Stock or Company debt securities to be included in the registration pursuant to clause (i) is less than the Maximum Number, such number of Piggy-Back Securities as the Stockholder proposes to be included pursuant to a Piggy-Back Request, and (iii) third, to the extent the number of shares of Common Stock or Company debt securities to be included in the registration pursuant to clauses (i) and (ii) is less than the Maximum Number, such number of shares of Common Stock or principal amount of Company debt securities as all Other Holders request to be included for their own account, on a pro rata basis; or

(b) if such registration is pursuant to the demand registration rights of one or more Other Holders, (i) first, such number of shares of Common Stock or principal amount of Company debt securities as such Other Holder(s) and the Stockholder propose to be included on a pro rata basis, and (ii) second, to the extent the number of shares of Common Stock or Company debt securities to be included in the registration pursuant to clause (i) is less than the Maximum Number, such number of shares of the Company Common Stock or principal amount of Company debt securities as the Company requests to be included, on a pro rata basis.

Section 5.6 Termination of Registration Obligation. The obligation of the Company to register Registrable Securities pursuant to this Article V and maintain the

 

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effectiveness of any shelf registration statement filed pursuant to Section 5.1 and Section 5.2 shall terminate (a) solely with respect to Registrable Shares, on the first date on which the Stockholder Voting Percentage is less than 5% and (b) solely with respect to Registrable Debt, on the first date on which the Stockholder no longer beneficially owns any Registrable Debt.

Section 5.7 Registration Procedures. (a) In connection with each registration statement prepared pursuant to this Article V pursuant to which Registrable Securities will be offered and sold, and in accordance with the intended method or methods of distribution of the Registrable Securities as described in such registration statement, the Company shall:

(i) use its commercially reasonable efforts to, as promptly as reasonably practicable, prepare and file with the SEC a registration statement on an appropriate registration form of the SEC and cause such registration statement to become effective under the Securities Act promptly after the filing thereof, which registration statement shall comply as to form in all materials respects with the requirements of the applicable form and include all financial statements required by such form to be filed therewith; provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to one counsel selected by the Stockholder draft copies of all such documents proposed to be filed at least five Business Days prior to such filing, which documents will be subject to the reasonable review and comment of the Stockholder and its agents and Representatives and the underwriters, if any, and the Company shall not file any amendment or supplement to a Takedown Prospectus Supplement or Demand Registration Statement to which the Stockholder or the underwriters, if any, shall reasonably object;

(ii) use its commercially reasonable efforts to, as promptly as reasonably practicable, furnish without charge to the Stockholder, and the underwriters, if any, at least one conformed copy of the registration statement and each post-effective amendment or supplement thereto (including all schedules and exhibits but excluding all documents incorporated or deemed incorporated therein by reference, unless requested in writing by the Stockholder or an underwriter, except to the extent such exhibits and schedules are currently available via the SEC’s Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”)) and such number of copies of the registration statement and each amendment or supplement thereto (excluding exhibits and schedules) and the summary, preliminary, final, amended or supplemented prospectuses included in such registration statement as the Stockholder or such underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities being sold by the Stockholder (the Company hereby consents to the use in accordance with the U.S. securities Laws of such registration statement (or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) by the Stockholder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);

(iii) use its commercially reasonable efforts to keep such registration statement effective until the date that is 45 days after the date such registration statement is initially declared effective (or such shorter period as shall terminate when all of the securities covered by the registration statement have been disposed or withdrawn, or if such

 

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registration statement relates to a firm commitment underwritten offering, such longer period as, in the opinion of counsel for the underwriters for such offering, a prospectus is required under the Securities Act to be delivered in connection with sales of Registrable Securities by an underwriter or dealer (but not in excess of 90 days) (the “Effective Period”), prepare and file with the SEC such amendments, post-effective amendments and supplements to the registration statement and the prospectus as may be necessary to maintain the effectiveness of the registration for the Effective Period) and cause the prospectus (and any amendments or supplements thereto) to be filed with the SEC;

(iv) use its commercially reasonable efforts to, as promptly as reasonably practicable, register or qualify the Registrable Securities covered by such registration statement under such other securities or “blue sky” laws of such jurisdictions in the United States as are reasonably necessary, keep such registrations or qualifications in effect for so long as the registration statement remains in effect, and do any and all other acts and things which may be reasonably necessary to enable the Stockholder or any underwriter to consummate the disposition of the Registrable Securities in such jurisdictions; provided, however, that in no event shall the Company be required to (A) qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this subparagraph (iv), be required to be so qualified, (B) execute or file any general consent to service of process under the Laws of any jurisdiction, (C) take any action that would subject it to service of process in suits other than those arising out of the offer and sale of the securities covered by the registration statement, or (D) subject itself to taxation in any jurisdiction where it would not otherwise be obligated to do so, but for this subparagraph (iv);

(v) use its commercially reasonable efforts to, as promptly as reasonably practicable, cause all Registrable Shares covered by such registration statement, if any, to be listed (after notice of issuance) on the NYSE or on the principal securities exchange or interdealer quotation system on which the Common Stock is then listed or quoted;

(vi) use its commercially reasonable efforts to promptly notify the Stockholder and the managing underwriter or underwriters, if any, after becoming aware thereof, (A) when the registration statement or any related prospectus or any amendment or supplement thereto has been filed, and, with respect to the registration statement or any post-effective amendment, when the same has become effective, (B) of any request by the SEC or any U.S. state securities authority for amendments or supplements to the registration statement or the related prospectus or for additional information, (C) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, or (E) within the Effective Period of the happening of any event or the existence of any fact which makes any statement in the registration statement or any post-effective amendment thereto, prospectus or any amendment or supplement thereto, or any document incorporated therein by reference untrue in any material respect or which requires the making of any changes in the registration statement or post-effective amendment thereto or any prospectus or amendment or supplement thereto so that they

 

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will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;

(vii) during the Effective Period, use its commercially reasonable efforts to obtain, as promptly as practicable, the withdrawal of any order enjoining or suspending the use or effectiveness of the registration statement or any post-effective amendment thereto or the lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;

(viii) use its commercially reasonable efforts to deliver promptly to the Stockholder and the managing underwriters, if any, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement (except to the extent such correspondence is currently available via EDGAR) and permit the Stockholder to do such investigation with respect to information contained in or omitted from the registration statement as it deems reasonably necessary for the purpose of conducting due diligence with respect to the Company; provided that any such investigation shall not interfere unreasonably with the Company’s business;

(ix) use its commercially reasonable efforts to, as promptly as reasonably practicable, provide and cause to be maintained a transfer agent and registrar for all Registrable Shares covered by such registration statement not later than the effective date of such registration statement;

(x) use its commercially reasonable efforts to cooperate with the Stockholder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold under the registration statement in a form eligible for deposit with the Depository Trust Corporation not bearing any restrictive legends (other than as required by the Depository Trust Corporation) and not subject to any stop transfer order with any transfer agent, and cause such Registrable Securities to be issued in such denominations and registered in such names as the managing underwriters, if any, may request in writing or, if not an underwritten offering, in accordance with the instructions of the Stockholder, in each case at least two Business Days prior to any sale of Registrable Securities;

(xi) in the case of a firm commitment underwritten offering, use its commercially reasonable efforts to, as promptly as reasonably practicable, enter into an underwriting agreement customary in form and substance (taking into account the Company’s prior underwriting agreements) for firm commitment underwritten secondary offerings of the nature contemplated by the applicable registration statement;

(xii) use its commercially reasonable efforts to, as promptly as reasonably practicable, obtain an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants (and, if necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data is, or

 

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is required to be, included in the registration statement) in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters in connection with an offering of the nature contemplated by the applicable registration statement;

(xiii) use its commercially reasonable efforts to, as promptly as reasonably practicable, provide to counsel to the Stockholder and to the managing underwriters, if any, and no later than the time of filing of any document which is to be incorporated by reference into the registration statement or prospectus (after the initial filing of such registration statement), copies of any such document;

(xiv) cause its officers to fully cooperate with the marketing of the Registered Securities covered by the registration statement, including, at the recommendation or request of the underwriters, making themselves available to participate in “road-show,” “one-on-one,” and other customary marketing activities in such locations (domestic and foreign) as recommended by the underwriter(s);

(xv) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and any applicable national securities exchange; and

(xvi) use its commercially reasonable efforts to comply with the requirements of Rule 144(c)(1) with respect to public information about the Company.

(b) In the event that the Company would be required, pursuant to Section 5.7(a)(vi)(E), to notify the Stockholder or the managing underwriter or underwriters, if any, of the happening of any event specified therein, the Company shall, subject to Section 5.3(c), as promptly as practicable, prepare and furnish to the Stockholder and to each such underwriter a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of Registrable Securities that have been registered pursuant to this Agreement, such prospectus shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Stockholder agrees that, upon receipt of any notice from the Company pursuant to Section 5.7(a)(vi)(E), it shall, and shall use its reasonable best efforts to, cause any sales or placement agent or agents for the Registrable Securities and the underwriters, if any, to forthwith discontinue disposition of the Registrable Securities until such Person shall have received copies of such amended or supplemented prospectus and, if so directed by the Company, to destroy all copies, other than permanent file copies, then in its possession of the prospectus (prior to such amendment or supplement) covering such Registrable Securities as soon as practicable after the Stockholder’s receipt of such notice.

(c) (i) If requested by the managing underwriter for an underwritten offering (primary or secondary) of any equity securities of the Company, the Stockholder agrees not to effect any Transfer of any Registrable Shares, including any sale pursuant to Rule 144, and not to effect any Transfer of any other equity security of the Company (in each case, other than as part of such underwritten public offering) during the ten days prior to, and during the 90-day period

 

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(or such longer period as the Stockholder agrees with the underwriter of such offering) beginning on, the consummation of any underwritten public offering covered by a registration statement referred to in Section 5.4 if the Stockholder is permitted to include Registrable Shares thereunder.

(ii) The Company hereby agrees that if it shall previously have received a request pursuant to Section 5.1 or Section 5.2 for registration of Registrable Securities in an underwritten offering, and if such previous registration shall not have been withdrawn or abandoned, the Company, if requested by the managing underwriter for such underwritten offering, shall not Transfer to a third party or third parties any Common Stock, any other equity security of the Company or any security convertible into or exchangeable for any equity security of the Company until the earlier of (A) 90 days after the effective date of such registration statement and (B) such time as all of the Registrable Securities covered by such registration statement have been distributed; provided, however, that notwithstanding the foregoing, the Company may Transfer Common Stock or such other securities (1) as part of such underwritten offering, (2) pursuant to a registration statement on Form S-8 or Form S-4 under the Securities Act or any successor or similar form, (3) as part of a transaction under Rule 145 of the Securities Act, (4) in one or more private transactions that would not interfere with the method of distribution contemplated by such registration statement, or (5) if such Transfer was publicly announced or agreed to in writing by the Company prior to the date of the receipt of such request pursuant to Section 5.1.

(d) The Stockholder shall furnish to the Company in writing such information regarding the Stockholder and its intended method of distribution of the Registrable Securities as the Company may from time to time reasonably request in writing in order for the Company to comply with its obligations under all applicable securities and other Laws and to ensure that the prospectus relating to such Registrable Securities conforms to the applicable requirements of the Securities Act and the rules and regulations thereunder. The Stockholder shall promptly notify the Company of any inaccuracy or change in information previously furnished by the Stockholder to the Company or of the occurrence of any event, in either case as a result of which any prospectus relating to the Registrable Securities contains or would contain an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and promptly furnish to the Company any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(e) In the case of any underwritten offering of shares of Common Stock registered under a Takedown Prospectus Supplement or a Demand Registration Statement, or in the case of a registration under Section 5.4 if the Company has entered into an underwriting agreement in connection therewith, all shares of Common Stock to be included in such offering or registration, as the case may be, shall be subject to the applicable underwriting agreement and no Person may participate in such offering or registration unless such Person agrees to sell such Person’s securities on the basis provided therein and completes and executes all questionnaires,

 

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indemnities, underwriting agreements and other documents (other than powers of attorney) which must be executed in connection therewith, and provides such other information to the Company or the underwriter as may be reasonably requested to offer or register such Person’s Common Stock.

Section 5.8 Registration Expenses. The Stockholder shall bear all agent fees and commissions, underwriting discounts and commissions and fees and disbursements of its counsel and accountants in connection with any registration and sale of any Registrable Securities, including pursuant to Section 5.1 or Section 5.4. Except as otherwise provided in this Agreement, the Company shall bear all other fees and expenses in connection with any registration statement for the registration of any Registrable Securities, including all registration and filing fees, all printing costs and all fees and expenses of counsel and accountants for the Company.

Section 5.9 Indemnification; Contribution. (a) The Company shall, and it hereby agrees to, indemnify and hold harmless the Stockholder and its controlling Persons, if any, and each underwriter and its controlling Persons, if any, in any offering or sale of the Registrable Securities, including pursuant to Section 5.1, Section 5.2 or Section 5.4, against any losses, claims, damages or liabilities, actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including actual out-of-pocket fees of counsel reasonably incurred) (collectively, “Claims”) to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement effected with the consent of the Company as provided herein), or actions or proceedings in respect thereof, arise out of, relate to, are in connection with, or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of, relate to, are in connection with, or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse periodically the Stockholder or any such underwriter for any actual out-of-pocket legal or other actual out-of-pocket expenses reasonably incurred by them in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of, relate to, are in connection with, or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon information furnished to the Company by the Stockholder, any underwriter or any Representative of the Stockholder, expressly for use therein, or by the Stockholder’s failure to furnish the Company, upon request, with the information with respect to the Stockholder, or any underwriter or Representative of the Stockholder, or the Stockholder’s intended method of distribution, that is the subject of the untrue statement or omission.

(b) The Stockholder shall, and hereby agrees to, (i) indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Securities against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as

 

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provided herein), or actions or proceedings in respect thereof, arise out of, relate to, are in connection with, or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of, relate to, are in connection with, or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by the Stockholder expressly for use therein, and (ii) reimburse the Company for any actual out-of-pocket legal or other out-of-pocket expenses reasonably incurred by the Company in connection with investigating or defending any such Claim.

(c) The Stockholder and the Company agree that if, for any reason, the indemnification provisions contemplated by Section 5.9(a) or Section 5.9(b) are unavailable to or are insufficient to hold harmless an indemnified party in respect of any Claims referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to the applicable offering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or by such indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the first sentence of this Section 5.9(c) is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 5.9(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in the preceding sentences of this Section 5.9(c). The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be deemed to include (subject to the limitations set forth in Section 5.10) any actual out-of-pocket legal or other out-of-pocket fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action, proceeding or claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

Section 5.10 Indemnification Procedures. (a) If an indemnified party shall desire to assert any claim for indemnification provided for under Section 5.9 in respect of, arising out of or involving a Claim against the indemnified party, such indemnified party shall notify the Company or the Stockholder, as the case may be (the “Indemnifying Party”), in writing of such Claim, the amount or the estimated amount of Damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and,

 

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to the extent practicable, any other material details pertaining thereto (a “Claim Notice”) promptly after receipt by such indemnified party of written notice of the Claim; provided, however, that failure to provide a Claim Notice shall not affect the indemnification obligations provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure. The indemnified party shall deliver to the Indemnifying Party, promptly after the indemnified party’s receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Claim; provided, however, that failure to provide any such copies shall not affect the indemnification obligations provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.

(b) If a Claim is made against an indemnified party, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with separate counsel selected by the Indemnifying Party and reasonably satisfactory to the indemnified party. Should the Indemnifying Party so elect to assume the defense of a Claim, the Indemnifying Party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, unless the Claim involves potential conflicts of interest or substantially different defenses for the indemnified party and the Indemnifying Party. If the Indemnifying Party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as provided in the immediately preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the actual out-of-pocket fees and expenses of counsel reasonably incurred by the indemnified party for any period during which the Indemnifying Party has not assumed the defense thereof and as otherwise contemplated by the two immediately preceding sentences. If the Indemnifying Party chooses to defend any Claim, the other party shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Claim, and use of reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may pay, settle or compromise a Claim without the written consent of the indemnified party, so long as such settlement (i) includes an unconditional release of the indemnified party from all liability in respect of such Claim, (ii) does not subject the indemnified party to any injunctive relief or other equitable remedy, and (iii) does not include a statement or admission of fault, culpability or failure to act by or on behalf of any indemnified party.

Section 5.11 Transferee Registration Rights. Any transferee who acquires at least 5% of either the Registrable Shares or of the Registrable Debt pursuant to a transaction that is not registered under the Securities Act (each, a “Registrable Securities Transferee”) shall be entitled to enjoy the same registration and other rights pursuant to this Article V as does the Stockholder so long as the Registrable Shares or the Registrable Debt held by any such Registrable Securities Transferee may not be sold or disposed of pursuant to Rule 144 without volume limitations at the time when a Registrable Securities Transferee seeks to exercise its rights pursuant

 

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to this Agreement. Any Registrable Securities Transferee shall enjoy such right pursuant to this Section 5.11 if and to the extent the Company shall have received (x) written notice from the Stockholder stating the name and address of such Registrable Securities Transferee and identifying the amount of Registrable Shares or Registrable Debt with respect to which such rights under this Article V apply and (y) a written agreement from the Registrable Securities Transferee to be bound by all of the relevant terms of this Article V. In relation to any such Registrable Securities Transferee, the term “Stockholder” as used in this Article V shall, where appropriate, be deemed to refer to such Registrable Securities Transferee. After such Transfer, the Stockholder shall retain its rights under this Agreement with respect to all other Registrable Securities owned by the Stockholder. Upon the request of the Stockholder, the Company shall execute a registration rights agreement with such Registrable Securities Transferee or a proposed Registrable Securities Transferee substantially similar to the applicable sections of this Article V.

ARTICLE VI

NON-COMPETITION

Section 6.1 Non-Competition. The Stockholder agrees that (a) for the period commencing at the Closing and expiring on the date that is two years after the first date on which the Stockholder’s Voting Percentage is less than 10%, neither the Stockholder nor any of its controlled Affiliates shall, either directly or indirectly, alone or with others, engage in (i) providing wireless telecommunications services through a facilities based network in the Territory, (ii) hold licenses from the FCC related to or necessary to provide such services, (iii) act as a reseller, dealer or distributor in the Territory of such services, or (iv) act as a mobile virtual network operator in the Territory, and (b) for the period commencing at the Closing and expiring on the first anniversary of the termination of the Trademark License in accordance with its terms, manufacture, market or distribute any products or services under, or use in any way, the trademark T-MOBILE in connection with any of the activities described in clauses (a)(i), (ii), (iii) or (iv), other than by the Company and its Affiliates in accordance with the terms of the Trademark License (each of (a) and (b), a “Competing Business”). The Stockholder further agrees that, during the applicable period set forth in clause (a) or (b), it will not own an interest in (whether as a stockholder, member or partner, but in each case excluding any such interest not exceeding 10% of any class of security), or manage, operate, or control, or act as or have the right to appoint a director of, any Person engaged in a Competing Business (other than the Company and its Subsidiaries) (it being understood that no ownership permitted by this sentence shall be considered to be a breach of any other part of this Section 6.1). For the avoidance of doubt, neither (x) the offering or provision of products or services (including software, apps, and “over-the-top” services) on, or the conducting of transactions through, mobile or wireless devices or platforms, nor (y) the resale of wireless telecommunications services ancillary to providing information technology outsourcing services shall in any event be deemed to be engaging a Competing Business. If the final judgment of a court of competent jurisdiction declares any term or provision of this Section 6.1 invalid or unenforceable, the parties hereto agree that the court making the determination of invalidity or unenforceability shall have the power to and shall reform this Section 6.1 to reduce the time, geographic area and/or scope of activity, to delete specific words or phrases, and/or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.

 

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Section 6.2 Reasonable Scope. The Stockholder acknowledges and agrees that the agreements and covenants set forth in Section 6.1 are (i) necessary to protect the legitimate business interests of the Company, (ii) reasonable as to time, geographic area and scope of activity and do not impose a greater restraint on the activities of the Stockholder than is reasonably necessary to protect such legitimate interests of the Company, and (iii) reasonable in light of the consideration and other value provided, directly or indirectly, to the Stockholder by the Company pursuant to this Agreement and the Business Combination Agreement. The Stockholder hereby waives any and all rights to contest the validity of the agreements and covenants set forth in Section 6.1 on the ground of the reasonableness of the length of their term or the breadth of their geographic area or scope of activity.

ARTICLE VII

MISCELLANEOUS

Section 7.1 Injunctive Relief. Each party hereto acknowledges that it would be impossible to determine the amount of damages that would result from any breach of any of the provisions of this Agreement and that the remedy at law for any breach, or threatened breach, of any of such provisions would likely be inadequate and, accordingly, agrees that the other party shall, in addition to any other rights or remedies which it may have, be entitled to such equitable and injunctive relief as may be available from any court of competent jurisdiction to compel specific performance of, or restrain any party from violating, any of such provisions. In connection with any action or proceeding for injunctive relief, each party hereto hereby waives the claim or defense that a remedy at law alone is adequate and agrees, to the maximum extent permitted by Law, to have each provision of this Agreement specifically enforced against it, without the necessity of posting bond or other security against it, and consents to the entry of injunctive relief against it enjoining or restraining any breach or threatened breach of such provisions of this Agreement.

