As filed with the Securities and Exchange Commission on April 24, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
SBA COMMUNICATIONS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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Florida |
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4899 |
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65-0716501 |
(State or other jurisdiction of
incorporation or organization) |
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(Primary Standard Industrial
Classification Code Number) |
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(I.R.S. Employer
Identification No.) |
8051 Congress Avenue
Boca Raton, Florida 33487
(561) 995-7670
(Address,
including zip code, and telephone number, including area code, of registrants principal executive offices)
Thomas P. Hunt,
Esq.
Executive Vice President, Chief Administrative Officer and General Counsel
SBA Communications Corporation
8051 Congress Avenue
Boca Raton, Florida 33487
Phone (561) 995-7670/Fax: (561) 995-7672
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Kara L.
MacCullough, Esq.
Greenberg Traurig, P.A.
401 East Las Olas Boulevard, Suite 2000
Fort Lauderdale, FL 33301
Phone: (954) 765-0500/Fax: (954) 765-1477
Approximate date of
commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the securities being
registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: ¨ If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ¨
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of large accelerated filer, accelerated filer, and smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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x |
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Accelerated filer |
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Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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Calculation of Registration Fee
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Title of each class of securities to be
registered |
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Amount to be registered |
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Proposed
maximum offering price
per unit |
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Proposed
maximum aggregate
offering price (1) |
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Amount of
registration fee
(2) |
4.875 % Senior Notes due 2022 |
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$750,000,000 |
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100% |
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$750,000,000 |
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$87,150 |
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(1) |
Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(f) of the Securities Act of 1933. |
(2) |
The registration fee was calculated pursuant to Rule 457(f) under the Securities Act of 1933. |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not
consummate the exchange offer until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell or exchange these securities and it is not soliciting an offer to buy these
securities in any jurisdiction where the offer, sale or exchange is not permitted.
Subject to Completion, Dated April 24, 2015
PROSPECTUS
SBA COMMUNICATIONS CORPORATION
Offer to Exchange
$750,000,000 4.875% Senior Notes due 2022
for
$750,000,000 4.875%
Senior Notes due 2022, that have been registered under the Securities Act
SBA Communications Corporation
is offering to exchange all of the outstanding unregistered $750,000,000 4.875% Senior Notes due 2022, which we refer to as the Original Notes, for registered $750,000,000 4.875% Senior Notes due 2022, which we refer to as the Exchange Notes.
Material Terms of the Exchange Offer:
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The exchange offer will expire at 12:00 midnight, New York City time, on [20 business days after commencement], 2015, unless extended. |
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Upon expiration of the exchange offer, all Original Notes that are validly tendered and not withdrawn will be exchanged for an equal principal amount of Exchange Notes. |
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You may withdraw tendered Original Notes at any time prior to the expiration of the exchange offer. |
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The exchange offer is not subject to any minimum tender condition, but is subject to customary conditions. |
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The exchange of the Exchange Notes for Original Notes will not be a taxable exchange for U.S. Federal income tax purposes. |
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We are offering the exchange pursuant to a registration rights agreement that we entered into in connection with the issuance of the Original Notes. |
Material Terms of the Exchange Notes:
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The terms of the Exchange Notes are substantially identical to the terms of the Original Notes, except that the transfer restrictions, registration rights and additional interest provisions relating to the Original
Notes will not apply to the Exchange Notes. |
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There is no existing public market for the Original Notes or the Exchange Notes. We do not intend to list the Exchange Notes on any securities exchange or quotation system. |
See the Section entitled Risk Factors that begins on page 7 for a discussion of the risks that you
should consider prior to tendering your Original Notes in the exchange offer.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the Exchange Notes to be distributed in the exchange offer or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2015.
You should rely only on the information contained in this prospectus. We have not authorized anyone to provide
you with any information or represent anything about us, our financial results or this offering that is not contained in this prospectus. If given or made, any such other information or representation should not be relied upon as having been
authorized by us. We are not making an offer to exchange Original Notes in any state where the offer is not permitted.
This prospectus contains summaries
of the material terms of certain documents and refers you to certain documents that we have filed with the Securities and Exchange Commission (the Commission). See Where You Can Find More Information; Incorporation by
Reference. Copies of these documents, except for certain exhibits and schedules, will be made available to you without charge upon written or oral request to:
SBA Communications Corporation
8051 Congress Avenue
Boca Raton,
Florida 33487
Phone (561) 995-7670
Fax (561) 998-3448
In order to obtain
timely delivery of such materials, you must request information from us no later than five business days prior to the expiration of the exchange offer.
The information in this prospectus is current only as of the date on its cover, and may change after that date. The information in any document incorporated
by reference in this prospectus is current only as of the date of any such document. For any time after the cover date of this prospectus, we do not represent that our affairs are the same as described or that the information in this prospectus is
correctnor do we imply those things by delivering this prospectus or issuing Exchange Notes to you.
Each broker-dealer that receives Exchange Notes
for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with
resales of Exchange Notes received in exchange for Original Notes where such Original Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Company has agreed that, starting on the
expiration date and ending on the close of business one year after the expiration date, it will make this prospectus available to any broker-dealer for use in connection with any such resale. See Plan of Distribution.
TABLE OF CONTENTS
Unless otherwise indicated or the context otherwise requires, when used in this prospectus, the terms
SBA, SBA Communications, we, our, and us refer to SBA Communications Corporation and its subsidiaries.
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Prospectus Summary
This prospectus summary should be read in conjunction with, and is qualified in its entirety by, the more detailed information appearing
elsewhere in, and incorporated by reference into, this prospectus.
SBA Communications Corporation
We are a leading independent owner and operator of wireless communications tower structures, rooftops and other structures that support
antennas used for wireless communications, which we collectively refer to as towers or sites. Our principal operations are in the United States and its territories. In addition, we own and operate towers in Brazil, Canada and
Central America. Our primary business line is our site leasing business, which contributed 96.3% of our total segment operating profit for the year ended December 31, 2014. In our site leasing business, we (1) lease antenna space to
wireless service providers on towers that we own or operate and (2) manage rooftop and tower sites for property owners under various contractual arrangements. As of December 31, 2014, we owned 24,292 sites, a substantial portion of which
have been built by us or built by other tower owners or operators who, like us, have built such towers to lease space to multiple wireless service providers. We also managed or leased approximately 5,000 actual or potential sites, approximately 500
of which were revenue producing as of December 31, 2014. Commencing in the second quarter of 2014, we classified our site leasing business into two reportable segments, domestic site leasing and international site leasing. As of
December 31, 2014, we had 15,124 sites in the United States. For the year ended December 31, 2014, we generated 85.1% of our total site leasing revenue from these sites. Domestic site leasing revenues are received primarily from AT&T,
Sprint, Verizon Wireless, and T-Mobile. As of December 31, 2014, we owned 9,168 sites in our international markets, including Brazil, Canada, Costa Rica, El Salvador, Guatemala, Nicaragua, and Panama. International site leasing revenues are
received primarily from Oi S.A., Telefonica, Claro, Digicel, TIM, and NII Holdings.
Our other business line is our site development
business, through which we assist wireless service providers in developing and maintaining their own wireless service networks.
Principal Executive
Offices
Our principal executive offices are located at 8051 Congress Avenue, Boca Raton, Florida 33487 and the telephone number is
(561) 995-7670. SBA was founded in 1989 and incorporated in Florida in 1997. SBAs corporate website is www.sbasite.com. The information contained on SBAs website is not part of this prospectus.
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Summary of the Exchange Offer
This summary is not a complete description of the Exchange Offer. For a more detailed description of the Exchange Offer, see The
Exchange Offer in this prospectus.
Offering of the Original Notes |
On July 1, 2014, SBA issued in a private placement $750.0 million in aggregate principal amount of 4.875% Senior Notes due 2022, which we refer to as the Original Notes. The Original Notes are not secured. |
Registration Rights Agreement |
Pursuant to the registration rights agreement among SBA and the several initial purchasers, entered into in connection with the issuance of the Original Notes, SBA agreed to offer to exchange the Original Notes for up to $750.0 million in
aggregate principal amount of 4.875% Senior Notes due 2022 that have been registered under the Securities Act of 1933, which we refer to as the Exchange Notes. |
The Exchange Offer |
SBA is offering to exchange the Exchange Notes for the same aggregate principal amount of the Original Notes (the Exchange Offer). |
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The Original Notes may be tendered only in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. We will exchange the Exchange Notes for all of Original Notes that are validly tendered and not withdrawn prior to the
expiration of the Exchange Offer. |
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The Exchange Notes will evidence the same debt as the Original Notes and will be issued under and entitled to the benefits of the same indenture that governs the Original Notes. Because we have registered the Exchange Notes, the Exchange Notes
will not be subject to transfer restrictions, and holders of Original Notes that have tendered and had their Original Notes accepted in the Exchange Offer will have no further registration rights nor the related special interest provisions.
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Conditions to the Exchange Offer |
The Exchange Offer is subject to customary conditions. The Exchange Offer is not conditioned upon any minimum principal amount of the Original Notes being tendered. |
Procedures For Tendering Original Notes |
If you wish to tender your Original Notes for Exchange Notes and you hold your Original Notes in book-entry form, you must request your participant of The Depository Trust Company, or DTC, to, on your behalf, instead of physically completing and
signing the letter of transmittal and delivering the letter and your Original Notes to the Exchange Agent, electronically transmit an acceptance through DTCs Automated Tender Offer Program, or ATOP. If your Original Notes are held in
book-entry form and are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, we urge you to contact that person promptly if you wish to tender your Original Notes pursuant to the Exchange Offer.
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If you wish to tender your Original Notes for Exchange Notes and you hold your Original Notes in certificated form, you must: |
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complete and sign the enclosed letter of transmittal by following the related instructions, and |
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send the letter of transmittal, as directed in the instructions, together with any other required documents, to the Exchange Agent either (1) with the Original Notes to be tendered, or (2) in compliance with
the specified procedures for guaranteed delivery of the Original Notes. |
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Please do not send your letter of transmittal or certificates representing your Original Notes to us. Those documents should be sent only to the Exchange Agent. Questions regarding how to tender and requests for information should be directed to
the Exchange Agent. See The Exchange Offer Exchange Agent. |
If You Fail to Exchange Your Original Notes |
If you do not exchange your Original Notes for Exchange Notes in the Exchange Offer, you will continue to be subject to the restrictions on transfer provided in the Original Notes and indenture governing those notes. In general, you may not
offer or sell your Original Notes unless such offer or sale is registered under the federal securities laws or are sold in a transaction exempt from or not subject to the registration requirements of the federal securities laws and applicable state
securities laws. |
Withdrawal Rights |
You may withdraw the tender of your Original Notes at any time before 12:00 midnight, New York City time, on the expiration date of the Exchange Offer. You must follow the withdrawal procedures as described under the heading The Exchange
Offer Withdrawal of Tenders. |
Expiration Date |
The Exchange Offer will expire at 12:00 midnight, New York City time, on [20 business days from commencement], 2015, unless we decide to extend the expiration date. |
Issuance of Exchange Notes |
We will issue Exchange Notes in exchange for Original Notes tendered and accepted in the Exchange Offer promptly following the expiration date (unless amended as described in this prospectus). |
Resale of Exchange Notes |
We believe that the Exchange Notes may be offered for resale, resold and otherwise transferred by you without compliance with the registration and prospectus delivery provisions of the Securities Act of 1933, as amended (the Securities
Act) provided that: |
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the Exchange Notes are being acquired in the ordinary course of business, |
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you are not participating, do not intend to participate, and have no arrangement or understanding with any person to participate in the distribution of the Exchange Notes issued to you in the Exchange Offer,
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you are not an affiliate of SBA, |
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you are not a broker-dealer tendering Original Notes acquired directly from us for your account, and |
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you are not prohibited by law or any policy of the Securities and Exchange Commission, or the Commission, from participating in the Exchange Offer. |
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Our belief is based on interpretations by the staff of the Commission, as set forth in no-action letters issued to third parties that are not related to us. The Commission has not
considered the Exchange Offer in the context of a no-action letter. We cannot assure you that the Commission would make similar determinations with respect to the Exchange Offer. If any of these conditions above are not satisfied, or if our belief
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accurate, and you transfer any Exchange Notes issued to you in the Exchange Offer without delivering a resale prospectus meeting the requirements of the Securities Act or without an exemption
from registration of your Exchange Notes from those requirements, you may incur liability under the Securities Act. We will not assume, nor will we indemnify you against, any such liability. |
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Each broker-dealer that receives Exchange Notes for its own account in exchange for Original Notes, where the Original Notes were acquired by such broker-dealer as a result of market-making or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes. See Plan of Distribution. |
U.S. Federal Income Tax Consequences |
The exchange of Original Notes for Exchange Notes pursuant to the Exchange Offer will not be a taxable event for U.S. federal income tax purposes. |
Use of Proceeds |
We will not receive any proceeds from the issuance of the Exchange Notes for Original Notes pursuant to the Exchange Offer. We will pay all of our expenses incident to the Exchange Offer. |
Appraisal Rights |
Holders of the Original Notes do not have any appraisal or dissenter rights in connection with the Exchange Offer. |
Exchange Agent |
U.S. Bank National Association is serving as exchange agent in connection with the Exchange Offer. |
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Summary of the Exchange Notes
This summary is not a complete description of the Exchange Notes. For a more detailed description of the Exchange Notes, see Description
of Notes in this prospectus.
Issuer |
SBA Communications Corporation, a Florida corporation. |
Securities |
$750,000,000 in aggregate principal amount of 4.875% Senior Notes due 2022. |
Maturity |
The Exchange Notes will mature on July 15, 2022. |
Interest Rate |
The Exchange Notes will bear interest at a rate of 4.875% per year. |
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The Exchange Notes will bear interest from the most recent date to which interest on the Original Notes has been paid. Interest on the Exchange Notes will be payable in cash on January 15 and July 15 of each year. |
Ranking |
The Exchange Notes will be SBAs senior unsecured obligations and will: |
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rank equally in right of payment with SBAs existing and future senior unsecured debt, if any; |
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rank senior in right of payment to SBAs future subordinated debt, if any; |
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be effectively subordinated to any of SBAs existing and future secured debt to the extent of the value of the assets securing such debt; and |
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be structurally subordinated to all liabilities of SBAs subsidiaries. |
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As of December 31, 2014, SBAs assets consisted solely of the capital stock of its subsidiary, SBA Telecommunications Corporation (Telecommunications). The Exchange Notes will not be guaranteed by Telecommunications or any
of its subsidiaries. As a result, the Exchange Notes will be structurally subordinated to all existing and future liabilities of Telecommunications and its subsidiaries. |
Optional Redemption |
SBA may redeem the Exchange Notes, in whole or in part, at any time on or after July 15, 2017, at the redemption prices listed under Description of NotesOptional Redemption. In addition, until July 15, 2017, SBA may
redeem up to 35% of the aggregate principal amount of the Exchange Notes with the net proceeds of certain equity offerings at 104.875% of the principal amount of the Exchange Notes plus accrued and unpaid interest, if any, and additional interest,
if any, to the redemption date. SBA may also redeem any of the Exchange Notes at any time prior to July 15, 2017 at a price equal to 100% of the principal amount plus a make-whole premium and accrued and unpaid interest, if any, and additional
interest, if any, to the redemption date. |
Repurchase at Option of Holders |
If SBA experiences a Change of Control and a Ratings Decline, each as defined in the indenture, SBA will be required to offer to repurchase the Exchange Notes from holders at a purchase price equal to 101% of the principal amount, plus accrued
and unpaid interest, if any, and additional interest, if any, to the repurchase date. Certain asset dispositions may require SBA to use the proceeds from those asset dispositions to make an offer to purchase the notes at 100% of their principal
amount, plus accrued and unpaid interest, if any, and additional interest, if any, to the date of purchase. See Description of NotesRepurchase at the Option of HoldersAsset Sales. |
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Covenants |
SBA will issue the Exchange Notes under the same indenture governing the Original Notes. The terms of the Exchange Notes will, among other things, restrict SBAs ability, and the ability of its restricted subsidiaries to: |
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Incur indebtedness, or any lien securing indebtedness; |
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Merge, consolidate or sell assets; |
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Make restricted payments, including pay dividends or make other distributions; |
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Enter into transactions with affiliates; |
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Enter into sale and leaseback transactions; and |
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Issue guarantees of indebtedness. |
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The covenants are subject to a number of exceptions and qualifications. Furthermore, the indenture excludes from the definition of restricted subsidiaries (1) foreign subsidiaries, unless otherwise designated a restricted subsidiary by SBA,
(2) any other subsidiary of SBA that is designated by the board of directors as an unrestricted subsidiary and (3) any subsidiary of an unrestricted subsidiary. As of the date of this prospectus, all of our foreign subsidiaries have been
designated as restricted subsidiaries under the indenture governing the notes; however, we may undesignate any of these subsidiaries in the future in accordance with the terms of the indenture. |
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If the notes are assigned an investment grade rating by Moodys Investors Service, Inc. and Standard & Poors Ratings Services and no default or event of default has occurred or is continuing, certain covenants related to the
notes will be suspended. If either rating on the notes should subsequently decline to below investment grade, the suspended covenants will be reinstituted. See Description of NotesCertain CovenantsChanges in Covenants When Notes
Rated Investment Grade. |
Listing |
We do not intend to list the Exchange Notes on any securities exchange. |
Book Entry Depository |
The Depository Trust Company. |
Trustee, Registrar and Transfer Agent |
U.S. Bank National Association. |
Governing Law |
State of New York. |
Risk Factors
Investing in the Exchange Notes involves risks. Potential investors are urged to read and consider the risk factors relating to an investment
in the Exchange Notes as set forth under Risk Factors in this prospectus and those described in the Annual Report on Form 10-K of SBA for the year ended December 31, 2014 filed with the Commission and incorporated by reference in
this prospectus as well as other information we include or incorporate by reference in this prospectus.
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Risk Factors
You should carefully consider the following risks relating to the Exchange Offer and the Exchange Notes, together with the risks and
uncertainties discussed under Forward-Looking Statements and the other information included or incorporated by reference in this prospectus, including the information under the heading Risk Factors in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2014, before deciding whether to participate in the Exchange Offer. Additional risks and uncertainties not currently known to us, or that we currently do not deem material also may materially
impair our financial condition, results of operations or liquidity. In this Risk Factors section, the notes refers to both the Original Notes and the Exchange Notes.
Risks Related to the Exchange Offer
If you fail to
follow the procedures of the Exchange Offer, your Original Notes will not be accepted for exchange.
We will not accept your
Original Notes for exchange if you do not follow the procedures of the Exchange Offer. We will issue the Exchange Notes as part of the Exchange Offer only after timely receipt of your Original Notes, a properly completed and duly executed letter of
transmittal and all other required documents or if you comply with the guaranteed delivery procedures for tendering your Original Notes. Therefore, if you want to tender your Original Notes, please allow sufficient time to ensure timely delivery. If
we do not receive your Original Notes, letter of transmittal and all other required documents by the Expiration Date of the Exchange Offer, or you do not otherwise comply with the guaranteed delivery procedures for tendering your Original Notes, we
will not accept your Original Notes for exchange. We are under no duty to give notification of defects or irregularities with respect to the tenders of Original Notes for exchange. If there are defects or irregularities with respect to your tender
of Original Notes, we will not accept your Original Notes for exchange unless we decide in our sole discretion to waive such defects or irregularities.
If you fail to exchange your Original Notes, they will continue to be restricted securities and may become less liquid.
Original Notes that you do not tender or we do not accept will, following the Exchange Offer, continue to be restricted securities, and you
may not offer to sell them except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities law. We will issue Exchange Notes in exchange for the Original Notes pursuant to the Exchange
Offer only following the satisfaction of the procedures and conditions set forth in The Exchange Offer Procedures for Tendering. These procedures and conditions include timely receipt by the Exchange Agent of such Original Notes
(or a confirmation of book-entry transfer) and of a properly completed and duly executed letter of transmittal (or an agents message from DTC).
Because we anticipate that most holders of Original Notes will elect to exchange their Original Notes, we expect that the liquidity of the
market for any Original Notes remaining after the completion of the Exchange Offer will be substantially limited. Any Original Notes tendered and exchanged in the Exchange Offer will reduce the aggregate principal amount of the Original Notes
outstanding. Following the Exchange Offer, if you do not tender your Original Notes you will not have any further registration rights, and your Original Notes will continue to be subject to certain transfer restrictions. Accordingly, the liquidity
of the market for the Original Notes could be adversely affected.
If an active trading market does not develop for the Exchange Notes, you may be
unable to sell the Exchange Notes or to sell them at a price you deem sufficient.
The Exchange Notes are a new issue of
securities for which there is currently no public trading market. We do not intend to list the Exchange Notes on any national securities exchange or automated quotation system. Accordingly, there can be no assurances that an active market will
develop upon completion of the Exchange Offer or, if it develops, that such market will be sustained, or as to the liquidity of any market. If an active market does not develop or is not sustained, the market price and the liquidity of the Exchange
Notes may be adversely affected. In addition, the liquidity of the trading market for the Exchange Notes, if it develops, and the market price quoted for the Exchange Notes, may be adversely affected by changes in the overall market for those
securities and by changes in our financial performance or prospects or in the prospects for companies in our industry generally.
Risks Related to the
Notes
We have a substantial level of indebtedness which may have an adverse effect on our business or limit our ability to take advantage of
business, strategic or financing opportunities.
We have, and will continue to have, a significant amount of indebtedness. Our
substantial level of indebtedness increases the possibility that we may be unable to generate cash sufficient to pay the principal, interest or other amounts due on our indebtedness when due. As a consequence of our indebtedness, (1) demands on
cash resources may increase, (2) we may be subject to restrictive covenants that further limit our financial and operating flexibility and (3) we may choose to institute self-imposed limits on indebtedness based on certain considerations
including market interest rates, relative leverage and strategic plans. For example, as a result of our substantial level of indebtedness and the uncertainties in the credit markets and the U.S. economy:
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We may be more vulnerable to general adverse economic and industry conditions; |
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We may find it more difficult to obtain additional financing to fund future working capital, capital expenditures and other general corporate requirements that would be in our best long-term interests;
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We may be required to dedicate a substantial portion of our cash flow from operations to the payment of principal and interest on our debt, reducing the available cash flow to fund other investments, including capital
expenditures; |
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We may be required to reduce our annual tower acquisition or new build goals; |
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We may have limited flexibility in planning for, or reacting to, changes in our business or in the industry; |
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We may have a competitive disadvantage relative to other companies in our industry that are less leveraged; and |
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We may be required to sell debt or sell some of our core assets or we may be required to sell equity securities, possibly on unfavorable terms, in order to meet payment obligations. |
These restrictions could have an adverse effect on our business by limiting our ability to take advantage of financings, new tower
development, mergers and acquisitions or other opportunities. Furthermore, subject to certain restrictions under our existing indebtedness, we may incur significant additional indebtedness in the future, some of which may be secured debt.
In addition, fluctuations in market interest rates may increase interest expense relating to our floating rate indebtedness, which we expect
to incur under our Senior Credit Agreement. There is no guarantee that any future refinancing of our indebtedness will have fixed interest rates or that interest rates on such indebtedness will be equal to or lower than the rates on our current
indebtedness.
The notes are effectively subordinated to our secured indebtedness.
Although the notes are designated senior notes, they are effectively subordinated to our secured indebtedness, to the extent of the value of
the assets securing such indebtedness. In the event of our bankruptcy, liquidation, reorganization or other winding up, the assets that secure debt ranking senior or equal in right of payment to the notes will be available to pay obligations on the
notes only after any secured debt has been repaid in full from these assets. There may not be sufficient assets remaining to pay amounts due on any or all of the notes then outstanding.
As of December 31, 2014, we had approximately $7.9 billion aggregate principal amount of total debt outstanding on a consolidated basis,
of which (i) $5.8 billion was secured indebtedness, comprised of $550.0 million of the 2010-2 Tower Securities, $610.0 million of the 2012-1 Tower Securities, $425.0 million of the 2013-1C Tower Securities, $575.0 million of the 2013-2C Tower
Securities, $330.0 million of the 2013-1D Tower Securities, $920.0 million of the 2014-1C Tower Securities and $620.0 million of the 2014-2C Tower Securities, $125.0 million outstanding under the Revolving Credit Facility, a secured revolving
credit facility established by SBA Senior Finance II pursuant to the Senior Credit Agreement (the Revolving Credit Facility), $172.5 million outstanding under the 2012-1 Term Loan borrowed by SBA Senior Finance II under the Senior
Credit Agreement (the 2012-1 Term Loan), $1.5 billion outstanding under the 2014 Term Loan borrowed by SBA Senior Finance II under the Senior Credit Agreement (the 2014 Term Loan) and
(ii) $2.1 billion was unsecured indebtedness, comprised of $500.0 million of 5.625% Senior Notes due 2019 issued by SBA Communications (the 5.625% Notes), $800.0 million of 5.75% Notes due 2020 issued by Telecommunications and
guaranteed by SBA Communications (the 5.75% Notes) and $750.0 million of 4.875% Senior Notes due 2022 issued by SBA Communications (the 4.875% Notes).
The 2010-2 Tower Securities means the $550.0 million of Secured Tower Revenue Securities Series 2010-2 issued on April 16,
2010 by a New York common law trust established by an indirect subsidiary of SBA (the Trust). The 2012-1Tower Securities means the $610.0 million of Secured Tower Revenue Securities Series 2012-1 issued on August 9, 2012
by the Trust. The 2013 Tower Securities means the $425.0 million of Secured Tower Revenue Securities Series 2013-1C (the 2013-1C Tower Securities), the $575.0 million of Secured Tower Revenue Securities Series 2013-2C (the
2013-2C Tower Securities) and the $330.0 million of Secured Tower Revenue Securities Series 2013-1D (the 2013-1D Tower Securities) issued on April 18, 2013 by the Trust. The 2014 Tower Securities means the
$920.0 million of Secured Tower Revenue Securities Series 2014-1C (the 2014-1C Tower Securities) and the $620.0 million of Secured Tower Revenue Securities Series 2014-2C (the 2014-2C Tower
Securities) issued on October 15, 2014 by the Trust. The Tower Securities means, collectively, the 2010-2 Tower Securities, the 2012-1 Tower Securities, the 2013 Tower Securities and the 2014 Tower Securities. SBA has granted
the lenders under the Senior Credit Agreement a first lien on the capital stock of Telecommunications, SBAs only significant asset, as collateral for SBAs guarantee of amounts due under the Senior Credit
8
Agreement. As of December 31, 2014, we had $1.8 billion outstanding under the Senior Credit Agreement (consisting of the 2012-1 Term Loan and the 2014 Term Loan (collectively, the Term
Loans) and the Revolving Credit Facility). In addition, under the Senior Credit Agreement, SBA Senior Finance II has the ability to borrow up to $1.0 billion under the Revolving Credit Facility, based upon its consolidated financial ratio and
compliance with the covenants in the Senior Credit Agreement. Furthermore, SBA Senior Finance II may elect to increase the Revolving Credit Facility or incur additional term loans under the Senior Credit Agreement, which would be secured
indebtedness.
The indenture governing the notes restricts, but does not prohibit, us or our restricted subsidiaries from incurring substantially
more debt, all of which could be senior to the notes. This increased leverage could increase the business and financial risks associated with our future operations.
The indenture governing the notes restricts, but does not prohibit, us or our restricted subsidiaries from incurring substantially more debt
in the future. Any additional indebtedness that we incur may rank equal to the notes and may be secured. The notes will be our senior unsecured obligations and will rank equally in right of payment with our existing and future senior unsecured debt,
including the 5.625% Notes and our guarantee of the 5.75% Notes. Consequently, if we incur any additional indebtedness that ranks equally with the notes, the holders of that debt will be entitled to share ratably with the holders of the notes, and
the holders of the 5.625% Notes and the 5.75% Notes, any proceeds distributed in connection with any insolvency, liquidation, reorganization, dissolution or other winding-up to which we may be subject.
If we incur any additional indebtedness that is secured, including any future securitization, then the holders of that future debt will be
entitled to be paid in full before the holders of the notes with any proceeds distributed in connection with any insolvency, liquidation, reorganization, dissolution or other winding-up of us and/or our restricted subsidiaries. Borrowings under the
Senior Credit Agreement, including the Revolving Credit Facility, the 2012-1 Term Loan, the 2014 Term Loan and the Tower Securities are secured, and as a result, are effectively senior to the notes. These borrowings may have the effect of reducing
your ability to receive the full amount of principal, interest and additional interest, if any, that is due under the notes. The Senior Credit Agreement also provides SBA Senior Finance II with the ability to borrow up to $1.0 billion under the
Revolving Credit Facility, based upon its consolidated financial ratio and compliance with the covenants in the Senior Credit Agreement. In addition, the Senior Credit Agreement permits SBA Senior Finance II, without the consent of the other
lenders, to request that one or more lenders provide SBA Senior Finance II with increases in the Revolving Credit Facility or additional term loans provided that after giving effect to the proposed increase in Revolving Credit Facility commitments
(assuming the Revolving Credit Facility commitments, as increased, were fully drawn) or incremental term loans the ratio of Consolidated Total Debt to Annualized Borrower EBITDA would not exceed 6.5x. Furthermore, any refinancing of the Tower
Securities or other incurrence of additional debt, including the incurrence of additional secured debt such as another securitization or issuance of Tower Securities, could increase the business and financial risks associated with our future
operations.
If any of the future indebtedness that we incur is incurred by any of our subsidiaries, then it will be effectively senior in
right of payment to the notes and the holders of that future debt will be entitled to be paid in full before the holders of the notes with any proceeds distributed in connection with any insolvency, liquidation, reorganization, dissolution or other
winding-up of us and/or our restricted subsidiaries.
The notes will be structurally subordinated to all obligations of our existing and future
subsidiaries.
The notes are our obligations and are not guaranteed by any of our operating subsidiaries. As a result, the notes
are structurally subordinated to all existing and future liabilities of our subsidiaries, including liabilities of any subsidiaries we may form or acquire in the future. Furthermore, our right to receive any assets of any of our subsidiaries upon
liquidation or reorganization, and, as a result, the right of the holders of the notes to participate in those assets, will also be effectively subordinated to the claims of that subsidiarys creditors. In addition, the indenture that will
govern the notes will, subject to some limitations, permit these subsidiaries to incur additional indebtedness and will not contain any limitation on the amount of other liabilities, such as trade payables, that may be incurred by these
subsidiaries. As of December 31, 2014, our subsidiaries had $6.6 billion of indebtedness outstanding.
9
The notes are the obligations of SBA, and are not guaranteed by its subsidiaries, however the operations of
SBA are conducted through, and substantially all of its consolidated assets are held by, its subsidiaries.
SBA is a holding
company whose only significant asset is the outstanding capital stock of Telecommunications. Substantially all of the cash flows from operations of SBA are generated by its subsidiaries and they will use such cash flows to repay their current and
future indebtedness prior to distributing any excess funds to SBA to service the obligations due on the notes. Accordingly, SBAs ability to service its debt, including payments of principal, interest and additional interest, if any, on the
notes, depends on the results of operations of its subsidiaries and upon the ability of such subsidiaries to provide SBA with cash, whether in the form of dividends, loans or otherwise, to pay amounts due on the obligations of SBA, including the
notes.
SBAs subsidiaries are separate and distinct legal entities and have no obligation, contingent or otherwise, to make payments
on the notes or to make any funds available for that purpose. In addition, dividends, loans or other distributions to SBA from such subsidiaries may be subject to contractual and other restrictions and are subject to other business considerations,
including the terms of the Senior Credit Agreement, the mortgage loan underlying the Tower Securities and the indenture governing the 5.75% Notes.
We expect that we will need to refinance a large portion of our indebtedness prior to the maturity of the notes. In the event we are not able to
refinance or repay such indebtedness, we may not be able to access the cash flow from all of our towers and we may need to take certain actions to service our debt obligations.
We anticipate that we will need to refinance a significant amount of our indebtedness prior to the maturity of the notes in 2022. As of
December 31, 2014, we had an aggregate of $6.6 billion of indebtedness outstanding that had an initial or anticipated maturity date within the next seven years, including the following:
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(1) |
$550.0 million of the 2010-2 Tower Securities, which have an anticipated repayment date of April 2017; |
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(2) |
$172.5 million under the 2012-1 Term Loan, which matures in May 2017; |
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(3) |
$610.0 million of the 2012-1 Tower Securities, which have an anticipated repayment date of December 2017; |
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(4) |
$425.0 million of the 2013-1C Tower Securities, which have an anticipated repayment date of April 2018; |
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(5) |
$330.0 million of the 2013-1D Tower Securities, which have an anticipated repayment date of April 2018; |
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(6) |
$920.0 million of the 2014-1C Tower Securities, which have an anticipated repayment date of October 2019; |
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(7) |
$500.0 million of the 5.625% Notes, which mature in October 2019; |
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(8) |
$800.0 million of the 5.75% Notes, which mature in July 2020; and |
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(9) |
$1.5 billion under the 2014 Term Loan, which matures in March 2021. |
In addition to the
amounts set forth above, under the Senior Credit Agreement, SBA Senior Finance II has the ability to borrow up to $1.0 billion, based upon its consolidated financial ratio and compliance with the covenants in the Senior Credit Agreement.
Furthermore, SBA Senior Finance II may elect to increase the Revolving Credit Facility or incur additional term loans under the Senior Credit Agreement. If not earlier terminated by SBA Senior Finance II, the Revolving Credit Facility will terminate
on, and SBA Senior Finance II will repay all amounts outstanding on or before, February 5, 2020.
To the extent that the mortgage
loan components corresponding to the Tower Securities are not fully repaid by their respective anticipated repayment dates, the interest rate of each such component will increase by the greater of (i) 5% and (ii) the amount, if any, by
which the sum of (x) the ten-year U.S. treasury rate plus (y) the credit-based spread for such component (as set forth in the mortgage loan agreement) plus (z) 5%, exceeds the original interest rate for such component. Furthermore, if
the Tower Securities are not fully repaid by their respective anticipated repayment dates, then the cash flow from the towers owned by the borrowers under the Tower Securities will be trapped by the trustee and applied first to repay the interest,
at the original interest rates, on the mortgage loan components underlying the Tower Securities, second to fund all reserve accounts and operating expenses associated with those towers, third to pay the management fees due to SBA Network Management,
Inc., fourth to repay principal of the Tower Securities and fifth to repay the additional interest described above.
10
We may not be able to purchase the notes upon a change of control triggering event, which would result in a
default under the indenture governing the notes and would adversely affect our business and financial condition.
Upon the
occurrence of a change of control triggering event (as defined in the indenture), each holder of the notes will have the right to require us to repurchase all or any part of such holders notes at 101% of the principal amount thereof plus
accrued and unpaid interest, if any, and additional interest, if any, to but excluding the purchase date. In addition, under the indenture governing the 5.75% Notes, which SBA guarantees, upon the occurrence of a change of control triggering event,
which is the same as a change of control triggering event under the indenture governing the notes, each holder of the 5.75% Notes will have the right to require Telecommunications to repurchase all or any part of such holders notes pursuant to
the terms of such indentures. Furthermore, a change of control, as defined in the Senior Credit Agreement, is an event of default under the Senior Credit Agreement and provides the lenders the right to terminate commitments under the Senior Credit
Agreement and accelerate amounts due. SBA may not have sufficient funds available to make or fund any required repurchases of the notes, the 5.625% Notes and the 5.75% Notes and/or repayment of amounts outstanding under the Senior Credit Agreement
and may be unable to receive distributions or advances from its subsidiaries in the future sufficient to meet such obligations. In addition, restrictions under future debt instruments may not permit SBA to repurchase the notes. If SBA fails to
repurchase the notes in that circumstance, it will be in default under the indenture governing the notes, which would in turn be a default under the indentures governing the 5.625% Notes and the 5.75% Notes, and the Senior Credit Agreement. See
Description of notes Repurchase at the option of holders Change of control triggering event.
Investors may not be able to
determine when a change of control triggering event giving rise to their right to have the notes repurchased by SBA has occurred following a sale of substantially all of the assets of SBA and its restricted subsidiaries.
A change of control triggering event, as defined in the indenture governing the notes offered hereby, will require SBA to make an offer to
repurchase all the notes. The definition of change of control includes a phrase relating to the sale, lease or transfer of all or substantially all of the assets of SBA and its restricted subsidiaries. There is no precise established
definition of the phrase substantially all under applicable law. Accordingly, the ability of a holder of notes to require SBA to repurchase its notes as a result of a sale, lease or transfer of less than all the assets of SBA and its
restricted subsidiaries to another individual, group or entity may be uncertain.
Federal and state fraudulent transfer laws may permit a court to
void the notes, and if that occurs, you may not receive any payments on the notes.
Federal and state fraudulent transfer and
conveyance statutes may apply to the issuance of the notes. Under federal bankruptcy law and comparable provisions of state fraudulent transfer or conveyance laws, which may vary from state to state, the notes could be voided as a fraudulent
transfer or conveyance if SBA (a) issued the notes with the intent of hindering, delaying or defrauding creditors or (b) received less than reasonably equivalent value or fair consideration in return for issuing the notes and, in the case
of (b) only, one of the following is also true at the time thereof:
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SBA were insolvent or rendered insolvent by reason of the issuance of the notes; |
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the issuance of the notes left SBA with an unreasonably small amount of capital or assets to carry on the business; |
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SBA intended to incur, or believed or should have believed that SBA would incur, debts beyond SBAs ability to pay as they mature; or |
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SBA was a defendant in an action for money damages, or had a judgment for money damages docketed against SBA if the judgment is unsatisfied after final judgment. |
We cannot be certain as to the standards a court would use to determine whether or not SBA were insolvent at the relevant time or, regardless
of the standard that a court uses, whether the notes would be subordinated to SBAs other debt. Among other things, the measure of insolvency for these purposes will vary depending on the law of the jurisdiction being applied in any such
proceeding. In general, however, a court would deem an entity insolvent if:
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the sum of its debts, including contingent and unliquidated liabilities, was greater than the fair saleable value of all of its assets; |
11
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the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or
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it could not pay its debts as they became due. |
If a court were to find that the issuance of
the notes was a fraudulent transfer or conveyance, the court could void the payment obligations under the notes, could subordinate the notes to presently existing and future indebtedness of SBA, or could require the holders of the notes to repay any
amounts received with respect to the notes. In the event of a finding that a fraudulent transfer or conveyance occurred, you may not receive any repayment on the notes. Further, the avoidance of the notes could result in an event of default with
respect to SBAs other debt that could result in acceleration of that debt.
Finally, as a court of equity, the bankruptcy court may
subordinate the claims in respect of the notes to other claims against us under the principle of equitable subordination if the court determines that (1) the holder of notes engaged in some type of inequitable conduct, (2) the inequitable
conduct resulted in injury to our other creditors or conferred an unfair advantage upon the holders of notes and (3) equitable subordination is not inconsistent with the provisions of the bankruptcy code.
The indenture governing the notes, the indentures governing the 5.625% Notes and the 5.75% Notes, the Senior Credit Agreement, and the mortgage loan
relating to the Tower Securities contain restrictive covenants that could adversely affect our business by limiting our flexibility.
The indenture governing the notes contains restrictive covenants that could adversely affect our business by limiting our flexibility. In
addition, the indentures governing the 5.625% Notes and the 5.75% Notes, the Senior Credit Agreement and the mortgage loan relating to the Secured Tower Revenue Securities contain restrictive covenants imposing significant operational and financial
restrictions on us or our subsidiaries, including restrictions that may limit our ability to engage in acts that may be in our long-term best interests. Among other things, the covenants under each indenture limit the ability of SBA and/or its
restricted subsidiaries, as applicable, to:
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Merge, consolidate or sell assets; |
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Make restricted payments, including pay dividends or make other distributions; |
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Enter into transactions with affiliates; |
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Enter into sale and leaseback transactions; and |
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Issue guarantees of indebtedness. |
In addition, the indentures contain certain ratio tests
that must be met before we and our restricted subsidiaries may incur additional unsecured indebtedness or additional secured indebtedness. For example, pursuant to the indenture governing the notes, we and our restricted subsidiaries may incur
additional indebtedness only if the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio (as defined in Description of Notes Certain Definitions) at the time of incurrence of such indebtedness is no greater
than 9.5 to 1. These restrictive covenants are subject to a number of qualifications and exceptions.
We are subject to similar financial
and other restrictive covenants and are required to maintain certain financial ratios under the Senior Credit Agreement. As amended in February 2014, the Senior Credit Agreement requires SBA Senior Finance II to maintain specific financial ratios,
including, at the SBA Senior Finance II level, (1) a ratio of Consolidated Total Debt to Annualized Borrower EBITDA not to exceed 6.5 times for any fiscal quarter, (2) a ratio of Consolidated Total Debt and Net Hedge Exposure (calculated
in accordance with the Senior Credit Agreement) to Annualized Borrower EBITDA for the most recently ended fiscal quarter not to exceed 6.5 times for 30 consecutive days and (3) a ratio of Annualized Borrower EBITDA to Annualized Cash Interest
Expense (calculated in accordance with the Senior Credit Agreement) of not less than 2.0 times for any fiscal quarter.
Additionally, the
mortgage loan relating to our Tower Securities contains financial covenants that require that the mortgage loan borrowers maintain, on a consolidated basis, a minimum debt service coverage ratio. To the extent that the
12
debt service coverage ratio, as of the end of any calendar quarter, falls to 1.30 times or lower, then all cash flow in excess of amounts required to make debt service payments, to fund required
reserves, to pay management fees and budgeted operating expenses and to make other payments required under the loan documents, referred to as excess cash flow, will be deposited into a reserve account instead of being released to the
Borrowers. The funds in the reserve account will not be released to the Borrowers unless the debt service coverage ratio exceeds 1.30 times for two consecutive calendar quarters. If the debt service coverage ratio falls below 1.15 times as of the
end of any calendar quarter, then an amortization period will commence and all funds on deposit in the reserve account will be applied to prepay the mortgage loan until such time that the debt service coverage ratio exceeds 1.15 times
for a calendar quarter.
These restrictive covenants could place SBA and its restricted subsidiaries at a disadvantage compared to some of
its competitors, which may have fewer restrictive covenants and may not be required to operate under these restrictions. Further, these covenants could have an adverse effect on SBAs business by limiting its ability to obtain future financing,
engage in new tower development, mergers and acquisitions, and needed capital expenditures, withstand economic downturns in its business or the general economy, conduct operations or otherwise take advantage of other opportunities. If SBA or its
restricted subsidiaries fail to comply with these covenants, it could result in an event of default under its debt instruments. If any such default occurs, all amounts outstanding under the notes, the 5.625% Notes, the 5.75% Notes and the Senior
Credit Agreement may become immediately due and payable. All of our foreign subsidiaries have been designated as restricted subsidiaries under the indenture governing the notes; however, we may undesignate any of these subsidiaries in the future in
accordance with the terms of the indenture.
There is currently no public market for the notes and an active trading market may not develop for the
notes. The failure of a market to develop for the notes could adversely affect the liquidity and value of your notes.
The notes
are a new issue of securities and there is no existing market for the notes. SBA does not intend to apply for listing of the notes on any securities exchange or other stock market. SBA has been advised by the initial purchasers that following the
completion of this offering, the initial purchasers presently intend to make a market in the notes. However, they are not obligated to do so and any market-making activities with respect to the notes may be discontinued by them at any time, at their
sole discretion, without notice. In addition, any market-making activity will be subject to limits imposed by the Securities Act and the Exchange Act. A market may not develop for the notes, and there can be no assurance as to the development of any
market or the liquidity of any market for the notes. If an active, liquid market does not develop for the notes, the market price and liquidity of the notes may be adversely affected. If any of the notes are traded after their initial issuance, they
may trade at a discount from their initial offering price.
The liquidity of the trading market, if any, and future trading prices of the
notes will depend on many factors, including, among other things, the ability of holders to resell the notes pursuant to Rule 144 or otherwise, prevailing interest rates, SBAs operating results, financial performance and prospects, the market
for similar securities and the overall securities market, and may be adversely affected by unfavorable changes in these factors. It is possible that the market for the notes will be subject to disruptions which may have a negative effect on the
holders of the notes, regardless of SBAs operating results, financial performance or prospects.
A lowering or withdrawal of the ratings
assigned to our debt securities by rating agencies may adversely affect your ability to resell your notes and may increase our future borrowing costs and reduce our access to capital.
Our debt currently has a non-investment grade rating, and any rating assigned could be lowered or withdrawn entirely by a rating agency if, in
that rating agencys judgment, future circumstances relating to the basis of the rating, such as adverse changes, so warrant. Real or anticipated changes in our credit ratings will generally affect the market value of the notes. If any credit
rating initially assigned to the notes is subsequently lowered or withdrawn for any reason, you may not be able to resell your notes without a substantial discount. In addition, any future lowering of our ratings likely would make it more difficult
or more expensive for us to obtain additional debt financing.