Section 7.2 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, legal representatives and permitted assigns. Neither party may directly or indirectly assign any of its rights or delegate any of its obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other party other than (a) in connection with a change in control of the Stockholder or to any successor of the Company; (b) by the Stockholder in whole or in part, to one or more of its Subsidiaries so long as the Stockholder remains liable for its obligations as contained herein, or (c) in accordance with Section 5.11. Any purported direct or indirect assignment in violation of this Section 7.2 shall be null and void ab initio.

Section 7.3 Amendments; Waiver. No amendment, modification or discharge of this Agreement, and no waiver hereunder, and no extension of time for the performance of any of the obligations hereunder, shall be valid or binding unless set forth in writing and duly executed by (a) the Company where enforcement of the amendment, modification, discharge, waiver or extension is sought against the Company or (b) the Stockholder where enforcement of

 

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the amendment, modification, discharge, waiver or extension is sought against the Stockholder. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by the Company or the Stockholder of a breach of, or a default under, any of the provisions hereof, or to exercise any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. Except as expressly provided in this Agreement, the rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity.

Section 7.4 Termination. Except as otherwise provided in this Agreement (including Section 5.6(b)), this Agreement shall terminate at any time after which the Stockholder’s Voting Percentage is less than 5%; provided, however, that (a) the obligations under Section 3.2 shall terminate at any time after which the Stockholder’s Voting Percentage is less than 30%, (b) the indemnity and contribution provisions contained in Section 5.9 and Section 5.10 shall remain operative and in full force and effect regardless of any termination of this Agreement; and (c) the provisions of Article VI and this Article VII shall survive any termination of this Agreement or any provision thereof. Nothing in this Agreement shall be deemed to release any party from any liability for any willful and material breach of this Agreement occurring prior to any termination hereof or to impair the right of a party to compel specific performance by the other party of its obligations under this Agreement.

Section 7.5 Notices. Any notice, request, instruction or other document to be given hereunder by any party to the others shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested and postage prepaid, or by facsimile (providing confirmation of such facsimile transmission):

if to MetroPCS, to:

T-Mobile US, Inc.

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

Fax: (425) 383-7040

with a copy to (which shall not constitute notice):

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, New York 10019

Attention: Adam O. Emmerich

Fax: (212) 403-2000

 

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if to the Stockholder, to:

Deutsche Telekom AG

Friedrich-Ebert-Alle 140

53113 Bonn, Germany

Attention: General Counsel

Fax: +49-228-181-74008

with a copy to (which shall not constitute notice):

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, New York 10019

Attention: Adam O. Emmerich

Fax: (212) 403-2000

or to such other Persons or addresses as may be designated in writing by the party to receive such notice as provided above.

Section 7.6 Governing Law; Jurisdiction; Forum; Waiver of Trial by Jury.

(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THEREOF. Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of, or related to, this Agreement or the Transaction, exclusively in the Delaware Court of Chancery, New Castle County, or solely if that court does not have jurisdiction, a federal court sitting in the State of Delaware (the “Chosen Courts”), and solely in connection with claims arising under this Agreement or the Transaction (a) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (b) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (c) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto, and (d) agrees that service of process upon such party in any such action or proceeding shall be effective if notice is given in accordance with Section 7.5. Each party hereto irrevocably designates C.T. Corporation as its agent and attorney-in-fact for the acceptance of service of process and making an appearance on its behalf in any such claim or proceeding and for the taking of all such acts as may be necessary or appropriate in order to confer jurisdiction over it before the Chosen Courts and each party hereto stipulates that such consent and appointment is irrevocable and coupled with an interest.

(b) EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF, OR RELATING TO, THIS AGREEMENT.

Section 7.7 Interpretation. The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 

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Section 7.8 Entire Agreement; No Other Representations. This Agreement and the Business Combination Agreement constitute the entire agreement, and supersede all other prior and contemporaneous agreements, understandings, undertakings, arrangements, representations and warranties, both written and oral, among the parties with respect to the subject matter hereof.

Section 7.9 No Third-Party Beneficiaries. Except as explicitly provided for in Section 5.9, Section 5.10 and Section 5.11, this Agreement is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.

Section 7.10 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision; and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

Section 7.11 Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart (including any facsimile or electronic document transmission of such counterpart) being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective authorized officers as of the date first written above.

 

MetroPCS Communications, Inc.
By:  

/s/ Roger Linquist

  Name: Roger Linquist
  Title: Chief Executive Officer

 

Deutsche Telekom AG
By:  

/s/ Dr. Thomas Kremer

  Name: Dr. Thomas Kremer
  Title: Member of Management Board
By:  

/s/ Timotheus Höttges

  Name: Timotheus Höttges
  Title: CFO DT Telekom

 

 

 

[Signature Page to Stockholder’s Agreement]

EX-10.2 21 d527693dex102.htm EX-10.2 EX-10.2

Exhibit 10.2

License Agreement

between

Deutsche Telekom AG

Friedrich-Ebert-Allee 140, 53113 Bonn, Germany

– hereinafter referred to as “DT” –

and

T-Mobile US, Inc.

12920 SE 38th Street, Bellevue, WA 98006, USA

– hereinafter referred to as “the Licensee” –

– DT and the Licensee hereinafter collectively referred to

as “Parties” or individually as “Party” –

Preamble

 

(1) DT is a provider – also via subsidiary companies – in the whole area of telecommunication, information technology, multimedia, consulting and entertainment as well as the services connected with these areas and related areas in Germany and worldwide.

DT is owner of various designations. These include trademarks, domain names and company names.

DT has developed a group branding strategy with a joint corporate identity, a joint corporate design, a standardized market appearance and a standardized trademark image. Several of the designations licensed under this Agreement represent the corporate identity of the DT group of companies.

 

(2) The Licensee is a provider of wireless telecommunication, broadband and information services, including services and products connected to wireless telecommunication, broadband and information services and related areas in the Territory (as defined herein).

 

(3)

DT has a majority interest in the Licensee and it is intended that the Licensee shall offer wireless telecommunication, broadband and information, including services and products connected to wireless telecommunication, broadband and information and related areas by using DT’s trademarks, domain names and corporate identity


in the future. However, it is agreed by the Parties that DT’s trademarks and, in particular, the “T-Mobile Brand” will not be the only brand used by the Licensee and its subsidiaries.

Now, therefore in consideration of the above promises and the terms and conditions contained herein the Parties, intending to be legally bound hereby, agree as follows:

 

§1 Definitions

For the purposes of this Agreement, whenever used with capitalized initial letter, the following terms shall have the meaning assigned to them below or in any provision of this Agreement, wherein words defined in the singular form shall also apply to the plural correspondingly and vice-versa. In any event the term “including” shall mean “including, but not limited to”:

 

1.1 Agreement” shall mean this license agreement including all Annexes thereto and all future amendments and supplements on which the Parties may agree from time to time.

 

1.2 Affiliate” shall mean a legal entity which is under the applicable laws, directly or indirectly, controlling, controlled by or under joint control relative to another company, whereby “control” shall mean any of (A) direct or indirect ownership of more than 50% of the ownership interest in any other entity, (B) the right to exercise more than 50% of the voting rights in any other entity, or (C) the contractual right to designate more than half of the members of such entity’s board of directors or similar executive bodies.

 

1.3 BAC” shall have the meaning defined in § 5.11.

 

1.4 Benchmark Analysis” shall have the meaning defined in § 7.4.

 

1.5 Change of Control” shall have the meaning defined in § 14.3.

 

1.6 Confidential Information” shall have the meaning defined in § 10.1.

 

1.7 Date of the Agreement” shall have the meaning defined in § 14.1.

 

1.8 Designations” shall mean jointly the Trademarks and the Domains.

 

1.9 Domains” shall mean the Internet domain name registrations listed in Annex 2.

 

1.10 DT Sell-Down” shall have the meaning defined in § 14.3.

 

1.11 Licensed Products” shall mean all products (including their packaging) that are sold, leased, provided, used for or distributed (including through retailers, dealers, agents, data carriers and online) in connection with the Licensed Services, including (A) cellphones, smartphones, tablet PCs, personal digital assistants, portable media players and any other type of wireless devices and wireless telecommunication. broadband and information devices, (B) SIM cards for the aforementioned devices, (C) accessories for the aforementioned devices and (D) ancillary products for the aforementioned devices.

 

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1.12 Licensed Services” shall mean the marketing, selling and providing of wireless telecommunication, broadband and information services (including voice and data services) and all services ancillary thereto.

 

1.13 License Fee” shall have the meaning defined in § 7.1.

 

1.14 Negotiation Period” shall have the meaning defined in § 14.3.

 

1.15 New License Fee” shall have the meaning defined in § 7.4.

 

1.16 Revenue Report” shall have the meaning defined in § 7.2.

 

1.17 Subsidiaries” shall have the meaning defined in § 3.2.

 

1.18 Territory” shall mean the United States of America, Puerto Rico and the territories and protectorates of the United States to the extent the Trademarks in these territories and protectorates are subject to U.S. trademark law.

 

1.19 Trademarks” shall mean the trademark registrations listed in Annex 1.

 

1.20 Utilization Regulations” shall have the meaning defined in § 5.3.

 

1.21 VAT” shall have the meaning defined in § 9.1.

 

§2 License Grant

 

2.1 DT grants to the Licensee the limited, non-revocable (except as provided herein), and royalty-bearing license to use the Trademarks for the Licensed Services and the Licensed Products in the Territory, including:

 

  (A) the offering and provision of the Licensed Services under the Trademarks and the advertising for, and marketing of, the Licensed Services under the Trademarks;

 

  (B) the application of the Trademarks to the Licensed Products (putting on the market either through retailers, dealers, agents, data carriers or online as download) and the advertising for, marketing of, and using the Licensed Products under the Trademarks;

 

  (C) the use of the Trademarks as the name of Licensee’s stores and in the Licensee’s business papers; and

 

  (D) the use of the Trademarks as part of Internet domains names for websites on which the Licensed Products and Licensed Services are promoted within the Territory;

in each case, subject to the conditions provided hereinafter.

 

2.2 DT grants to the Licensee the limited, non-exclusive, non-revocable (except as provided herein), and royalty-bearing license to use the Domains as Internet addresses for websites on which the Licensed Products and Licensed Services are promoted within the Territory and in the Licensee’s business papers. The Licensee may indicate the Domains in its promotion of the Licensed Products and Licensed Services within the Territory as it is common in its business, to the extent that such use is lawful under the laws and regulations in the Territory.

 

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2.3 The licenses granted in § 2.1 shall be (A) exclusive (even as to DT) with respect to the Trademarks listed in Annex 1.1 and Domains, provided however, that DT and its Affiliates shall be permitted to grant licenses to use such Trademarks in the Territory in connection with (i) multinational sponsoring activities (e.g., sports teams apparel, but, for the avoidance of doubt, not on Licensed Products) and (ii) multinational co-operation partners provided these co-operation partners do not offer Licensed Services directly or indirectly under the Trademarks listed in Annex 1.1 in the Territory and (B) non-exclusive with respect to the Trademarks listed in Annex 1.2.

 

2.4 For the purposes of § 2.1 and § 2.2 any use of the Designations in connection with the Internet shall not be deemed use outside the Territory, provided:

 

  (A) said use does not actively target customers in countries outside the Territory (e.g., by content or choice of language, provided, however, that, for the avoidance of doubt, the Licensee may advertise in Spanish, or other languages, inside the Territory in order to target customers who speak Spanish, or such other language, inside the Territory for offerings of Licensed Products and Licensed Services delivered in the Territory); and

 

  (B) the Licensee implements technically reasonable precautions in order to ensure that customers located outside the Territory are not able to access the Licensed Products and Licensed Services (e.g., by checking the address of customers, if available, or prohibiting customers located outside the Territory from accessing the Licensed Services, provided, however, that, for the avoidance of doubt, customers located inside the Territory who are temporarily outside the Territory may use the Licensed Products and access the Licensed Services through roaming agreements with the Licensee or third party carriers).

 

2.5 In addition, DT permits the Licensee free of charge to use the trademark “T-Mobile” as a company name. DT shall not assert prohibition claims against this insofar as the trademark “T-Mobile” is used in accordance with the provisions of this Agreement.

 

2.6 Any use of the Designations by the Licensee or its sub-licensees shall inure to the benefit of DT and qualifies as use by DT for the purposes of acquiring and maintaining rights in these Designations. The Licensee is obliged to transfer to DT all rights acquired by using the Designations with effect as of the day such right came into existence. The Licensee hereby in advance transfers to DT all rights resulting from the use of the Designations, as far as legally possible. Any trademark rights resulting from such use shall become Designations as of the date they come into existence. Each Party shall notify the other about any rights arising out of the use of any Designations under this Agreement to the best of its knowledge.

 

2.7 The Parties may at any time agree on an amendment of the portfolio of licensed Designations. Such agreement has to be made in writing in order to be valid.

 

§3 Sublicenses

 

3.1 Except for the rights granted in the following § 3.2 and § 3.3 the Licensee is only entitled to assign the licenses granted herein, including individual Designations, to third parties or to grant sub-licenses and/or licenses after DT has given its prior written consent to such assignment or sub-license.

 

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3.2 The Licensee shall be entitled to enter into sub-license agreements with companies in which the Licensee holds more than 50% of the shares and the voting rights (“Subsidiaries”). Any sub-licensing by the Licensee to a Subsidiary shall only be effective if (A) the Licensee imposes on the respective Subsidiary its obligations vis-à-vis DT under this Agreement, and (B) the sub-license agreement provides that the sub-license terminates automatically if this Agreement is terminated, and (C) the respective agreement with the Subsidiary directly authorises DT as third-party beneficiary to enforce all claims of the Licensee against the Subsidiary (provided however that DT first attempts to enforce such claim against the Licensee as described below), and (D) the Licensee shall cause compliance by the sub-licensee with the contractual obligations by contractual provisions and contract management, and (E) the Licensee provides a copy of any such sub-licensing agreements to DT immediately after execution for information. Before DT asserts the rights granted to it vis-à-vis the sub-licensee against the sub-licensee, DT will notify the Licensee and attempt to assert such rights against the Licensee, taking into consideration the Licensee’s interests and any further proceedings, for a period of 30 days. If DT and the Licensee are unable to resolve DT’s claim after such period of time, then DT may assert such rights against the sub-licensee. DT shall provide copies to the Licensee of all correspondence between DT and a sub-licensee simultaneously with DT’s correspondence with a sub-licensee.

 

3.3 The Licensee shall be entitled to enter into sub-license agreements with affiliated and non-affiliated companies which offer Licensed Services and Licensed Products on the basis of the Principles for Sub-license Agreements with distribution partners set out in Annex 3.

 

§4 Quality requirements and quality control

 

4.1 The Licensee shall use the Designations only to mark Licensed Services and Licensed Products conforming to the usual market standards for wireless telecommunication, broadband and information providers in the Territory and the Utilization Regulations (as described in § 5.3). The Utilization Regulations result from the guidelines and documentation as provided by the responsible departments and committees of DT or by the committees formed of representatives of different companies of DT Group and employed by DT for this purpose. If no Utilization Regulations are provided by DT, the Licensee is obliged to use as its quality standard similar products or services by national providers of wireless telecommunication, broadband and information services and products. If the Licensee is uncertain as to whether a specific product or service meets the above-mentioned Utilization Regulations, the Licensee shall obtain DT’s binding opinion on the matter. For products that the Licensee obtains from DT, it is assumed that the above-mentioned Utilization Regulations are met.

 

4.2

For quality control purposes, the Licensee shall inform DT at reasonable intervals upon DT’s request regarding the Licensee’s current portfolio of Licensed Products and Licensed Services, which are bearing or offered under the Designations, and shall provide samples of Licensed Products free of charge in a quantity necessary for verification, as well as a representative sample of the contents of the Licensed

 

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  Services. If DT does not object to the quality of the Licensed Products or Licensed Services concerned within 14 days of receipt of the representative samples of the Licensed Products or Licensed Services, the quality requirements specified in § 4.1 shall be deemed fulfilled in respect of these samples. The obligation to send samples shall not apply to products that the Licensee obtains from DT, or that were previously checked by DT. For the purposes of quality control, DT is entitled to enter all premises of the Licensee upon prior written notice, during normal business hours and in a manner that does not disrupt Licensee’s business operations, to check compliance with the quality requirements specified in § 4.1. DT shall cause the DT representatives to adhere to, whenever on the Licensee’s premises, all applicable Licensee rules, regulations and policies.

 

§5 Use of the Designations

 

5.1 The Licensee shall use the Designations only as registered. For any use of the Designations, the Licensee has to make a statement, as far as is reasonable, that they are registered trademarks or corresponding other designations of DT, if this is necessary in order to:

 

  (A) meet the legal requirements in force for the respective Designation (if the law prescribes such an indication), or

 

  (B)

maintain legal protection of the trademark in accordance with the applicable law for the respective Designation, or to make this protection more efficient, wherein for such purposes the Licensee may use the Trademarks in connection with the symbol ® instead of such statement where this is sufficient under the law in the applicable Territory to maintain the legal protection of the respective Designations.

If the Licensee is using Designations as Internet domain names, it is sufficient to make the required statement on the associated website. DT can waive the Licensee’s obligation set forth in this § 5.1 in writing.

 

5.2 The Licensee shall not use the Designations in any manner that is inaccurate, distasteful, or that disparages DT or any Affiliate of DT. In particular, the Licensee shall not use the Designations in connection with any content which is pornographic, racist, glorifying violence or which contains political statements.

 

5.3

The Licensee shall comply with the guidelines on the use of the Designations published by DT and enclosed as Annex 4 (the “Utilization Regulations”). The version of the Utilization Regulations that is valid at the signing of the Agreement is set forth in Annex 4. Otherwise, the respective current Utilization Regulations are available electronically in the CI-Net of DT’s intranet and DT shall provide the Licensee access to such Utilization Regulations. DT is free to change the Utilization Regulations at any time and to any extent, including issuing new guidelines on the use, graphical representation and approval process for the Designations, upon notice to the Licensee. Changes to the Utilization Regulations shall become effective 90 days after transmission of a new version of the Utilization Regulations to the Licensee (provided DT indicates the changes made to the previous version of the Utilization Regulations by the new version of the Utilization Regulations) or, if the Parties agree on the new version of the Utilization Regulations, with immediate effect following agreement by the Parties. For materials that have already been produced (i.e., Licensed Products or advertising materials) the Licensee may continue to use such Licensed Products perpetually and such advertising materials

 

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  for a transitional use-up period of 180 days after the new version of the Utilization Regulations become effective, provided that such materials comply with the Utilization Regulations applicable to the Designations at the time the materials were produced.

 

5.4 Where applicable, the Licensee is—insofar as TV advertising campaigns (which shall include any promotional motion pictures, including motion pictures on the Intenet) are concerned—obliged to adhere to the approval process as specified in the current version of DT’s tool “Campaign World” avaliable at https://campaignworld.t-mobile.de. In particular, the Licensee is obliged to upload the respective milestones of each and every TV campaign (currently Briefing, Concept, Creatives) as soon as possible. DT will provide the Licensee with its specific log-in data. If DT does not object to the TV advertising campaign concerned within 3 working days after receipt of the submission confirmation, the TV advertising campaign shall be deemed approved. DT is entitled to modify the provisions of the Campaign World at any time and to any extent. DT will notify the Licensee about any amendments on the websites of the Campaign World. Any amendments of the approval process as provided for in the Campaign World will not effect the implementation of already approved advertisement campaigns. If the Utilization Regulations are amended after an advertising campaign was approved, the provisions of § 5.3 apply accordingly. Any other advertising campaign has to be submitted as further specified in § 5.5.

 

5.5 Each and every advertisement measure and each advertising campaign other than TV advertising campaigns has to be submitted on the “Approval Tool” available on DT’s CI-Net and as described in Annex 5. Advertisement measures shall include any publications and presentations in print and online media, radio, MMS and SMS in connection with the Licensed Services and Licensed Products. The approval of the advertisement measures and advertising campaigns, other than TV advertising campaigns, submitted by the Licensee on the Approval Tool will be given by DT within 48 hours after the receipt of the submission conformation, wherein only working days shall be considered for this 48 hour period. If DT does not object to the advertisement measures or advertising campaign concerned within 48 hours after receipt of the submission confirmation, the advertisement measures and advertising campaign shall be deemed approved. DT is entitled to modify the provisions of the Approval Tool at any time and to any extent. DT will notifiy the License about any amendments on the websites of the Approval Tool. Any amendments of the approval process as provided for in the Approval Tool will not effect the implementation of already approved advertisement campaigns. If the Utilization Regulations are amended after an advertising campaign was approved, the provisions of § 5.3 apply accordingly.

 

5.6 The Licensee is permitted to develop, apply for, register, acquire and use designations other than the Designations that are subject to this Agreement (“Own Designations”), including trademarks, business designations and domain names. This also includes the acquisition of companies or affiliated companies that have their own trademarks, business designations and domain names. Own Designations must not be identical or confusingly similar to existing or registered designations of DT, unless DT agrees to such use or registration in advance in writing.

The Licensee is permitted to use its Own Designations in connection with any of the Designations that are subject to this Agreement upon prior written consent of DT. As of the Date of the Agreement, DT pre-approves the Licensee to use its Own Designations with the Designations as described in Annex 6. The Parties intend

 

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to promote the Licensed Products and Licensed Services by using the Own Designations and Designations together. The Parties shall meet and agree on guidelines for the combined use of the Designations with the Licensee’s Own Designations promptly after execution of this Agreement.