13
Special Note Regarding Forward-Looking Statements
This prospectus and the documents incorporated by reference into this prospectus contain forward-looking statements. These
statements concern expectations, beliefs, projections, plans and strategies, anticipated events or trends and similar expressions concerning matters that are not historical facts. Forward-looking statements included in this prospectus include, but
are not limited to, the following:
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our expectations on the future growth and financial health of the wireless industry and the industry participants, and the drivers of such growth; |
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our beliefs regarding our ability to capture and capitalize on industry growth and the impact of such growth on our financial and operational results; |
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our expectations regarding the opportunities in the international wireless markets in which we currently operate or have targeted for growth, our beliefs regarding how we can capitalize on such opportunities, and our
intent to continue expanding internationally through new builds and acquisitions; |
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our belief that over the long-term, site leasing revenues will continue to grow as wireless service providers lease additional antenna space on our towers due to increasing minutes of network use and data transfer,
network expansion and network coverage requirements; |
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our belief that our site leasing business is characterized by stable and long-term recurring revenues, predictable operating costs, and minimal non-discretionary capital expenditures; |
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our expectation that, due to the relatively young age and mix of our tower portfolio, future expenditures required to maintain these towers will be minimal; |
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our expectation that we will grow our cash flows by adding tenants to our towers at minimal incremental costs and executing monetary amendments; |
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our expectations regarding the churn rate of our non-iDEN tenant leases; |
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our intent to grow our tower portfolio, domestically and internationally and our expectations regarding the pace of such growth; |
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our expectation that we will continue our ground lease purchase program and the estimates of the impact of such program on our financial results; |
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our expectation that we will continue to incur losses; |
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our expectations regarding our future cash capital expenditures, both discretionary and non-discretionary, including expenditures required to maintain, improve, and modify our towers, ground lease purchases, and general
corporate expenditures, and the source of funds for these expenditures; |
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our intended use of our liquidity; |
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our expectations regarding our annual debt service in 2015 and thereafter, and our belief that our cash on hand, cash flows from operations for the next twelve months and availability under our Revolving Credit Facility
will be sufficient to service our outstanding debt during the next twelve months; |
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our belief regarding our credit risk; and |
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our estimates regarding certain accounting and tax matters. |
These forward-looking statements
reflect our current views about future events and are subject to risks, uncertainties and assumptions. We wish to caution readers that certain important factors may have affected and could in the future affect our actual results and could cause
actual results to differ significantly from those expressed in any forward-looking statement. The most important factors that could prevent us from achieving our goals, and cause the assumptions underlying forward-looking statements and the actual
results to differ materially from those expressed in or implied by those forward-looking statements include, but are not limited to, the following:
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the impact of consolidation among wireless service providers on our leasing revenue; |
14
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our ability to continue to comply with covenants and the terms of our credit instruments and our ability to obtain additional financing to fund our capital expenditures; |
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our ability to successfully manage the risks associated with international operations, including risks relating to political or economic conditions, tax laws, currency fluctuations and restrictions, legal or judicial
systems, and land ownership; |
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our ability to successfully manage the risks associated with our acquisition initiatives, including our ability to effectively integrate acquired towers into our business and to achieve the financial results projected
in our valuation models for the acquired towers; |
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developments in the wireless communications industry in general, and for wireless communications infrastructure providers in particular, that may slow growth or affect the willingness or ability of the wireless service
providers to expend capital to fund network expansion or enhancements; |
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our ability to secure as many site leasing tenants as anticipated, recognize our expected economies of scale with respect to new tenants on our towers, and retain current leases on towers; |
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our ability to secure and deliver anticipated services business at contemplated margins; |
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our ability to build new towers, including our ability to identify and acquire land that would be attractive for our clients and to successfully and timely address zoning, permitting, weather, availability of labor and
supplies and other issues that arise in connection with the building of new towers; |
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competition for the acquisition of towers and other factors that may adversely affect our ability to purchase towers that meet our investment criteria and are available at prices which we believe will be accretive to
our shareholders and allow us to maintain our long-term target leverage ratios; |
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our ability to protect our rights to the land under our towers, and our ability to acquire land underneath our towers on terms that are accretive; |
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our ability to sufficiently increase our revenues and maintain expenses and cash capital expenditures at appropriate levels to permit us to meet our anticipated uses of liquidity for operations, debt service and
estimated portfolio growth; |
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our ability to successfully estimate the impact of regulatory and litigation matters; |
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our ability to successfully estimate the impact of certain accounting and tax matters, including the effect on our company of adopting certain accounting pronouncements and the availability of sufficient net operating
losses to offset future taxable income; |
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natural disasters and other unforeseen damage for which our insurance may not provide adequate coverage; |
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a decrease in demand for our towers; and |
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the introduction of new technologies or changes in a tenants business model that may make our tower leasing business less desirable to potential tenants. |
Each of the forward-looking statements included in this prospectus and incorporated by reference herein speak only as of the date on which
that statement is made. We will not update any forward-looking statement to reflect events or circumstances that occur after the date on which the statement is made.
15
Use of Proceeds
The Exchange Offer is intended to satisfy our obligations under the registration rights agreement entered into in connection with the issuance
of the Original Notes. We will not receive any cash proceeds from the issuance of the Exchange Notes in the Exchange Offer.
In
consideration for issuing the Exchange Notes as contemplated by this prospectus, we will receive the Original Notes in like principal amount. The Original Notes surrendered and exchanged for Exchange Notes will be retired and canceled and cannot be
reissued.
16
Selected Financial Data
The following table sets forth selected historical financial data as of December 31, 2014 and 2013 and for the years ended
December 31, 2014, 2013 and 2012, which has been derived from our audited consolidated financial statements as of such dates and for such periods and which are incorporated by reference into this prospectus. The financial data as of and for the
years ended December 31, 2010 and 2011 have been derived from our audited consolidated financial statements. You should read the information set forth below in conjunction with our Managements Discussion and Analysis of Financial
Condition and Results of Operations and our consolidated financial statements and the related notes to those consolidated financial statements included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2014, which
is incorporated by reference into this prospectus.
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For the year ended December 31, |
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2010 |
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2011 |
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2012 |
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2013 |
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2014 |
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(audited) |
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(audited) |
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(audited) |
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(audited) |
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(audited) |
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(in thousands, except for per share data) |
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Operating data: |
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Revenues: |
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Site leasing |
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$ |
535,444 |
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$ |
616,294 |
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$ |
846,094 |
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1,133,013 |
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1,360,202 |
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Site development |
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91,175 |
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81,876 |
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107,990 |
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171,853 |
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|
166,794 |
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|
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Total revenues |
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626,619 |
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|
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698,170 |
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954,084 |
|
|
|
1,304,866 |
|
|
|
1,526,996 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of revenues (exclusive of depreciation, accretion and amortization shown below): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of site leasing |
|
|
119,141 |
|
|
|
131,916 |
|
|
|
188,951 |
|
|
|
270,772 |
|
|
|
301,313 |
|
Cost of site development |
|
|
80,301 |
|
|
|
71,005 |
|
|
|
90,556 |
|
|
|
137,481 |
|
|
|
127,172 |
|
Selling, general and administrative |
|
|
58,209 |
|
|
|
62,828 |
|
|
|
72,148 |
|
|
|
85,476 |
|
|
|
103,317 |
|
Asset impairment and decommission costs |
|
|
5,862 |
|
|
|
5,472 |
|
|
|
6,383 |
|
|
|
28,960 |
|
|
|
23,801 |
|
Acquisition related adjustments and expenses |
|
|
10,106 |
|
|
|
7,144 |
|
|
|
40,433 |
|
|
|
19,198 |
|
|
|
7,798 |
|
Depreciation, accretion and amortization |
|
|
278,727 |
|
|
|
309,146 |
|
|
|
408,467 |
|
|
|
533,334 |
|
|
|
627,072 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
552,346 |
|
|
|
587,511 |
|
|
|
806,938 |
|
|
|
1,075,221 |
|
|
|
1,190,473 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income |
|
|
74,273 |
|
|
|
110,659 |
|
|
|
147,146 |
|
|
|
229,645 |
|
|
|
336,523 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income |
|
|
432 |
|
|
|
136 |
|
|
|
1,128 |
|
|
|
1,794 |
|
|
|
677 |
|
Interest expense |
|
|
(149,921 |
) |
|
|
(160,896 |
) |
|
|
(196,241 |
) |
|
|
(249,051 |
) |
|
|
(292,600 |
) |
Non-cash interest expense |
|
|
(60,070 |
) |
|
|
(63,629 |
) |
|
|
(70,110 |
) |
|
|
(49,085 |
) |
|
|
(27,112 |
) |
Amortization of deferred financing fees |
|
|
(9,099 |
) |
|
|
(9,188 |
) |
|
|
(12,870 |
) |
|
|
(15,560 |
) |
|
|
(17,572 |
) |
(Loss) gain from extinguishment of debt, net |
|
|
(49,060 |
) |
|
|
(1,696 |
) |
|
|
(51,799 |
) |
|
|
(6,099 |
) |
|
|
(26,204 |
) |
Other income (expense), net |
|
|
29 |
|
|
|
(165 |
) |
|
|
5,654 |
|
|
|
31,138 |
|
|
|
10,628 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other expense, net |
|
|
(267,689 |
) |
|
|
(235,438 |
) |
|
|
(324,238 |
) |
|
|
(286,863 |
) |
|
|
(352,183 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before provision for income taxes |
|
|
(193,416 |
) |
|
|
(124,779 |
) |
|
|
(177,092 |
) |
|
|
(57,218 |
) |
|
|
(15,660 |
) |
Provision (benefit) for income taxes |
|
|
(1,005 |
) |
|
|
(2,113 |
) |
|
|
(6,594 |
) |
|
|
1,309 |
|
|
|
(8,635 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
|
(194,421 |
) |
|
|
(126,892 |
) |
|
|
(183,686 |
) |
|
|
(55,909 |
) |
|
|
(24,295 |
) |
Income from discontinued operations, net of income taxes |
|
|
|
|
|
|
|
|
|
|
2,296 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
|
(194,421 |
) |
|
|
(126,892 |
) |
|
|
(181,390 |
) |
|
|
(55,909 |
) |
|
|
(24,295 |
) |
Net loss (income) attributable to the noncontrolling interest |
|
|
(253 |
) |
|
|
436 |
|
|
|
353 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss attributable to SBA Communications Corporation |
|
$ |
(194,674 |
) |
|
$ |
(126,456 |
) |
|
$ |
(181,037 |
) |
|
|
(55,909 |
) |
|
|
(24,295 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
$ |
(1.68 |
) |
|
$ |
(1.14 |
) |
|
$ |
(1.53 |
) |
|
|
(0.44 |
) |
|
|
(0.19 |
) |
Income from discontinued operations |
|
|
|
|
|
|
|
|
|
|
0.02 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per common share |
|
$ |
(1.68 |
) |
|
$ |
(1.14 |
) |
|
$ |
(1.51 |
) |
|
|
(0.44 |
) |
|
|
(0.19 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted weighted average number of common shares |
|
|
115,591 |
|
|
|
111,595 |
|
|
|
120,280 |
|
|
|
127,769 |
|
|
|
128,919 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, |
|
|
|
2010 |
|
|
2011 |
|
|
2012 |
|
|
2013 |
|
|
2014 |
|
|
|
(audited) |
|
|
(audited) |
|
|
(audited) |
|
|
(audited) |
|
|
(audited) |
|
|
|
(in thousands) |
|
Balance Sheet Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
64,254 |
|
|
$ |
47,316 |
|
|
$ |
233,099 |
|
|
$ |
122,112 |
|
|
$ |
39,433 |
|
Restricted cash - current (1) |
|
|
29,456 |
|
|
|
22,266 |
|
|
|
27,708 |
|
|
|
47,305 |
|
|
|
52,519 |
|
Short-term investments |
|
|
4,016 |
|
|
|
5,773 |
|
|
|
5,471 |
|
|
|
5,446 |
|
|
|
5,549 |
|
Property and equipment, net |
|
|
1,534,318 |
|
|
|
1,583,393 |
|
|
|
2,671,317 |
|
|
|
2,578,444 |
|
|
|
2,762,417 |
|
Intangibles, net |
|
|
1,500,012 |
|
|
|
1,639,784 |
|
|
|
3,134,133 |
|
|
|
3,387,198 |
|
|
|
4,189,540 |
|
Total assets |
|
|
3,400,175 |
|
|
|
3,606,399 |
|
|
|
6,615,911 |
|
|
|
6,783,188 |
|
|
|
7,841,125 |
|
Total debt |
|
|
2,827,450 |
|
|
|
3,354,485 |
|
|
|
5,356,103 |
|
|
|
5,876,607 |
|
|
|
7,860,799 |
|
Total shareholders equity (deficit) |
|
|
317,110 |
|
|
|
(11,313 |
) |
|
|
652,991 |
|
|
|
356,966 |
|
|
|
(660,800 |
) |
|
|
|
|
For the year ended December 31, |
|
|
|
2010 |
|
|
2011 |
|
|
2012 |
|
|
2013 |
|
|
2014 |
|
|
|
(audited) |
|
|
(audited) |
|
|
(audited) |
|
|
(audited) |
|
|
(audited) |
|
|
|
(in thousands) |
|
Other Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash provided by (used in): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating activities |
|
$ |
201,140 |
|
|
$ |
249,058 |
|
|
$ |
340,914 |
|
|
$ |
497,587 |
|
|
$ |
671,643 |
|
Investing activities |
|
|
(416,370 |
) |
|
|
(503,273 |
) |
|
|
(2,269,120 |
) |
|
|
(817,198 |
) |
|
|
(1,760,127 |
) |
Financing activities |
|
|
118,152 |
|
|
|
237,432 |
|
|
|
2,110,481 |
|
|
|
210,837 |
|
|
|
991,838 |
|
(1) |
Restricted cash of $52.5 million as of December 31, 2014 consisted of $52.1 million related to the Tower Securities loan requirements and $0.4 million related to surety bonds issued for our benefit. Restricted cash
of $47.3 million as of December 31, 2013 consisted of $46.4 million related to the Tower Securities loan requirements and $0.9 million related to surety bonds issued for our benefit. Restricted cash of $27.7 million as of December 31, 2012
consisted of $26.8 million related to the Tower Securities loan requirements and $0.9 million related to surety bonds issued for our benefit. Restricted cash of $22.3 million as of December 31, 2011 consisted of $21.4 million related to Tower
Securities loan requirements and $0.9 million related to surety bonds issued for our benefit. Restricted cash of $29.5 million as of December 31, 2010 consisted of $28.6 million related to Tower Securities loan requirements and $0.9 million
related to surety bonds issued for our benefit. |
18
Ratio of Earnings to Fixed Charges
For purposes of calculating the ratio of earnings to fixed charges, earnings represent net loss before income taxes, cumulative effect of
changes in accounting principles, discontinued operations and dividends on preferred stock, if any. Fixed charges consist of interest expense, the component of rental expense believed by management to be representative of the interest factor
thereon, amortization of original issue discount and debt issue costs and preferred dividends. We had a deficiency in earnings to fixed charges of $15.4 million for 2014, $56.8 million for 2013, $176.8 million for 2012, $124.5 million for 2011 and
$193.3 million for 2010. There were no preferred shares outstanding, and therefore no preference dividends paid, for the years ended December 31, 2014, 2013, 2012, 2011 and 2010.
19
The Exchange Offer
Purpose of the Exchange Offer
In
connection with the issuance of the Original Notes, we entered into a registration rights agreement with the initial purchasers, under which we agreed to file and to use our reasonable best efforts to have declared effective an exchange offer
registration statement under the Securities Act and to consummate the Exchange Offer.
We are making the Exchange Offer in reliance on the
position of the Commission as set forth in certain no-action letters. However, we have not sought our own no-action letter. Based upon these interpretations by the Commission, we believe that a holder of Exchange Notes who exchanges Original Notes
for Exchange Notes in the Exchange Offer generally may offer the Exchange Notes for resale, sell the Exchange Notes and otherwise transfer the Exchange Notes without further registration under the Securities Act and without delivery of a prospectus
that satisfies the requirements of Section 10 of the Securities Act. This does not apply, however, to a holder who is our affiliate within the meaning of Rule 405 of the Securities Act. We also believe that a holder may offer, sell
or transfer the Exchange Notes only if the holder acknowledges that the holder is acquiring the Exchange Notes in the ordinary course of its business and is not participating, does not intend to participate and has no arrangement or understanding
with any person to participate in a distribution of the Exchange Notes.
Any holder of the Original Notes using the Exchange Offer to
participate in a distribution of Exchange Notes cannot rely on the no-action letters referred to above. Any broker-dealer who holds Original Notes acquired for its own account as a result of market-making
activities or other trading activities and who receives Exchange Notes in exchange for such Original Notes pursuant to the Exchange Offer may be a statutory underwriter and must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes. See Plan of Distribution.
Each broker-dealer that receives Exchange Notes
for its own account in exchange for Original Notes, where such Original Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See Plan of Distribution.
Except as described above, this prospectus may not be used
for an offer to resell, resale or other transfer of Exchange Notes.
The Exchange Offer is not being made to, nor will we accept tenders
for exchange from, holders of Original Notes in any jurisdiction in which the Exchange Offer or the acceptance of the Exchange Offer would not be in compliance with the securities or blue sky laws of such jurisdiction.
Terms of the Exchange
Upon the terms and
subject to the conditions of the Exchange Offer, we will accept any and all Original Notes validly tendered prior to 12:00 midnight, New York City time, on the Expiration Date for the Exchange Offer. Promptly after the Expiration Date (unless
extended as described in this prospectus), we will issue an aggregate principal amount of up to $750,000,000 of Exchange Notes for a like principal amount of outstanding Original Notes tendered and accepted in connection with the Exchange Offer. The
Exchange Notes issued in connection with the Exchange Offer will be delivered promptly after the Expiration Date. Holders may tender some or all of their Original Notes in connection with the Exchange Offer, but only in principal amounts of $2,000
or in integral multiples of $1,000 in excess thereof.
The terms of the Exchange Notes will be identical in all material respects to the
terms of Original Notes, except that the Exchange Notes will have been registered under the Securities Act and will be issued free from any covenant regarding registration, including the payment of special interest upon a failure to complete the
Exchange Offer by a certain date. The Exchange Notes will evidence the same debt as the Original Notes and will be issued under the same Indenture and be entitled to the same benefits under that Indenture as the Original Notes being exchanged. As of
the date of this prospectus, $750,000,000 aggregate principal amount of the Original Notes are outstanding.
20
In connection with the issuance of the Original Notes, we arranged for the Original Notes
purchased by qualified institutional buyers and those sold in reliance on Regulation S under the Securities Act to be issued and transferable in book-entry form through the facilities of DTC, acting as depositary. Except as described under
Book-Entry Settlement and Clearance, Exchange Notes will be issued in the form of a global note registered in the name of DTC or its nominee and each beneficial owners interest in it will be transferable in book-entry form through
DTC. See Book-Entry Settlement and Clearance.
Holders of Original Notes do not have any appraisal or dissenters rights
in connection with the Exchange Offer. Original Notes that are not tendered for exchange or are tendered but not accepted in connection with the Exchange Offer will remain outstanding and be entitled to the benefits of the Indenture, but certain
registration and other rights under the registration rights agreement will terminate and holders of the Original Notes will generally not be entitled to any registration rights under the registration rights agreement. See Consequences
of Failures to Properly Tender Original Notes in the Exchange Offer.
We shall be considered to have accepted validly tendered
Original Notes if and when we have given oral (to be followed by prompt written notice) or written notice to the Exchange Agent. The Exchange Agent will act as agent for the tendering holders for the purposes of receiving the Exchange Notes from us.
If any tendered Original Notes are not accepted for exchange because of an invalid tender, the occurrence of certain other events
described in this prospectus or otherwise, we will return the Original Notes, without expense, to the tendering holder promptly after the Expiration Date for the Exchange Offer.
Holders who tender Original Notes will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of
transmittal, transfer taxes on exchange of Original Notes in connection with the Exchange Offer. We will pay all charges and expenses, other than certain applicable taxes described below, in connection with the Exchange Offer. See Fees
and Expenses.
Expiration Date; Extensions; Amendments
The Expiration Date for the Exchange Offer is 12:00 midnight, New York City time, on [20 business days after commencement], unless
extended by us in our sole discretion, in which case the term Expiration Date shall mean the latest date and time to which the Exchange Offer are extended.
We reserve the right, in our sole discretion:
|
|
|
subject to applicable law, to delay accepting any Original Notes, to extend the Exchange Offer or to terminate the Exchange Offer if, in our reasonable judgment, any of the conditions described below shall not have been
satisfied, by giving oral (to be followed by prompt written notice) or written notice of the delay, extension or termination to the Exchange Agent; or |
|
|
|
to amend the terms of the Exchange Offer in any manner. |
If we amend the Exchange Offer in a
manner that we consider material, we will disclose such amendment by means of a prospectus supplement, and we will extend the Exchange Offer for a period of five to ten business days, as required by law.
If we determine to extend, amend or terminate the Exchange Offer, we will publicly announce this determination by making a timely release
through an appropriate news agency prior to 9:00 a.m., New York City time, on the next business day after the scheduled Expiration Date.
During any extension, all Original Notes previously tendered will remain subject to the Exchange Offer and may be accepted for exchange by us
only upon expiration of the Exchange Offer, unless validly withdrawn. If we terminate the Exchange Offer, we will promptly return any Original Notes deposited, pursuant to the Exchange Offer as required by Rule 14e-1(c) of the Exchange Act.
21
Interest on the Exchange Notes
The Exchange Notes will bear interest at the rate of 4.875% per annum from the most recent date to which interest on the Original Notes
has been paid. Interest will be payable semiannually on January 15 and July 15 of each year.
Conditions to the Exchange Offer
Notwithstanding any other provisions of the Exchange Offer, or any extension of the Exchange Offer, we will not be required to accept for
exchange, or to exchange any Exchange Notes for any of Original Notes and we may terminate the Exchange Offer or, at our option, modify, extend or otherwise amend the Exchange Offer, if any of the following conditions exist on or prior to the
Expiration Date:
|
|
|
any action or event shall have occurred or been threatened, any action shall have been taken, or any statute, rule, regulation, judgment, order, stay, decree or injunction shall have been issued, promulgated, enacted,
entered, enforced or deemed to be applicable to the Exchange Offer or the exchange of Original Notes for Exchange Notes under the Exchange Offer by or before any court or governmental regulatory or administrative agency, authority, instrumentality
or tribunal, including, without limitation, taxing authorities, that either: |
(a) challenges the making of the Exchange
Offer or the exchange of Original Notes for Exchange Notes under the Exchange Offer or might, directly or indirectly, be expected to prohibit, prevent, restrict or delay consummation of, or might otherwise adversely affect in any material manner,
the Exchange Offer or the exchange of Original Notes for Exchange Notes under the Exchange Offer; or
(b) in our reasonable judgment,
could materially adversely affect our (or our subsidiaries) business, condition (financial or otherwise), income, operations, properties, assets, liabilities or prospects or materially impair the contemplated benefits to us of the Exchange
Offer or the exchange of Original Notes for Exchange Notes under the Exchange Offer;
|
|
|
anything has occurred or may occur that would or might, in our reasonable judgment, be expected to prohibit, prevent, restrict or delay the Exchange Offer or impair our ability to realize the anticipated benefits of the
Exchange Offer; |
|
|
|
there shall have occurred (a) any general suspension of or limitation on trading in securities in the United States securities or financial markets, whether or not mandatory, (b) any material adverse change in
the prices of the Original Notes that are the subject of the Exchange Offer, (c) a material impairment in the general trading market for debt securities, (d) a declaration of a banking moratorium or any suspension of payments in respect of
banks by federal or state authorities in the United States, whether or not mandatory, (e) a commencement of a war, armed hostilities, a terrorist act or other national or international calamity directly or indirectly relating to the United
States, (f) any limitation, whether or not mandatory, by any governmental authority on, or other event having a reasonable likelihood of affecting, the extension of credit by banks or other lending institutions in the United States,
(g) any material adverse change in the securities or financial markets in the United States generally or (h) in the case of any of the foregoing existing at the time of the commencement of the Exchange Offer, a material acceleration or
worsening thereof; and |
|
|
|
the Trustee with respect to the Indenture for the Original Notes that are the subject of the Exchange Offer and the Exchange Notes to be issued in the Exchange Offer shall have been directed by any holders of Original
Notes to object in any respect to, or take any action that could, in our reasonable judgment, adversely affect the consummation of the Exchange Offer or the exchange of Original Notes for Exchange Notes under the Exchange Offer, or the Trustee shall
have taken any action that challenges the validity or effectiveness of the procedures used by us in making the Exchange Offer or the exchange of Original Notes for Exchange Notes under the Exchange Offer. |
The foregoing conditions are for our sole benefit and may be waived by us, in whole or in part, in our absolute discretion. Any determination
made by us concerning an event, development or circumstance described or referred to above will be conclusive and binding.
22
If any of the foregoing conditions are not satisfied, we may, at any time on or prior to the
Expiration Date:
|
|
|
terminate the Exchange Offer and promptly return all tendered Original Notes to the respective tendering holders; |
|
|
|
modify, extend or otherwise amend the Exchange Offer and retain all tendered Original Notes until the Expiration Date, as extended, subject, however, to the withdrawal rights of holders; or |
|
|
|
waive the unsatisfied conditions with respect to the Exchange Offer and accept all Original Notes tendered and not previously validly withdrawn, subject to any requirement to extend the period of time during which the
Exchange Offer is open. |
Effect of Tender
Any tender by a holder, and our subsequent acceptance of that tender, of Original Notes will constitute a binding agreement between that holder
and us upon the terms and subject to the conditions of the Exchange Offer described in this prospectus and in the letter of transmittal. The participation in the Exchange Offer by a tendering holder of Original Notes will constitute the agreement by
that holder to deliver good and marketable title to the tendered Original Notes, free and clear of any and all liens, restrictions, charges, pledges, security interests, encumbrances or rights of any kind of third parties.
Absence of Dissenters Rights
Holders of the Original Notes do not have any appraisal or dissenters rights in connection with the Exchange Offer.
Procedures for Tendering
If you wish to
participate in the Exchange Offer and your Original Notes are held by a custodial entity such as a bank, broker, dealer, trust company or other nominee, you must instruct that custodial entity to tender your Original Notes on your behalf pursuant to
the procedures of that custodial entity. Please ensure you contact your custodial entity as soon as possible to give them sufficient time to meet your requested deadline.
To participate in the Exchange Offer, you must either:
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complete, sign and date a letter of transmittal, or a facsimile thereof, in accordance with the instructions in the letter of transmittal, including guaranteeing the signatures to the letter of transmittal, if required,
and mail or otherwise deliver the letter of transmittal or a facsimile thereof, together with the certificates representing your Original Notes specified in the letter of transmittal, to the Exchange Agent at the address listed in the letter of
transmittal, for receipt on or prior to the Expiration Date; or |
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comply with the Automated Tender Offer Program (ATOP) procedures for book-entry transfer described below on or prior to the Expiration Date. |
The Exchange Agent and DTC have confirmed that the Exchange Offer is eligible for ATOP with respect to book-entry notes held through DTC. The
letter of transmittal, or a facsimile thereof, with any required signature guarantees, or, in the case of book-entry transfer, an agents message in lieu of the letter of transmittal, and any other required documents, must be transmitted to and
received by the Exchange Agent on or prior to the Expiration Date at its address set forth below under the caption Exchange Agent. Original Notes will not be deemed to have been tendered until the letter of transmittal and signature
guarantees, if any, or agents message, is received by the Exchange Agent. Holders of Original Notes whose certificates for Original Notes are not lost but are not immediately available or who cannot deliver their certificates and all other
documents required by the letter of transmittal to the Exchange Agent at or prior the Expiration Date, or who cannot complete the procedures for book-entry transfer at or prior to the Expiration Date, may tender their Original Notes according to the
guaranteed delivery procedures set forth in Guaranteed Delivery Procedures below.
The tender by a holder of Original
Notes will constitute an agreement between us and the holder in accordance with the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal.
The method of delivery of Original Notes, the letter of transmittal and all other required documents to the Exchange Agent is at the election
and risk of the holders. Instead of delivery by mail, we recommend that holders use an overnight or hand delivery service, properly insured. In all cases, sufficient time should be allowed to assure delivery to and receipt by the Exchange Agent on
or prior to the Expiration Date. Do not send the letter of transmittal or any Original Notes to anyone other than the Exchange Agent.
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If you are tendering your Original Notes in exchange for Exchange Notes and anticipate delivering
your letter of transmittal and other documents other than through DTC, we urge you to contact promptly a bank, broker or other intermediary that has the capability to hold notes custodially through DTC to arrange for receipt of any Original Notes to
be delivered pursuant to the Exchange Offer and to obtain the information necessary to provide the required DTC participant with account information in the letter of transmittal.
If you are a beneficial owner which holds Original Notes through Euroclear (as defined herein) or Clearstream (as defined herein) and wish to
tender your Original Notes, you must instruct Euroclear or Clearstream, as the case may be, to block the account in respect of the tendered Original Notes in accordance with the procedures established by Euroclear or Clearstream. You are encouraged
to contact Euroclear and Clearstream directly to ascertain their procedure for tendering Original Notes.
Book-Entry Delivery Procedures for Tendering
Original Notes Held with DTC
If you wish to tender Original Notes held on your behalf by a nominee with DTC, you must:
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inform your nominee of your interest in tendering your Original Notes pursuant to the Exchange Offer; and |
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instruct your nominee to tender all Original Notes you wish to be tendered in the Exchange Offer into the Exchange Agents account at DTC on or prior to the Expiration Date. |
Any financial institution that is a nominee in DTC, including Euroclear and Clearstream, must tender Original Notes by effecting a book-entry
transfer of Original Notes to be tendered in the Exchange Offer into the account of the Exchange Agent at DTC by electronically transmitting its acceptance of the Exchange Offer through the ATOP procedures for transfer. DTC will then verify the
acceptance, execute a book-entry delivery to the Exchange Agents account at DTC and send an agents message to the Exchange Agent. An agents message is a message, transmitted by DTC to, and received by, the Exchange
Agent and forming part of a book-entry confirmation, which states that DTC has received an express acknowledgement from an organization that participates in DTC (a participant), tendering Original Notes that the participant has received
and agrees to be bound by the terms of the letter of transmittal and that we may enforce the agreement against the participant. A letter of transmittal need not accompany tenders effected through ATOP.
Proper Execution and Delivery of the Letter of Transmittal
Signatures on a letter of transmittal or notice of withdrawal described under Withdrawal of Tenders, as the case may be, must
be guaranteed by an eligible guarantor institution unless the Original Notes tendered pursuant to the letter of transmittal are tendered for the account of an eligible guarantor institution. An eligible guarantor institution is one of
the following firms or other entities identified in Rule 17Ad-15 under the Exchange Act (as the terms are used in Rule 17Ad-15):
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a broker, dealer, municipal securities dealer, municipal securities broker, government securities dealer or government securities broker; |
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a national securities exchange, registered securities association or clearing agency; or |
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a savings institution that is a participant in a Securities Transfer Association recognized program. |
If signatures on a letter of transmittal or notice of withdrawal are required to be guaranteed, that guarantee must be made by an eligible
institution.
If the letter of transmittal is signed by the holders of Original Notes tendered thereby, the signatures must correspond
with the names as written on the face of the Original Notes without any change whatsoever. If any of the Original Notes tendered thereby are held by two or more holders, each holder must sign the letter of transmittal. If any of the Original Notes
tendered thereby are registered in different names on different Original Notes, it will be necessary to complete, sign and submit as many separate letters of transmittal, and any accompanying documents, as there are different registrations of
certificates.
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If Original Notes that are not tendered for exchange pursuant to the Exchange Offer are to be
returned to a person other than the tendering holder, certificates for those Original Notes must be endorsed or accompanied by an appropriate instrument of transfer, signed exactly as the name of the registered owner appears on the certificates,
with the signatures on the certificates or instruments of transfer guaranteed by an eligible guarantor institution.
If the letter of
transmittal is signed by a person other than the holder of any Original Notes listed in the letter of transmittal, those Original Notes must be properly endorsed or accompanied by a properly completed bond power, signed by the holder exactly as the
holders name appears on those Original Notes. If the letter of transmittal or any Original Notes, bond powers or other instruments of transfer are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, those persons should so indicate when signing, and, unless waived by us, evidence satisfactory to us of their authority to so act must be submitted with the letter of
transmittal.
No alternative, conditional, irregular or contingent tenders will be accepted. By executing the letter of transmittal, or
facsimile thereof, the tendering holders of Original Notes waive any right to receive any notice of the acceptance for exchange of their Original Notes. Tendering holders should indicate in the applicable box in the letter of transmittal the name
and address to which payments and/or substitute certificates evidencing Original Notes for amounts not tendered or not exchanged are to be issued or sent, if different from the name and address of the person signing the letter of transmittal. If
those instructions are not given, Original Notes not tendered or exchanged will be returned to the tendering holder.
All questions as to
the validity, form, eligibility, including time of receipt, and acceptance and withdrawal of tendered Original Notes will be determined by us in our absolute discretion, which determination will be final and binding. We reserve the absolute right to
reject any and all tendered Original Notes determined by us not to be in proper form or not to be tendered properly or any tendered Original Notes our acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the right
to waive, in our absolute discretion, any defects or irregularities as to particular Original Notes, whether or not waived in the case of other Original Notes. Our interpretation of the terms and conditions of the Exchange Offer, including the terms
and instructions in the letter of transmittal, will be final and binding on all parties.
Unless waived, any defects or irregularities in
connection with tenders of Original Notes must be cured within the time we determine. Neither we, the Exchange Agent nor any other person will be under any duty to give notification of any defect or irregularity with respect to any tender of
Original Notes for exchange, nor will any of them incur any liability for any failure to give notification. Any Original Notes received by the Exchange Agent that are not properly tendered and as to which the irregularities have not been cured or
waived will not be deemed to have been tendered and will be returned by the Exchange Agent to the tendering holder, unless otherwise provided in the letter of transmittal, promptly after the expiration date.
Any holder whose Original Notes have been mutilated, lost, stolen or destroyed will be responsible for obtaining replacement securities or for
arranging for indemnification with the trustee of the Original Notes. Holders may contact the Exchange Agent for assistance with these matters.
In addition, we reserve the right, as set forth above under the caption Conditions to the Exchange Offer, to terminate the
Exchange Offer. By tendering, each holder represents and acknowledges to us, among other things, that:
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it has full power and authority to tender, sell, assign and transfer the Original Notes it is tendering and that we will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claim when the same are accepted by us; |
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the Exchange Notes acquired in connection with the Exchange Offer are being obtained in the ordinary course of business of the person receiving the Exchange Notes; |
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at the time of commencement of the Exchange Offer it had no arrangement with any person to participate in a distribution of such Exchange Notes; |
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it is not an affiliate (as defined in Rule 405 under the Securities Act) of our company; and |
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if the holder is a broker-dealer, that it is not engaged in, and does not intend to engage in, a distribution of the Exchange Notes, and that it will receive Exchange Notes for its own account in exchange for Original
Notes that were acquired by such broker-dealer as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes.
See Plan of Distribution. |
Guaranteed Delivery Procedures
If your certificates for Original Notes are not lost but are not immediately available or you cannot deliver your certificates and any other
required documents to the Exchange Agent at or prior to the Expiration Date, or you cannot complete the procedures for book-entry transfer at or prior to the Expiration Date, you may nevertheless effect a tender of your Original Notes if:
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the tender is made through an eligible institution; |
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prior to the Expiration Date of the Exchange Offer, the Exchange Agent receives by facsimile transmission, mail or hand delivery from such eligible institution a validly completed and duly executed notice of guaranteed
delivery, substantially in the form provided with this prospectus, or an agents message with respect to guaranteed delivery which: |
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sets forth your name and address and the amount of your Original Notes tendered; |
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states that the tender is being made thereby; and |
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guarantees that within three trading days after the date of execution of the notice of guaranteed delivery, the certificates for all physically tendered Original Notes, in proper form for transfer, or a book-entry
confirmation, as the case may be, and any other documents required by the letter of transmittal will be deposited by the eligible institution with the Exchange Agent; and |
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the certificates for all physically tendered Original Notes, in proper form for transfer, or a book-entry confirmation, as the case may be, and all other documents required by the letter of transmittal are received by
the Exchange Agent within three trading days after the date of execution of the notice of guaranteed delivery. |
Withdrawal of Tenders
Tenders of Original Notes in the Exchange Offer may be validly withdrawn at any time prior to the Expiration Date.
For a withdrawal of a tender to be effective, a written or facsimile transmission notice of withdrawal must be received by the Exchange Agent
prior to the Expiration Date at its address set forth below under the caption Exchange Agent. The withdrawal notice must:
(1)
specify the name of the tendering holder of Original Notes;
(2) bear a description of the Original Notes to be withdrawn;
(3) specify, in the case of Original Notes tendered by delivery of certificates for those Original Notes, the certificate numbers shown on the
particular certificates evidencing those Original Notes;
(4) specify the aggregate principal amount represented by those Original Notes;
(5) specify, in the case of Original Notes tendered by delivery of certificates for those Original Notes, the name of the registered
holder, if different from that of the tendering holder, or specify, in the case of Original Notes tendered by book-entry transfer, the name and number of the account at DTC to be credited with the withdrawn Original Notes; and
(6) be signed by the holder of those Original Notes in the same manner as the original signature on the letter of transmittal, including any
required signature guarantees, or be accompanied by evidence satisfactory to us that the person withdrawing the tender has succeeded to the beneficial ownership of those Original Notes.
The signature on any notice of withdrawal must be guaranteed by an eligible guarantor institution, unless the Original Notes have been
tendered for the account of an eligible guarantor institution.
Withdrawal of tenders of Original Notes may not be rescinded, and any
Original Notes validly withdrawn will thereafter be deemed not to have been validly tendered for purposes of the Exchange Offer. Validly withdrawn Original Notes may, however, be re-tendered by again following one of the procedures described in
Procedures for Tendering on or prior to the Expiration Date.
Exchange Agent
U.S. Bank National Association has been appointed as Exchange Agent in connection with the Exchange Offer. Questions and requests for
assistance, as well as requests for additional copies of this prospectus or of the letter of transmittal, should be directed to the Exchange Agent at its offices at West Side Flats Operations Center, 60 Livingston Avenue, St. Paul, Minnesota 55107,
Attention: Specialized Finance. The Exchange Agents telephone number is (800) 934-6802 and facsimile number is (651) 466-7372.
Fees
and Expenses
We will not make any payment to brokers, dealers or others soliciting acceptances of the Exchange Offer. We will pay
certain other expenses to be incurred in connection with the Exchange Offer, including the fees and expenses of the Exchange Agent and certain accountant and legal fees.
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Holders who tender their Original Notes for exchange will not be obligated to pay transfer taxes.
If, however:
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Exchange Notes are to be delivered to, or issued in the name of, any person other than the registered holder of the Original Notes tendered; |
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tendered Original Notes are registered in the name of any person other than the person signing the letter of transmittal; or |
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a transfer tax is imposed for any reason other than the exchange of Original Notes in connection with the Exchange Offer; |
then the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption from them is not submitted with the letter of transmittal, the amount of such transfer taxes will be billed directly to the tendering holder.
Accounting Treatment
The Exchange Notes
will be recorded at the same carrying value as the Original Notes as reflected in our accounting records on the date of the exchange. Accordingly, we will not recognize any gain or loss for accounting purposes upon the completion of the Exchange
Offer.
Consequences of Failures to Properly Tender Original Notes in the Exchange Offer
Issuance of the Exchange Notes in exchange for the Original Notes under the Exchange Offer will be made only after timely receipt by the
Exchange Agent of a properly completed and duly executed letter of transmittal (or an agents message from DTC) and the certificate(s) representing such Original Notes (or confirmation of book-entry transfer), and all other required documents.
Therefore, holders of the Original Notes desiring to tender such Original Notes in exchange for Exchange Notes should allow sufficient time to ensure timely delivery. We are under no duty to give notification of defects or irregularities of tenders
of Original Notes for exchange. Original Notes that are not tendered or that are tendered but not accepted by us will, following completion of the Exchange Offer, continue to be subject to the existing restrictions upon transfer thereof under the
Securities Act, and, upon completion of the Exchange Offer, certain registration rights under the registration rights agreement will terminate.
In the event the Exchange Offer are completed, we generally will not be required to register the remaining Original Notes, subject to limited
exceptions. Remaining Original Notes will continue to be subject to the following restrictions on transfer:
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the remaining Original Notes may be resold only if registered pursuant to the Securities Act, if any exemption from registration is available, or if neither such registration nor such exemption is required by law; and
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the remaining Original Notes will bear a legend restricting transfer in the absence of registration or an exemption. |
We do not currently anticipate that we will register the remaining Original Notes under the Securities Act. To the extent that Original Notes
are tendered and accepted in connection with the Exchange Offer, any trading market for remaining Original Notes could be adversely affected. See Risk FactorsRisks Relating to the Exchange Offer If you fail to exchange your
Original Notes, they will continue to be restricted securities and may become less liquid.
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Description of Notes
General
We issued the Original Notes
under an indenture, dated as of July 1, 2014, between SBA and U.S. Bank National Association, as trustee. Set forth below is a description of the specific terms of the notes. This description does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, all the provisions of the indenture. Unless the context otherwise requires, references in this Description of Notes to the notes includes the Original Notes and the Exchange
Notes.
Capitalized terms used in this Description of Notes section and not otherwise defined have the meanings set forth in
the section Certain Definitions. As used in this Description of Notes section, the word SBA or SBA Communications refers to SBA Communications Corporation and not to any of its Subsidiaries.
On July 1, 2014, SBA Communications issued $750,000,000 aggregate principal amount of 4.875% Senior Notes due 2022 under an indenture.
The notes accrue interest from the Issue Date at a rate of 4.875%. The interest on the notes is payable semiannually on January 15 and July 15. The notes mature on July 15, 2022. You may request copies of the indenture at our address
set forth under the heading Where You Can Find More Information.
Brief Description of the Notes
The notes:
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are general obligations of SBA Communications; |
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rank equally in right of payment with all of SBA Communications existing and future senior unsecured debt, including the 5.625% Notes and the guarantee of the 5.75% Notes; |
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rank senior in right of payment to SBA Communications future subordinated debt; |
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are effectively subordinated in right of payment to SBA Communications existing and future secured debt to the extent of the value of the assets securing such debt, including the guarantee of obligations under the
Senior Credit Agreement; and |
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will be structurally subordinated to all liabilities (including trade payables) of each Subsidiary including any future indebtedness. |
SBA Communications has covenanted that it will offer to repurchase the notes under the circumstances described in the indenture upon:
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a Change of Control Triggering Event; or |
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an Asset Sale by SBA Communications or any of its Restricted Subsidiaries. |
The indenture also
contains covenants with respect to the following:
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Incurrence of Indebtedness and issuance of preferred stock; |
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Dividend and other payment restrictions affecting Subsidiaries; |
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Merger, consolidation or sale of assets; |
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Transactions with Affiliates; |
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Sale and leaseback transactions; |
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Limitation on issuances of Guarantees of Indebtedness; |
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Business activities; and |
In addition, certain covenants will be suspended during any period in which the
notes have an investment grade rating from each of Moodys and Standard & Poors and no Default or Event of Default shall have occurred and be continuing.
SBA Communications is a holding company with no operations or assets other than the capital stock of Telecommunications. The operations of SBA
Communications are conducted through its Subsidiaries and, therefore, SBA Communications depends on the cash flow of its Subsidiaries to meet its obligations, including its obligations under the notes. The notes are SBA Communications senior
unsecured obligations and rank equally in right of payment with SBA Communications existing and future senior unsecured debt, including the 5.625% Notes and the guarantee of the 5.75% Notes. The holders of the 5.625% Notes and the 5.75% Notes
will be entitled to share ratably with the holders of the notes any proceeds distributed in connection with any insolvency, liquidation, reorganization, dissolution or other winding-up of SBA Communications. The notes are not secured and thus are
effectively subordinated to any of SBA Communications existing and future secured debt to the extent of the value of the assets securing such debt, including its guarantee of amounts due under the Senior Credit Agreement. SBA granted the
lenders under the Senior Credit Agreement a first lien on the capital stock of Telecommunications, SBAs only significant asset, as collateral for SBAs guarantee of amounts due under the Senior Credit Agreement. SBAs Subsidiaries
are not guarantors of the notes, and the notes are effectively subordinated to all Indebtedness of SBAs Subsidiaries. In addition, SBA Senior Finance II, LLC has the ability to borrow up to $1.0 billion under the Revolving Credit
Facility, subject to compliance with specific financial ratios and the satisfaction of other customary conditions to borrowing in the Senior Credit Agreement. Furthermore, the Senior Credit Agreement permits SBA Senior Finance II, without the
consent of the other lenders, to request that one or more lenders provide SBA Senior Finance II with increases in the Revolving Credit Facility or additional term loans provided that after giving effect to the proposed increase in Revolving Credit
Facility commitments (assuming the Revolving Credit Facility commitments, as increased, were fully drawn) or incremental term loans the ratio of Consolidated Total Debt to Annualized Borrower EBITDA would not exceed 6.5x. Any right of SBA
Communications to receive assets of any of its Subsidiaries upon the liquidation or reorganization of the Subsidiaries, and the consequent right of the Holders of the notes to participate in those assets, will be effectively subordinated to the
claims of that Subsidiarys creditors, except to the extent that SBA Communications is itself recognized as a creditor of such Subsidiary. If SBA Communications is recognized as a creditor of such Subsidiary, the claims of SBA Communications
would still be subordinate in right of payment to any security interest in the assets of that Subsidiary and any indebtedness of that Subsidiary senior to that held by SBA Communications. The provisions of the Senior Credit Agreement also contain
restrictions on the ability of those Subsidiaries to dividend or distribute cash flow or assets to SBA. As of the date of this prospectus, all of our foreign subsidiaries have been designated as restricted subsidiaries under the indenture governing
the notes; however, we may undesignate any of these subsidiaries in the future in accordance with the terms of the indenture.
Principal, Maturity and
Interest
The notes are limited in aggregate principal amount to $750.0 million. The notes will mature on July 15, 2022. The
indenture governing the notes allows SBA Communications to issue an unlimited principal amount of notes in addition to the notes, subject to compliance with the covenant entitled Incurrence of Indebtedness and Issuance of Preferred
Stock. See Risk FactorsRisks Related to the Notes The indenture governing the notes restricts, but does not prohibit, us or our restricted subsidiaries from incurring substantially more debt, all of which could be senior to
the notes. This increased leverage could increase the business and financial risks associated with our future operations.
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Interest on the notes accrues at the rate of 4.875% per annum. The interest on the notes is
payable in U.S. dollars semiannually in arrears on January 15 and July 15. SBA Communications will make each interest payment to Holders of record on the immediately preceding January 1 and July 1.
Interest on the notes accrues from the most recent date to which interest has been paid. Interest is computed on the basis of a 360-day year
comprised of twelve 30-day months.
Methods of Receiving Payments on the Notes
If a Holder has given wire transfer instructions to SBA Communications, SBA Communications will make all payments of principal, premium, if
any, interest or Additional Interest, if any, on that Holders notes in accordance with those instructions. All other payments on the notes will be made at the office or agency of the paying agent and registrar for the notes within the City and
State of New York unless SBA Communications elects to make interest payments by check mailed to the Holders at their address set forth in the register of Holders.
Paying Agent and Registrar for the Notes
The trustee under the indenture will initially act as the paying agent and registrar for the notes. SBA Communications may change the paying
agent or registrar under the indenture without prior notice to the Holders of the notes, and SBA Communications or any of its Subsidiaries may act as paying agent or registrar under the indenture.