 

5.7 If the Licensee acquires or obtains rights to use trademarks or other designations of third parties, the Licensee is solely responsible for the use of such trademarks or designations.

 

5.8 In the event the Licensee uses or publishes an advertisement measure, advertising campaign or TV or motion picture advertising campaign despite the fact that DT refused to give its approval pursuant to § 5.4 or § 5.5, and the Licensee fails to cure such breach within 5 working days after notice thereof, DT’s sole and exclusive remedy shall be for the Licensee shall pay compensatory damages of (A) with respect to § 5.4 , USD 100,000 (in words: one hundred thousand) and (B) with respect to § 5.5, USD 50,000 (in words: fifty thousand), in each case, unless the Licensee can prove lesser damages or DT can prove higher damages.

 

5.9 The Licensee shall keep record and provide a documentation of its use of the Designations to a reasonable extent and within the framework of the Licensee’s business processes; and such documentation is to be provided to DT upon DT’s request to enable DT to prove the use of the Designations by the Licensee.

 

5.10 The Licensee shall be fully responsible and liable for compliance with its obligations under this Agreement with respect to use of the Designations and advertising campaigns, and the Licensee shall also be liable in this respect for all acts and omissions of its sub-licensees.

 

5.11 The Parties shall establish a brand advisory committee (“BAC”) comprising two representatives of each Party. The object of the BAC is to review the use of the Designations and the implementation of the trademark Utilization Regulations by the Licensee, the handling and implementation of the approval processes set forth in § 5.4 and § 5.5, the market communication of the Licensee, the communication between the Parties and possible options to improve such communication, the use of Licensee’s Own Designations with DT’s Trademarks, and the potential of the license to possible further trademarks of DT.

Each Party shall appoint its representatives by written declaration, fax or by e-mail to the other Party. Each Party may change its representatives at any time by written declaration, fax or by e-mail to the other Party.

The BAC shall meet at least once per calendar half year, preferably in January and July. Meetings of the BAC shall be held by videoconference. Each Party shall be entitled to convene a meeting of the BAC with two weeks’ notice. The Party convening the meeting shall also set up the videoconference and provide dial-in information.

 

§6 Exclusion and Limitation of Liability

 

6.1

DT represents and warrants that it has the right and authority to grant the license granted in § 2. With respect to the Trademarks listed in Annex 1.1 and Domains, DT represents and warrants that Licensee’s use of such Trademarks and Domains do not and will not infringe, violate or misappropriate any third party intellectual

 

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  property rights under the condition that such use is in accordance with the terms of this Agreement and the Licensee permits DT to take over the Licensee’s defence of such claim as provided in § 13.1. With respect to the Trademarks listed in Annex 1.2, DT shall not be liable if the use of such Trademarks infringe, violate or misappropriate any third party intellectual property rights.

 

6.2 With respect to the Trademarks listed in Annex 1.1 and Domains, DT shall indemnify, defend and hold harmless and release the Licensee from any claims raised by third parties that are asserted due to the infringement, violation or misappropriation of any third party intellectual property rights by the Designations under the condition that Licensee’s use of such Designations is in accordance with the terms of this Agreement and the Licensee permits DT to take over the Licensee’s defence of such claim as provided in § 13.1.

 

6.3 With respect to the Trademarks listed in Annex 1.2, in the event DT elects to defend the Licensee against a third party claim under § 13, DT shall indemnify, defend and hold harmless and release the Licensee from any claims raised by third parties that are asserted due to the infringement, violation or misappropriation of any third party intellectual property rights by the Designations.

 

6.4 The Licensee shall indemnify, defend and hold harmless and release DT from any claims raised by third parties that are asserted due to advertising claims of the Licensee for the Licensed Services and Licensed Products offered under the Designations and/or due to anti-competitive use of the Designations.

 

6.5 In any event, the mutual liability of the Parties is limited to EUR 1 million per calendar year. This limitation does not apply to cases of intentional conduct or a Party’s indemnification obligations under § 6.2, § 6.3 and § 6.4.

 

§7 License Fees

 

7.1 In consideration for the licenses granted hereunder, Licensee shall pay to DT a license fee in an amount equal to 0.25% of the Licensee’s and its sub-licensee’s net revenues generated by the Licensed Products and Licensed Services sold or offered under the Designations (“License Fee”).

For purposes of this § 7, the term “net revenues” shall mean all revenues generated by Licensee and its sub-licenses in connection with the sale of Licensed Products and the provision of Licensed Services, including all inbound national and international roaming revenue generated by subscribers of other mobile telecommunication, broadband and information providers due to such subscribers use of the Licensed Services sold or offered under the Designations. For the avoidance of doubt, net revenues excludes any revenues generated by Licensee and its sub-licenses in connection with (A) the sale of Licensed Products or Licensed Services sold or offered solely under the Own Designations or (B) the sale of Licensed Products or Licensed Services under the Own Designations, wherein in the same advertising medium the Designation is used as the name of the company only (e.g., a non-prominent use of the company name “T-Mobile” in a legal disclaimer) and not otherwise used as a trademark (e.g., by using the “T-Mobile” logo or “powered by T-Mobile” or “brought to you by T-Mobile”). Examples of such usage are set forth in Annex 7.

 

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7.2 Within 4 weeks after the end of each quarter calendar year, the Licensee shall provide DT with a report showing all data necessary for the computation of the License Fee, wherein the Licensee shall provide detailed reports of its own revenues, the revenues of distributions partners and revenues of its sub-licensees with respect to the Licensed Services and Licensed Products (“Revenue Report”). Moreover, the Revenue Report shall specify the revenues with each individual Licensed Product and Licensed Service sold or offered under the Designations. The License Fee resulting from the Revenue Reports shall be invoiced to the Licensee.

 

7.3 The License Fee for each calendar quarter shall be due 6 weeks after the end of the respective calendar quarter and after the Licensee’s receipt of a DT issued proper invoice complying with the applicable tax laws.

 

7.4 After five years the Parties shall meet and attempt to agree on an adjustment of the License Fee (“New License Fee”) to the then current commercial royalty rates applicable to similar licenses for the combined use of trademarks, corporate brands and domain names in the field of wireless telecommunication, broadband and information products and services in the Territory. For these purposes, DT shall provide until December 31, 2017 a benchmark analysis performed by an accounting firm or a market research institution and providing an analysis of the then current, average commercial royalty rates charged in the field of wireless telecommunication, broadband and information products and services in the Territory (“Benchmark Analysis”). On the basis of the Benchmark Analysis submitted by DT, the Parties shall determine the then current, average commercial royalty rates charged in the field of wireless telecommunication, broadband and information products and services in the Territory. If the Parties agreed to a New License Fee, the New License Fee determined by the Parties shall be applicable as of January 1, 2019.

If the Parties fail to agree to the New License Fee by March 31, 2018, the Parties shall jointly appoint an accounting firm that is specialized in analyzing royalty rates in the field of trademark licenses. No later than July 31, 2018, the appointed accounting firm shall make a determination of the then current average commercial royalty rates applicable to similar licenses for the combined use of trademarks, corporate brands and domain names in the field of wireless telecommunication, broadband and information products and services in the Territory. The accounting firm’s determination shall be based on an independent benchmark analysis performed by the accounting firm. The New License Fee determined by the accounting firm shall be applicable as of January 1, 2019. Each of the Parties shall bear half of the costs of the accounting firm.

If the Parties fail to agree on an accounting firm as provided in the preceding sub-paragraph, the dispute between the Parties about the New License Fee applicable as of January 1, 2019 shall be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules in force on the date of the commencement of the arbitration. The arbitral tribunal shall consist of one arbitrator, who must have experience in the field of trademark and licensing law, and who must be fluent in the language of the proceedings. The place of arbitration shall be New York, New York, United States. The language to be used in the arbitral proceedings shall be English.

 

7.5 Every further five years the Parties shall again review the License Fee and adjust the License Fee according to the procedure set forth in § 7.4, i.e. the Parties shall again determine a New License Fee that is applicable for the periods as of 1 January 2024, 2029 etc. For this procedure, the periods set forth in § 7.4 shall apply mutatis mutandis, wherein the years stated in § 7.4 shall be adjusted accordingly.

 

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§8 Right to Audit

DT shall have the right to have the Licensee’s books examined in reasonable intervals upon prior written notice (and no more than once every 12 months), and a last time one year after the termination of this Agreement, for conformance with the Revenue Reports by an independent financial auditor who is obligated to maintain secrecy even with respect to DT. The auditor shall be permitted to inform DT if there are discrepancies between the Revenue Reports and the findings of the auditor, in which case the auditor is permitted to disclose to DT all information required for complete and correct Revenue Reports for the period under review. The cost of such book inspection shall be borne by DT, unless the examination shows that the Licensee’s Revenue Reports under review contained discrepancies to the disadvantage of DT of more than 10 percent of the License Fee owed for the period under review, in which case the costs of the audit shall be borne by the Licensee.

 

§9 Taxes

 

9.1 The agreed prices and the License Fee are net prices exclusive of sales tax/VAT (“VAT”). Any amounts of VAT that accrue are to be borne by the Licensee.

 

9.2 Since the Licensee has its principal place of business outside of Germany, the following provisions shall apply:

 

  (A) All taxes, fees, and other charges incurred by the Licensee in connection with concluding and performing this Agreement are at the expense of the Licensee.

 

  (B) The prices agreed are net prices. Incurred VAT or use and sales taxes shall be borne by the Licensee.

 

  (C) The Licensee shall not be entitled to withhold taxes for DT’s account from the contractually agreed payments to DT, in particular withholding taxes that may apply under the laws of the country where the Licensee’s registered office is located. Any taxes withheld at source shall be paid by the Licensee. Taxes for DT’s account may be withheld only if and to the extent that DT may offset the Licensee’s accrued and withheld income and corporate tax liabilities according to the law of the country of residence of DT against its income or corporate tax liabilities or cause it to be deducted when DT’s taxable income is determined. Upon request of the Licensee, DT shall notify the Licensee at the beginning of each calendar year if such an offset or such a deduction is possible. A tax deduction shall also not be to the Licensee’s detriment, if the tax deduction is due only because of DT’s culpable (intentional or negligent) failure to file or delay in filing any application for exemption from or reduction of the withholding tax provided for by the law of the respective country of residence of the Licensee.

 

9.3 The Licensee shall support DT in fulfilling tax obligations and formalities.

 

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9.4 In the case of sub-licensing to a Subsidiary or any other third party located outside of Germany, the Licensee shall include the provisions contained in § 9.2 and § 9.3 in the sub license agreement in such way that the sub-licensee has the same obligations that apply to the Licensee under § 9.2 and § 9.3.

 

§10 Confidentiality

 

10.1 The Parties agree that (A) all information disclosed by the disclosing party to the receiving party, whether in oral form, visual form or in writing, including all specifications, formulas, prototypes, computer programs and any and all records, data, ideas, methods, techniques, processes and projections, plans, marketing and advertising campaign information, materials, financial statements, memoranda, analyses, notes, legal documents and other data and information (in whatever form), as well as improvements, patents (whether pending or duly registered) and any know-how related thereto, (B) information learned by the receiving party from the disclosing party through the inspection of the disclosing party’s property, that relates to disclosing party’s products, designs, business plans, business opportunities, finances, research, development, know-how, personnel, or third-party confidential information, (C) information regarding the other Party’s business operations and (D) the terms and conditions of this Agreement, in each case, will be considered and referred to collectively in this Agreement as “Confidential Information”.

Notwithstanding the foregoing, a Party’s obligation to keep Confidential Information confidential under § 10.2, shall not apply to information that:

 

  (i) was known to the recipient before disclosure by the other party,

 

  (ii) is or becomes publicly known without breach of the confidentiality obligations set forth in this Agreement, or

 

  (iii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the recipient shall make reasonable efforts to provide prompt notice of such court order or requirement to the disclosing Party to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.

 

10.2 Each Party shall keep confidential the Confidential Information of the other Party during the term of this Agreement (including the conditions of this Agreement) in a manner at least consistent with the procedures that it uses to protect its own confidential information but in no event less than a reasonable degree of care. Each Party may make the Confidential Information of the other Party available only to employees for whom that knowledge is absolutely necessary for fulfilment of their duties in the context of implementing this Agreement, and undertakes to impose on those employees a written secrecy obligation extending even beyond the duration of their work for the respective Party.

 

10.3 The Licensee may reveal Confidential Information in order to maintain or to accomplish the rights granted herein, including any national trademark register requirements.

 

10.4 The Licensee is entitled to publish Confidential Information that is required for compliance with or efficient implementation of the rights granted, including any national trademark register requirements. The Licensee must notify DT of these requirements promptly and must collaborate with DT in order to limit the Confidential Information to be published as far as possible.

 

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10.5 All Confidential Information, and any derivatives thereof is and shall remain the property of the Party disclosing such Confidential Information and no license or other rights to Confidential Information is granted or implied hereby to have been granted to the receiving Party, now or in the future.

 

10.6 The disclosing Party may decide to discontinue the disclosure of Confidential Information under this Agreement, at will, with or without cause, by giving written notice to the receiving Party, with immediate effect. Upon such termination or upon request of the disclosing Party, or upon the receiving Party’s determination that it no longer has a need for such Confidential Information, or upon the termination of this Agreement, the receiving Party shall (A) return to the disclosing Party any information disclosed in any tangible form, and all copies thereof (on whatever physical, electronic or other media such information may be stored) containing any of the Confidential Information (and if such Confidential Information is stored in electronic form, it is to be immediately deleted); and (B) provide a certification, in writing, executed by an appropriate officer of the receiving Party, that it has retained no copies of the Confidential Information on any media and that it has retained no notes or other embodiments of the information contained in the Confidential Information. The obligations set forth herein regarding confidentiality and use of Confidential Information shall survive any expiration or termination of this Agreement.

 

§11 Maintaining and Defending the Designations

 

11.1 DT shall maintain the registration of the Designations at its own expense throughout the term of this Agreement and defend the Designations against any attacks by third parties, subject to the following § 11.2. DT has, however, no obligation to use the Designations.

 

11.2 DT is entitled not to maintain (entirely or partially) the protection of individual Designations or to cancel a Designation’s registration, in particular if the maintenance of such registration of a Designation is legally impossible or contrary to significant economic interests of DT. If DT decides not to maintain (entirely or partially) the protection of individual Designations or to cancel a Designation’s registration, DT shall provide the Licensee with notice of such decision prior to any such registration lapsing and afford the Licensee the opportunity to maintain such registration in the Licensee’s name at Licensee’s expense, assigning to Licensee for no additional consideration any such Designations prior to their registration lapsing, if requested by Licensee; provided, however DT shall not be obligated to assign a Designation to Licensee if the Designation that DT intends not to maintain or to cancel contains elements of another designation owned by DT.

 

§12 Infringement of the Designations by Third Parties

 

12.1 If either Party discovers or otherwise learns that a third party is using a company name, designation, brand or trademark in the Territory in a manner likely to cause confusion with a Designation or that may infringe DT’s or the Licensee’s rights in such Designation (in each case, as reasonable determined by DT or the Licensee, as applicable), and/or registers it as a trademark, it shall promptly notify the other Party in writing.

 

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12.2 DT alone shall be entitled to take action against the use and/or registration of a trademark, company name, brand or designation that could be confused with a Designation. DT shall also have full discretion whether to settle all claims that it may have against third parties for alleged infringement of the rights in the Designations (provided, however that DT shall not consent to the entry of any judgement or enter into any settlement of any such claim in the event such judgement or settlement imposes any liability, restriction or obligation on the Licensee without the Licensee’s prior written consent).

 

12.3 The Licensee shall authorize DT to assert any and all claims of the Licensee against third parties, including claims for an injunction and damages, on grounds that the respective third party violates the rights of the Licensee to use the Designations. DT shall regularly consult with the Licensee with respect to such action. If DT asserts claims of the Licensee in its own name in court, it will inform the Licensee of this in regular intervals and the proceeds from the enforcement of the Licensee’s claims less DT’s costs incurred with respect to such enforcement, shall be for the Licensee’s account. The Licensee shall have the right to be represented in connection with such action by its own legal counsel, at its own expense; provided, however, that such legal counsel shall act only in an advisory capacity.

 

§13 Third-party attacks on use of the Designations

 

13.1 If action is taken against the Licensee by a third party to cease and desist and/or for compensatory damages due to the marking of Licensed Services and/or Licensed Products using Designations, or any other use of Designations in conformance with this Agreement, the Licensee shall promptly notify DT by e-mail or in writing. With respect to the Trademarks listed in Annex 1.1 and Domains, DT shall defend the Licensee in accordance with § 6.2. With respect to the Trademarks listed in Annex 1.2, DT may at DT’s option defend the Licensee in accordance with § 6.3. In those instances where DT defends the Licensee, (A) the Licensee hereby grants DT a power of attorney to defend the Licensee against any such claims in court and out of court (provided, however that DT shall not consent to the entry of any judgement or enter into any settlement of any such claim in the event such judgement or settlement imposes any liability, restriction or obligation on the Licensee without the Licensee’s prior written consent), and the Licensee agrees to execute all documents to permit and enable DT to conduct such defence, (B) the Licensee is obliged to support DT to the best of its abilities in the described defence of the claims asserted against the Licensee and (C) the Licensee shall have the right to be represented in connection with such claim by its own legal counsel, at the Licensee’s expense; provided, however, that such legal counsel shall act only in an advisory capacity.

 

13.2

The Licensee remains obligated to pay the agreed License Fee in the event of an attack by a third party against the use of the Designations. If DT does not defend Licensee against such action then the Licensee may defend itself against such action (A) at DT’s cost and expense with respect to the Trademark listed in Annex 1.1 and Domains and (B) at the Licensee’s cost and expense with respect to the Trademarks listed in Annex 1.2. If the Licensee defends itself against such action then: (i) DT agrees to execute all documents to permit and enable the Licensee to conduct such defence, (ii) DT is obliged to support the Licensee to the

 

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best of its abilities in the described defence of the claims asserted against the Licensee and (iii) DT shall have the right to be represented in connection with such claim by its own legal counsel, at the DT’s expense; provided, however, that such legal counsel shall act only in an advisory capacity.

 

13.3 DT shall inform the Licensee of attacks by third parties regarding the Designations in the Territory and will regularly provide information on the further progress of corresponding proceedings.

 

§14 Duration and termination of the Agreement

 

14.1 This Agreement shall enter into force on April 30, 2013 (as of 11.59 pm) (“Date of the Agreement”). This Agreement is in effect until December, 31 2018. The term of this Agreement shall be extended until December 31, 2023, unless the Licensee gives notice of termination until December 31, 2017. After December 31, 2023 this Agreement shall be extended by periods of five years each, unless it is terminated by the Licensee with a notice period of at least 12 months prior to its respective expiry date. Notwithstanding the foregoing, the Licensee may terminate this Agreement for convenience at any time upon written notice and such termination shall be effective on the first anniversary after the Licensee’s notice of its exercise of such right.

 

14.2 Each Party shall be entitled to terminate this Agreement for cause if the other Party commits a material breach of any provision of this Agreement, including the Utilization Regulations in Annex 4, and fails to cure such breach within 30 days after notice thereof is given to the breaching Party by the non-breaching Party. DT shall have the right to terminate this Agreement for cause if the Licensee has ceased to genuinely use the Trademarks listed in Annex 1.1 for a period of six consecutive months and in DT’s reasonable discretion the Licensee’s usage is insufficient to maintain the Trademark registration, provided that DT provides prior notice of such insufficient Trademark usage and Licensee fails to cure such insufficient usage within a period of 6 months after such notice.

In the event a Party terminates this Agreement for cause, this shall not affect the terminating Party’s entitlement to compensation or damages, including claims for breach of contract.

 

14.3

In the event of (A) any transaction or event, immediately prior to which DT and its subsidiaries has more than 50% of the voting power of the outstanding shares of capital stock of the Licensee, and immediately after which DT and its subsidiaries has 50% or less of the voting power of the outstanding shares of capital stock of the Licensee (a “DT Sell-Down”), or (B) any transaction or event as a result of which or following which any third party or group owns or controls, directly or indirectly, beneficially or of record, 50% or more of the voting power of the outstanding shares of voting stock or of capital stock of the Licensee, or otherwise has the power to direct or cause the direction of the management and policies of the Licensee, whether through the ownership of voting securities, by contract, or otherwise (a “Change of Control”), whichever Party has notice of the transaction shall notify the other Party accordingly. As of the date on which such notice is given, the Parties shall in good faith negotiate for a period of up to 6 months (“Negotiation Period”) on the terms of a new license agreement taking into account the new shareholder structure of the Licensee and DT’s need to sufficiently control an appropriate use of

 

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the Designations. If the Parties fail to reach an agreement on the terms and conditions of a new license agreement within the Negotiation Period, either Party shall have the right to terminate this Agreement, such right to be exercised within three months after the end of the Negotiation Period. Such termination by a Party shall become effective (i) in the case of a DT Sell-Down in the absence of a Change of Control, on the third anniversary of a Party’s notice of its exercise of such right and (ii) in the case of a Change of Control (whether or not a DT Sell-Down shall also have occurred), on the second anniversary of DT’s notice of its exercise of such right.

 

14.4 DT is permitted to assign its rights and obligations under this Agreement in full to an Affiliate upon notice to the Licensee.