Transfer and Exchange
A Holder may
transfer or exchange notes for other notes with the same terms and principal amount in accordance with the indenture. The registrar and the trustee may require a Holder to furnish appropriate endorsements and transfer documents in connection with a
transfer of notes. Holders will be required to pay all taxes due on transfer. SBA Communications is not required to transfer or exchange any notes selected for redemption. In addition, SBA Communications is not required to transfer or exchange any
notes for a period of 15 days before a selection of notes to be redeemed.
Optional Redemption
At any time prior to July 15, 2017, the notes may be redeemed, in whole or in part, at the option of SBA Communications, at a redemption
price equal to 100% of the principal amount of the notes to be redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, and Additional Interest, if any, to, the redemption date.
Applicable Premium means, with respect to any note on any redemption date, the greater of (i) 1.0% of the principal amount of
such note and (ii) the excess of (A) the present value at such redemption date of (1) the redemption price of such note at July 15, 2017 (such redemption price being set forth in the table below), plus (2) all required
interest payments due on such note through July 15, 2017 (excluding accrued but unpaid interest, if any, to the redemption date), computed using a discount rate equal to the Treasury Rate on such redemption date plus 50 basis points over
(B) the principal amount of such note.
Treasury Rate means, as of any redemption date, the yield to maturity as of such
redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to
the redemption 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 at July 15, 2017; provided, however,
that if the period from the redemption date to at July 15, 2017 is not equal to the constant maturity of the United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from such date of redemption to at July 15, 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 shall be used.
During the period after the date of original issuance of the notes until at July 15, 2017, SBA Communications may on any one or more
occasions redeem up to 35% of the aggregate principal amount of the notes originally issued at a redemption
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price of 104.875% of the principal amount of the notes to be redeemed on the redemption date plus accrued and unpaid interest, if any, and Additional Interest, if any, to the redemption date with
the net cash proceeds of one or more Equity Offerings by SBA; provided that:
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at least 65% of the aggregate principal amount of notes originally issued remains outstanding immediately after the occurrence of such redemption, excluding any notes held by SBA Communications or any of its
Subsidiaries; and |
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the redemption occurs within 90 days of the date of the closing of the Equity Offering. |
Notice of any redemption upon any Equity Offering may be given prior to the redemption thereof, and any such redemption or notice may, at SBA
Communications discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related Equity Offering.
Except pursuant to the preceding paragraphs under this caption, the notes will not be redeemable at SBA Communications option prior to
July 15, 2017. On or after July 15, 2017, SBA Communications may redeem all or a part of the notes upon not less than 30 nor more than 60 days notice, at the redemption prices expressed as percentages of principal amount set forth
below plus accrued and unpaid interest, if any, and Additional Interest, if any, on the notes redeemed to the applicable redemption date, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant
interest payment date, if redeemed during the twelve-month period beginning on July 15 of the years indicated below:
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2017 |
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103.656 |
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2018 |
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102.438 |
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2019 |
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101.219 |
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2020 and thereafter |
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100.000 |
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Selection and Notice
If less than all of the notes are to be redeemed at any time, the trustee under the indenture will select notes for redemption as follows:
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if the notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange, if any, on which the notes are listed; or |
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if the notes are not listed on any national securities exchange, on a pro rata basis, by lot or by such method as the trustee shall deem fair and appropriate. |
No notes of $2,000 of principal amount or less will be redeemed in part. Notices of redemption will be mailed by first class mail at least 30
but not more than 60 days before the redemption date to each Holder of notes to be redeemed at its registered address. Notices of redemption may not be conditional (except with respect to the proceeds of an Equity Offering as described above).
If any note is to be redeemed in part only, the notice of redemption that relates to such note shall state the portion of the principal amount
of that note to be redeemed. A new note in principal amount equal to the unredeemed portion of the original note presented for redemption will be issued in the name of the Holder thereof upon cancellation of the original note. Notes called for
redemption become due on the date fixed for redemption. On and after the redemption date, interest and Additional Interest, if any, ceases to accrue on notes or portions of them called for redemption.
Repurchase at the Option of Holders
Change of
Control Triggering Event
If a Change of Control Triggering Event occurs with respect to the notes, each Holder of such notes will
have the right to require SBA Communications to repurchase all or any part, equal to $2,000 or an integral multiple of $1,000, of such
31
Holders notes pursuant to the offer described below (the Change of Control Offer). The offer price in any Change of Control Offer will be payable in cash and will be 101% of the
aggregate principal amount of any notes repurchased plus accrued and unpaid interest, if any, and Additional Interest, if any, on such notes, if any (subject to the right of Holders of record on the relevant record date to receive interest due on
the relevant interest payment date), to the date of purchase (the Change of Control Payment). Within 30 days following any Change of Control Triggering Event unless SBA Communications has exercised its right to redeem all of the notes as
described above under Optional Redemption, SBA Communications will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase such notes on
the date specified in the notice (the Change of Control Payment Date). The Change of Control Payment Date will be no earlier than 30 days and no later than 60 days from the date the notice is mailed, pursuant to the procedures required
by the indenture and described in such notice.
On the Change of Control Payment Date for the notes, SBA Communications will, to the
extent lawful:
|
(1) |
accept for payment all notes or portions of the 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 trustee the notes so accepted together with an officers certificate stating the aggregate principal amount of notes or portions of the notes being purchased by SBA
Communications. |
The paying agent will promptly mail to each Holder of notes properly tendered the Change of Control Payment
for such notes, and the trustee will promptly authenticate and mail, or cause to be transferred by book entry, to each Holder a new note equal in principal amount to any unpurchased portion of the notes surrendered, if any; provided that the new
note will be in a principal amount of $2,000 or an integral multiple of $1,000.
The Change of Control Triggering Event provisions
described above will be applicable whether or not any other provisions of the indenture are applicable. SBA Communications will comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations to
the extent those laws and regulations are applicable to any Change of Control Offer. If the provisions of any of the applicable securities laws or securities regulations conflict with the provisions of the covenant described above, SBA
Communications will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the covenant described above by virtue of the compliance.
The Change of Control Triggering Event purchase feature is a result of negotiations between SBA Communications and the initial purchasers.
Management has no present intention to engage in a transaction involving a Change of Control Triggering Event, although it is possible that SBA Communications would decide to do so in the future. Subject to the limitations discussed below, SBA
Communications could, in the future, enter into certain transactions, including acquisitions, refinancings or other recapitalizations, that would not constitute a Change of Control Triggering Event under the indenture, but that could increase the
amount of Indebtedness outstanding at such time or otherwise affect SBA Communications capital structure. Furthermore, even if a Change of Control were to occur, it may not constitute a Change of Control Triggering Event, which is the
occurrence of both a Change of Control plus a Ratings Decline, such that it would trigger SBA Communications obligation to repurchase the notes. Restrictions on the ability of SBA Communications to incur additional Indebtedness are contained
in the covenants described under Certain CovenantsIncurrence of Indebtedness and Issuance of Preferred Stock, Certain CovenantsLiens and Certain CovenantsSale and Leaseback Transactions. Such
restrictions can only be waived with the consent of the Holders of a majority in principal amount of such notes then outstanding. Except for the limitations contained in the covenants, however, the indenture does not contain any covenants or
provisions that may afford Holders of the notes protection in the event of certain highly leveraged transactions.
The Indebtedness of SBA
Communications Subsidiaries limits SBA Communications access to the cash flow of those Subsidiaries and will, therefore, restrict SBA Communications ability to purchase any notes. The terms of such Indebtedness, with certain
exceptions, provide that the occurrence of certain change of control events with respect to SBA Communications constitutes a default under such Indebtedness. In the event that a Change of Control Triggering Event occurs at a time when SBA
Communications Subsidiaries are prohibited from making distributions to SBA Communications to purchase notes, SBA Communications could cause its Subsidiaries to seek the consent of the holders of such Indebtedness to allow the distributions or
could attempt to refinance the Indebtedness that contains the prohibition. If SBA
32
Communications does not obtain a consent or repay such Indebtedness, SBA Communications will remain prohibited from purchasing notes. In this case, SBA Communications failure to purchase
tendered notes would constitute an Event of Default under the indenture which would, in turn, constitute a default under such Indebtedness. Future Indebtedness of SBA Communications and its Subsidiaries may contain prohibitions on the occurrence of
certain events that would constitute a Change of Control Triggering Event or require the Indebtedness to be repurchased if a Change of Control Triggering Event occurs. Moreover, the exercise by the Holders of their right to require SBA
Communications to repurchase the notes could cause a default under such Indebtedness, even if the Change of Control Triggering Event itself does not, due to the financial effect of such repurchase on SBA Communications. Finally, SBA
Communications ability to pay cash to the Holders of notes following the occurrence of a Change of Control Triggering Event may be limited by SBA Communications then existing financial resources, including its ability to access the cash
flow of its Subsidiaries. See Risk FactorsRisks Related to the Notes SBA Communications may not be able to purchase the notes upon a change of control triggering event, which would result in a default under the indenture governing
the notes and would adversely affect its business and financial condition.
Holders of the notes will be effectively subordinated to
all SBA Communications Subsidiaries indebtedness and obligations which may also be accelerated as a result of a Change of Control and will rank junior in right of payment with the 5.75% Notes, which SBA Telecommunications will be
required to repurchase upon a Change of Control. There can be no assurance that sufficient funds will be available when necessary to make any required repurchases.
SBA Communications will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the indenture applicable to a Change of Control Offer made by SBA Communications and purchases all notes properly tendered and not
withdrawn under such Change of Control Offer. In addition, notwithstanding the occurrence of a Change of Control Triggering Event, SBA Communications will not be obligated to make a Change of Control Offer in the event it has exercised its rights to
redeem all of the outstanding notes as provided under Optional Redemption. A Change of Control Offer may be made in advance of a Change of Control and conditioned upon such Change of Control Triggering Event if a definitive agreement is
in place for the Change of Control at the time of making the Change of Control Offer. The provisions under the indenture relating to SBA Communications obligation to make an offer to repurchase the notes as a result of a Change of Control
Triggering Event may be waived or modified with the written consent of the Holders of a majority in principal amount of the notes then outstanding.
The definition of Change of Control includes phrases relating to the sale, lease, transfer, conveyance or other disposition of all or
substantially all of (i) the assets of SBA Communications and its Restricted Subsidiaries taken as a whole. Although there is a developing body of case law interpreting the phrase substantially all, there is no precise
established definition of the phrase under applicable law. Accordingly, the ability of a Holder of notes to require SBA Communications to repurchase the notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all
of the assets of SBA Communications and its Restricted Subsidiaries taken as a whole to another Person or group may be uncertain. See Risk FactorsRisks Related to the Notes Investors may not be able to determine when a change of
control triggering event giving rise to their right to have the notes repurchased by SBA has occurred following a sale of substantially all of the assets of SBA and its restricted subsidiaries.
Asset Sales
SBA Communications
will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
|
(1) |
SBA Communications (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; |
|
(2) |
fair market value is determined by the board of directors of SBA Communications (or the Restricted Subsidiary, as the case may be) and evidenced by a resolution of such board of directors; and |
|
(3) |
except in the case of a Qualified Asset Exchange, at least 75% of the consideration received in such Asset Sale by SBA Communications or such Restricted Subsidiary is in the form of cash or Cash Equivalents.
|
33
For purposes of clause (3) above only, each of the following shall be deemed to be cash:
|
(a) |
any liabilities, as shown on SBA Communications or such Restricted Subsidiarys most recent balance sheet, of SBA Communications or any Restricted Subsidiary (other than contingent liabilities and liabilities
that are by their terms subordinated to the notes or any Guarantee of the notes) that are assumed by the transferee of any assets pursuant to a customary novation agreement that releases SBA Communications or the Restricted Subsidiary from further
liability; |
|
(b) |
any securities, notes or other obligations received by SBA Communications or any Restricted Subsidiary from the transferee that are converted by SBA Communications or the Restricted Subsidiary into cash within
90 days of the applicable Asset Sale, to the extent of the cash received in that conversion; and |
|
(c) |
any Designated Noncash Consideration received by SBA Communications or any of its Restricted Subsidiaries in an Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash
Consideration received pursuant to this clause, not to exceed the greater of $225.0 million or 7.5% of Consolidated Net Tangible Assets in the aggregate at any time outstanding (with the fair market value of each item of Designated Noncash
Consideration being measured at the time received and without giving effect to subsequent changes in value). |
Within 365
days after the receipt of any Net Proceeds from an Asset Sale, SBA Communications or the Restricted Subsidiary may apply those Net Proceeds to:
|
(1) |
reduce non-subordinated Indebtedness of SBA Communications; |
|
(2) |
reduce Indebtedness or Excluded Capital Lease Obligations of any of SBA Communications Restricted Subsidiaries (including by way of SBA Communications or a Restricted Subsidiary acquiring outstanding Indebtedness of any
Restricted Subsidiary to be held by SBA Communications or a Restricted Subsidiary to redemption or maturity of such Indebtedness); |
|
(3) |
acquire all or substantially all the assets of a Permitted Business; |
|
(4) |
make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person and results in SBA Communications or a Restricted Subsidiary owning more
than 50% of such Person, such acquisition results in such Person becoming a Restricted Subsidiary of SBA Communications unless designated an Unrestricted Subsidiary by SBA Communications); |
|
(5) |
make an investment in any one or more businesses, properties or assets that replace the properties or assets that are the subject of such Asset Sale; and/or |
|
(6) |
make capital expenditures or acquire other long-term assets (including long-term land use easements, ground leases and similar land rights) that are used or useful in a Permitted Business, provided that, after giving
effect thereto, SBA Communications or its Restricted Subsidiaries is the owner of such assets or such expenditure or acquisition constitutes a Permitted Investment; |
provided that in the case of clauses (3), (4), (5) and (6) above, a binding commitment shall be treated as a permitted application of the Net
Proceeds from the date of such commitment so long as SBA Communications or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within nine months
after the end of the 365-day period (an Acceptable Commitment) and, in the event any Acceptable Commitment is later cancelled, terminated or otherwise not consummated during such period for any reason, then any such unapplied Net
Proceeds shall upon such event constitute Excess Proceeds.
Pending the final application of any Net Proceeds, SBA Communications may
temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by the indenture.
34
Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding
paragraphs (whether by election or the passage of time) will be deemed to constitute Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $35.0 million, SBA Communications will be required to make an offer to all Holders
of the notes, and all holders of other pari passu Indebtedness of SBA Communications containing provisions similar to those set forth in the indenture relating to the notes with respect to offers to purchase or redeem with the proceeds from
any Asset Sale, to purchase the maximum principal amount of the notes and such other pari passu Indebtedness of SBA Communications that may be purchased out of the Excess Proceeds (an Asset Sale Offer). The offer price in any
Asset Sale Offer will be payable in cash and will be 100% of the principal amount of any notes and pari passu Indebtedness, plus accrued and unpaid interest, if any, and Additional Interest, if any, to the date of purchase. Each Asset Sale
Offer will be made in accordance with the procedures set forth in the indenture and the other pari passu Indebtedness of SBA Communications. If any Excess Proceeds remain after consummation of an Asset Sale Offer, SBA Communications may use
the remaining Excess Proceeds for any purpose not otherwise prohibited by the indenture. If the aggregate principal amount of notes and the other pari passu indebtedness of SBA Communications tendered into the Asset Sale Offer exceeds the
amount of Excess Proceeds, the trustee will select the notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of the Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
SBA Communications will comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations to
the extent those laws and regulations are applicable to any Asset Sale Offer. If the provisions of any of the applicable securities laws or securities regulations conflict with the provisions of the covenant described above, SBA Communications will
comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the covenant described above by virtue of the compliance.
Certain Covenants
Changes in Covenants When Notes
Rated Investment Grade
If on any date following the Issue Date:
(1) |
the notes are rated Baa3 or better by Moodys and BBB- or better by Standard & Poors (or, if either such entity ceases to rate the notes for reasons outside of the control of SBA Communications, the
equivalent investment grade credit rating from any other nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act (registered as such pursuant to Rule 17g-1 of the Exchange
Act), selected by SBA Communications as a replacement agency); and |
(2) |
no Default or Event of Default shall have occurred and be continuing, |
then, beginning on that
day and subject to the provisions of the following paragraph, the covenants specifically listed under the following captions in this prospectus will be suspended with respect to the notes:
(1) |
Repurchase at the Option of HoldersAsset Sales; |
(2) |
Restricted Payments; |
(3) |
Incurrence of Indebtedness and Issuance of Preferred Stock; |
(4) |
Dividend and Other Payment Restrictions Affecting Subsidiaries; |
(5) |
Transactions with Affiliates; |
(6) |
clause (2)(d) of the covenant described below under the caption Merger, Consolidation or Sale of Assets; and |
(7) |
-Business Activities. |
35
During any period that the foregoing covenants have been suspended, SBA Communications
board of directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the second paragraph of the definition of Unrestricted Subsidiary.
Notwithstanding the foregoing, if the rating assigned to the notes by either such rating agency should subsequently decline to below Baa3 by
Moodys or BBB- by Standard & Poors, respectively (or if either such agency ceases to rate the notes, the equivalent investment grade credit rating from another nationally recognized statistical rating organization), the
foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Restricted Payments covenant will be made as if the Restricted Payments covenant had been in effect
since the Issue Date except that no default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Notwithstanding that the suspended covenants may be reinstated, no default will be deemed to
have occurred as a result of a failure to comply with such suspended covenants during any period such covenants have been suspended. There can be no assurance that the notes will ever achieve an investment grade rating or that any such rating will
be maintained.
Restricted Payments
SBA Communications will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) |
declare or pay any dividend or make any other payment or distribution (whether in cash, securities or other property) on account of SBA Communications or any of its Restricted Subsidiaries Equity Interests
(including, without limitation, any payment in connection with any merger or consolidation involving SBA Communications or any of its Restricted Subsidiaries) or to the direct or indirect holders of SBA Communications 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 SBA Communications or to SBA Communications or a Restricted Subsidiary of SBA
Communications and if such Restricted Subsidiary is not a wholly owned Subsidiary, to its other holders of Common Equity Interests on a pro rata basis); |
(2) |
purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving SBA Communications) any Equity Interests of SBA Communications or any
direct or indirect parent of SBA Communications (other than (i) any such Equity Interests owned by SBA Communications or any of its Restricted Subsidiaries or (ii) any acquisition of Equity Interests deemed to occur upon the exercise of
options or restricted stock rights if such Equity Interests represent a portion of the exercise price thereof or taxes due in connection therewith); |
(3) |
make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the notes (other than intercompany Indebtedness), except a payment
of interest or a payment of principal at the Stated Maturity (or within one year of final maturity); or |
(4) |
make any Restricted Investment (all such payments and other actions set forth in these clauses (1) through (4) occurring since the Issue Date, being collectively referred to as Restricted
Payments), |
unless, at the time of and after giving effect to such Restricted Payment:
(1) |
no Default has occurred and is continuing or would occur as a consequence of the Restricted Payment; and |
(2) |
Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio would have been no greater than 9.5 to 1, calculated on a pro forma basis giving effect to such Restricted Payment and (x) removing
the financial results that would otherwise be included in such calculations in respect of any Property Disposed of after such date and on or prior to the date of making such Restricted Payment and (y) including the financial results that would
otherwise be excluded in such calculations in respect of any Property acquired after such date and on or prior to the date of making such Restricted Payment. |
36
The preceding provisions will not prohibit:
(1) |
the payment of any dividend within 60 days after the date of declaration of that dividend if at said date of declaration such payment would have complied with the provisions of the indenture; |
(2) |
the making of any Restricted Payment in exchange for, or out of the net cash proceeds from the sale (other than to a Subsidiary of SBA Communications) of, Equity Interests of SBA Communications (other than any
Disqualified Stock); |
(3) |
the defeasance, redemption, repurchase, or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; |
(4) |
the payment of any dividend by a Restricted Subsidiary of SBA Communications to the Holders of such Restricted Subsidiarys Equity Interests on a pro rata basis; |
(5) |
the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of SBA Communications or any Restricted Subsidiary of SBA Communications held by any member of SBA Communications (or
any of its Restricted Subsidiaries) management pursuant to any management equity subscription agreement, restricted stock arrangement, or stock option or similar agreement in effect as of the Issue Date; provided that the aggregate price paid
for all of the repurchased, redeemed, acquired or retired Equity Interests pursuant to this clause (5) may not exceed $25.0 million in any fiscal year (with unused amounts in any fiscal year being carried over to the succeeding fiscal year);
|
(6) |
other Restricted Payments in an aggregate amount not to exceed $150.0 million; or |
(7) |
cash payments, in lieu of fractional shares issuable as dividends on Equity Interests of SBA Communications or its Restricted Subsidiaries in an amount, when taken together with all other cash payments made pursuant to
this clause (7) since the issuance of the notes, not to exceed $1.0 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 assets or securities proposed to be transferred or issued by SBA Communications or the applicable Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. The fair market value of any property, assets or Investments required by this covenant to be valued will be valued by the board of directors of SBA Communications or the applicable Restricted Subsidiary that is making the
Restricted Payment, as the case may be, and shall be delivered to the trustee.
As set forth below under Certain
Definitions-Unrestricted Subsidiary, the board of directors of SBA Communications may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such
determination, all outstanding Investments by SBA Communications and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of the designation. All of
those outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of the Investments at the time of such designation. Such designation will only be permitted if the Restricted Payment would be
permitted at the time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The board of directors of SBA Communications may designate any Unrestricted Subsidiary to be a Restricted Subsidiary if the
designation would not cause a Default.
Incurrence of Indebtedness and Issuance of Preferred Stock
SBA Communications 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 Indebtedness (including Acquired Debt) and SBA Communications will not issue any Disqualified Stock and
will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided that SBA Communications may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and SBA Communications
Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) or issue preferred stock if, in each case, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio at the time of incurrence of the Indebtedness or the
issuance of the Disqualified Stock or preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of
the most recently ended fiscal quarter of SBA Communications for which internal financial statements are available, would have been no greater than 9.5 to 1.
37
The first paragraph of this covenant will not prohibit the incurrence of any of the following
items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, Permitted Debt):
(1) |
the incurrence by SBA Communications or any of its Restricted Subsidiaries of Indebtedness under the Revolving Credit Facility in an aggregate principal amount (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of SBA Communications and its Restricted Subsidiaries thereunder) at any one time outstanding not to exceed $250.0 million; |
(2) |
the incurrence by SBA Communications or its Restricted Subsidiaries of the Existing Indebtedness (other than Indebtedness described in clauses (1) and (4) of this paragraph); |
(3) |
the incurrence by SBA Communications of the Indebtedness represented by the notes to be issued on the Issue Date (other than additional notes) and the Exchange Notes issued in exchange therefor; |
(4) |
the incurrence by SBA Communications or any of its Restricted Subsidiaries of Indebtedness since the Issue Date represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case
incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of SBA Communications or such Restricted Subsidiary, in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred by SBA Communications and its Restricted Subsidiaries (measured at the time of such incurrence) pursuant to this clause
(4), not to exceed the greater of (a) $50.0 million and (b) 2.0% of the Consolidated Net Tangible Assets; |
(5) |
the incurrence by SBA Communications or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or
refund Indebtedness of SBA Communications or any of its Restricted Subsidiaries or Disqualified Stock of SBA Communications (other than intercompany Indebtedness) that was permitted by the indenture to be incurred under the first paragraph of this
covenant or clauses (2), (3), this clause (5) or clause (9) of this paragraph; |
(6) |
the incurrence by SBA Communications or any of its Restricted Subsidiaries of intercompany Indebtedness between or among SBA Communications and any of its Restricted Subsidiaries; provided, however, that
if SBA Communications is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the notes and that: |
|
(A) |
any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than SBA Communications or a Restricted Subsidiary; and |
|
(B) |
any sale or other transfer of any such Indebtedness to a Person that is not either SBA Communications or a Restricted Subsidiary; |
shall be deemed, in each case, to constitute an incurrence of the Indebtedness by SBA Communications or the Restricted Subsidiary, as the case
may be;
(7) |
the incurrence by SBA Communications or any of its Restricted Subsidiaries of Indebtedness arising under Hedging Obligations, provided that such Hedging Obligations were incurred for the purpose of fixing or
hedging (i) interest rate risk, (ii) currency exchange risk, or (iii) equity rate risk associated with SBAs Class A common stock, and, in all cases, not for speculative purposes; |
(8) |
the guarantee by SBA Communications or any of its Restricted Subsidiaries of Indebtedness of SBA Communications or a Restricted Subsidiary of SBA Communications that was permitted to be incurred by another provision of
the indenture; |
38
(9) |
the incurrence or assumption of Acquired Debt of (x) SBA Communications or a Restricted Subsidiary incurred to finance an acquisition or (y) Persons that are acquired by SBA Communications or any Restricted
Subsidiary or merged into SBA Communications or a Restricted Subsidiary in accordance with the terms of the indenture; provided that, in the case of any incurrence pursuant to this clause (9), as a result of such acquisition by SBA
Communications or one of its Restricted Subsidiaries, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio at the time of incurrence of such Acquired Debt, after giving pro forma effect to such incurrence as if the
same had occurred at the beginning of the most recently ended fiscal quarter of SBA Communications for which internal financial statements are available and (x) removing the financial results that would otherwise be included in such
calculations in respect of any Property Disposed of after such date and on or prior to the date of making such acquisition and (y) including the financial results that would otherwise be excluded in such calculations in respect of any Property
acquired after such date and on or prior to the date of making such acquisition, would have been either (i) no greater than 9.5 to 1 or (ii) less than the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio for the
same period without giving pro forma effect to such incurrence; |
(10) |
Indebtedness owed to credit card companies which are used to pay operating expenses associated with Towers and the Services Business and letters of credit to secure such Indebtedness in an aggregate amount not exceeding
$500,000 at any one time outstanding; |
(11) |
the incurrence by SBA Communications or any of its Restricted Subsidiaries of any Indebtedness in respect of (A) performance bonds, bankers acceptances, letters of credit, surety or appeal bonds or similar
instruments provided by SBA Communications or any Restricted Subsidiary in the ordinary course of business, (B) the financing of insurance premiums in the ordinary course of business or (C) netting, overdraft protection and other
arrangements arising under standard business terms of any bank at which SBA Communications or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement; |
(12) |
the incurrence by SBA Communications or any of its Restricted Subsidiaries of any Indebtedness 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 that such Indebtedness is extinguished within five business days of its incurrence; |
(13) |
the incurrence by SBA Communications or any of its Restricted Subsidiaries of any Indebtedness consisting of indemnification, adjustment of purchase price, earn-out or similar obligations of SBA Communications or any
Restricted Subsidiary, in each case incurred in connection with the acquisition or disposition of any assets, business or Person by SBA Communications or any Restricted Subsidiary; |
(14) |
the incurrence by SBA Communications or any of its Restricted Subsidiaries of any Guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisers and licensees; |
(15) |
the incurrence by Foreign Subsidiaries which have been designated Restricted Subsidiaries of additional Indebtedness, the proceeds of which are used for ordinary course business purposes, in an aggregate principal
amount, at any time outstanding, not to exceed $25.0 million; and |
(16) |
the incurrence by SBA Communications or any of its Restricted Subsidiaries since the Issue Date of additional Indebtedness and/or the issuance by SBA Communications of Disqualified Stock in an aggregate principal
amount, accreted value or liquidation preference, as applicable, taken together with all other Indebtedness incurred pursuant to this clause (16), at any time outstanding, not to exceed $50.0 million. |
The indenture also provides that SBA Communications will not incur any Indebtedness that is contractually subordinated in right of payment to
any other Indebtedness of SBA Communications unless such Indebtedness is also contractually subordinated in right of payment to the notes on substantially identical terms; provided, however, that no Indebtedness of SBA Communications
will be deemed to be contractually subordinated in right of payment to any other indebtedness of SBA Communications solely by virtue of being unsecured.
For purposes of determining compliance with this covenant, in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Debt described in clauses (1) through (16) above or is entitled to be incurred
39
pursuant to the first paragraph of this covenant, SBA Communications will, in its sole discretion, classify (or later reclassify in whole or in part) such item of Indebtedness in any manner that
complies with this covenant. Accrual of interest, accretion or amortization of original issue discount and the payment of interest in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this
covenant.
Liens
SBA
Communications will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien securing Indebtedness or trade payables on any asset or property (including Equity Interests of
Restricted Subsidiaries of SBA Communications) directly held by SBA Communications or any Restricted Subsidiary now owned or hereafter acquired, or any income or profits therefrom or assign or convey any right to receive income therefrom, except
Permitted Liens, without providing that the notes shall be secured equally and ratably with (or senior in priority with respect to subordinated obligations) the obligations so secured for so long as such obligations are so secured.
Dividend and Other Payment Restrictions Affecting Subsidiaries
SBA Communications will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer 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 to SBA Communications on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits (it being understood that the priority of
any preferred stock in receiving dividends or liquidating distributions prior to the Common Stock shall not be deemed a restriction on the ability to make dividends on the Capital Stock); |
(2) |
pay any indebtedness owed to SBA Communications or any Restricted Subsidiary (it being understood that the subordination of loans or advances by SBA Communications or any Restricted Subsidiary shall not be deemed a
restriction on the ability to make loans or advances); |
(3) |
make loans or advances to any Restricted Subsidiary; or |
(4) |
transfer any of its properties or assets to any Restricted Subsidiary. |
However, the preceding
restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1) |
Existing Indebtedness as in effect on the Issue Date, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that either
(i) such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions
than those contained in the applicable series of Existing Indebtedness as in effect on the Issue Date or (ii) SBA Communications or the Restricted Subsidiary incurring the debt, as the case may be, determines that any such encumbrance or
restriction will not materially affect SBA Communications ability to pay interest or principal, when due, on the notes (which determination shall be made in the good faith judgment of the board of directors of SBA Communications or of the
applicable Restricted Subsidiary incurring such Indebtedness, as the case may be); |
(2) |
Indebtedness of any Restricted Subsidiary under any Credit Facility that is permitted to be incurred or outstanding pursuant to the covenant under the caption Incurrence of Indebtedness and Issuance of
Preferred Stock; provided that such Credit Facility and Indebtedness contain only such encumbrances and restrictions on such Restricted Subsidiarys ability to engage in the activities set forth in clauses (1) through (4) of the
preceding paragraph as are, at the time such Credit Facility is entered into or amended, modified, restated, renewed, increased, supplemented, refunded, replaced or refinanced, ordinary and customary for a Credit Facility of that type as determined
in the good faith judgment of the board of directors of SBA Communications or of the applicable Restricted Subsidiary incurring such Indebtedness, as the case may be; |
40
(3) |
encumbrances and restrictions applicable to any Unrestricted Subsidiary, as the same are in effect as of the date on which the Subsidiary becomes a Restricted Subsidiary, and as the same may be amended, modified,
restated, renewed, increased, supplemented, refunded, replaced or refinanced; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a
whole, with respect to the dividend and other payment restrictions than those contained in the applicable series of Indebtedness of such Subsidiary as in effect on the date on which such Subsidiary becomes a Restricted Subsidiary; |
(4) |
any Indebtedness incurred in compliance with the covenant under the heading Incurrence of Indebtedness and Issuance of Preferred Stock or any agreement pursuant to which such Indebtedness is issued if
the encumbrance or restriction applies only in the event of a payment default or default with respect to a financial covenant contained in the Indebtedness or agreement and the encumbrance or restriction is not materially more disadvantageous to the
Holders of the notes than is customary in comparable financings (as determined by SBA Communications) and SBA Communications determines that any such encumbrance or restriction will not materially affect SBA Communications ability to pay
interest or principal on the notes; |
(5) |
the indenture governing the notes (including the Exchange Notes); |
(6) |
encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order; |
(7) |
any instrument governing Indebtedness or Capital Stock of a Person acquired by SBA Communications or any of its Restricted Subsidiaries as in effect at the time that Person is acquired by SBA Communications (except to
the extent the Indebtedness was incurred in connection with or in contemplation 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 Indebtedness, the Indebtedness was permitted by the terms of the indenture to be incurred, and provided further that any such encumbrance or restriction shall not extend to any
assets or property of SBA Communications or any other Restricted Subsidiary other than the assets and property so acquired; |
(8) |
customary non-assignment provisions in leases, licenses, easements or similar arrangements entered into in the ordinary course of business; |
(9) |
purchase money obligations for property acquired in the ordinary course of business of the nature described in clause (4) in the second paragraph of the covenant described above under the caption
Incurrence of Indebtedness and Issuance of Preferred Stock on the property so acquired or under Excluded Capital Lease Obligations with respect to the property subject thereto; |
(10) |
any agreement for the sale of a Restricted Subsidiary that restricts that Restricted Subsidiary pending its sale; |
(11) |
Permitted Refinancing Indebtedness, provided that either (i) the restrictions contained in the agreements governing the Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being refinanced or (ii) SBA Communications determines that any such encumbrance or restriction will not materially affect SBA Communications ability to pay interest or
principal, when due, on the notes (which determination shall be made in the good faith judgment of the board of directors of SBA Communications or of the applicable Restricted Subsidiary incurring the Indebtedness, as the case may be);
|
(12) |
Liens permitted to be incurred pursuant to the provisions of the covenant described under the caption Liens that limit the right of the debtor to transfer the assets subject to such Liens;
|
(13) |
customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements or arrangements; |
(14) |
restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and |
41
(15) |
Indebtedness permitted to be incurred pursuant to clause (15) of the covenant described above under the caption Incurrence of Indebtedness and Issuance of Preferred Stock; provided, that SBA
Communications determines that any such encumbrance or restriction will not materially affect SBA Communications ability to pay interest or principal, when due, on the notes (which determination shall be made in the good faith judgment of the
board of directors of SBA Communications or of the applicable Restricted Subsidiary incurring the Indebtedness, as the case may be). |
Each determination required to be made by the board of directors of SBA Communications or of the applicable Restricted Subsidiary incurring
the Indebtedness, as the case may be, pursuant to clauses (1), (2), (11) and (15) above shall be evidenced in a resolution of such board of directors and shall be conclusively binding.
Merger, Consolidation or Sale of Assets
SBA Communications may not
(1) |
consolidate or merge with or into (whether or not SBA Communications is the surviving corporation) another corporation, Person or entity; or |
(2) |
sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another corporation, Person or entity, |
unless, in either such case:
|
(A) |
SBA Communications is the surviving corporation; or |
|
(B) |
the entity or the Person formed by or surviving any such consolidation or merger (if other than SBA Communications) or to which the sale, assignment, transfer, lease, conveyance or other disposition shall have been made
is a Person (which, if not a corporation, includes a corporate co-issuer) organized or existing under the laws of the United States, any state thereof or the District of Columbia; |
|
(b) |
the entity or Person formed by or surviving any such consolidation or merger (if other than SBA Communications) or the entity or Person to which the sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of SBA Communications under the notes and the indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the trustee; |
|
(c) |
immediately after such transaction no Default exists or Event of Default shall have occurred and be continuing; |
|
(d) |
except in the case of: |
|
(A) |
a merger of SBA Communications with or into a Wholly Owned Restricted Subsidiary of SBA Communications; and |
|
(B) |
a merger entered into solely for the purpose of reincorporating SBA Communications in another jurisdiction: |
|
(x) |
in the case of a merger or consolidation in which SBA Communications is the surviving corporation, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio at the time of the transaction, after
giving pro forma effect to the transaction as of such date for balance sheet purposes and as if the transaction had occurred at the beginning of the most recently ended fiscal quarter of SBA Communications for which internal financial
statements are available for income statement purposes, would have been (i) no greater than 9.5 to 1 or (ii) less than the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio for the same period without giving pro
forma effect to such transaction; or |
42
|
(y) |
in the case of any other such transaction, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio of the entity or Person formed by or surviving any such consolidation or merger (if other than
SBA Communications), or to which the sale, assignment, transfer, lease, conveyance or other disposition shall have been made, at the time of the transaction, after giving pro forma effect to the transaction as of such date for balance sheet
purposes and as if such transaction had occurred at the beginning of the most recently ended fiscal quarter of such entity or Person for which internal financial statements are available for income statement purposes, would have been (i) no
greater than 9.5 to 1 or (ii) less than the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio for the same period without giving pro forma effect to such transaction; provided that for purposes of determining the
Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio of any entity or Person for purposes of this clause (y) the entity or Person will be substituted for SBA Communications in the definition of Consolidated Indebtedness to
Annualized Consolidated Adjusted EBITDA Ratio and the defined terms included therein under the caption Certain Definitions; and |
|
(e) |
SBA Communications shall have delivered to the trustee an officers certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply
with the indenture. |
Transactions with Affiliates
SBA Communications 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 SBA Communications involving aggregate payments of consideration in excess of $10.0 million (each of the foregoing, an Affiliate Transaction), unless:
(1) |
such Affiliate Transaction is on terms that are no less favorable to SBA Communications or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by SBA Communications or
such Restricted Subsidiary with an unrelated Person; |
(2) |
a majority of the disinterested members of the board of directors of SBA Communications or of the Restricted Subsidiary entering into the Affiliate Transaction, as the case may be, approve the transaction; and
|
(3) |
SBA Communications delivers to the trustee an officers certificate certifying that the Affiliate Transaction complies with clause (1) above and that the Affiliate Transaction has been approved as
required by clause (2) above. |
Notwithstanding the foregoing, the following items will not be deemed to be Affiliate Transactions:
(1) |
any employment arrangements with any executive officer of SBA Communications or a Restricted Subsidiary that is entered into by SBA Communications or any of its Restricted Subsidiaries in the ordinary course of business
and consistent with compensation arrangements of similarly situated executive officers at comparable companies engaged in Permitted Businesses; |
(2) |
transactions between or among SBA Communications and/or its Restricted Subsidiaries; |
(3) |
payment of reasonable and customary directors fees; |
(4) |
Restricted Payments that are permitted by the provisions of the indenture described above under the caption Restricted Payments or are permitted pursuant to the definition of Permitted Investments and
loans or advances to employees made in the ordinary course of business and consistent with past practices; |
43
(5) |
the issuance or sale of Equity Interests (other than Disqualified Stock) of SBA Communications; |
(6) |
payments of customary fees by SBA Communications or any of its Restricted Subsidiaries to any independent investment bank or Affiliate of an independent investment bank made for any corporate advisory services or
financial advisory, financing, underwriting or placement services or in respect of other investment banking activities including, without limitation, in connection with acquisitions or divestitures, which are approved by a majority of SBA
Communications board of directors in good faith; |
(7) |
transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of the business of SBA Communications and its Restricted Subsidiaries and otherwise in
compliance with the terms of the indenture; provided that in the reasonable determination of SBA Communications, such transactions are on terms that are no less favorable to SBA Communications or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by SBA Communications or such Restricted Subsidiary with an unrelated Person; and |
(8) |
any agreement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders when taken as a whole as compared to the applicable agreement as in effect
on the Issue Date). |
Sale and Leaseback Transactions
SBA Communications will not enter into any sale and leaseback transaction with any Person in respect of any real or personal property which has
been or is to be sold or transferred by SBA Communications to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of SBA Communications; provided that
SBA Communications may enter into a sale and leaseback transaction if:
(1) |
SBA Communications could have: |
|
(a) |
incurred Indebtedness in an amount equal to the Attributable Debt relating to such sale and leaseback transaction pursuant to the covenant described above under the caption Incurrence of Indebtedness and
Issuance of Preferred Stock; and |
|
(b) |
incurred a Lien to secure such Indebtedness pursuant to the covenant described above under the caption Liens; and |
(2) |
the transfer of assets in the sale and leaseback transaction is permitted by, and SBA Communications applies the proceeds of such transaction in compliance with, the covenant described above under the caption
Repurchase at the Option of HoldersAsset Sales. |
Limitation on Issuances of Guarantees of Indebtedness
SBA Communications will not permit any Restricted Subsidiary, directly or indirectly, to Guarantee or pledge any assets to secure the payment
of any other Indebtedness of SBA Communications unless such Subsidiary simultaneously executes and delivers a supplemental indenture to the indenture governing the notes providing for the Guarantee of the payment of the notes by such Subsidiary,
which Guarantee shall be senior to or pari passu with such Subsidiarys Guarantee of or pledge to secure such other Indebtedness. Notwithstanding the foregoing, any Guarantee by a Subsidiary of the notes shall provide by its terms that
it shall be automatically and unconditionally released and discharged upon any sale, exchange or transfer, to any Person other than a Subsidiary of SBA Communications, of all of SBA Communications stock in, or all or substantially all the
assets of, such Subsidiary, which sale, exchange or transfer is made in compliance with the applicable provisions of the indenture governing the notes.
Business Activities
SBA
Communications will not, and will not permit any Subsidiary to, engage in any business other than Permitted Businesses, except to the extent as would not be material to SBA Communications and its Subsidiaries taken as a whole.
44
Reports
The indenture provides that notwithstanding that SBA Communications may not be subject to the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the Commission, so long as any notes are
outstanding, SBA Communications will furnish to the holders of the notes or cause the trustee to furnish to the holders of the notes, within the time periods (including any extensions thereof) specified in the Commissions rules and
regulations;
(1) |
all quarterly and annual reports that would be required to be filed with the Commission on Forms 10-Q and 10-K if SBA Communications were required to file such reports; and |
(2) |
all current reports that would be required to be filed with the Commission on Form 8-K if SBA Communications were required to file such reports; |
provided, however, that SBA Communications shall not be so obligated to file such reports with the Commission if the Commission does not permit
such filing, in which event SBA Communications will make available such information to prospective purchasers of the notes, in addition to providing such information to the trustee and the holder, in each case within 15 days after the time SBA
Communications would be required to file such information with the Commission if it were subject to Section 13 or 15(d) of the Exchange Act.
In addition, to the extent not satisfied by the foregoing, SBA Communications agrees that, for so long as any notes remain outstanding, it
will furnish to the holders of the notes 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.
Events of Default and Remedies
Each of
the following when used in the indenture with respect to the notes constitutes an Event of Default under the indenture with respect to the notes:
(1) |
default for 30 days in the payment when due of interest on, or Additional Interest, if any, with respect to the notes; |
(2) |
default in payment when due of the principal of or premium, if any, on the notes; |
(3) |
failure by SBA Communications or any of the Restricted Subsidiaries to comply with the provisions described under the caption Certain CovenantsMerger, Consolidation or Sale of Assets or failure by SBA
Communications to consummate a Change of Control Offer or Asset Sale Offer in accordance with the provisions of the indenture applicable to the offers; |
(4) |
failure by SBA Communications or any of the Restricted Subsidiaries to perform any other covenant in the indenture, other than a covenant specified in clauses (1), (2) or (3) above or that does not relate to
the notes, that continues for 60 days (or 120 days in the case of a failure to comply with the reporting obligations described under the caption Certain CovenantsReports) after notice to comply; |
(5) |
default under any Indebtedness for money borrowed by SBA Communications or any of its Significant Subsidiaries, or the payment of which is guaranteed by SBA Communications or any of its Significant Subsidiaries, whether
such Indebtedness or guarantee now exists, or is created after the Issue Date, which default |
|
(a) |
is caused by a failure to pay principal of or premium, if any, interest on, if any, or Additional Interest, if any, with respect to the Indebtedness prior to the expiration of the grace period provided in such
indebtedness on the date of the default (a Payment Default); or |
|
(b) |
results in the acceleration of the 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 $20.0 million or more; |
45
(6) |
failure by SBA Communications or any of its Significant Subsidiaries to pay final judgments aggregating (net of amounts covered by insurance policies) in excess of $20.0 million, which judgments are not paid, discharged
or stayed for a period of 60 days; or |
(7) |
certain events of bankruptcy or insolvency described in the indenture with respect to SBA Communications or any of its Restricted Subsidiaries. |
However, a Default under clause (4) above will not constitute an Event of Default until the trustee under the indenture or the Holders of
25% in principal amount of the outstanding notes notify SBA Communications of the Default and SBA Communications does not cure such Default within the time specified after receipt of such notice.
If any Event of Default occurs and is continuing, the trustee under the indenture or the Holders of at least 25% in principal amount of the
then outstanding notes and the trustee may, and the trustee at the request of such holders shall, declare all the notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events
of bankruptcy or insolvency, with respect to SBA Communications, all outstanding notes will become due and payable without further action or notice. Holders of the notes may not enforce the indenture or the notes except as provided in the indenture.
Subject to certain limitations, Holders of a majority in principal amount of the then outstanding notes may direct the trustee under the indenture in its exercise of any trust or power.
An Event of Default for a particular series of notes does not necessarily constitute a default of any other series of notes issued under the
indenture.
The Holders of a majority in aggregate principal amount of the notes then outstanding by notice to the trustee under the
indenture may on behalf of the Holders of all notes waive any existing Default or Event of Default and its consequences under the indenture except a continuing Default or Event of Default in the payment of interest on, or Additional Interest, if
any, with respect to, or the principal of, the notes.
The indenture provides that if a Default occurs and is continuing and is known to
the trustee, the trustee must mail to each Holder of the notes notice of the Default within 90 days after it occurs. Except in the case of a Default in the payment of principal of, interest on, if any, or Additional Interest, if any, with respect to
any note, the trustee may withhold notice if and so long as a committee of its trust officers determines that withholding notice is not opposed to the interest of the Holders of the notes. In addition, SBA Communications is required to deliver to
the trustee, within 90 days after the end of each fiscal year, a certificate indicating whether the signers thereof know of any Default that occurred with respect to any notes during the previous year. SBA Communications is also required to deliver
to the trustee, promptly after the occurrence thereof, written notice of any event that would constitute a Default, the status thereof and what action SBA Communications is taking or proposes to take in respect thereof.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator or stockholder of SBA Communications, as such, shall have any liability for any obligations of SBA
Communications under the notes, the indenture, or the registration rights agreement or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of notes by accepting a note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the notes. The waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Commission that such a waiver is against
public policy.