 

14.5 After termination or expiration of this Agreement, the Licensee shall no longer be entitled to use the Designations, provided however that (A) with respect to Licensed Products manufactured prior to such termination or expiration, the Licensee shall be entitled to deliver such manufactured Licensed Products and render the Licensed Services with respect to such Licensed Products for a period of one year after termination or expiration and (B) with respect to advertising incorporating the Designations, the Licensee shall be entitled to continue using such advertising materials bearing the Designations for up to six months after the termination or expiration of this Agreement.

 

14.6 Upon termination or expiration of this Agreement, all documents and records provided to the Licensee by DT, including any and all copies and reproductions of the Designations, must be returned to DT.

 

14.7 Upon termination or expiration of this Agreement, the Licensee shall assign to DT free of charge all trademarks, Internet domains and any rights in such designations owned by the Licensee, in each case, if they contain any of the Designations, parts of the Designations or are confusingly similar to a Designation. DT may request such assignment within one month after the Licensee has informed DT about such rights and registrations. In the event of an assignment of rights, DT shall bear the reasonable, external costs of such assignment. The Licensee undertakes to procure that its Affiliates and sub-licensees also assign any such rights to DT, as necessary.

 

§15 Jurisdiction and Venue, Choice of Law

 

15.1 This Agreement shall be governed and construed in accordance with the laws of Germany, excluding conflict of laws rules.

 

15.2 In case of any disputes arising in connection with this Agreement such dispute shall be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules in force on the date of the commencement of the arbitration. The arbitral tribunal shall consist of three arbitrators (except for the proceedings mentioned in § 7.4, which shall consist of one arbitrator), who must have experience in the field of trademark and licensing law, and who must be fluent in the language of the proceedings. The place of arbitration shall be London, UK. The language to be used in the arbitral proceedings shall be English.

 

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§16 Miscellaneous

 

16.1 Any changes and amendments to this Agreement, including any waiver of this clause, must be made in writing and signed by both parties in order to be valid.

 

16.2 This Agreement represents the entire understanding with respect to the subject matter of this Agreement and it supersedes all prior and contemporaneous agreements between the Parties concerning the subject matter of this Agreement.

 

16.3 This Agreement is binding and authorizes the Parties and their legal successors. The Parties undertake to impose their obligations under this Agreement also on their legal successors.

 

16.4 Should one of the provisions of this Agreement be or become invalid, the validity of the remaining provisions shall not be affected thereby. The Parties shall be required to replace the invalid provision by a valid one best achieving the economically desired result. The same applies in the event of a gap.

 

16.5 This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together will constitute one single agreement between the Parties.

 

- 17 -


Bonn, April 30, 2013

(Place, Date)

   

/s/ Timotheus Höttges

Deutsche Telekom AG

    Signed by: Timotheus Höttges
    Position: Chief Financial Officer

Bonn, April 30, 2013

(Place, Date)

   

/s/ Thomas Kremer

Deutsche Telekom AG

    Signed by: Thomas Kremer
   

Position: Board member for Data Privacy,

Legal Affairs and Compliance

April 30, 2013

(Place, Date)

   

/s/ J. Braxton Carter

Licensee

    Signed by: J. Braxton Carter
    Position: Chief Financial Officer

 

- 18 -


Annex 1.1 – T-Mobile Trademarks

United States Trademarks

 

Trademark

   Local Classes    Application
No.
     Application
Date
     Registration
No.
     Registration
Date
     Case Status  

LOGO

   09,14,16,18,25, 28,36,37,38,41,
42
     75/248,964         27/02/1997         2284387         12/10/1999         Registered   

LOGO

   09,16,36,37,38, 41,42      75/095,186         23/04/1996         2941016         19/04/2005         Registered   

LOGO

   28      78/500,635         15/10/2004         3035165         27/12/2005         Registered   

LOGO

   35      78/500,682         15/10/2004         3035166         27/12/2005         Registered   

LOGO

   25      78/500,615         15/10/2004         3037885         03/01/2006         Registered   

LOGO

   14      78/500,576         15/10/2004         3040847         10/01/2006         Registered   

LOGO

   18      78/500,585         15/10/2004         3040848         10/01/2006         Registered   

LOGO

   42      78/500,717         15/10/2004         3076000         04/04/2006         Registered   

LOGO

   16      77/311,136         23/10/2007         3487670         19/08/2008         Registered   

LOGO

   35      77/311,137         23/10/2007         3487671         19/08/2008         Registered   

LOGO

   36      77/311,139         23/10/2007         3487672         19/08/2008         Registered   

LOGO

   37      77/311,140         23/10/2007         3487673         19/08/2008         Registered   

LOGO

   42      77/311,144         23/10/2007         3487674         19/08/2008         Registered   

LOGO

   45      77/311,447         24/10/2007         3487682         19/08/2008         Registered   

LOGO

   09      77/311,132         23/10/2007         3491692         26/08/2008         Registered   

LOGO

   38      77/311,219         23/10/2007         3491696         26/08/2008         Registered   

LOGO

   41      77/311,232         23/10/2007         3491697         26/08/2008         Registered   

LOGO

   38      77/369,381         11/01/2008         3582357         03/03/2009         Registered   

LOGO

   36      77/369,417         11/01/2008         3605016         14/04/2009         Registered   

LOGO

   42      77/369,351         11/01/2008         3608189         21/04/2009         Registered   

LOGO

   35      77/369,446         11/01/2008         3608190         21/04/2009         Registered   

LOGO

   09      77/369,466         11/01/2008         3608191         21/04/2009         Registered   

LOGO

   16      77/369,463         11/01/2008         3633767         09/06/2009         Registered   

LOGO

   14      77/451,712         18/04/2008         3662565         04/08/2009         Registered   

LOGO

   18      77/451,740         18/04/2008         3662566         04/08/2009         Registered   

LOGO

   25      77/451,760         18/04/2008         3662567         04/08/2009         Registered   

LOGO

   28      77/451,780         18/04/2008         3662568         04/08/2009         Registered   

LOGO

   32      77/451,817         18/04/2008         3662569         04/08/2009         Registered   

LOGO

   35      77/451,828         18/04/2008         3662570         04/08/2009         Registered   

LOGO

   36      77/451,861         18/04/2008         3662571         04/08/2009         Registered   

LOGO

   42      77/451,884         18/04/2008         3662572         04/08/2009         Registered   

T-Mobile

   09,14,16,18,25,28,36,37,38,41,42      75/248,963         27/02/1997         2282432         05/10/1999         Registered   

T-Mobile

   09,16,36,37,38,41,42      75/093,051         23/04/1996         2911878         21/12/2004         Registered   

T-Mobile

   14      78/693,433         16/08/2005         3120673         25/07/2006         Registered   

T-Mobile

   18      78/693,437         16/08/2005         3120674         25/07/2006         Registered   

T-Mobile

   25      78/693,439         16/08/2005         3120675         25/07/2006         Registered   

T-Mobile

   28      78/693,444         16/08/2005         3120676         25/07/2006         Registered   

T-Mobile

   36      78/693,454         16/08/2005         3196091         09/01/2007         Registered   

T-Mobile

   35      78/693,450         16/08/2005         3219514         20/03/2007         Registered   

T-Mobile

   42      78/693,461         16/08/2005         3219515         20/03/2007         Registered   

 

- 19 -


Puerto Rico Trademarks

 

Trademark

   Local Classes    Application No.      Application
Date
     Registration
No.
     Registration
Date
     Case Status  

LOGO

   41      57359         27/04/2007         72928         27/04/2007         Certificate received   

LOGO

   16      57386         27/04/2007         72935         27/04/2007         Certificate received   

LOGO

   42      57410         27/04/2007         72937         27/04/2007         Certificate received   

LOGO

   09      58038         27/04/2007         73673         27/04/2007         Registered   

LOGO

   38      58039         27/04/2007         73674         27/04/2007         Registered   

T-Mobile

   09      57458         27/04/2007         72946         27/04/2007         Registered   

T-Mobile

   16      57460         27/04/2007         72948         27/04/2007         Registered   

T-Mobile

   38      57469         27/04/2007         72953         27/04/2007         Certificate received   

T-Mobile

   42      57491         27/04/2007         72955         27/04/2007         Certificate received   

Annex 1.2 – Other Trademarks

United States Trademarks

 

Trademark

   Local Classes    Application
No.
     Application
Date
     Registration
No.
     Registration
Date
     Case Status  

T-Mobile Jingle (sound mark)

   09,37,38      75/889,012         06/01/2000         2459405         12/06/2001         Registered   

LOGO

   09,36,37,38,41      74/720,652         24/08/1995         2472584         31/07/2001         Registered   

LOGO

   14      78/693,787         16/08/2005         3148182         26/09/2006         Registered   

LOGO

   18      78/693,792         16/08/2005         3148183         26/09/2006         Registered   

LOGO

   25      78/693,793         16/08/2005         3148184         26/09/2006         Registered   

LOGO

   28      78/693,797         16/08/2005         3157352         17/10/2006        
 
 
 
Registered
/Post section
08/15 office
action filed
  
  
  
  

LOGO

   35      78/693,802         16/08/2005         3221551         27/03/2007         Registered   

LOGO

   36      78/693,808         16/08/2005         3264353         17/07/2007         Registered   

 

- 20 -


Trademark

   Local Classes    Application
No.
     Application
Date
     Registration
No.
     Registration
Date
     Case Status  

LOGO

   42      78/693,813         16/08/2005         3538688         25/11/2008         Registered   

LOGO

   09,16,25,36,38,42      74/720,656         24/08/1995         2508277         20/11/2001         Registered   

LOGO

   14      78/693,653         16/08/2005         3141606         12/09/2006         Registered   

LOGO

   18      78/693,665         16/08/2005         3141607         12/09/2006         Registered   

LOGO

   25      78/693,672         16/08/2005         3141608         12/09/2006         Registered   

LOGO

   35      78/693,688         16/08/2005         3153493         10/10/2006         Registered   

LOGO

   36      78/693,694         16/08/2005         3153495         10/10/2006         Registered   

LOGO

   28      78/693,677         16/08/2005         3207637         13/02/2007         Registered   

LOGO

   42      78/693,698         16/08/2005         3216527         06/03/2007         Registered   

LOGO

   09      77/307,271         18/10/2007         3452974         24/06/2008         Registered   

LOGO

   36      77/307,272         18/10/2007         3452975         24/06/2008         Registered   

LOGO

   16      77/307,273         18/10/2007         3452976         24/06/2008         Registered   

LOGO

   35      77/307,274         18/10/2007         3452977         24/06/2008         Registered   

LOGO

   37      77/307,275         18/10/2007         3452978         24/06/2008         Registered   

LOGO

   38      77/307,277         18/10/2007         3452979         24/06/2008         Registered   

LOGO

   38      77/307,277         18/10/2007         3452979         24/06/2008         Registered   

LOGO

   41      77/307,279         18/10/2007         3452980         24/06/2008         Registered   

LOGO

   42      77/307,280         18/10/2007         3452981         24/06/2008         Registered   

LOGO

   45      77/307,281         18/10/2007         3452982         24/06/2008         Registered   

LOGO

   35      77/415,184         06/03/2008         3594035         24/03/2009         Registered   

LOGO

   42      77/415,214         06/03/2008         3601280         07/04/2009         Registered   

LOGO

   32      77/415,120         06/03/2008         3618302         12/05/2009         Registered   

LOGO

   14      77/415,272         06/03/2008         3618303         12/05/2009         Registered   

LOGO

   18      77/415,291         06/03/2008         3618304         12/05/2009         Registered   

LOGO

   25      77/415,320         06/03/2008         3618305         12/05/2009         Registered   

LOGO

   28      77/415,335         06/03/2008         3618306         12/05/2009         Registered   

LOGO

   35      77/364,660         04/01/2008         3498385         09/09/2008         Registered   

LOGO

   42      77/364,641         04/01/2008         3578790         24/02/2009         Registered   

LOGO

   38      77/364,649         04/01/2008         3578791         24/02/2009         Registered   

LOGO

   36      77/364,652         04/01/2008         3578792         24/02/2009         Registered   

LOGO

   16      77/364,665         04/01/2008         3578793         24/02/2009         Registered   

LOGO

   09      77/364,668         04/01/2008         3637434         16/06/2009         Registered   

 

- 21 -


Trademark

   Local Classes    Application
No.
     Application
Date
     Registration
No.
     Registration
Date
     Case Status

LOGO

   09,16,35,36,38,41,42      76/252,927         07/05/2001             Oppn:
Opposition
pending at the
Trademark
Trial and
Appeal Board

LOGO

   09,16,35,36,38,39,41,42      76/262,559         24/05/2001         3608020         21/04/2009       Registered

LOGO

   09,16,35,36,38,39,41,42      76/222,033         08/03/2001         3629122         02/06/2009       Registered

LOGO

   38      75/613,042         29/12/1998         2367890         18/07/2000       Registered

LOGO

   43      78/701,515         26/08/2005         3192095         02/01/2007       Registered

LOGO

   45      78/701,521         26/08/2005         3192096         02/01/2007       Registered

LOGO

   44      78/701,519         26/08/2005         3200909         23/01/2007       Registered

LOGO

   01,02,03,04,05,06

,07,08,10,12,13,14,

15,17,18,19,20,21,22,

23,24,26,27,28,29,30,

31,32,33,34,36,37,39,40,41

     76/130,251         18/09/2000         3574344         17/02/2009       Registered

LOGO

   16      78/245,829         05/05/2003         3243485         22/05/2007       Registered

LOGO

   35      78/245,833         05/05/2003         3804860         15/06/2010       Registered

LOGO

   36      78/245,836         05/05/2003         3804861         15/06/2010       Registered

LOGO

   38      78/245,837         05/05/2003         3804862         15/06/2010       Registered

LOGO

   35      78/246,008         05/05/2003         3373727         22/01/2008       Registered

LOGO

   38      78/246,011         05/05/2003         3373729         22/01/2008       Registered

LOGO

   35      78/245,849         05/05/2003         3232328         24/04/2007       Registered

 

- 22 -


Trademark

   Local Classes    Application
No.
     Application
Date
     Registration
No.
     Registration
Date
     Case Status  

LOGO

   38      78/245,853         05/05/2003         3801161         08/06/2010         Registered   

LOGO

   36      78/245,851         05/05/2003         3804863         15/06/2010         Registered   

LOGO

   09,16,35,36,38,39,41,42      78/184,591         13/11/2002         3576189         17/02/2009         Registered   

LOGO

   09      78/798,405         24/01/2006         3263624         10/07/2007         Registered   

LOGO

   38      78/798,428         24/01/2006         3263625         10/07/2007         Registered   

LOGO

   38      78/581,970         07/03/2005         3070757         21/03/2006         Registered   

LOGO

   42      78/581,973         07/03/2005         3070758         21/03/2006         Registered   

LOGO

   09      78/581,957         07/03/2005         3076299         04/04/2006         Registered   

LOGO

   16      78/581,962         07/03/2005         3076300         04/04/2006         Registered   

LOGO

   28      78/581,967         07/03/2005         3076301         04/04/2006         Registered   

LOGO

   35      78/581,965         07/03/2005         3167542         07/11/2006         Registered   

LOGO

   42      78/282,252         01/08/2003         2912937         21/12/2004         Registered   

LOGO

   09      78/282,241         01/08/2003         2914538         28/12/2004         Registered   

LOGO

   38      78/282,255         01/08/2003         2914540         28/12/2004         Registered   

LOGO

   38      78/223,242         07/03/2003         2939623         12/04/2005         Registered   

LOGO

   38      78/223,240         07/03/2003         2984921         16/08/2005         Registered   

LOGO

   16      76/573,252         30/01/2004         3056828         07/02/2006         Registered   

LOGO

   38      76/573,253         30/01/2004         3056829         07/02/2006         Registered   

LOGO

   36      76/573,616         30/01/2004         3069719         21/03/2006         Registered   

LOGO

   35      76/573,251         30/01/2004         3228969         17/04/2007         Registered   

LOGO

   09      76/573,623         30/01/2004         3403950         01/04/2008         Registered   

LOGO

   42      76/573,620         30/01/2004         3456062         01/07/2008         Registered   

LOGO

   38      77/392,063         08/02/2008         3633797         09/06/2009         Registered   

LOGO

   42      77/392,085         08/02/2008         3633798         09/06/2009         Registered   

 

- 23 -


Trademark

   Local Classes    Application
No.
     Application
Date
     Registration
No.
     Registration
Date
     Case Status  

LOGO

   16      77/392,000         08/02/2008         3697496         20/11/2009         Registered   

LOGO

   09      77/391,992         08/02/2008         3707386         10/11/2009         Registered   

LOGO

   38      78463630         06/08/2004         3053691         31/01/2006         Registered   

LOGO

   35      78463624         06/08/2004         3122689         01/08/2006         Registered   

LOGO

   36      78463626         06/08/2004         3150486         03/10/2006         Registered   

LOGO

   09      78/463,617         06/08/2004         3495959         02/09/2008         Registered   

LOGO

   16      77/392,218         08/02/2008         3608213         21/04/2009         Registered   

LOGO

   38      77/392,320         08/02/2008         3614612         05/05/2009         Registered   

LOGO

   35      77/392,244         08/02/2008         3668249         18/08/2009         Registered   

LOGO

   09      77/392,203         08/02/2008         3678356         08/09/2009         Registered   

LOGO

   42      77/392,329         08/02/2008         3697497         20/10/2009         Registered   

LOGO

   09      77/427,706         20/03/2008         3756500         09/03/2010         Registered   

LOGO

   38      77/427,807         20/03/2008         3756501         09/03/2010         Registered   

LOGO

   42      77/427,813         20/03/2008         3783216         04/05/2010         Registered   

SideKick

   16      78/242,853         28/04/2003         2951342         17/05/2005         Registered   

SideKick

   35      78/242,862         28/04/2003         2951343         17/05/2005         Registered   

SideKick

   36      78/242,872         28/04/2003         2951344         17/05/2005         Registered   

SideKick

   38      78/242,874         28/04/2003         2951345         17/05/2005         Registered   

SideKick

   42      78/242,880         28/04/2003         2969827         19/07/2005         Registered   

SideKick

   09      78/242,867         28/04/2003         2982858         09/08/2005         Registered   

T-Mobile SideKick

   38      78/242,987         28/04/2003         2951346         17/05/2005         Registered   

T-Mobile SideKick

   09      78/242,884         28/04/2003         2975648         26/07/2005         Registered   

T-Mobile SideKick

   36      78/242,986         28/04/2003         2975650         26/07/2005         Registered   

T-Mobile SideKick

   16      78/242,890         28/04/2003         3099895         06/06/2006         Registered   

T-Mobile USA

   09,16,35,36,37,38,41,42      76/350,166         18/12/2001         2889632         28/09/2004         Registered   

 

- 24 -


 

Trademark

   Local Classes    Application
No.
     Application
Date
     Registration
No.
     Registration
Date
     Case Status  

T-MobileWeb

   38      78/615,986         25/04/2005         3146866         19/09/2006         Registered   

T-ZONES

   41      76/976,000         16/05/2002         2914398         28/12/2004         Registered   

T-ZONES

   09,16,38,42      76/408,926         10/05/2002         3052012         31/01/2006         Registered   

T-ZONES

   01      78/698,028         23/08/2005         3164945         31/10/2006         Registered   

T-ZONES

   02      78/698,031         23/08/2005         3164946         31/10/2006         Registered   

T-ZONES

   04      78/698,035         23/08/2005         3164947         31/10/2006         Registered   

T-ZONES

   07      78/698,046         23/08/2005         3164948         31/10/2006         Registered   

T-ZONES

   10      78/698,052         23/08/2005         3164949         31/10/2006         Registered   

T-ZONES

   17      78/698,076         23/08/2005         3164950         31/10/2006         Registered   

T-ZONES

   19      78/698,084         23/08/2005         3164951         31/10/2006         Registered   

T-ZONES

   24      78/698,119         23/08/2005         3164952         31/10/2006         Registered   

T-ZONES

   32      78/698,156         23/08/2005         3164953         31/10/2006         Registered   

T-ZONES

   33      78/698,159         23/08/2005         3164954         31/10/2006         Registered   

T-ZONES

   34      78/698,163         23/08/2005         3164955         31/10/2006         Registered   

T-ZONES

   11      78/698,055         23/08/2005         3205233         06/02/2007         Registered   

T-ZONES

   03      78/698,033         23/08/2005         3365652         08/01/2008         Registered   

T-ZONES

   05      78/698,038         23/08/2005         3666806         11/08/2009         Registered   

Voicestream

   42      77/280,315         15/09/2007         3461002         08/07/2008         Registered   

Voicestream

   38      77/280,318         15/09/2007         3461005         08/07/2008         Registered   

Voicestream

   35      77/280,321         15/09/2007         3461008         08/07/2008         Registered   

Voicestream

   16      77/280,325         15/09/2007         3461010         08/07/2008         Registered   

Voicestream

   09      77/280,326         15/09/2007         3461011         08/07/2008         Registered   

Puerto Rico Trademarks

 

Trademark

   Local Classes      Application
No.
     Application
Date
     Registration
No.
   Registration
Date
   Case Status

LOGO

     09         62672         23/04/2008             Response to
Exam Report
filed at IPO

 

- 25 -


Annex 2 – Domains

t-mobile.com

tmobile.com

t-mobile.us

tmobile.us

t-mobile.pr

tmobile.pr

t-mobile.com.pr

tmobile.com.pr

t-mobilepr.com

t-mobileusa.com

t-mobile.jobs

tmobileusa.biz

t-mobile-usa.biz

tmobile-usa.biz

tmobileusa.com

tmobile-usa.com

tmobileusa.info

t-mobile-usa.info

tmobile-usa.info

tmobileusa.net

tmobile-usa.net

tmobileusa.org

t-mobile-usa.org

tmobile-usa.org

t-mobileusa.mobi

 

- 26 -


Annex 3 – Principles for Distribution Partner Agreements

 

(1) The Licensee is permitted to grant to a distributor (“Distributor”) a non-exclusive, non-transferable and non-sub-licensable license for the offering and selling of the Licensed Products and Licensed Services provided by the Licensee.

For the avoidance of doubt, the Distributor must not use the Designations as the Distributor’s company name, as any other business name for the Distributor, as an internet domain for the Distributor or as a component of the Distributor’s company name, or as any other business name or internet domain of the Distributor. In particular, the Distributor is not allowed to label sales products with the Designations.

 

(2) Any sub-license granted to a Distributor has to be subject to the following conditions:

 

  (a) Distributor has to use the Designations only in their registered form and in accordance with the Utilization Regulations as provided for in Annex 4 of this Agreement.

 

  (b) Any use of the Designations by the Distributor qualifies as a use by DT for the purpose of acquiring or maintaining trademark rights or other rights to these Designations.

 

  (c) The Licensee assumes no liability and provides no warranty that the use of the Designations does not violate third-party rights. The Distributor shall indemnify, defend and hold harmless the Licensee and DT from any and all any third-party claims that are caused by the Distributor’s use of the Designations.

 

  (d) Maintaining and defending the Designations shall be the exclusive domain of DT.

 

  (e) The Distributor is not allowed to have the Designations registered as a trademark, as a company name, as an Internet domain, or as a component thereof.

 

  (f) The Distributor authorises DT as third-party beneficiary to enforce all claims of the Licensee against the Distributor.

 

  (g) The Distributor shall only use the Designations conforming to the highest quality and professional standards relevant in the Territory and having at least the same quality as the premium global providers of wireless telecommunication, broadband and information services. The Distributor acknowledges that DT is entitled to issue quality guidelines specifying such quality and professional standards. Such quality guidelines shall become binding on the Distributor 30 days after receipt of such guidelines in writing or in text form, including fax and e-mail.

 

- 27 -


  (h) If the Distributor should learn that a third party uses the Designations and/or applies for their registration as a trademark, company name or Internet domain, it is obliged to inform DT immediately.

 

  (i) The Licensee is entitled to terminate the Distribution Partner Agreement (insofar as the license provisions are concerned) at any time for good cause if the Distributor violates any of the above obligations or commits an act or omission that would entitle DT to terminate the License Agreement.

 

  (j) If the Distribution Partner Agreement is terminated, the Distributor shall no longer be entitled to utilize the Designations.

 

- 28 -


Annex 4 – Utilization Regulations

The utilization regulations of DT, as valid at the time the Agreement is signed, are set forth as follows:

 

   

Guideline Basic Elements

 

   

Guideline Product Labelling

 

   

Guideline Device Packaging

 

   

Guideline Product Design

 

   

Guideline Electronic Media

 

   

Guideline Print Media

 

   

Guideline Forms

 

   

Guideline Giveaways

 

   

Guideline Literature

 

   

Guideline Distribution

 

   

Guideline Corporate Fashion

 

   

Guideline Shops

 

   

Guideline Co-operation Partners

 

   

Picture Tool

 

   

Brand Wizard

 

   

Brand Fit

A CD-ROM with utilization regulations will be delivered to the Licensee. Further guidelines are accessible for the Licensee under www.branddesign.telekom.com.

 

- 29 -


Annex 5 – Approval Tool (available at https://ci-approval.telekom.de)

LOGO

 

- 30 -


Annex 6 – Pre-approved Co-Branding

DT approves the following combined use of the Licensee’s Own Designations with the licensed Designations:

 

LOGO

 

LOGO

 

LOGO

 

- 31 -


Annex 7 – Examples of combined Usage of Licensee’s Company Name and Licensee’s Own Designations

1. Examples for which no License Fee is payable

 

  a) The name “T-Mobile USA, Inc.” is used in plain text, without logos or graphical elements and without being set off by font size, font type or color in a legal disclaimer

 

  b) The name “T-Mobile USA, Inc.” is used in plain text, without logos or graphical elements and without being set off by font size, font type or color in a contract

 

  c) The name “T-Mobile USA, Inc.” is used in plain text, without logos or graphical elements and without being set off by font size, font type or color in general terms and conditions

 

  d) The abbreviated term “T-Mobile” is used as plain text, without logos or graphical elements and without being set off by font size, font type or color as a defined term for the legal entity T-Mobile USA, Inc. or any of its subsidiaries in a contract, advertisement or other statement

 

  e) The name of an entity uses “T-Mobile”, such as “T-Mobile USA, Inc.” in plain text, without logos or graphical elements and without being set off by font size, font type or color

 

  f) In print articles or statements as plain text, without logos or graphical elements and without being set off by font size, font type or color as a defined term for the legal entity T-Mobile USA, Inc. where the primary purpose of the article or statement is not advertisement

2. Examples for with the License Fee is payable

 

  a) The Designation “T-Mobile”, “T” or any other Designation is used in bold letters or is otherwise set off by font size, font type, or color in an advertisement, including the legal disclaimer

 

  b) The Designation “T-Mobile”, “T” or any other Designation is used as a logo in an advertisement

 

  c) The advertisement contains the statement “powered by T-Mobile”, “brought to you by T-Mobile”, “powered by T” or a similar statement containing a Designation

 

  d) A Designation is displayed on a product packaging or in the instructions of use

 

  e) A Designation is displayed on the letterhead or in any other communication in connection with the purchase of a product, e.g. in an invoice and not purely as a designation of the name of the company

 

- 32 -

EX-10.3 22 d527693dex103.htm EX-10.3 EX-10.3

Exhibit 10.3

EMPLOYMENT TERMS

FOR

CHIEF FINANCIAL OFFICER

OF T-MOBILE US, Inc. (Post-Close)

BRAXTON CARTER

As you know, MetroPCS Communications, Inc. (“Metro”), Deutsche Telekom, AG (“DT”) and certain other parties have entered into a Business Combination Agreement (the “BCA”) pursuant to which DT will become the majority stockholder of Metro and Metro will be renamed “T-Mobile US, Inc.” (or such other name as DT may determine). For purposes of this offer letter, we refer to the series of transactions contemplated by the BCA as the “Transaction,” the consummation of the Transaction as the “Closing” and the entity resulting from the Transaction as “T-Mobile.”

This offer letter confirms our understanding and agreement about your role and compensation opportunities with T-Mobile following the Closing. DT will use its reasonable best efforts to cause the terms of this offer letter to be approved as soon as practicable following the Closing by T-Mobile’s compensation committee or board (referred to in this letter as the “Compensation Committee”). The terms of this offer letter are conditioned on such approval. In addition, this offer letter is conditioned on the Closing. If the Closing does not occur, this offer letter will be automatically canceled and void.

 

Position:    Executive Vice President and Chief Financial Officer
Start Date:    The Closing (Expected 1H 2013)
Location:    Company Headquarters: 12920 SE 38th St., Bellevue, WA 98006
Salary:    This position is an exempt salaried position, paid on a bi-weekly rate of $25,000. Your annualized gross base compensation is estimated at $650,000.00 based on 26 pay periods per year.
Short Term Incentive:    For 2013, you will, subject to the approval of the Compensation Committee, be eligible to receive a pro rata share of an annual bonus under T-Mobile’s Legacy Annual Bonus Plan equal to the greater of (a) 100% of your “eligible earnings” (as that term is defined by the plan, which generally includes base pay, paid time off, and holidays earned during the relevant performance period) or (b) the actual bonus earned by you based on the goals applicable to you under the plan for 2013. Additional information regarding bonus eligibility and other terms and conditions of the bonus plan are set forth in the plan, including provisions regarding the time and form of payment and such other terms as necessary to cause the bonus payments under the plan to satisfy (or to be exempt from) the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).
   Following 2013, you will participate in T-Mobile’s annual incentive compensation plan as established by the Compensation Committee. For 2014, your target annual incentive award will be 100% of your eligible earnings subject to the approval of the Compensation Committee. Thereafter, your target award level will be as determined by the Compensation Committee consistent with the annual incentive plan


   generally applicable to T-Mobile’s senior leadership team. The performance goals for each year will be established by the Compensation Committee. We anticipate those goals will include goals related to both T-Mobile financial and individual performance.
Founder’s Award:    If T-Mobile issues Founders stock awards, you will be eligible to receive such an award, and if such awards are issued, DT will recommend a target value of your Founder’s Award of $2,000,000 granted in Performance Stock Units; -this is subject to approval by the Compensation Committee. The specific terms and conditions will be outlined in the applicable plan document and any award documents once finalized.
Long Term Incentive Plan (LTIP):    In 2014, you will be eligible to participate in the T-Mobile LTIP generally applicable to T-Mobile’s senior leadership and DT will recommend to the Compensation Committee that you have a target value of 250% of your annual base Salary and Target Bonus (Total Target Cash) and a vesting period of three years, as set forth in the LTIP and applicable award documents issued to similarly situated members of T-Mobile’s senior leadership team; this is subject to approval by the Compensation Committee. The specific terms and conditions will be outlined in the applicable plan document and any award documents once finalized.
   For 2013, after you commence employment at T-Mobile, you will be eligible to participate in T-Mobile’s Legacy LTIP (which includes vesting over a three year period, as set forth in the LTIP and applicable award documents issued to similarly situated members of T-Mobile’s senior leadership team) with a target value of $2,500,000 subject to approval by the Compensation Committee. The specific terms and conditions are set forth in the applicable plan document and as will be contained in any award documents which you will receive following the Closing.
Payments At the Closing:    Assuming Closing in 2013, your equity awards outstanding at the Closing will vest and be treated according to their terms and the terms and conditions of the BCA and Section 4 of the Change in Control Agreement, dated effective as of May 12, 2011, by and between you and Metro, as amended (the “CIC Agreement”). Your- 2013 annual cash performance award will also vest (at target) and be paid at the Closing.
Severance Protection:    Subject to Compensation Committee approval, you will be eligible for severance as follows:
   (a) Subject to paragraphs (b) and (c) below, coverage under T-Mobile’s severance policy, which is expected, upon a qualifying termination, to provide the following benefit at your level: (i) two times an amount equal to the sum of the then effective annual base salary plus the “target” Annual Bonus, (ii) accrued and unpaid Annual Base Salary, (iii) prorated and unpaid Short Term Incentive, (iv) all accrued and unused PTO, and (v) 12 months of medical and dental insurance benefits subject, except with respect to elements (ii) and (iv), to your signing a release as set forth in the applicable plan document.
   (b) For the period of 21 months following the Closing, upon voluntary


   termination with at least 90 days notice, upon signing and delivering to T-Mobile a release of all claimsagainst T-Mobile in a form mutually agreed by you and T-Mobile not later than 60 days following your termination, you shall be entitled to (i) two times an amount equal to the sum of your Metro annual base salary plus “target” Annual Bonus effective immediately prior to Closing, (ii) a payment at target (100%) for your 2013 Metro annual cash incentive award as defined by the CIC Agreement pro-rated by the number of days in 2013 prior to the Closing, and (iii) 24 months of medical and dental insurance coverage for you and your dependants on the same terms and conditions as existed immediately before termination and provided in the manner described in Section 3(a)(iii) of the CIC Agreement and Attachment A. The release described above will be provided to you by T-Mobile within 10 days following your termination of employment. The payments identified in clauses (i) and (ii) above are payable in a lump sum on the 60th day following your termination date subject to the provisions of Attachment A. DT recognizes that because you will be required to move to the State of Washington in order to carry out your new role at T-Mobile, you would be deemed to have “good reason” that would allow you to resign and receive benefits under the CIC Agreement. This provision is included in recognition thereof. In addition, you shall be entitled to the following: (i) accrued and unpaid salary as of the date of termination; (ii) reimbursement of all expenses reasonably and necessarily incurred in accordance with T-Mobile policy; and (iii) any accrued but unused paid time off.
   (c) Following the Closing, if you are involuntary terminated for any reason other than a Change in Control of T-Mobile (other than the Transaction) you shall have the right to receive the benefits described in paragraph (a) unless T-Mobile has “Cause” to terminate you. “Cause” shall be as defined in Attachment “B”.
   (d) Following the Closing, if you are involuntary terminated as a result of a Change in Control (other than the Transaction) of T-Mobile, you shall be eligible for severance benefits under such change in control plan as T-Mobile shall institute for executives at your level as approved by the Compensation Committee. DT will recommend that these severance benefits would include (i) two times an amount equal to the sum of the then effective annual base salary plus the “target” Annual Bonus, (ii) an equity incentive payout, if any, as may be set forth in the applicable change-in-control plan; (iii) a payment at target (100%) for the short-term incentive plan bonus award granted for the year in which the Change in Control occurs prorated based on the date of the Change in Control as set forth in the plan; and (iv) 12 months of COBRAbenefits. The specific terms and conditions will be outlined in the final plan document and it is expected that under such terms and conditions the payments and benefits would be provided in a manner to be exempt from the application of Section 409A of the Code.
   The above provisions (a), (b), (c) and (d) are mutually exclusive. If you become entitled to payments and benefits under paragraphs (a), (b), (c) or (d) of this section, you will not be entitled to payments or benefits under any other paragraph of this section.


   (e) Pursuant to Section 6(p) of the CIC Agreement (reproduced as Attachment “C”), you are currently subject to a potential cutback of severance and other payments or benefits to the extent necessary to avoid “golden parachute” excise taxes under Sections 280G and 4999 of the Code. You shall remain subject to such cutback requirements based on the Transaction which will apply to the payments and benefits under this offer letter (to the extent treated as parachute payments with respect to the Transaction) as well as any other payments and benefits that you may receive in connection with the Transaction, to the same extent and under same terms and conditions as applicable under Section 6(p) of the CIC Agreement (even though the CIC Agreement is otherwise being superceded in its entirety by this offer letter as provided in paragraph (f) below).
   (f) Upon the Closing or such later date that the Compensation Committee approves the terms and conditions of this offer letter and adopts the severance protection benefits and other benefits described in this offer letter, the CIC Agreement will be superceded in its entirety by this offer letter and have no further force or effect, and you will not be entitled to any payments or benefits thereunder, except for the benefits and amounts payable to you at the Closing and subject to the terms and conditions set forth in this offer letter. Until the applicable date described in the preceding sentence, the CIC Agreement will remain in full force and effect, except to the extent the restrictive covenants contained in the CIC Agreement would conflict with the T-Mobile Restrictive Covenant and Confidentiality Agreement following your execution thereof. The severance payments and benefits described above are in lieu of any other severance payments or benefits you might otherwise be entitled to under any other plan or agreement, other than in connection with the benefit plans in which you participate described under “Benefits” below.
Relocation:    You will receive relocation assistance for costs associated with your move to the Seattle, Washington area under T-Mobile’s Relocation Policy. Such assistance includes (a) reimbursement for reasonable expenses for two trips permitted to find new home which may occur prior to the Closing, (b) eligibility for New Home Assistance under that Policy for a period of 18 months following Closing and (c) no reimbursement obligation upon termination of your employment.
Benefits:    All regular full-time T-Mobile employees, and part-time employees working 20 or more hours per week, upon eligibility, will be able to participate in the T-Mobile Employee Benefit Programs, which include a medical and dental care insurance program, life insurance, and a 401(k) plan. You will continue to be covered, without interruption, in your current benefit plans following the Closing or will be eligible to enroll in any replacement or new plans offered by T-Mobile to similarly situated employees without interruption in coverage. The T-Mobile 401(k) Retirement Plan provides for automatic enrollment with 2% of eligible pay directed to the participant’s plan account. The contributions subject to automatic enrollment will be invested in the T. Rowe Price Retirement Fund, a professionally managed and diversified portfolio. Employees have 30 days to opt out of the plan before they are automatically enrolled. Employees may change their deferral percentage or investment options at any time following their enrollment.


Service Credit:    With respect to all existing, modified and newly adopted benefit plans (including without limitation vacation, severance and paid time off plans), you will receive service credit based on your original hire date (February 1, 2001) for all purposes (including without limitation eligibility, vesting and benefit levels).
Indemnity:    You will receive indemnification coverage under the T-Mobile Certificate of Incorporation and Bylaws as in effect from time to time. DT will recommend to the Board of Directors of T-Mobile that indemnification coverage and D&O coverage will be at least equivalent to that provided by Metro immediately before the Closing (whether by charter, bylaws or contract).
Restrictive Covenant and Confidentiality Agreement:    Upon Closing, you will enter into a T-Mobile Restrictive Covenant and Confidentiality Agreement and will be released from your existing MetroPCS restricted covenant and confidentiality agreement. This Agreement includes covenants regarding protection of confidential information, a non-compete and certain other restrictive covenants regarding solicitation of employees or customers with a one-year post employment tail.
Section 409(A)    See Attachment A

If the terms of this offer letter are acceptable, please confirm your acceptance below.

We are looking forward to closing the pending Transaction and you joining T-Mobile in this key leadership role.

Sincerely,

on behalf of Decutsche Telekom AG

 

Timotheus Höttges  

/s/ Timotheus Höttges

  January 24, 2013

 

Kyra Orth  

/s/ Kyra Orth

  January 24, 2013

AGREED as of the date below:

 

/s/ Braxton Carter

  January 25, 2013

Braxton Carter

 


ATTACHMENT A

Compliance with Section 409A

It is intended that this offer letter comply with the provisions of Section 409A of the Code and the Treasury regulations relating thereto, or satisfy the requirements for an exemption to Section 409A of the Code, in each case to the extent applicable to this offer letter and, accordingly, to the maximum extent permitted, this offer letter shall be interpreted and be administered in a manner to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, you shall not be considered to have terminated employment with T-Mobile for purposes of this offer letter, and no payment shall be due to you under this offer letter that provides for payment in connection with your termination of employment, unless such termination constitutes your “separation from service” with T-Mobile as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto (“Separation from Service”). Any payments that qualify for the “short-term deferral” exception from Section 409A of the Code as described in Treasury Regulation Section 1.409A-1(b)(4) will be paid under such exception. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii) and the application of the short-term deferral exception), each payment under this offer letter will be treated as a separate payment. Notwithstanding anything to the contrary in this offer letter (whether under this offer letter or otherwise), to the extent delayed commencement of any portion of the payments to be made to you upon your Separation from Service is required to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of the Code, such portion of the payments shall be delayed and paid on the first business day after the earlier of (i) the date that is six (6) months following such Separation from Service or (ii) your death. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts reimbursable to you under this offer letter shall be paid to you on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to you) during any one year may not affect amounts reimbursable or provided in any subsequent year and may not be liquidated or exchanged for any other benefit. To the extent any post-employment benefits relating to health coverage provided for under this offer letter would cause you to be taxable on the health reimbursements under Section 105 of the Code or under any other provision of the Code, T-Mobile will cause the full cost of such coverage (based on the applicable COBRA rates) to be imputed as part of your income and reported on Form W-2 for the applicable period, if such action would cause you to not be taxable on the health reimbursements you receive as a result of such coverage.


ATTACHMENT B

 

1. “Cause” shall be defined as any one of the following: (i) Employee’s gross neglect or willful material breach of Employee’s principal employment responsibilities or duties or of Employer’s applicable codes of conduct and policies, (ii) a final judicial adjudication that Employee is guilty of any felony (other than a law, rule or regulation relating to a traffic violation or other similar offense that has no material, adverse effect on the T-Mobile), (iii) Employee’s breach of any non-competition or confidentiality covenant between Employee and T-Mobile, or (iv) fraudulent conduct in the course of Employee’s employment with T-Mobile as determined by a court of competent jurisdiction.


ATTACHMENT C

Section 6(p) of CIC Agreement:

(p) Section 280G Cutback. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement, together with any payments or benefits payable or to be provided under any other plan, program, arrangement or agreement maintained by the Company or an Affiliate, would be deemed or considered to be an “excess parachute payment” (within the meaning of section 280G of the Code, or any successor provision thereto) but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes or would constitute an excess parachute payment. Whether requested by the Employee or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence (and the assumptions utilized to make such determination) will be made at the expense of the Company by the Company’s independent accountants, whose judgment shall be conclusive, final and binding. In the event that any payment or benefit intended to be provided under this Agreement is required to be reduced pursuant to this Section 6(p), the Company will determine the order in which such reduction in payments and/or benefits will be made.

EX-10.4 23 d527693dex104.htm EX-10.4 EX-10.4

Exhibit 10.4

EMPLOYMENT TERMS

FOR

CHIEF OPERATING OFFICER

OF METRO PCS (Post-Close)

TOM KEYS

As you know, MetroPCS Communications, Inc. (“Metro”), Deutsche Telekom, AG (“DT”) and certain other parties have entered into a Business Combination Agreement (the “BCA”) pursuant to which DT will become the majority stockholder of Metro and Metro will be renamed “T-Mobile US, Inc.” (or such other name as DT may determine). For purposes of this offer letter, we refer to the series of transactions contemplated by the BCA as the “Transaction,” the consummation of the Transaction as the “Closing” and the entity resulting from the Transaction as “T-Mobile.”