46
Legal Defeasance and Covenant Defeasance
SBA Communications may, at its option and at any time, elect to have all of its obligations discharged with respect to notes outstanding
(Legal Defeasance) except for:
(1) |
the rights of Holders of outstanding notes to receive payments in respect of the principal of, premium, if any, and interest on, or Additional Interest, if any, with respect to the notes when such payments are due from
the trust referred to below; |
(2) |
SBA Communications obligations with respect to the notes concerning issuing temporary notes, registration of notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payment
and money for security payments held in trust; |
(3) |
the rights, powers, trusts, duties and immunities of the trustee, and SBA Communications obligations in connection therewith; and |
(4) |
the Legal Defeasance provisions of the indenture. |
In addition, SBA Communications may, at its
option and at any time, elect to have its obligations with respect to certain covenants that are described in the indenture (Covenant Defeasance) released and thereafter any omission to comply with such obligations shall not constitute a
Default or Event of Default with respect to the notes. In the event Covenant Defeasance occurs, certain events described under Events of Default and Remedies, but not including nonpayment and bankruptcy, receivership, rehabilitation and
insolvency events, will no longer constitute an Event of Default with respect to the notes.
In order to exercise either Legal Defeasance
or Covenant Defeasance with respect to the notes:
(1) |
SBA Communications must irrevocably deposit with the trustee, in trust, for the benefit of the Holders of the notes, 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 firm of independent public accountants, to pay the principal of, premium, if any, interest and Additional Interest, if any, on outstanding notes to the stated maturity or redemption date,
as the case may be, and SBA Communications must specify whether the notes are being defeased to maturity or to a particular redemption date; |
(2) |
in the case of Legal Defeasance, SBA Communications shall have delivered to the trustee under the indenture an opinion of counsel in the United States reasonably acceptable to the trustee confirming that:
|
|
(a) |
SBA Communications has received from, or there has been published by, the Internal Revenue Service a ruling; or |
|
(b) |
since the Issue Date, there has been a change in the applicable federal income tax law; |
in
either case to the effect that, and based thereon such opinion of counsel shall confirm that, the Holders and beneficial owners of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such
Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) |
in the case of Covenant Defeasance, SBA Communications shall have delivered to the trustee under the indenture an opinion of counsel in the United States reasonably acceptable to the trustee confirming that the Holders
and beneficial owners of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had not occurred; |
(4) |
no Default or Event of Default shall have occurred and be continuing either: |
|
(a) |
on the date of such deposit, other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit; or |
47
|
(b) |
insofar as Events of Default from bankruptcy or insolvency events with respect to SBA Communications are concerned, at any time in the period ending on the 91st day after the date of deposit; |
(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 the indenture, to which SBA Communications or any
of its Restricted Subsidiaries is a party or by which SBA Communications or any of its Restricted Subsidiaries is bound; |
(6) |
SBA Communications must have delivered to the trustee an opinion of counsel to the effect that after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors rights generally; |
(7) |
SBA Communications must deliver to the trustee under the indenture an officers certificate stating that the deposit was not made with the intent of preferring the Holders of one or more classes of notes over the
other creditors of SBA Communications with the intent of defeating, hindering, delaying or defrauding creditors of SBA Communications or others; and |
(8) |
SBA Communications must deliver to the trustee under the indenture an officers certificate and an opinion of counsel, each stating that all conditions precedent provided for relating to the Legal Defeasance or the
Covenant Defeasance have been complied with. |
Amendment, Supplement and Waiver
Except as described in the two paragraphs below, the Holders of a majority in principal amount of the notes outstanding can, with respect to
the notes then outstanding:
(1) |
consent to any amendment or supplement to the indenture with respect to the notes; and |
(2) |
waive any existing default under, or the compliance with any provisions of, the indenture or the notes. |
Consents and waivers obtained in connection with a purchase of, or tender offer or exchange offer for, the notes shall be included for
purposes of the previous sentence.
Without the consent of each Holder of the notes, an amendment or waiver with respect to any notes held
by a non-consenting Holder of such notes may not:
(1) |
reduce the principal amount of the notes; |
(2) |
change the fixed maturity of the notes or alter the provisions with respect to the redemption of the notes, but not any required repurchase in connection with an Asset Sale Offer or Change of Control Offer, of the
notes; |
(3) |
reduce the rate or change the method of calculating the interest rate of or extend the time for payment of interest on the notes; |
(4) |
waive a Default or Event of Default in the payment of principal of or premium with respect to the notes, if any, or interest on, or Additional Interest, if any, with respect to the notes, excluding a rescission of
acceleration of the notes by the Holders of at least a majority in aggregate principal amount of such notes and a waiver of the payment default that resulted from such acceleration; |
(5) |
make the notes payable in money other than that stated in the notes; |
(6) |
make any change in the provisions of the indenture relating to waivers of past Defaults or the rights of Holders of any notes to receive payments of principal of or premium, if any, or interest on, or Additional
Interest, if any, with respect to the notes; |
48
(7) |
waive a redemption payment, but not any payment upon a required repurchase in connection with an Asset Sale Offer or Change of Control Offer, with respect to the notes; or |
(8) |
make any change in the foregoing amendment and waiver provisions. |
Notwithstanding the
foregoing, without the consent of any Holder of the notes, SBA Communications and the trustee may amend or supplement the indenture or the notes to:
(1) |
cure any ambiguity, omission, defect or inconsistency; |
(2) |
provide for uncertificated notes in addition to or in place of certificated notes; |
(3) |
provide for the assumption by a successor corporation of SBA Communications obligations to Holders of notes in the case of a merger or consolidation of SBA Communications; |
(4) |
make any change that would provide any additional rights or benefits to the Holders of the notes or that does not adversely affect the legal rights of any notes under the indenture in any material respect;
|
(5) |
comply with requirements of the Commission in order to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended; or |
(6) |
conform the text of the indenture or the notes to any provision of this Description of Notes to the extent that such provision in this Description of Notes was intended (as evidenced by an officers certificate) to
be a verbatim recitation of a provision of the indenture or the notes. |
Concerning the Trustee
The indenture contains certain limitations on the rights of the trustee, should it become a creditor of SBA Communications, to obtain payment
of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the Commission for permission to continue or resign.
The Holders of a majority in
principal amount of the notes then outstanding will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee under the indenture with respect to the notes, subject to certain
exceptions. The indenture provides that if an Event of Default occurs and is not cured with respect to the notes, the trustee will be required, in the exercise of its power, to use the degree of care of a prudent man in the conduct of his own
affairs. Subject to these provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any Holder of notes, unless that Holder shall have offered to the trustee security and
indemnity satisfactory to it against any loss, liability or expense.
Additional Information
Anyone who receives this prospectus may obtain a copy of the Indenture and the Registration Rights Agreement without charge by writing to SBA
Communications Corporation, 8051 Congress Avenue, Boca Raton, Florida 33487, Attention: Chief Financial Officer.
Certain Definitions
Set forth below are certain defined terms used in the indenture. Reference is made to the indenture for a full disclosure of all such terms, as
well as any other capitalized terms used herein for which no definition is provided.
Acceptable Commitment has the meaning
set forth under the caption Repurchase at the Option of HoldersAsset Sales.
49
Acquired Debt means, with respect to any specified Person:
(1) |
Indebtedness of such Person or any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person or in connection with the acquisition of the assets of such
Person, including, without limitation, Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Subsidiary of such specified Person or such Person acquiring assets; and |
(2) |
Indebtedness secured by a Lien encumbering any asset acquired by such specified Person. |
Additional Interest means all additional interest then owing pursuant to the Registration Rights Agreement related to the notes
dated as of the Issue Date, between SBA Communications and the initial purchasers.
Affiliate of any specified Person means
any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, control (including, with correlative meanings, the terms
controlling, controlled by and under common control with), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
Annualized Consolidated
Adjusted EBITDA for any fiscal quarter means Consolidated Adjusted EBITDA for the most recently ended quarter for which internal financial statements are available multiplied by four.
Asset Sale means:
(1) |
the sale, lease, conveyance or other disposition of any assets or rights (including, without limitation, by way of a sale and leaseback); provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of SBA Communications and its Subsidiaries taken as a whole will be governed by the provisions of the indenture described above under the caption Repurchase at the Option of HoldersChange of Control
Triggering Event and/or the provisions described above under the caption Certain CovenantsMerger, Consolidation or Sale of Assets and not by the provisions of the Asset Sale covenant; and |
(2) |
the issue or sale by SBA Communications or any of its Restricted Subsidiaries of Equity Interests of any of SBAs Subsidiaries (other than directors qualifying shares or shares required by applicable law to
be held by a Person other than SBA Communications or a Restricted Subsidiary), in the case of either clause (1) or (2), whether in a single transaction or a series of related transactions: |
|
(a) |
that have a fair market value in excess of $10.0 million; or |
|
(b) |
for net proceeds in excess of $10.0 million. |
Notwithstanding the foregoing, the following
items shall not be deemed to be Asset Sales:
(1) |
a transfer of assets by SBA Communications to a Restricted Subsidiary or by a Restricted Subsidiary to SBA Communications or to another Restricted Subsidiary; |
(2) |
an issuance of Equity Interests by a Subsidiary to SBA Communications or to another Restricted Subsidiary; |
(3) |
a transfer or issuance of Equity Interests of an Unrestricted Subsidiary to an Unrestricted Subsidiary; provided, however, that such transfer or issuance does not result in a decrease in the percentage of
ownership of the voting securities of such transferee Unrestricted Subsidiary that are collectively held by SBA Communications and its Subsidiaries; |
(4) |
a Restricted Payment that is permitted by the covenant described above under the caption Certain CovenantsRestricted Payments; |
(5) |
the sale of inventory and/or grants of leases or licenses in the ordinary course of business; |
50
(6) |
disposals of Cash Equivalents, or Investment Securities in the ordinary course of business; |
(7) |
any disposition of property or equipment that has become damaged, worn out or obsolete or that is no longer useful in the conduct of the business of SBA Communications and its Restricted Subsidiaries disposed of in the
ordinary course of business; |
(8) |
dispositions in connection with the foreclosure of any Lien not prohibited by the indenture; |
(9) |
licenses or sublicenses of intellectual property; |
(10) |
any surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind; and |
(11) |
any disposition arising from foreclosure, condemnation or similar action with respect to any property or other assets (including without limitation sales of accounts receivable to collection agencies), or exercise of
termination rights under any lease, license, concession or other agreement. |
Asset Sale Offer has the meaning
set forth above under the caption Repurchase at the Option of HoldersAsset Sales.
Attributable Debt in
respect of a sale and leaseback transaction means, at the time of determination, the present value (discounted at the rate of Interest implicit in such transaction, determined in accordance with GAAP) of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been extended or may, at the option of the lessor, be extended).
Capital Lease Obligation means, at the time any determination thereof is to be made, the amount of the liability in respect of a
capital lease that would be required to be capitalized on a balance sheet in accordance with GAAP.
Capital Stock means:
(1) |
in the case of a corporation, corporate stock; |
(2) |
in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; |
(3) |
in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and |
(4) |
any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. |
Cash Equivalents means:
(1) |
securities issued or directly and fully guaranteed or insured by the United States government, or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than six months from the date of acquisition; |
(2) |
certificates of deposit and euro dollar time deposits with maturities of six months or less from the date of acquisition, bankers acceptances with maturities not exceeding six months and overnight bank deposits,
in each case with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thompson Bank Watch Rating of B or better; |
(3) |
repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (1) and (2) above entered into with any financial institution meeting the
qualifications specified in clause (2) above; |
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(4) |
commercial paper having the highest rating obtainable from Moodys Investors Service, Inc. or Standard & Poors Ratings Group and in each case maturing within twelve months after the date of
acquisition; and |
(5) |
money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (4) of this definition. |
Change of Control means the occurrence of any of the following:
(1) |
the 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 assets of SBA Communications and
its Restricted Subsidiaries, taken as a whole, to any person (as such term is used in Section 13(d)(3) of the Exchange Act)); |
(2) |
the adoption of a plan relating to the liquidation or dissolution of SBA Communications; or |
(3) |
SBA Communications becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that any person (as defined above) becomes the beneficial owner (as, such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except
that a person shall be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition),
directly or indirectly, of more than 50% of the voting power of the Voting Stock of SBA Communications (measured by voting power rather than number of shares). |
(4) |
the first day that the Company ceases to own, directly or indirectly, 100% of the issued and outstanding stock of Telecommunications. |
Change of Control Offer has the meaning set forth above under the caption Repurchase at the Option of HoldersChange of
Control Triggering Event.
Change of Control Payment has the meaning set forth above under the caption Repurchase
at the Option of HoldersChange of Control Triggering Event.
Change of Control Payment Date has the meaning set
forth above under the caption Repurchase at the Option of HoldersChange of Control Triggering Event.
Change of
Control Triggering Event means the occurrence of both a Change of Control and a Ratings Decline.
Company means SBA
Communications Corporation until a successor shall have become such pursuant to the applicable provisions of the indenture and thereafter Company shall mean such successor.
Consolidated Adjusted EBITDA for any period means Consolidated Net Income for such period plus, to the extent such item was
deducted in calculating such Consolidated Net Income, without duplication, the sum of:
(1) provision for taxes based on
income, profits or capital of SBA Communications and its Restricted Subsidiaries for such period, including franchise and similar taxes and foreign withholding taxes, plus
(2) Consolidated Interest Expense of SBA Communications and its Restricted Subsidiaries for such period determined in
accordance with GAAP, whether paid or accrued (including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest expense, the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers acceptance
financings, amortization of gain or loss from previously settled Hedge Agreements and net payments (if any) pursuant to Hedge Agreements), plus
(3) all preferred stock dividends paid or accrued in respect of SBA Communications and its Restricted Subsidiaries
preferred stock to Persons other than SBA Communications or a wholly owned Subsidiary of SBA Communications other than preferred stock dividends paid by SBA Communications in shares of preferred stock that is not Disqualified Stock, plus
52
(4) depreciation, accretion, amortization (including amortization of goodwill and
other intangibles) and other non-cash expenses, including non-cash compensation and non-cash ground lease expense, (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period)
of SBA Communications and its Restricted Subsidiaries for such period, plus
(5) any reasonable expenses and charges
related to any Permitted Investment, acquisition or disposition permitted under the indenture (in each case, whether or not successful), plus
(6) restructuring charges of such Person and its Restricted Subsidiaries, plus
(7) net loss on early retirement of debt; plus
(8) asset impairment expense; plus
(9) acquisition related expenses of SBA Communications and its Restricted Subsidiaries which, in accordance with GAAP, are
expensed and included within operating expenses, minus
(10) non-cash items increasing such Consolidated Net Income
for such period (excluding any such non-cash item to the extent that it represents an accrual of or reserve for cash expenses in any future period), including but not limited to non-cash straight-line leasing revenue, minus
(11) interest income of SBA Communications and its Restricted Subsidiaries for such period, minus
(12) net gains on early retirement of debt,
in each case determined on a pro forma basis after giving effect to all acquisitions or dispositions of assets made by SBA
Communications or any Restricted Subsidiary from the beginning of such period through and including the date on which Consolidated Adjusted EBITDA is determined (including any related financing transactions) as if such acquisitions and dispositions
had occurred at the beginning of such period. For purposes of making the computation referred to above, (A) acquisitions that have been made by SBA Communications or any Restricted Subsidiary, including through mergers or consolidations and
including any related financing transactions, during such period or subsequent to such period and on or prior to such date of determination shall be deemed to have occurred on the first day of such period, (B) the Consolidated Adjusted EBITDA
attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to such date of determination, shall be excluded and (C) any such pro forma calculation may include
adjustments appropriate, in the reasonable determination of SBA Communications, to reflect operating expense reductions and other operating improvements or synergies reasonably expected to result from any acquisition; provided that the aggregate
amount of projected operating expense reductions, operating improvements and synergies included in any such pro forma calculation shall not exceed $10.0 million for any quarter.
For the purposes of this definition, any amount in a currency other than U.S. dollars will be converted to U.S. dollars based on the average
exchange rate for such currency for the most recent twelve month period immediately prior to the date of determination.
Consolidated Indebtedness means, as of any date of determination, the aggregate of the following, on a consolidated basis:
(1) |
the total amount of Indebtedness of SBA Communications and its Restricted Subsidiaries; plus |
(2) |
the total amount of Indebtedness of any other Person, to the extent that such Indebtedness has been Guaranteed by SBA Communications or one or more of its Restricted Subsidiaries; plus |
53
(3) |
the aggregate liquidation value of all Disqualified Stock of such Person and all preferred stock of Restricted Subsidiaries of such Person. |
Consolidated Indebtedness shall not include Indebtedness of SBA Communications or any Restricted Subsidiary that is purchased, in tender
offers, open market purchases or privately negotiated transactions, by SBA Communications or a Restricted Subsidiary (which, for the avoidance of doubt, shall not include Acquired Debt) and which is to be held by SBA Communications or a Restricted
Subsidiary to redemption or maturity of such Indebtedness.
Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA
Ratio means, as of the date of determination, the ratio of:
(1) |
Consolidated Indebtedness on such date to |
(2) |
Annualized Consolidated Adjusted EBITDA as of such date. |
Consolidated Interest
Expense for any period means the total interest expense of such Person and its Restricted Subsidiaries for such period with respect to all outstanding Indebtedness of such Person and its Restricted Subsidiaries (including, without limitation,
all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing and net costs under Hedge Agreements in respect of interest rates to the extent such net costs are allocable to such
period in accordance with GAAP).
Consolidated Net Income for any period means the aggregate of the Net Income of SBA
Communications and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that, the Net Income (and net loss) of any Person that is accounted for by the equity method of accounting shall be
excluded, except that such Net Income shall be included but only to the extent of the amount of dividends or distributions paid in cash to SBA Communications or a Restricted Subsidiary thereof.
Consolidated Net Tangible Assets means, as of any date of determination, the consolidated total assets of SBA Communications and
its Restricted Subsidiaries determined in accordance with GAAP as of the end of SBA Communications most recent fiscal quarter for which internal financial statements are available, less the sum of (1) all current liabilities and
(2) all goodwill, trade names, trademarks, patents, organization expense, unamortized debt discount and expense and other similar intangibles properly classified as intangibles in accordance with GAAP.
Covenant Defeasance has the meaning set forth above under the caption Legal Defeasance and Covenant Defeasance.
Credit Facilities means, with respect to SBA Communications or any Restricted Subsidiary, one or more debt facilities, including
the agreements governing our Revolving Credit Facility or other financing arrangements (including, without limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, letters of credit, bankers
acceptances and other similar obligations or other long-term indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications,
extensions, renewals, restatements, replacements or refundings thereof and any indentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments
thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under
Certain CovenantsIncurrence of Indebtedness and Issuance of Preferred Stock) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
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.
Designated Noncash Consideration means the fair market value of noncash consideration received by SBA Communications or any
Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Noncash Consideration pursuant to an officers certificate, setting forth the basis of such valuation less the amount of cash or cash equivalents
received in connection with a subsequent sale of or collection on such Designated Noncash Consideration.
54
Disposition means, with respect to any Property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof; and the terms Dispose and Disposed of shall have correlative meanings.
Disqualified Stock means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable, in each case, at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the notes mature; provided, however, that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have
the right to require SBA Communications to repurchase such Capital Stock upon the occurrence of a Change of Control Triggering Event or an Asset Sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that SBA
Communications may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with the covenant described under the caption Certain CovenantsRestricted Payments.
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).
Equity Offering means any public or private primary
offering for cash of common stock of SBA Communications (other than public offerings of common stock registered on Form S-8 or any successor form and other than an issuance to a Subsidiary).
Excess Proceeds has the meaning set forth above under the caption Repurchase at the Option of HoldersAsset
Sales.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder.
Exchange Notes means the notes offered in an exchange offer pursuant to the indenture.
Excluded Capital Lease Obligations shall mean Capital Lease Obligations (or obligations pursuant to consolidated variable
interest entities accounting that would otherwise be reflected as a liability) in respect of interests in real property on which cell towers of SBA Communications or a Subsidiary of SBA Communications are located in an aggregate principal amount not
to exceed $50.0 million at any one time outstanding.
Existing Indebtedness means Indebtedness of SBA Communications and
its Restricted Subsidiaries in existence, and in such amount as is outstanding, on the Issue Date.
Foreign Subsidiary means
any Subsidiary of SBA Communications that is not organized under the laws of the United States of America or any State thereof or the District of Columbia.
GAAP means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the
accounting profession, as such are in effect on the Issue Date.
Government Securities means securities that are
(1) direct obligations of the United States for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the
timely payment of which is unconditionally Guaranteed as a full faith and credit obligation of the United States, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for
the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depositary receipt.
55
Guarantee means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
Hedge Agreements means, with respect to any Person, all interest rate swaps, caps or collar agreements or
similar arrangements entered into by such Person designed to protect such Person against fluctuations in interest rates or currency exchange rates or the exchange of nominal interest obligations, either generally or under specific contingencies.
Hedging Obligations means, with respect to any Person, the obligations of such Person under any Hedge Agreements.
Holder means a Person in whose name a note is registered.
Indebtedness means, with respect to any Person (on any date of determination, without duplication), any indebtedness of such
Person (i) in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) or bankers acceptances, (ii) representing Capital Lease
Obligations (other than Excluded Capital Lease Obligations), (iii) in respect of the balance deferred and unpaid of the purchase price of any property or (iv) representing any Hedging Obligations, but solely to the extent of any payment
that has become due and payable, except in each case, (a) any such balance that constitutes an accrued expense or trade payable, if and to the extent any of the foregoing indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, (b) any deferred purchase consideration or earn-out obligation, to the extent reflected as a liability on the balance sheet of such Person in accordance
with GAAP, (c) all Indebtedness of others secured by a Lien on any asset of such Person whether or not such Indebtedness is assumed by such Person (the amount of such Indebtedness as of any date being deemed to be the lesser of the value of
such property or assets as of such date or the principal amount of such Indebtedness of such other Person so secured) and (d) to the extent not otherwise included, the Guarantee by such Person of any Indebtedness of any other Person. The amount
of any Indebtedness outstanding as of any date shall be the outstanding balance at such date of all unconditional obligations described above; provided that, in the case of any Indebtedness issued with original issue discount, the amount of such
Indebtedness will be the accreted value thereof.
Investments means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or indirect loans (including guarantees of Indebtedness or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP. If SBA Communications or any Restricted Subsidiary sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary of SBA Communications or a Restricted Subsidiary issues any of its Equity
Interests such that, in each case, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary, SBA Communications shall be deemed to have made an Investment on the date of any such sale or disposition equal
to the fair market value of the Equity Interests of such Subsidiary not sold or disposed of in an amount determined as provided in the final paragraph of the covenant described above under the caption Certain CovenantsRestricted
Payments.
Investment Securities means, with respect to any Person, all Investments that are held for sale.
Issue Date means the date on which the notes offered hereby are originally issued under the indenture.
Legal Defeasance has the meaning set forth above under the caption Legal Defeasance and Covenant Defeasance.
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, any lease in the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
56
Moodys means Moodys Investors Service, Inc. or any successor to the
rating agency business thereof.
Net Income with respect to any Person for any fiscal quarter means the net income (loss) of
such Person for such period, determined in accordance with GAAP, excluding, however, (i) any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with (a) any Asset Sale outside the
ordinary course of business (including, without limitation, dispositions pursuant to sale and leaseback transactions) or (b) the disposition of any securities by such Person or any of its Subsidiaries or the write off of any deferred financing
fees or the extinguishment of any Indebtedness of such Person or any of its Subsidiaries, (ii) any extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain or loss and (iii) the cumulative effect
of a change in accounting principles.