This offer letter confirms our understanding and agreement about your role and compensation opportunities with MetroPCS Texas, LLC (“Metro Texas”) following the Closing. Metro Texas will be a wholly-owned subsidiary of T-Mobile immediately following the Closing. DT will use its reasonable best efforts to cause the terms of this offer letter to be approved as soon as practicable following the Closing by T-Mobile’s compensation committee or board (referred to in this letter as the “Compensation Committee”). The terms of this offer letter are conditioned on such approval. In addition, this offer letter is conditioned on the Closing. If the Closing does not occur, this offer letter will be automatically canceled and void.

 

Position:    Chief Operating Officer, Metro PCS
Start Date:    The Closing (Expected 1H 2013)
Location:    Lakeside Boulevard, Richardson, TX 75082
Salary:    This position is an exempt salaried position, paid on a bi-weekly rate of $25,769. Your annualized gross base compensation is estimated at $670,000.00 based on 26 pay periods per year. Twelve months following the Transaction, your annual base compensation will increase to $700,000.
Short Term Incentive:    For 2013, you will, subject to the approval of the Compensation Committee, be eligible to receive a pro rata share of an annual bonus under T-Mobile’s Legacy Annual Bonus Plan equal to the greater of (a) 100% of your “eligible earnings” (as that term is defined by the plan, which generally includes base pay, paid time off, and holidays earned during the relevant performance period) or (b) the actual bonus earned by you based on the goals applicable to you under the plan for 2013. Additional information regarding bonus eligibility and other terms and conditions of the bonus plan are set forth in the plan, including provisions regarding the time and form of payment and such other terms as necessary to cause the bonus payments under the plan to satisfy (or to be exempt from) the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).
   Following 2013, you will participate in T-Mobile’s annual incentive compensation plan as established by the Compensation Committee. For 2014, your target annual incentive award will be 100% of your eligible earnings subject to the approval of the Compensation Committee.


     Thereafter, your target award level will be as determined by the Compensation Committee consistent with
the annual incentive plan generally applicable to T-Mobile’s senior leadership team. The performance
goals for each year will be established by the Compensation Committee. We anticipate those goals will
include goals related to both T-Mobile financial and individual performance.

Founder’s

Award:

   If T-Mobile issues Founders stock awards, you will be eligible to receive such an award, and if such awards are issued, DT will recommend a target value of your Founder’s Award of $2,000,000 granted in Performance Stock Units; this is subject to approval by the Compensation Committee. The specific terms and conditions will be outlined in the applicable plan document and any award documents once finalized.
Long Term Incentive Plan (LTIP):    In 2014, you will be eligible to participate in the T-Mobile LTIP generally applicable to T-Mobile’s senior leadership and DT will recommend to the Compensation Committee that you have a target value of 250% of your annual base Salary and Target Bonus (Total Target Cash) and a vesting period of three years, as set forth in the LTIP and applicable award documents issued to similarly situated members of T-Mobile’s senior leadership team; this is subject to approval by the Compensation Committee. The specific terms and conditions will be outlined in the applicable plan document and any award documents once finalized.
   For 2013, after you commence employment at T-Mobile, you will be eligible to participate in T-Mobile’s Legacy LTIP (which includes vesting over a three year period, as set forth in the LTIP and applicable award documents issued to similarly situated members of T-Mobile’s senior leadership team) with a target value of $2,000,000 subject to approval by the Compensation Committee. The specific terms and conditions are set forth in the applicable plan document and as will be contained in any award documents which you will receive following the Closing.

Payments

At the Closing:

   Assuming Closing in 2013, your equity awards outstanding at the Closing : will vest and be treated according to their terms and the terms and conditions of the BCA and Section 4 of the Change in Control Agreement, dated effective as of May 12, 2011, by and between you and Metro, as amended (the “CIC Agreement”). Your 2013 annual cash performance award will also vest (at target) and be paid at the Closing.
Severance Protection:    Subject to Compensation Committee approval, you will be eligible for severance as follows:
   (a) Subject to paragraphs (b) and (c) below, coverage under T-Mobile’s severance policy, which is expected, upon a qualifying termination, to provide the following benefit at your level: (i) two times an amount equal to the sum of the then effective annual base salary plus the ‘ target” Annual Bonus, (ii) accrued and unpaid Annual Base Salary, (iii) prorated and unpaid Short Term Incentive, (iv) all accrued and unused PTO, and (v) 12 months of medical and dental insurance benefits subject, except with respect to elements (ii) and (iv), to your signing a release as set forth in the applicable plan document.


   (b) For the period of 21 months following the Closing, upon voluntary termination with at least 90 days notice, upon signing and delivering to T-Mobile a release of all claims agains T-Mobile and Metro Texas in a form mutually agreed by you and T-Mobile not later than 60 days following your termination, you shall be entitled to (i) two times an amount equal to the sum of your Metro annual base salary plus “target” Annual Bonus effective immediately prior to Closing, (ii) a payment at target (100%) for your 2013 Metro annual cash incentive award as defined by the CIC Agreement prorated by the number of days in 2013 prior to the Closing, and (iii) 24 months of medical and dental insurance coverage for you and your dependants on the same terms and conditions as existed immediately before termination and provided in the manner described in Section 3(a)(iii) of the CIC Agreement and Attachment A. The release described above will be provided to you by T-Mobile within 10 days following your termination of employment. The payments identified in clauses (i) and (ii) above are payable in a lump sum on the 60th day following your termination date subject to the provisions of Attachment A. DT recognizes that due to changes in your job responsibilities after the Closing, you would be deemed to have “good reason” that would allow you to resign and receive benefits under the CIC Agreement. This provision is included in recognition thereof. In addition, you shall be entitled to the following: (i) accrued and unpaid salary as of the date of termination; (ii) reimbursement of all expenses reasonably and necessarily incurred in accordance with T-Mobile policy; and (iii) any accrued but unused paid time off.
   (c) Following the Closing, if you are involuntary terminated for any reason other than a Change in Control of T-Mobile (other than the Transaction) you shall have the right to receive the benefits described in paragraph (a) unless T-Mobile or Metro Texas has “Cause” to terminate you. “Cause” shall be as defined in Attachment “B”.
   (d) Following the Closing, if you are involuntary terminated as a result of a Change in Control (other than the Transaction) of T-Mobile, you shall be eligible for severance benefits under such change in control plan as T- Mobile shall institute for executives at your level as approved by the Compensation Committee. DT will recommend that these severance benefits would include (i) two times an amount equal to the sum of the then effective annual base salary plus the “target” Annual Bonus, (ii) an equity incentive payout, if any, as may be set forth in the applicable change-in-control plan; (iii) a payment at target (100%) for the short-term incentive plan bonus award granted for the year in which the Change in Control occurs prorated based on the date of the Change in Control as set forth in the plan; and (iv) 12 months of COBRA benefits. The specific terms and conditions will be outlined in the final plan document and it is expected that under such terms and conditions the payments and benefits would be provided in a manner to be exempt from the application of Section 409A of the Code.
   The above provisions (a), (b), (c) and (d) are mutually exclusive. If you become entitled to payments and benefits under paragraphs (a), (b), (c) or (d) of this section, you will not be entitled to payments or benefits under any other paragraph of this section.


   (e) Pursuant to Section 6(p) of the CIC Agreement (reproduced as Attachment “C”), you are currently subject to a potential cutback of severance and other payments or benefits to the extent necessary to avoid “golden parachute” excise taxes under Sections 280G and 4999 of the Code. You shall remain subject to such cutback requirements based on the Transaction which will apply to the payments and benefits under this offer letter (to the extent treated as parachute payments with respect to the Transaction) as well as any other payments and benefits that you may receive in connection with the Transaction, to the same extent and under same terms and conditions as applicable under Section 6(p) of the CIC Agreement (even though the CIC Agreement is otherwise being superceded in its entirety by this offer letter as provided in paragraph (f) below).
   (f) Upon the Closing or such later date that the Compensation Committee approves the terms and conditions of this offer letter and adopts the severance protection benefits and other benefits described in this offer letter, the CIC Agreement will be superceded in its entirety by this offer letter and have no further force or effect, and you will not be entitled to any payments or benefits thereunder, except for the benefits and amounts payable to you at the Closing and subject to the terms and conditions set forth in this offer letter. Until the applicable date described in the preceding sentence, the CIC Agreement will remain in full force and effect, except to the extent the restrictive covenants contained in the CIC Agreement would conflict with the T-Mobile Reistrictive Covenant and Confidentiality Agreement following your execution thereof. The severance payments and benefits described above are in lieu of any other severance payments or benefits you might otherwise be entitled to under any other plan or agreement, other than in connection with the benefit plans in which you participate described under “Benefits” below.
Benefits:    You will remain on Metro Texas Benefits until such time as you are on the T- Mobile payroll.
Service Credit:    With respect to all existing, modified and newly adopted benefit plans (including without limitation vacation, severance and paid time off plans), you will receive service credit based on your original hire date (April 18, 2005) for all purposes (including without limitation eligibility, vesting and benefit levels).
Indemnity:    You will receive indemnification coverage under the T-Mobile Certificate of Incorporation and Bylaws as in effect from time to time. DT will recommend to the Board of Directors of T-Mobile that indemnification coverage and D&O coverage will be at least equivalent to that provided by Metro immediately before the Closing (whether by charter, bylaws or contract).


Restrictive Covenant and Confidentiality Agreement:    Upon Closing, you will enter into a T-Mobile Restrictive Covenant and Confidentiality Agreement and will be released from your existing MetroPCS restricted covenant and confidentiality agreement. This Agreement includes covenants regarding protection of confidential information, a non-compete and certain other restrictive covenants regarding solicitation of employees or customers with a one-year post employment tail.
Section 409(A)    See Attachment A

If the terms of this offer letter are acceptable, please confirm your acceptance below.

We are looking forward to closing the pending Transaction and you joining T-Mobile in this key leadership role.

Sincerely,

on behalf of Deutsche Telekom AG

 

Timotheus Höttges  

/s/ Timotheus Höttges

  January 24, 2013

 

Kyra Orth  

/s/ Kyra Orth

  January 24, 2013

AGREED as of the date below:

 

/s/ Tom Keys

  January 25, 2013

Tom Keys

 


ATTACHMENT A

Compliance with Section 409A

It is intended that this offer letter comply with the provisions of Section 409A of the Code and the Treasury regulations relating thereto, or satisfy the requirements for an exemption to Section 409A of the Code, in each case to the extent applicable to this offer letter and, accordingly, to the maximum extent permitted, this offer letter shall be interpreted and be administered in a manner to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, you shall not be considered to have terminated employment for purposes of this offer letter, and no payment shall be due to you under this offer letter that provides for payment in connection with your termination of employment, unless such termination constitutes your “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto (“Separation from Service”). Any payments that qualify for the “short-term deferral” exception from Section 409A of the Code as described in Treasury Regulation Section 1.409A-1(b)(4) will be paid under such exception. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii) and the application of the short-term deferral exception), each payment under this offer letter will be treated as a separate payment. Notwithstanding anything to the contrary in this offer letter (whether under this offer letter or otherwise), to the extent delayed commencement of any portion of the payments to be made to you upon your Separation from Service is required to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of the Code, such portion of the payments shall be delayed and paid on the first business day after the earlier of (i) the date that is six (6) months following such Separation from Service or (ii) your death. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts reimbursable to you under this offer letter shall be paid to you on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to you) during any one year may not affect amounts reimbursable or provided in any subsequent year and may not be liquidated or exchanged for any other benefit. To the extent any post-employment benefits relating to health coverage provided for under this offer letter would cause you to be taxable on the health reimbursements under Section 105 of the Code or under any other provision of the Code, the full cost of such coverage (based on the applicable COBRA rates) will be imputed as part of your income and reported on Form W-2 for the applicable period, if such action would cause you to not be taxable on the health reimbursements you receive as a result of such coverage.


ATTACHMENT B

 

  1. “Cause” shall be defined as any one of the following: (i) Employee’s gross neglect or willful material breach of Employee’s principal employment responsibilities or duties or of Employer’s applicable codes of conduct and policies, (ii) a final judicial adjudication that Employee is guilty of any felony (other than a law, rule or regulation relating to a traffic violation or other similar offense that has no material adverse effect on Metro Texas or T-Mobile), (iii) Employee’s breach of any non-competition or confidentiality covenant between Employee and T-Mobile, or (iv) fraudulent conduct in the course of Employee’s employment with Metro PCS or T-Mobile as determined by a court of competent jurisdiction.


ATTACHMENT C

Section 6(p) of CIC Agreement:

(p) Section 280G Cutback. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement, together with any payments or benefits payable or to be provided under any other plan, program, arrangement or agreement maintained by the Company or an Affiliate, would be deemed or considered to be an “excess parachute payment” (within the meaning of section 280G of the Code, or any successor provision thereto) but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes or would constitute an excess parachute payment. Whether requested by the Employee or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence (and the assumptions utilized to make such determination) will be made at the expense of the Company by the Company’s independent accountants, whose judgment shall be conclusive, final and binding. In the event that any payment or benefit intended to be provided under this Agreement is required to be reduced pursuant to this Section 6(p), the Company will determine the order in which such reduction in payments and/or benefits will be made.

EX-10.5 24 d527693dex105.htm EX-10.5 EX-10.5

Exhibit 10.5

OFFER LETTER

FOR

SVP, HUMAN RESOURCES

OF METROPCS (Post-Close)

TOM CURRIER

April 30, 2013

As you know, MetroPCS Communications, Inc. (“Metro”), Deutsche Telekom, AG (“DT”), and certain other parties have entered into a Business Combination Agreement (the “BCA”) pursuant to which DT has become the majority stockholder of Metro and Metro has been renamed “T-Mobile US, Inc.” (“T-Mobile”). For purposes of this offer letter, we refer to the series of transactions contemplated by the BCA as the “Transaction” and the consummation of the Transaction as the “Closing.”

This offer letter confirms our understanding and agreement about your role and compensation with MetroPCS Texas, LLC (“Metro Texas”), a wholly-owned subsidiary of T-Mobile, immediately following the Closing.

 

Position:

   SVP, Human Resources, MetroPCS Business

Start Date:

   Immediately following the Closing

Location:

   Company Headquarters: 12920 SE 38th St., Bellevue, WA 98006

Salary:

   This position is an exempt salaried position and your current Metro annualized gross base compensation in effect immediately preceding the Closing will not change in 2013. Thereafter, you will be eligible for changes from time to time consistent with other similarly situated T-Mobile employees.

Short Term

Incentive:

   In 2014, you will be eligible to participate in T-Mobile’s annual incentive compensation plan as established by the T-Mobile Compensation Committee. For 2014, your target annual incentive award will be 60% of your eligible earnings, subject to approval by the Compensation Committee. The performance goals will also be established by the T-Mobile Compensation Committee.

Long Term

Incentive Plan

(LTIP):

   In 2014, and in 2013 if an LTIP is granted on or after the date of the Closing to employees of T-Mobile, you will be eligible to participate in T-Mobile’s LTIP with a target value of 100% of your Annual Base Salary and Target Bonus (Total Target Cash), subject to T-Mobile Compensation Committee approval. The specific terms and conditions will be outlined in the applicable plan document and any award documents once finalized and approved by the T-Mobile Compensation Committee.

Payments At

Closing:

   Your Metro equity awards, including your unvested stock options grants and restricted stock awards, outstanding at the Closing have vested and are being treated according to their terms and the terms and conditions of the BCA and Section 4 of the Change in Control Agreement, dated effective as of May 12, 2011, by and between you and Metro, as amended (the “CIC Agreement”). In accordance with the 2010 Metro Equity Incentive Plan and the CIC Agreement, your Metro 2013 annual cash performance award also has vested (at target) and has been paid at the Closing.

 

1


Severance

Protection:

  

(a) The current Metro CIC Agreement will remain in effect in accordance with its terms. Accordingly, if you have a qualifying termination of employment during the applicable Protection Period (as defined in the CIC Agreement) following the Closing, you will be eligible for the payments and benefits set forth in, and subject to the terms of, the CIC Agreement. Notwithstanding anything contained herein to the contrary, the execution of or performance under this offer letter, or your continued employment, shall not constitute or be deemed a waiver of any rights you may have under the CIC Agreement.

 

(b) For the period of 12 months following the Closing, upon your voluntary termination of employment with at least 90 days notice and upon signing and delivering to T-Mobile a release of all claims against T-Mobile in a form mutually agreed upon by you and T-Mobile (the “Release”) not later than 60 days following your termination, you shall be entitled to (i) two times an amount equal to the sum of your Metro annual base salary plus “target” Annual Bonus effective immediately prior to Closing, (ii) a payment at target (100%) for your 2013 Metro annual cash incentive award as defined by the CIC Agreement pro-rated by the number of days in 2013 prior to the closing and (iii) 24 months of medical and dental insurance coverage for you and your dependants on the same terms and conditions as existed immediately before termination and provided in the manner described in the Section 3(a)(iii) of the CIC Agreement and Attachment A. The payments identified in clauses (i) and (ii) above are payable in a lump sum on the 60th day following your termination date subject to the provisions of Attachment A. The Release described above will be provided to you by T-Mobile within 10 days following your termination of employment. T-Mobile recognizes that because you will be required to move to the State of Washington in order to carry out your new role, you would be deemed to have “good reason” that would allow you to resign and receive benefits under your CIC Agreement. This provision is included in recognition thereof. In addition, you shall be entitled to the following: (i) accrued and unpaid salary as of the date of termination; (ii) reimbursement of all expenses reasonably and necessarily incurred in accordance with T-Mobile policy; and (iii) any accrued but unused paid time off.

 

(c) Following the expiration or termination of the CIC Agreement in accordance with its terms, you shall be eligible for severance benefits under such change in control plan as T-Mobile shall institute for executives at your level as approved by the T-Mobile Compensation Committee. The severance benefit is expected to be an amount equal to two times the sum of your then effective annual Base Salary plus your Target Bonus. The specific terms and conditions will be outlined in the final plan document and it is expected that under such terms and conditions the payments and benefits would be provided in a manner to be exempt from the application of Section 409A of the Internal Revenue Code.

 

2


Relocation:

   You will receive relocation assistance for costs associated with your move to the Seattle, Washington area under T-Mobile’s Relocation Policy.

Stay Bonus:

   In addition to the compensation specified above, if (a) you remain employed by Metro Texas or any of its affiliates until May 1, 2014 (the “Stay Bonus Date”), or (b) your employment is terminated by Metro Texas or any of its affiliates prior to the Stay Bonus Date other than for “Cause” (as defined in the CIC Agreement), you will receive a lump sum payment of $322,400 in cash (the “Stay Bonus”) within 30 days of the earlier of (i) the Stay Bonus Date or (ii) the date your employment is terminated. The Stay Bonus will be less applicable taxes and withholdings.

Character of

Payments:

   Notwithstanding anything to the contrary set forth in the CIC Agreement, this retention letter or otherwise, the Stay Bonus shall not (a) offset or otherwise reduce the amounts (including any severance benefits) payable to you under the CIC Agreement, (b) be a payment to be taken into account under Section 3(b) of the CIC Agreement, or (c) reduce any Severance Benefits described in Section 3 of the CIC Agreement.

Benefits:

   You will remain eligible for Metro Texas benefits and benefit plans unless you are moved to the T-Mobile payroll, in which case you will be eligible for T-Mobile’s benefits and benefit plans. Until January 1, 2014, all benefits and benefit plans available to you (including vacation) will be no less favorable to you than was the case prior to the Closing, except that any changes to the vacation benefits of all Metro employees to conform to T-Mobile’s policies with respect to its employees, including a prohibition on taking vacation before it accrues, shall apply to you.

Service

Credit:

   For all T-Mobile benefits and benefit plans to which you become subject, whether existing, modified or newly adopted benefits or benefit plans (including without limitation vacation, severance and paid time off plans), you will receive service credit based on your original hire date April 6, 2009 for all purposes (including without limitation eligibility, vesting and benefit levels). In all cases, you will be treated no less favorably under the T-Mobile benefits and benefit plans than similarly situated employees of T-Mobile and its affiliates, including with respect to any 401(K), equity awards and deferred compensation plans or programs.

Employment

at

Will:

   Your employment is “at will,” meaning that it is not for a specific duration and may be terminated by you or Metro Texas at any time, for any reason or for no reason whatsoever, with or without notice, and with or without cause (provided, however, that termination of your employment shall not limit or impair any of your rights under the CIC Agreement or hat have otherwise accrued through the date your employment is terminated). The at-will status of your employment may not be altered except by a written contract signed by the President or CEO of T-Mobile. No one other than the President or CEO has the authority to enter into an employment contract with you or otherwise modify the at-will status of your employment.

 

3


Restrictive

Covenant and

Confidentiality

Agreement:

   Concurrently herewith, you have entered into a T-Mobile Restrictive Covenant and Confidentiality Agreement and have been released from your Metro restricted covenant and confidentiality agreement. To the extent any of the provisions of the Restrictive Covenant and Confidentiality Agreement are inconsistent with the provisions of the CIC Agreement, such provisions of the CIC Agreement shall be deemed terminated and to have no force or effect.

Section 409(A):

   See Attachment A

 

If the terms of this offer letter are acceptable, please confirm your acceptance below.

We are looking forward to you continuing in this key leadership role.

Sincerely,

T-Mobile US, Inc.

Larry Myers

 

LOGO

EVP, Human Resources

AGREED as of the date below:

 

/s/ Tom Currier

Tom Currier

Dated: April 30, 2013

 

4


ATTACHMENT A

Compliance with Section 409A

It is intended that this offer letter comply with the provisions of Section 409A of the Code and the Treasury regulations relating thereto, or satisfy the requirements for an exemption to Section 409A of the Code, in each case to the extent applicable to this offer letter and, accordingly, to the maximum extent permitted, this offer letter shall be interpreted and be administered in a manner to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, you shall not be considered to have terminated employment for purposes of this offer letter, and no payment shall be due to you under this offer letter that provides for payment in connection with your termination of employment, unless such termination constitutes your “separation from service” as such term is defined in Treasury Regulation Section 1.409A-1(h) and any successor provision thereto (“Separation from Service”). Any payments that qualify for the “short-term deferral” exception from Section 409A of the Code as described in Treasury Regulation Section 1.409A-1(b)(4) will be paid under such exception. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii) and the application of the short-term deferral exception), each payment under this offer letter will be treated as a separate payment. Notwithstanding anything to the contrary in this offer letter (whether under this offer letter or otherwise), to the extent delayed commencement of any portion of the payments to be made to you upon your Separation from Service is required to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of the Code, such portion of the payments shall be delayed and paid on the first business day after the earlier of (i) the date that is six months following such Separation from Service or (ii) your death. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, amounts reimbursable to you under this offer letter shall be paid to you on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to you) during any one year may not affect amounts reimbursable or provided in any subsequent year and may not be liquidated or exchanged for any other benefit.

 

5

EX-10.6 25 d527693dex106.htm EX-10.6 EX-10.6

Exhibit 10.6

INDEMNIFICATION AGREEMENT

THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is effective as of [date], by and among T-Mobile US, Inc., a Delaware corporation (the “Company”), and                     (the “Indemnitee”).

WHEREAS, the Indemnitee has been asked to serve or is currently serving on the Board of Directors (the “Board”) of the Company, as an officer of the Company, or as a director, officer, employee or agent of an Affiliate of the Company;

WHEREAS, competent and experienced persons are reluctant to serve publicly-held companies as directors and/or officers or in other fiduciary capacities at the request of such companies unless they are provided with adequate protection through liability insurance and adequate indemnification against risks of claims and actions against them arising out of such service;

WHEREAS, the Board has determined that the ability to attract and retain qualified persons to serve as directors and/or officers or in other fiduciary capacities at the request of the Company is in the best interests of the Company and its stockholders, and that the Company should act to assure such persons that there will be adequate protection through insurance and indemnification against risks of claims and actions against them arising out of their service to and activities on behalf of the Company or the Company’s Affiliates;

WHEREAS, Section 145 of the Delaware General Corporation Law (“Section 145”) empowers companies to indemnify, in accordance with the provisions of Section 145, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director, officer, employee or agent of a company, or is or was serving at the request of such company as a director, officer, employee or agent of another company, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, and to pay, in advance of the final disposition of any such action, suit or proceeding, the expenses (including attorneys’ fees) reasonably incurred by any person, in accordance with the provisions of Section 145;

WHEREAS, the Company has adopted provisions in its Fourth Amended and Restated Certificate of Incorporation (as amended and/or restated from time to time, the “Certificate”) addressing indemnification and advancement of expenses to its officers, directors and other Persons, and providing that such provisions shall not be exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any law, the Company’s bylaws, as amended and/or restated from time to time (the “Bylaws”), agreement, vote of stockholders or disinterested directors or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office; and


WHEREAS, the Indemnitee is willing to serve or continue to serve on the Board, as an officer or employee of the Company, or as a director, manager, member, officer, employee or agent of an Affiliate of the Company on the condition that he or she be so indemnified under the Certificate and this Agreement.

NOW THEREFORE, in consideration of the premises and the covenants contained herein, the Company and the Indemnitee do hereby covenant and agree as follows:

Section 1. Services by the Indemnitee. The Indemnitee agrees to serve or continue to serve at the request of the Company as a director, officer and/or employee of the Company (including, without limitation, service on one or more committees of the Board) and/or as a director, manager, member, officer, employee or agent of an Affiliate of the Company. Notwithstanding the foregoing, the Indemnitee may at any time and for any reason resign from any such position.

Section 2. Indemnification—General. The Company shall indemnify, and advance Expenses to, the Indemnitee as provided in this Agreement and to the fullest extent permitted by applicable law in effect on the date hereof and to such greater extent as such law may thereafter from time to time permit. The rights of the Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the other Sections of this Agreement.

Section 3. Proceedings Other Than Proceedings by or in the Right of the Company. The Indemnitee shall be entitled to the rights of indemnification provided in this Section 3 if, by reason of his or her Corporate Status, he or she is, or is threatened to be made, a party to or participant in any threatened, pending or completed Proceeding, other than a Proceeding by or in the right of the Company. Pursuant to this Section 3, the Company shall indemnify the Indemnitee against Expenses, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, penalties, fines and amounts paid in settlement) (as and to the extent permitted hereunder) actually and reasonably incurred by him or her or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company or in a manner otherwise expressly permitted under the Certificate, the Bylaws, or the Stockholder’s Agreement by and between Deutsche Telekom AG and the Company dated as of April 30, 2013 (the “Stockholder’s Agreement”) and, with respect to any criminal Proceeding, if he or she had no reasonable cause to believe his or her conduct was unlawful.

Section 4. Proceedings by or in the Right of the Company. The Indemnitee shall be entitled to the rights of indemnification provided in this Section 4 if, by reason of his or her Corporate Status, he or she is, or is threatened to be made, a party to or participant in any threatened, pending or completed Proceeding brought by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, the Company shall indemnify the Indemnitee against Expenses actually and reasonably incurred by him or her or on his or her behalf in connection with the defense or the settlement of such Proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best


interests of the Company or in a manner otherwise expressly permitted under the Certificate, the Bylaws, or the Stockholder’s Agreement. Notwithstanding the foregoing, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which the Indemnitee shall have been adjudged to be liable to the Company or if applicable law prohibits such indemnification; provided, however, that if applicable law so permits, indemnification against Expenses shall nevertheless be made by the Company in such event if and to the extent that the court in which such Proceeding shall have been brought or is pending, shall so determine.

Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.

(a) To the extent that the Indemnitee is, by reason of his or her Corporate Status, a party to and is wholly successful, on the merits or otherwise, in any Proceeding, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If the Indemnitee is not wholly successful in defense of any Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection with each such claim, issue or matter as to which the Indemnitee is successful, on the merits or otherwise. For purposes of this Section 5(a), and without limiting the foregoing, if any Proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was liable to the Company, (iii) a plea of guilty or nolo contendere by the Indemnitee, (iv) an adjudication that the Indemnitee did not act in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or in a manner that was not otherwise expressly permitted under the Certificate, the Bylaws or the Stockholder’s Agreement, and (v) with respect to any criminal proceeding, an adjudication that the Indemnitee had no reasonable cause to believe the Indemnitee’s conduct was unlawful, the Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto. The provisions of this Section 5(a) are subject to Section 5(b) below.

(b) In no event shall the Indemnitee be entitled to indemnification under Section 5(a) above with respect to a claim, issue or matter to the extent (i) applicable law prohibits such indemnification, or (ii) an admission is made by the Indemnitee in writing to the Company or in such Proceeding, or a final, nonappealable determination is made in such Proceeding, that the Indemnitee did not satisfy the standard of conduct required for indemnification under this Agreement that applies with respect to such claim, issue or matter as to which the Indemnitee was made, or was threatened to be made, a party to such Proceeding.

Section 6. Indemnification for Expenses as a Witness. Notwithstanding any provisions herein to the contrary, to the extent that the Indemnitee is, by reason of his or her Corporate Status, a witness, or is made or asked to respond to discovery requests, in any Proceeding to which the Indemnitee is not a party, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by or on behalf of the Indemnitee in connection therewith.


Section 7. Determination of Entitlement to Indemnification.

(a) Except as provided in Section 5(a) above and except for indemnification claims under Section 6 above, the Indemnitee shall be entitled to indemnification pursuant to this Agreement only upon a determination that the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause to believe that the Indemnitee’s conduct was unlawful.

(b) Upon written request of the Indemnitee for indemnification, the entitlement of the Indemnitee to such requested indemnification shall be determined by one of the following methods:

(i) by a majority vote of Disinterested Directors, whether or not such majority constitutes a quorum; or

(ii) by a committee of Disinterested Directors designated by majority vote of Disinterested Directors, whether or not such majority constitutes a quorum of the Board; or

(iii) if there are not Disinterested Directors or if the Disisnterested Directors so direct, by Independent Counsel in a written opinion to the Board, or designated committee of the Board, with a copy to the Indemnitee, which Independent Counsel shall be selected by majority vote of the Company’s directors at a meeting at which a quorum is present, or a majority vote of the Disinterested Directors, or committee of Disinterested Directors; or

(iv) if so directed by the Board, by the Company’s stockholders, by a majority vote of those in attendance at a meeting at which a quorum is present; or

(v) in the event that a Change of Control has occurred, upon written request of the Indemnitee, by Independent Counsel (selected by the Indemnitee) in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee.

(c) The Company shall pay any and all reasonable fees and Expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 7(b) hereof. The Company shall pay all costs associated with its determination of the Indemnitee’s eligibility for indemnification.

(d) To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. Promptly upon receipt of the Indemnitee’s request for indemnification, the secretary of the Company shall provide written notice of such request to the Board or such other person or persons empowered to make the


determination requested in Section 7(b), and the Company shall thereafter promptly make (or cause to be made) such determination. Subject to Section 11, if the Person empowered or selected under Section 7(b) to determine whether the Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent not prohibited by law or Section 11 hereof, be deemed to have been made and the Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the Person making such determination with respect to entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 7(d) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 7(b)(iv) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board resolves to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 7(b)(iii) of this Agreement.

(e) In making a determination with respect to entitlement to indemnification hereunder, the Person or Persons making such determination shall presume (unless there is clear and convincing evidence to the contrary) that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion, by clear and convincing evidence. Neither the failure of the Company (including by its Board or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its Board or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

Section 8. Advancement of Expenses.

(a) Subject to the terms and conditions of this Agreement, the Company shall advance all reasonable Expenses incurred by or on behalf of the Indemnitee in connection with any Proceeding within 20 calendar days after the receipt by the Company of a written statement or statements from the Indemnitee requesting such advance or advances from time to time, whether prior to or after the final disposition of such Proceeding. Such written statement or statements shall reasonably evidence the Expenses incurred or payable by or on behalf of the Indemnitee. All amounts advanced to the Indemnitee by the Company pursuant to this Section 8 shall be without interest.


(b) As a condition precedent to the Company’s advancement of Expenses to the Indemnitee, the Indemnitee shall provide the Company with an undertaking, in substantially the form attached as Exhibit 1, by or on behalf of the Indemnitee to reimburse such amount if (and only if) there is a final, nonappealable adjudication or arbitration decision pursuant to which it is determined that the Indemnitee is not entitled to be indemnified against such Expenses. Indemnitee’s undertaking to reimburse any such amounts is not required to be secured and the Company shall make all advances pursuant to this Section 8 without regard to the financial ability of the Indemnitee to make repayment, without bond or other security and without regard to the prospect of whether the Indemnitee may ultimately be found to be entitled to indemnification under the provisions of this Agreement

(c) Indemnitee shall submit to the Company a written request specifying the indemnifiable amounts for which the Indemnitee seeks payment under Sections 2, 3 and 4 of this Agreement and the basis for the claim. Subject to the terms and conditions of this Agreement, the Company shall pay such indemnifiable amounts to the Indemnitee within 30 calendar days (or earlier if reasonably requested by the Indemnitee) of receipt of the request. At the request of the Company, the Indemnitee shall furnish such documentation and information as are reasonably available to the Indemnitee and necessary to establish that the Indemnitee is entitled to indemnification hereunder. The Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. If indemnification for indemnifiable amounts has been made under this Section 8 and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, the Indemnitee is not entitled under this Agreement to such indemnification with respect to any or all of such indemnifiable amounts, then the Indemnitee shall promptly, but in no event more than 60 calendar days from the date such judgment has been adjudicated finally by a court of competent jurisdiction, repay any or all of such indemnifiable amounts, as the case may be, to the Company.

Section 9. Remedies of the Indemnitee.

(a) In the event that (i) advancement of Expenses is not timely made pursuant to Section 8 of this Agreement, (ii) payment of indemnification is not made pursuant to Section 6 of this Agreement within 10 calendar days after receipt by the Company of a written request therefor or (iii) payment of indemnification is not made within the time provided in and pursuant to Section 8 of this Agreement, the Indemnitee shall be entitled to an adjudication in a court of competent jurisdiction of his or her entitlement to such indemnification or advancement of Expenses.


(b) In the event that indemnification is requested pursuant to Section 8 of this Agreement and such indemnification payment is not made within the time provided in Section 8, any judicial proceeding commenced pursuant to this Section 9 shall be conducted in all respects as a de novo trial on the merits, and the Indemnitee shall not be prejudiced by reason of the Company’s failure to make such indemnification payment, regardless of the Company’s basis for refusing to make such payment. In any judicial proceeding or arbitration commenced pursuant to this Section 9, the Company shall have the burden of proving that the Indemnitee is not entitled to indemnification. If the Indemnitee commences a judicial proceeding or arbitration pursuant to this Section 9, the Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section 8 until a final determination is made with respect to the Indemnitee’s entitlement to indemnification (as to which rights of appeal have been exhausted or lapsed).

(c) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 9 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all of the provisions of this Agreement.

(d) In the event that the Indemnitee, pursuant to this Section 9, seeks a judicial adjudication to enforce his or her rights under, or to recover damages for breach of, this Agreement, the Indemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him or her in such judicial adjudication, unless the court determines that each of the Indemnitee’s claims in such Proceeding were made in bad faith or were frivolous. In the event that a Proceeding is commenced by or in the right of the Company against the Indemnitee to enforce or interpret any of the terms of this Agreement, the Indemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him or her in such Proceeding (including with respect to any counter-claims or cross-claims made by the Indemnitee against the Company in such Proceeding), unless the court determines that each of the Indemnitee’s material defenses in such Proceeding were made in bad faith or were frivolous.

(e) Any judicial adjudication (as to which rights of appeal have been exhausted or lapsed) determined under this Section 9 shall be final and binding on the parties.

Section 10. Defense of Certain Proceedings. Notwithstanding any other provision of this Agreement, with respect to any such Proceeding of which the Indemnitee notifies the Company:

(a) Except as otherwise provided in this Section 10(a), to the extent that it may wish, the Company may, separately or jointly with any other indemnifying party, assume the defense of the Proceeding. After notice from the Company to the Indemnitee of its election to assume the defense of the Proceeding, the Company shall not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee except as otherwise provided below. Indemnitee shall have the right to employ the Indemnitee’s own counsel in such Proceeding but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of the Indemnitee


unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably determined that there is an actual or potential conflict of interest between the Company and the Indemnitee in the conduct of the defense of the Proceeding, or (iii) the Company shall not within 20 calendar days of receipt of notice of the Proceeding from the Indemnitee in fact have employed counsel to assume the defense of such Proceeding.

(b) The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company, or as to which the Indemnitee shall have made the determination provided for in subparagraph (a)(ii) above.

Section 11. Exception to Right of Indemnification or Advancement of Expenses. Notwithstanding any other provision of this Agreement, the Indemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement:

(a) with respect to any Proceeding, or any claim therein, brought or made by the Indemnitee against the Company, except for (i) any claim or Proceeding in respect of this Agreement and/or the Indemnitee’s rights hereunder, (ii) any claim or Proceeding to establish or enforce a right to indemnification under the Certificate, the Bylaws, the Stockholder’s Agreement, or under any statute or law, (iii) any counter-claim or cross-claim brought or made by the Indemnitee against the Company in any Proceeding brought by or in the right of the Company against the Indemnitee and (iv) any claim or Proceeding approved by the Board;

(b) with respect to any Proceeding, or any claim therein, brought or made by the Indemnitee against any other Person, except for Proceedings or claims approved by the Board and claims to enforce insurance rights under insurance policies purchased pursuant to or in accordance with Section 13 herein;

(c) in respect of any claim, issue or matter in such Proceeding as to which the Indemnitee shall have been adjudged to be liable to the Company, except to the extent that the court in which such Proceeding shall have been brought or is pending shall so determine;

(d) to the extent such indemnification or advancement is expressly prohibited by Delaware law or the public policies of Delaware, the United States of America or agencies of any governmental authority in any jurisdiction governing the matter in question;

(e) for the disgorgement of profits arising from the purchase or sale by the Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act, or any similar successor statute; or

(f) for the Indemnitee’s reimbursement to the Company of any bonus or other incentive-based or equity-based compensation previously received by the Indemnitee or payment of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform Act of 2010 or any compensation recoupment or “clawback” policy of the Company to which the Indemnitee is subject.


Section 12. Contribution.

(a) If, with respect to any Proceeding, the indemnification provided for in this Agreement is held by a court of competent jurisdiction to be unavailable to the Indemnitee by final and nonappealable order for any reason other than that the Indemnitee did not act in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to a criminal Proceeding, that the Indemnitee had reasonable cause to believe his or her conduct was unlawful, the Company shall contribute to the amount of Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein in such proportion as is appropriate to reflect the relative benefits received by the Indemnitee and the relative fault of the Indemnitee versus the other defendants or participants in connection with the action or inaction which resulted in such Expenses, judgments, penalties, fines and amounts paid in settlement, as well as any other relevant equitable considerations.

(b) The Company and the Indemnitee agree that it would not be just and equitable if contribution pursuant to this Section 12 were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 12(a) above.

(c) No Person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended) shall be entitled to contribution from any Person who was not found guilty of such fraudulent misrepresentation.

Section 13. Officer and Director Liability Insurance. The Company shall use all commercially reasonable efforts to obtain and maintain in effect during the entire period for which the Company is obligated to indemnify the Indemnitee under this Agreement, one or more policies of insurance with reputable insurance companies to provide the directors and officers of the Company with coverage for losses from wrongful acts and omissions and to ensure the Company’s performance of its indemnification obligations under this Agreement. In all such insurance policies, the Indemnitee shall be named as an insured in such a manner as to provide the Indemnitee with the same rights and benefits as are accorded to the most favorably insured of the Company’s directors and officers. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain such insurance if the Company determines in good faith that the Indemnitee is adequately covered by such insurance maintained by a subsidiary or other Affiliate of the Company.

(a) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees or agents of any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other


enterprise which the Indemnitee serves at the request of the Company, the Indemnitee shall be named as an insured under and shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for the most favorably insured director or officer under such policy or policies.

(b) The Company shall maintain the policies of insurance referred to in (a) and (b) above so long as the Indemnitee has Corporate Status and for six (6) years after the Indemnitee no longer has Corporate Status.

Section 14. Settlement of Claims. The Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected by the Indemnitee without the Company’s written consent, which consent shall not be unreasonably withheld.

Section 15. Duration of Agreement. This Agreement shall be unaffected by the termination of the Corporate Status of the Indemnitee and shall continue for so long as the Indemnitee may have any liability or potential liability by virtue of his or her Corporate Status or may be asked to serve as a witness because of his or her Corporate Status, including, without limitation, the final termination of all pending Proceedings in respect of which the Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any Proceeding commenced by the Indemnitee pursuant to Section 9 of this Agreement relating thereto, whether or not he or she is acting or serving in such capacity at the time any liability or Expense is incurred for which indemnification can be provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.

Section 16. Limitation of Liability. Notwithstanding any other provision of this Agreement, neither party shall have any liability to the other for, and neither party shall be entitled to recover from the other, any consequential, special, punitive, multiple or exemplary damages as a result of a breach of this Agreement.

Section 17. Subrogation. In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

Section 18. No Multiple Recovery. The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and only to the extent that the Indemnitee has otherwise actually received payment of such amounts under any insurance policy, contract, agreement or otherwise, it being understood that the Indemnitee shall not be obligated to seek any such payments.


Section 19. Definitions. For purposes of this Agreement:

(a) “Affiliate” means, with respect to any Person, (i) any corporation, partnership, limited liability company, joint venture, trust or other enterprise (A) in which such Person directly or indirectly holds at least a twenty percent (20%) equity interest or (B) is controlled by, under common control with or controls such Person, or (ii) any employee benefit plan sponsored or maintained by the Company or any Affiliate of the Company, including without limitation any employee benefit plan which is governed by the Employee Retirement Income Security Act of 1974, as amended.

(b) “Change of Control” means a change in control of the Company occurring after the date and year first above written (the “Effective Date”) of a nature that would be required to be reported in response to Item 5.01 of Current Report on Form 8-K (or in response to any similar item on any similar schedule or form) promulgated under the Exchange Act, whether or not the Company is then subject to such reporting requirement; provided, however, that, without limitation, such a Change of Control shall be deemed to have occurred if after the Effective Date (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing thirty percent (30%) or more of the combined voting power of the Company’s then outstanding securities without the prior approval of at least two-thirds of the members of the Board in office immediately prior to such person attaining such percentage, (ii) the Company is a party to a merger, consolidation, sale of assets or other reorganization, or a proxy contest, as a consequence of which members of the Board in office immediately prior to such transaction or event constitute less than a majority of the Board thereafter, or (iii) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board (including for this purpose any new director whose election or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) cease for any reason to constitute at least a majority of the Board.

(c) “Corporate Status” describes the status of an individual who is or was an officer or director of the Company, or is or was serving at the request of the Company as an officer, director, manager, member, employee, administrator, agent or other fiduciary of an Affiliate of the Company.

(d) “Disinterested Directors” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification or advancement of expenses is sought by the Indemnitee.

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

(f) “Expenses” shall include all reasonable attorneys’ fees, retainers, appellate fees and costs, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, arbitrator’s fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating or being or preparing to be a witness in a Proceeding


(g) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five (5) years has been, retained to represent (i) the Company or the Indemnitee in any matter material to either such party, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s rights under this Agreement.

(h) “Person” means a natural person, firm, partnership, joint venture, association, corporation, company, limited liability company, trust, business trust, estate or other entity.

(i) “Proceeding” includes any action, suit, hearings, arbitration, alternate dispute resolution mechanism, investigation, administrative hearing or any other proceeding whether formal or informal, governmental or non-governmental, or civil, criminal, administrative or investigative.

Section 20. Non-Exclusivity. The Indemnitee’s rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of, and shall be without prejudice to, any other rights to which the Indemnitee may at any time be entitled under applicable law, the Certificate, the Bylaws, the Stockholder’s Agreement, any agreement, a vote of stockholders, a resolution of directors or otherwise.

Section 21. Remedies Not Exclusive. No right or remedy herein conferred upon the Indemnitee is intended to be exclusive of any other right or remedy, and every other right or remedy shall be cumulative of and in addition to the rights and remedies given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy of the Indemnitee hereunder or otherwise shall not be deemed an election of remedies on the part of the Indemnitee and shall not prevent the concurrent assertion or employment of any other right or remedy by the Indemnitee.

Section 22. Changes in Law. In the event that a change in applicable law after the date of this Agreement, whether by statute, rule or judicial decision, expands or otherwise increases the right or ability of a Delaware corporation to indemnify a member of its board of directors or an officer, the Indemnitee shall, by this Agreement, enjoy the greater benefits so afforded by such change. In the event that a change in applicable law after the date of this Agreement, whether by statute, rule or judicial decision, narrows or otherwise reduces the right or ability of a Delaware corporation to indemnify a member of its board of directors or an officer, such change shall have no effect on this Agreement or any of the Indemnitee’s rights hereunder, except and only to the extent required by law.

Section 23. Interpretation of Agreement. The Company and the Indemnitee acknowledge and agree that it is their intention that this Agreement be interpreted and enforced so as to provide indemnification to the Indemnitee to the fullest extent now or hereafter permitted by law.


Section 24. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision or provisions will be deemed reformed to the extent necessary to conform to applicable law and to give maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision or provisions held invalid, illegal or unenforceable.

Section 25. Governing Law; Jurisdiction and Venue; Specific Performance.

(a) The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

(b) ANY DISPUTE ARISING OUT OF THIS AGREEMENT SHALL BE FILED IN AND LITIGATED OR ARBITRATED SOLELY BEFORE THE COURTS LOCATED IN OR ARBITRATORS SITTING IN NEW CASTLE COUNTY IN THE STATE OF DELAWARE, AND EACH PARTY TO THIS AGREEMENT: (i) GENERALLY AND UNCONDITIONALLY ACCEPTS THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND ARBITRATORS AND VENUE THEREIN, AND WAIVES TO THE FULLEST EXTENT PROVIDED BY LAW ANY DEFENSE OR OBJECTION TO SUCH JURISDICTION AND VENUE BASED UPON THE DOCTRINE OF “FORUM NON CONVENIENS;” AND (ii) GENERALLY AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING BY DELIVERY OF CERTIFIED OR REGISTERED MAILING OF THE SUMMONS AND COMPLAINT IN ACCORDANCE WITH THE NOTICE PROVISIONS OF THIS AGREEMENT.THE FOREGOING CONSENT TO JURISDICTION SHALL NOT CONSTITUTE GENERAL CONSENT TO SERVICE OF PROCESS IN THE STATE FOR ANY PURPOSE EXCEPT AS PROVIDED ABOVE, AND SHALL NOT BE DEEMED TO CONFER RIGHTS ON ANY PERSON OTHER THAN THE PARTIES TO THIS AGREEMENT.

Section 26. Notice by the Indemnitee. The Indemnitee agrees to promptly notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder.

Section 27. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and received for by the party to whom said notice or other communication shall have been directed, or (b) mailed by U.S. certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed: (i) If to the Company: General Counsel, T-


Mobile US, Inc. 12920 SE 38th St., Bellevue, WA 98006; and (ii) if to any other party hereto, including the Indemnitee, to the address of such party set forth on the signature page hereof; or to such other address as may have been furnished by any party to the other(s), in accordance with this Section 27.

Section 28. Modification and Waiver. No supplement, modification or amendment of this Agreement or any provision hereof shall limit or restrict in any way any right of the Indemnitee under this Agreement with respect to any action taken or omitted by the Indemnitee in his or her Corporate Status prior to such supplement, modification or amendment. No supplement, modification or amendment of this Agreement or any provision hereof shall be binding unless executed in writing by both of the Company and the Indemnitee. No waiver of any provision of this Agreement shall be deemed or shall constitute a wavier of any other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.

Section 29. Headings. The headings of the Sections or paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

Section 30. Identical Counterparts. This Agreement may be executed in one or more counterparts (whether by original, photocopy or facsimile signature), each of which shall for all purposes be deemed to be an original, but all of which together shall constitute one and the same Agreement. Only one such counterpart executed by the party against whom enforcement is soutgh must be produced to evidence the existence of this Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the day and year first above written.

 

T-Mobile US, Inc.     Indemnitee
By:  

 

   

 

Signature     Signature

 

   

 

Name     Name

 

          Address:  

 

Title    
     

 


EXHIBIT 1

UNDERTAKING TO REPAY INDEMNIFICATION EXPENSES

Pursuant to Section 8(b) of the Indemnification Agreement between T-Mobile US, Inc. and the undersigned, I agree to reimburse the Company for all expenses paid or reimbursed to me or advanced on my behalf by the Company for my defense in any civil or criminal action, suit, or Proceeding, in the event, and to the extent that it shall ultimately be determined that I am not entitled to be indemnified by the Company for such expenses pursuant to such Indemnification Agreement.

 

 

[Name]
EX-10.7 26 d527693dex107.htm EX-10.7 EX-10.7

Exhibit 10.7

DIRECTOR COMPENSATION PROGRAM

T-Mobile US, Inc.

Effective as of May 1, 2013

The terms of the Director Compensation Program (the “Program”) for Non-Employee Directors of T-Mobile US, Inc. (the “Company”) are set forth herein.

For purposes of the Program, a “Non-Employee Director” is any director of the Company who is not (i) an employee of the Company or any of its subsidiaries or (ii) an officer or employee of Deutsche Telekom AG or any of its subsidiaries.

 

1. Eligibility

Each Non-Employee Director of the Company elected or appointed to the Company’s Board of Directors (the “Board”) shall be eligible to receive the compensation set forth in the Program.

 

2. Non-Employee Director Compensation

Subject to the terms and conditions set forth herein and in the Plan, Non-Employee Directors shall receive the following compensation:

 

  a. Cash Compensation

Non-Employee Directors shall receive the following cash compensation, as applicable, to be paid in cash in equal quarterly installments after the end of the quarter in which earned:

 

Annual Retainer for Board Service    $ 100,000   
Additional Retainer for Lead Independent Director    $ 25,000   
Audit Committee Chair    $ 50,000   
Compensation Committee Chair    $ 25,000   
Nominating and Corporate Governance Committee Chair    $ 10,000   

Any person who becomes a Non-Employee Director and/or committee chair at any time of the year other than the date of the Annual Meeting of Stockholders shall receive a pro rata portion of cash compensation set forth above, as applicable, based on the number of days remaining in the one-year period following the date of the previous Annual Meeting of Stockholders.

Directors will receive additional compensation of $2,000 per meeting for in-person board or in-person committee meetings attended in excess 10 meetings. Directors will receive additional compensation of $1,000 per meeting for telephonic Board or committee meetings attended in excess of 10 meetings.

 

  b. Reimbursement of Expenses

The Company shall reimburse Non-Employee Directors for all reasonable costs and expenses incurred in attending meetings of the Board, Board committees, and the Company’s stockholders and in fulfilling their other responsibilities as directors of the Company.


  c. Restricted Stock Unit Grants

Immediately after each Annual Meeting of Stockholders beginning with the 2013 Annual Meeting of Stockholders, each Non-Employee Director shall automatically be granted restricted stock units of the Company (“RSUs”) with a value of $100,000 (based on the closing price of the Company’s common stock on the New York Stock Exchange on the grant date), with any fractional share rounded to the nearest whole share; provided, that any person who becomes a Non-Employee Director at any time of the year other than the date of the Annual Meeting of Stockholders shall automatically be granted RSUs equal to the pro rata portion of $100,000 based on the number of days remaining in the one-year period following the date of the most recent previous Annual Meeting of Stockholders, such grant to be effective on the date he or she becomes a Non-Employee Director and based on the closing price of the Company’s common stock on the New York Stock Exchange on the grant date, with any fractional share rounded to the nearest whole share.

The RSUs shall be fully vested as of the one-year anniversary of the date on which the RSUs were granted, contingent upon the Non-Employee Director’s continuous service on the Board during such period; provided, however, that for a person who becomes a Non-Employee Director at any time other than the date of the Annual Meeting of Stockholders, the vesting date shall be the one-year anniversary of the grant date for awards made in connection with the most recent previous Annual Meeting of Stockholders. In the event of a Non-Employee Director’s resignation or removal prior to the vesting of the RSUs, such RSUs shall automatically be forfeited to the Company; provided, however, that if a Non-Employee Director serves through the date of an Annual Meeting of Stockholders but does not stand for re-election at that meeting, any RSU award made for the prior year that has not yet vested as of such meeting shall continue to vest per schedule. In the event of a Non-Employee Director’s death, the RSUs shall immediately vest.

Upon a Change in Control of the Company (as defined in the Company’s Omnibus Incentive Plan), the RSUs shall immediately vest upon the date of such Change in Control.

RSUs shall be granted pursuant to the Company’s Omnibus Incentive Plan (the “Plan”) and shall be subject to the terms and conditions of the Plan and the applicable restricted stock unit agreement in effect on the grant date. Capitalized terms used but not defined herein shall have the meanings given to them in the Plan. The above terms supplement, and do not alter or change, the provisions of the Plan. In the event of any inconsistency between the terms contained herein and in the Plan, the Plan shall govern.

Notwithstanding any other provision of the Program contrary, the RSUs granted in connection with the 2013 Annual Meeting of Stockholders shall not be effective until the later of the conclusion of the 2013 Annual Meeting of Stockholders and the effective time of the Form S-8 Registration Statement filed to register the shares issuable under the Plan.

 

3. Amendment

The Board or the Compensation Committee may amend the provisions of the Program in such respects as it deems advisable. Any such amendment shall not, without the consent of the Non-Employee Director, impair or diminish any rights of the Non-Employee Director under the Program.

 

- 2 -

Confidential

EX-16.1 27 d527693dex161.htm EX-16.1 EX-16.1

Exhibit 16.1

 

LOGO      

Deloitte & Touche LLP

JPMorgan Chase Tower

2200 Ross Avenue, Suite 1600

Dallas, TX 75201-6778

USA

Tel: +1 214 840 7000

www.deloitte.com

May 1, 2013

Securities and Exchange Commission

100 F Street, N.E.

Washington, D.C. 20549-7561

Dear Sirs/Madams:

We have read Item 4.01 of T-Mobile US, Inc.’s Form 8-K dated May 1, 2013, and have the following comments:

 

  1. We agree with the statements made in the 1st paragraph of Item 4.01.

 

  2. We agree with the statements made in Item 4.01(a).

 

  3. We have no basis on which to agree or disagree with the statements made in Item 4.01(b).

Yours truly,

/s/ Deloitte & Touche LLP

 

 

Member of                            

Deloitte Touche Tohmatsu

EX-99.1 28 d527693dex991.htm EX-99.1 EX-99.1

EXHIBIT 99.1

T-MOBILE AND METROPCS COMBINATION COMPLETE—WIRELESS

REVOLUTION JUST BEGINNING

T-Mobile US to Ring NYSE Opening Bell as Trading Begins Today Under Ticker “TMUS”

BONN, GERMANY and BELLEVUE, WA / (May 1, 2013)—Deutsche Telekom AG (XETRA: DTE; “Deutsche Telekom”) and T-Mobile US, Inc. today announced the completion of the combination of T-Mobile USA, Inc. and MetroPCS Communications, Inc., uniting two wireless innovators with one common vision: to bring wireless consumers exciting new choices while delivering an exceptional experience. The combined company, T-Mobile US, Inc., will begin trading on the New York Stock Exchange today under the ticker “TMUS.”

“The combination of T-Mobile and MetroPCS creates an even stronger disruptive force in the U.S. wireless market,” said John Legere, President & Chief Executive Officer of T-Mobile US, Inc. “Together, as America’s Un-carrier, we’ll continue our legacy of marketplace innovation by tearing up the old playbook and rewriting the rules of wireless to benefit consumers.”

As previously announced, the Board of Directors of the combined company will have 11 members, including two directors of MetroPCS who will continue with the combined company. Tim Höttges, currently Deputy Chief Executive Officer and Chief Financial Officer of Deutsche Telekom, will serve as Chairman of the Board.

“By uniting T-Mobile and MetroPCS, we have created a dynamic new player in the wireless industry that has the right strategy and management team in place to compete successfully in today’s marketplace,” said Mr. Höttges. “We look forward to realizing the tremendous potential of the new T-Mobile.”

A few facts about America’s Un-carrier:

   

2012 combined entity results would have reflected $24.8 billion of revenue, $6.4 billion of adjusted EBITDA1, $3.7 billion of capital expenditures (excluding spectrum purchases)2, and $2.7 billion of free cash flow3.

   

Approximately 43 million subscribers as of March 31, 2013, two exceptionally strong brands, and 70,000 customer touch points.

   

A wider choice of outstanding wireless devices, including iPhone, offered through simple, affordable rate plans for unlimited talk, text, and Web—with no restrictive annual service contracts required.

   

The combined company’s total PoP coverage is 301 million, of which 283 million are covered by owned network. 228 million are currently served with 4G and 200 million are expected to be covered with 4G LTE by the end of 2013.

   

An enhanced spectrum position that will provide greater network coverage and deeper 4G LTE coverage in key markets across the country. Combining the two companies’ spectrum provides a path to at least 20+20 MHz of 4G LTE in approximately 90% of the top 25 metro areas in 2014 and beyond.

   

Target five-year (2012 – 2017) compounded annual growth rates in the range of 3% – 5% for revenues, 7% – 10% for EBITDA, and 15% – 20% for free cash flow.


   

Projected cost synergies of $6 – $7 billion (net present value4), with additional potential upside from the focused geographic expansion of the MetroPCS brand.

Under the terms of the business combination agreement, MetroPCS effected a 1 for 2 reverse stock split, made a cash payment of $1.5 billion to its stockholders (approximately $4.05 per share prior to the reverse stock split), and acquired all of T-Mobile’s capital stock from Deutsche Telekom in exchange for approximately 74% of MetroPCS’ common stock on a pro forma basis.

The combined company is headquartered in Bellevue, Washington and maintains a significant presence in Richardson, Texas. The combined company will be led by President & Chief Executive Officer, John Legere, with former MetroPCS Vice Chairman and Chief Financial Officer, J. Braxton Carter, serving as CFO. As previously announced, the combined company will operate T-Mobile and MetroPCS as separate brands, led by Jim Alling and Thomas Keys, respectively, migrating to a common network infrastructure and with common support functions.

To mark the successful completion of the transaction, Mr. Legere and several customer-facing employees will ring the Opening Bell of the NYSE today, May 1, 2013.

Reconciliation of Non-GAAP Financial Measures to GAAP Financial Measures (Unaudited)

Information regarding the 2012 combined revenues, adjusted EBITDA, capital expenditures (excluding spectrum purchases), and free cash flow for the combined company is presented for informational purposes only. These combined company measures represent the sum of these financial measures for each company in 2012. They are not intended to represent or be indicative of the results of operations or financial position of the combined company had the business combination been consummated on January 1, 2012, and should not be taken as representative of the future results of operations or financial position of the combined company. This press release includes non-GAAP financial measures. The non-GAAP financial measures should be considered as a complement to, but not as a substitute for, financial information determined in accordance with GAAP.

1 The following tables illustrate the historical 2012 calculations of Adjusted EBITDA for T-Mobile USA, Inc. and MetroPCS Communications, Inc. and reconcile Adjusted EBITDA for each company to each company’s net (loss) income, which T-Mobile considers to be the most directly comparable GAAP financial measure to Adjusted EBITDA.

2 Capital Expenditures (excluding spectrum purchases) represent the sum of each company’s capital expenditures (excluding spectrum purchases) for 2012.

3 Free Cash Flow represents Adjusted EBITDA for each company (as calculated above) less Capital Expenditures (excluding spectrum purchases) for each company.

4 NPV is calculated with a 9% discount rate and 38% tax rate.


T-Mobile USA, Inc.  
Dollars in Millions    Year ended
December 31, 2012
 

Calculation of Adjusted EBITDA:

  

Net loss

   $ (7,336

Adjustments:

  

Interest expense to affiliates

     661   

Interest income

     (77

Other (income) expense, net

     5   

Income tax expense (benefit)

     350   

Depreciation and amortization

     3,187   

Impairment charges

     8,134   

Restructuring costs

     85   

Other, net

     (123
  

 

 

 

Adjusted EBITDA

   $ 4,886   
  

 

 

 
MetroPCS Communications, Inc.  
Dollars in Millions    Year ended
December 31, 2012
 

Calculation of Adjusted EBITDA:

  

Net income

   $ 394   

Adjustments:

  

Depreciation and amortization

     641   

Loss (gain) on disposal of assets

     9   

Stock-based compensation expense

     38   

Interest expense

     275   

Interest income

     (2

Other (income) expense, net

     (5

Gain on settlement

     (53

Provision for income taxes

     213   
  

 

 

 

Adjusted EBITDA

   $ 1,512   
  

 

 

 
 

 

Other, net for the year ended December 31, 2012 represents a net gain on an AWS spectrum license purchase and exchange, transaction-related costs incurred for the terminated AT&T acquisition of T-Mobile, and transaction-related costs incurred from the proposed business combination with MetroPCS Communications. Other, net transactions may not agree in total to the other, net classification in the Consolidated Statements of Operations and Comprehensive Income (Loss) due to certain routine operating activities, such as insignificant routine spectrum license exchanges that would be expected to reoccur, and are therefore not excluded from Adjusted EBITDA.

About T-Mobile US, Inc.

As America’s Un-carrier, T-Mobile US, Inc. (NYSE: “TMUS”) is redefining the way consumers and businesses buy wireless services through leading product and service innovation. The company’s advanced nationwide 4G and 4G LTE network delivers outstanding wireless experiences for customers who are unwilling to compromise on quality and value. Based in Bellevue, Wash., T-Mobile US, Inc. operates its flagship brands, T-Mobile and MetroPCS. It currently serves approximately 43 million wireless subscribers and provides products and services through 70,000 points of distribution. For more information, please visit: http://www.T-Mobile.com

Contacts:

T-Mobile US, Inc.

Media Relations

425-378-4002

mediarelations@t-mobile.com

Investor Relations

212-424-2959

investor.relations@telekom.com

Forward-Looking Statements

This press release includes “forward-looking statements” within the meaning of the U.S. federal securities laws. Any statements made herein that are not statements of historical fact, including statements about T-Mobile US, Inc.’s competitive position, strategy, growth plans and prospects, the expected impact of its plans and strategies on the wireless industry, expected network modernization and other advancements, expected access to capital, projected growth rates, and projected synergies, are forward-looking statements. Generally, forward-looking statements may be identified by words such as “anticipate,” “expect,” “suggests,” “plan,” “believe,” “intend,” “estimates,” “targets,”


“views,” “may,” “will,” “forecast,” and other similar expressions. The forward-looking statements speak only as of the date made, are based on current assumptions and expectations, and involve a number of risks and uncertainties. Important factors that could affect future results and cause those results to differ materially from those expressed in the forward-looking statements include, among others, the following: our ability to compete in the highly competitive U.S. wireless telecommunications industry; adverse conditions in the U.S. and international economies and markets; our ability to successfully integrate the MetroPCS and T-Mobile businesses and realize expected synergies and other benefits from the recent combination; the effects of Deutsche Telekom’s controlling interest in us and its rights as a controlling stockholder and a holder of a substantial amount of our debt securities; our significant capital commitments and the capital expenditures required to effect our business plan; our significant amount of indebtedness and the limitations and obligations imposed by the provisions thereof; our ability to adapt to future changes in technology, enhance existing offerings, and introduce new offerings to address customers’ changing demands; write-offs or changes in our accounting assumptions; the outcome of any pending, threatened or potential litigation; changes in legal and regulatory requirements, including any change or increase in restrictions on our ability to operate our network; our ability to successfully maintain and improve our network, and the possibility of incurring additional costs in doing so; major equipment failures; security breaches related to the network or customer information; severe weather conditions or other force majeure events; disruptions of our key supply relationships; our ability to attract and retain key members of management and train personnel; significant increases in benefit plan costs or lower investment returns on plan assets; our ability to maintain good labor relations; the availability of additional spectrum, our ability to secure additional spectrum, or secure it at acceptable prices, when we need it; and other risks described in MetroPCS’ annual report on Form 10-K, filed with the Securities and Exchange Commission (SEC) on March 1, 2013, and other filings filed with the SEC. You should not place undue reliance on these forward-looking statements. We do not undertake to update forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.

# # #

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