Net Proceeds means the aggregate cash proceeds received by SBA Communications or any of
its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of:
(1) |
the direct costs relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees, and sales commissions) and any relocation expenses incurred as a result thereof;
|
(2) |
taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements); |
(3) |
amounts required to be applied to the repayment of Indebtedness (other than Indebtedness under a Credit Facility) or Excluded Capital Lease Obligations secured by a Lien on the asset or assets that were the subject of
such Asset Sale; |
(4) |
all distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale; |
(5) |
the deduction of appropriate amounts provided by the seller as a reserve in accordance with GAAP against any liabilities associated with the assets disposed of in such Asset Sale and retained by SBA Communications or
any Restricted Subsidiary after such Asset Sale; and |
(6) |
without duplication, any reserves that the board of directors of SBA Communications or of the applicable Restricted Subsidiary entering into the Asset Sale, as the case may be, determines in good faith should be made in
respect of the sale price of such asset or assets for post closing adjustments; |
provided that in the case of any
reversal of any reserve referred to in clause (5) or (6) above, the amount so reversed shall be deemed to be Net Proceeds from an Asset Sale as of the date of such reversal.
Payment Default has the meaning set forth above under the caption Events of Default and Remedies.
Permitted Business means any business conducted by SBA Communications and its Restricted Subsidiaries on the Issue Date and any
other business reasonably related, ancillary or complementary to any such business.
Permitted Investment means:
(1) |
any Investment in SBA Communications or in a Restricted Subsidiary of SBA Communications; |
(2) |
any Investment in cash and Cash Equivalents; |
(3) |
any Investment by SBA Communications or any Restricted Subsidiary of SBA Communications in a Person, if as a result of such Investment: |
|
(a) |
such Person becomes a Restricted Subsidiary of SBA Communications; or |
57
|
(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, SBA Communications or a Restricted Subsidiary of SBA Communications;
|
(4) |
any Restricted 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 the covenant described above under the caption Repurchase at
the Option of HoldersAsset Sales; |
(5) |
any acquisition of assets solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of SBA Communications; |
(6) |
receivables created in the ordinary course of business; |
(7) |
loans or advances to employees made in the ordinary course of business since the Issue Date not to exceed $5.0 million at any one time outstanding (loans and advances that are forgiven shall continue to be deemed
outstanding); |
(8) |
securities and other assets received in settlement of trade debts or other claims arising in the ordinary course of business; |
(9) |
Investments since the Issue Date of up to an aggregate of $100.0 million outstanding (each such Investment being measured as of the date made and without giving effect to subsequent changes in value); |
(10) |
other Investments in Permitted Businesses since the Issue Date not to exceed an amount equal to $10.0 million plus 2.5% of SBA Communications Consolidated Net Tangible Assets at any one time outstanding (each such
Investment being measured as of the date made and without giving effect to subsequent changes in value); |
(11) |
stock, obligations, securities or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted by, SBA Communications or any Restricted
Subsidiary, in satisfaction of judgments, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;
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(12) |
Hedging Obligations permitted under clause (7) of the second paragraph of the covenant described under Certain CovenantsIncurrence of Indebtedness and Issuance of Preferred Stock;
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(13) |
pledges or deposits (x) with respect to leases or utilities provided to third parties in the ordinary course of business or (y) otherwise described in the definition of Permitted Liens or made in
connection with Liens permitted under the covenant described under Certain CovenantsLiens; |
(14) |
Guarantees issued in accordance with the covenant described under Certain CovenantsIncurrence of Indebtedness and Issuance of Preferred Stock; |
(15) |
any Investment deemed to result from variable interest entities accounting in respect of lease payments made with respect to interests in real property on which cell towers of SBA Communications or a Subsidiary of SBA
Communications are located; and |
(16) |
any Investment by SBA Communications or any Restricted Subsidiary of SBA Communications in a Person to the extent such Investment exists on the Issue Date, and any extension, modification or renewal of any such
Investment existing on the Issue Date, but only to the extent not involving additional advances, contributions or other Investments of cash or other assets or other increases thereof (other than as a result of the accrual or accretion of interest or
original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such Investment as in effect on the Issue Date). |
Permitted Liens means:
(1) |
Liens existing on the Issue Date; |
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(2) |
Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that
any reserve or other appropriate provision as shall be required in conformity with GAAP shall have been made therefor; |
(3) |
carriers, warehousemens, mechanics, materialmens, repairmens or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or that
are being contested in good faith by appropriate proceedings; |
(4) |
pledges or deposits in connection with workers compensation, unemployment insurance and other social security legislation; |
(5) |
deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business, and deposits to secure obligations under contracts to purchase towers or other related assets; |
(6) |
easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and which do not in any case materially detract
from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of SBA Communications or any of its Restricted Subsidiaries; |
(7) |
Liens securing Indebtedness permitted to be incurred under clause (4) of the second paragraph of the covenant described above under the caption Certain CovenantsIncurrence of Indebtedness and Issuance
of Preferred Stock; |
(8) |
Liens securing Indebtedness under the Senior Credit Facility or the Securitization Arrangements permitted to be incurred under clause (1), (2) or (5) of the second paragraph of the covenant described under the
caption Certain CovenantsIncurrence of Indebtedness and Issuance of Preferred Stock; |
(9) |
Liens incurred in the ordinary course of business of SBA Communications since the Issue Date with respect to obligations that do not exceed $15.0 million at any one time outstanding and that: |
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(a) |
are not incurred in connection with the borrowing of money or the obtaining of advances or credit (other than trade, credit in the ordinary course of business); and |
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(b) |
do not in the aggregate materially detract from the value of the property or materially impair the use thereof in the operation of business by SBA Communications or such Restricted Subsidiary; |
(10) |
Liens on property at the time SBA Communications acquires such property, including any acquisition by means of a merger or consolidation with or into SBA Communications; provided, however, that such Liens
are not created, incurred or assumed in connection with, or in contemplation of, such acquisition; provided further, however, that such Liens do not extend to any other property of SBA Communications (plus improvements, accessions, proceeds or
dividends or distributions in respect thereof); |
(11) |
Pledges of stock or other equity interests of SBA Communications direct Subsidiaries securing Indebtedness permitted to be incurred under the covenant described under the caption Certain CovenantsIncurrence
of Indebtedness and Issuance of Preferred Stock; |
(12) |
Liens to secure any amendments, supplements, modifications, extensions, renewals, restatements, replacements or refundings (or successive amendments,
supplements, modifications, extensions, renewals, restatements, replacements or refundings), in whole or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (1), (7), (8) and (10); provided,
however, that (A) such new Lien will be limited to all or part of the same property that secured the original Lien (plus improvements, accessions, proceeds or dividends or distributions in respect thereof); and (B) the Indebtedness
secured by such Lien at such time is not increased to any amount greater than the sum of: (1) the outstanding principal amount, or, if issued with original issue discount, the |
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aggregate accreted value of, or, if greater, the committed amount of the Indebtedness secured by Liens described under clauses (1), (7), (8) or (10) at the time such original Lien
became a Permitted Lien under the indenture governing the notes; and (ii) an amount necessary to pay any fees, underwriting discounts and other costs and expenses, including premiums, related to such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings; |
(13) |
Liens securing judgments for the payment of money not constituting an Event of Default under clause (6) under the caption Events of Default and Remedies so long as such Liens are adequately bonded;
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(14) |
any interest or title of a lessor under any lease entered into by SBA Communications or any Restricted Subsidiary in the ordinary course of its business and covering only the assets so leased (including landlords
Liens on any property placed on the property subject to such lease); |
(15) |
Liens on cash deposits not exceeding an aggregate amount equal to $500,000 to secure Indebtedness permitted by clause (11) of the definition of Permitted Debt; and |
(16) |
Liens on assets of SBA Communications or any Restricted Subsidiary securing Indebtedness and other obligations in an aggregate principal amount that, when taken together with all other obligations secured by Liens
pursuant to this clause (16), do not exceed the amount of Indebtedness permitted to be incurred under the first paragraph of the covenant entitled Certain CovenantsIncurrence of Indebtedness and Issuance of Preferred Stock.
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Permitted Refinancing Indebtedness means any Indebtedness of SBA Communications or any of its Restricted
Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, repurchase or refund other Indebtedness of SBA Communications or any of its Restricted Subsidiaries (other than intercompany
Indebtedness); provided that:
(1) |
the principal amount (or initial accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount of (or accreted value, if applicable), plus accrued interest on, the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus the amount of expenses and prepayment premiums incurred in connection therewith); |
(2) |
such Permitted Refinancing Indebtedness has (i) 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 extended, refinanced, renewed, replaced, defeased or refunded or (ii) a final maturity date later than 90 days after the scheduled final maturity of the notes; |
(3) |
if the Indebtedness being extended, refinanced/renewed, replaced, defeased or refunded is subordinated in right of payment to the notes, such Permitted Refinancing Indebtedness is subordinated in right of payment to,
the notes on terms at least as favorable to the holders of the notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and |
(4) |
such Indebtedness is incurred by SBA Communications if SBA Communications was the sole obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded. |
Person means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated
organization or government or agency or political subdivision thereof (including any subdivision or ongoing business of any such entity or substantially all of the assets of any such entity, subdivision or business).
Property means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible, including, without limitation, Capital Stock.
Qualified Asset Exchange means any transaction in which
SBA Communications or one of its Restricted Subsidiaries exchanges assets for Qualified Tower Assets and, if applicable an amount of cash or Cash Equivalents where the fair market value of the Qualified Tower Assets and, if applicable, an amount of
cash or Cash Equivalents received by SBA Communications and its Restricted Subsidiaries in such exchange is at least equal to the fair market value of the assets
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disposed of in such exchange; provided, that, the board of directors of SBA Communications or the Restricted Subsidiary entering into the Qualified Asset Exchange, as the case may be, shall
determine (which determination shall be made in the good faith judgment of such board of directors) the fair market value of the Qualified Tower Assets to be received and of the assets to be disposed of in such exchange and a copy of
such resolution shall be set forth in an officers certificate delivered to the trustee.
Qualified Tower Assets means
wireless communications towers, actual or potential communications sites, distributed antenna system networks and other assets used or usable in a Permitted Business or Equity Interests in any Person whose principal business is a Permitted Business.
Ratings Agencies means (1) Moodys and S&P or (2) if either S&P or Moodys ceases to rate the
notes or ceases to make a rating on the notes publicly available, an entity, selected by SBA Communications, registered as a nationally recognized statistical rating organization (within the meaning of Section 3(a)(62) under the
Exchange Act) (registered as such pursuant to Rule 17g-1 of the Exchange Act) then making a rating on the notes publicly available (as certified by an officers certificate), which shall be substituted for S&P or Moodys, as the case
may be.
Ratings Decline means the rating of the notes by both Ratings Agencies decreases by one or more gradations (including
gradations within ratings categories as well as between rating categories) or is withdrawn on, or within 90 days after the earlier of: (i) the date of the public notice of the occurrence of a Change of Control or (ii) public notice of the
intention by SBA or any third-party to effect a Change of Control (which period shall be extended for so long as the rating of the notes is under publicly announced consideration for possible downgrade by any of the Ratings Agencies if such period
exceeds 90 days).
Registration Rights Agreement means the agreement between SBA Communications and the initial purchasers,
whereby SBA Communications will agree for the benefit of the holders of the notes that it will use its reasonable best efforts to file with the Commission and cause to become effective a registration statement relating to an offer to exchange the
notes for an issue of notes registered with the Commission.
Restricted Investment means an Investment other than a Permitted
Investment.
Restricted Subsidiary of a Person means any Subsidiary of the referent Person that is not an Unrestricted
Subsidiary.
Revolving Credit Facility means that certain senior secured revolving credit facility established pursuant to the
Senior Credit Agreement.
S&P means Standard & Poors Ratings Services or any successor to the rating agency
business thereof.
Securitization Arrangements means, collectively, the transactions and agreements, relating to and including
the (i) Management Agreement, dated as of November 18, 2005, by and among SBA Properties, Inc., SBA Network Management, Inc. and SBA Senior Finance, Inc., and the Joinder and Amendment to Management Agreement, dated November 6, 2006,
thereto, (ii) the Amended and Restated Loan and Security Agreement, dated as of November 18, 2005, by and between SBA Properties, Inc., additional borrower or borrowers that may become a party thereto, and SBA CMBS 1 Depositor, LLC,
(iii) the Third Loan and Security Agreement Supplement and Amendment, dated as of April 16, 2010, by and among SBA Properties, Inc., SBA Sites, Inc. and SBA Structures, Inc., as Borrowers, and Midland Loan Services, Inc., as Servicer on
behalf of Deutsche Bank Trust Company Americas, as Trustee, (iv) the Fourth Loan and Security Agreement Supplement and Amendment, dated as of April 16, 2010, by and among SBA Properties, Inc., SBA Sites, Inc. and SBA Structures, Inc. as
Borrowers, and Midland Loan Services, Inc. as Servicer on behalf of Deutsche Bank Trust Company Americas, as Trustee, (v) the Fifth Loan and Security Agreement Supplement and Amendment, dated as of August 9, 2012, by and among SBA
Properties, Inc., SBA Sites, Inc. and SBA Structures, Inc., as Borrowers, and Midland Loan Services, Inc., as Servicer on behalf of Deutsche Bank Trust Company Americas, as Trustee, (vi) the Sixth Loan and Security Agreement Supplement and
Amendment, dated as of April 18, 2013, by and among SBA Properties, LLC (formerly known as SBA Properties, Inc.), SBA Sites, LLC (formerly known as SBA Sites, Inc.), SBA Structures, LLC (formerly known as SBA Structures, Inc.), SBA
Infrastructure, LLC, SBA Monarch Towers III, LLC, SBA Towers USVI II, Inc., SBA Towers USVI, Inc., SBA Monarch Towers I, LLC, SBA 2012 TC Assets, LLC, SBA 2012 TC Assets PR, LLC, and SBA Towers IV, LLC, as Borrowers, and Midland Loan Services, Inc.,
as Servicer on behalf of Deutsche Bank Trust Company Americas, as Trustee, and (vii) the Seventh Loan and Security Agreement Supplement and Amendment, dated as of April 18, 2013, by and
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among SBA Properties, LLC (formerly known as SBA Properties, Inc.), SBA Sites, LLC (formerly known as SBA Sites, Inc.), SBA Structures, LLC (formerly known as SBA Structures, Inc.), SBA
Infrastructure, LLC, SBA Monarch Towers III, LLC, SBA Towers USVI II, Inc., SBA Towers USVI, Inc., SBA Monarch Towers I, LLC, SBA 2012 TC Assets, LLC, SBA 2012 TC Assets PR, LLC, and SBA Towers IV, LLC, as Borrowers, and Midland Loan Services, Inc.,
as Servicer on behalf of Deutsche Bank Trust Company Americas, as Trustee.
Senior Credit Agreement means that certain Second
Amended and Restated Credit Agreement, dated February 7, 2014, among SBA Senior Finance II, as borrower, the several lenders from time to time parties thereto, Citigroup Global Capital Markets Inc. and Barclays Bank PLC, as incremental tranche
B-1 term loan joint lead arrangers and syndication agents, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, TD Securities (USA) LLC, The Royal Bank of Scotland plc and Wells Fargo Securities, LLC, as co-incremental Tranche B-1 term loan
documentation agents and Toronto Dominion (Texas) LLC, as administrative agent including any further amendments, guarantees, supplements, modifications, extensions, renewals, restatements, replacements or refundings thereof and any indentures or
credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that
increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under Section 4.08 or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder
and whether by the same or any other agent, lender or group of lenders.
Services Business means the site acquisition, site
development and site construction businesses of SBA Communications and its Subsidiaries.
Significant Subsidiary means, with
respect to any Person, any Restricted Subsidiary of such Person that would be a significant subsidiary of such Person 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 date hereof, except that all references to 10 percent in Rule 1-02(w)(1), (2) and (3) shall mean 5 percent and that all Unrestricted Subsidiaries of SBA Communications shall be excluded from all
calculations under Rule 1-02(w).
Stated Maturity means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any
such interest or principal prior to the date originally scheduled for the payment thereof.
Subsidiary means, with respect to
any 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) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and |
(a) the sole general partner or the managing general partner
of which is such Person or a Subsidiary of such Person; or
(b) the only general partners of which are such Person or one
or more Subsidiaries of such Person (or any combination thereof).
Tower means any wireless transmission tower or similar
structure, and related assets that are located on the site of such wireless transmission tower, owned by SBA Communications or any of its Subsidiaries or leased by SBA Communications or any of its Subsidiaries pursuant to a lease required to be
classified and accounted for as a capital lease on the balance sheet of SBA Communications and its Subsidiaries under GAAP.
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Unrestricted Subsidiary means (1) the Foreign Subsidiaries, unless otherwise
designated a Restricted Subsidiary by SBA Communications, (2) any other Subsidiary of SBA Communications that is designated by the board of directors as an Unrestricted Subsidiary and (3) any Subsidiary of an Unrestricted Subsidiary.
The board of directors of SBA Communications may designate any Subsidiary an Unrestricted Subsidiary, pursuant to a board resolution; but only
to extent that such Subsidiary or any of its Subsidiaries:
(1) |
is not party to any agreement, contract, arrangement or understanding with SBA Communications or any Restricted Subsidiary of SBA Communications unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to SBA Communications or such Restricted Subsidiary than those that might be obtained, at the time from Persons who are not Affiliates of SBA Communications; |
(2) |
is a Person with respect to which neither SBA Communications nor any of its Restricted Subsidiaries has any direct or indirect obligation; |
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(a) |
to subscribe for additional Equity Interests of such Person; or |
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(b) |
to maintain or preserve such Persons financial condition or to cause such Person to achieve any specified levels of operating results; |
(3) |
has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness or Excluded Capital Lease Obligations of SBA Communications or any of its Restricted Subsidiaries; and
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(4) |
to the extent that such Subsidiary has any Indebtedness that has been guaranteed by either SBA Communications or any Restricted Subsidiary, at the time of designation, SBA Communications has the ability to incur such
Indebtedness as of such date under the covenant described above under the caption Certain CovenantsIncurrence of Indebtedness and Issuance of Preferred Stock. |
Any such designation by the board of directors shall be evidenced to the trustee by filing with the trustee a certified copy of the board
resolution giving effect to such designation and an officers certificate certifying that such designation complied with the foregoing conditions and was permitted by the covenant described above under the caption Certain
CovenantsRestricted Payments. Any Subsidiary of an Unrestricted Subsidiary that was properly designated an Unrestricted Subsidiary shall also constitute an Unrestricted Subsidiary.
If, at any time, any Subsidiary designated as an Unrestricted Subsidiary by SBA Communications board of directors pursuant to clause
(3) above would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of the indenture and any Indebtedness of that Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary of SBA Communications as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under the covenant described above under the caption Certain CovenantsIncurrence of
Indebtedness and Issuance of Preferred Stock, SBA Communications shall be in default of such covenant).
The board of directors of
SBA Communications may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary and the board of directors of any Restricted Subsidiary may designate any of its Subsidiaries that is an Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that the designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of SBA Communications of any outstanding Indebtedness of such Unrestricted Subsidiary and the designation shall only
be permitted if:
(1) |
such Indebtedness is permitted under the covenant described above under the caption Certain CovenantsIncurrence of Indebtedness and Issuance of Preferred Stock, calculated on a pro forma basis
as if such designation had occurred at the beginning of the reference quarter; and |
(2) |
no Default or Event of Default would occur or be in existence following such designation. |
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Any such designation by the relevant board of directors shall be evidenced to the trustee by
filing with the trustee a certified copy of the board resolution giving effect to such designation and an officers certificate certifying that such designation complied with the foregoing conditions.
Voting Stock of any 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: |
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(a) |
the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof; by |
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(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 Restricted
Subsidiary of any Person means a Restricted Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors qualifying shares) shall at the time be owned by such Person or by one
or more Wholly Owned Restricted Subsidiaries of such Person and one or more Wholly Owned Restricted Subsidiaries of such Person.
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Book-Entry Settlement and Clearance
The Global Notes
The Exchange Notes will
be issued in the form of several registered notes in global form without interest coupons, which we refer to as the global notes.
Upon
issuance, each of the global notes will be deposited with the trustee as custodian for The Depository Trust Company, or DTC, and registered in the name of Cede & Co., as nominee of DTC. Ownership of beneficial interests in each global note
will be limited to persons who have accounts with DTC, or DTC participants, or persons who hold interests through DTC participants. We expect that under procedures established by DTC:
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upon deposit of each global note with DTCs custodian, DTC will credit portions of the principal amount of the global note to the accounts of the DTC participants designated by the initial purchasers; and
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ownership of beneficial interests in each global note will be shown on, and transfer of ownership of those interests will be effected only through, records maintained by DTC (with respect to interests of DTC
participants) and the records of DTC participants (with respect to other owners of beneficial interests in the global note). |
Beneficial interests in the temporary Regulation S global notes will initially be credited within DTC to Euroclear Bank S.A./N.V. and
Clearstream Banking, société anonyme, on behalf of the owners of these interests. During the Distribution Compliance Period described below, beneficial interests in the temporary Regulation S global note may be:
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held only through Euroclear or Clearstream; and |
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transferred only to non-U.S. persons under Regulation S, qualified institutional buyers under Rule 144A or institutional accredited investors. |
After the Distribution Compliance Period ends, beneficial interests in temporary Regulation S global notes may be exchanged for beneficial
interests in the permanent Regulation S global note upon certification that those interests are owned either by non-U.S. persons or by U.S. persons who purchased those interests pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
Investors may hold their interests in the permanent Regulation S global notes directly
through Euroclear or Clearstream, if they are participants in those systems, or indirectly through organizations that are participants in those systems. After the Distribution Compliance Period ends, investors may also hold their interests in the
permanent Regulation S global notes through organizations other than Euroclear or Clearstream that are DTC participants. Each of Euroclear and Clearstream will appoint a DTC participant to act as its depositary for the interests in the Regulation S
global notes that are held within DTC for the account of each settlement system on behalf of its participants.
Beneficial interests in
the global notes may not be exchanged for notes in physical, certificated form except in the limited circumstances described below.
Each
global note and beneficial interests in each global note will be subject to restrictions on transfer as described under Transfer Restrictions.
Exchanges Among the Global Notes
The
Distribution Compliance Period ended 40 days after July 1, 2014. Beneficial interests in one global note may generally be exchanged for interests in another global note. Depending on whether the transfer is being made during or after
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the Distribution Compliance Period, and to which global note the transfer is being made, the trustee may require the seller to provide certain written certifications in the form provided in the
indenture. In addition, in the case of a transfer of interests to an institutional accredited investor, the trustee may require the buyer to deliver a representation letter in the form provided in the indenture that states, among other things, that
the buyer is not acquiring notes with a view to distributing them in violation of the Securities Act.
A beneficial interest in a global
note that is transferred to a person who takes delivery through another global note will, upon transfer, become subject to any transfer restrictions and other procedures applicable to beneficial interests in the other global note.
Book-Entry Procedures for the Global Notes
All interests in the global notes will be subject to the operations and procedures of DTC, Euroclear and Clearstream. We provide the following
summaries of those operations and procedures solely for the convenience of investors. The information in this section concerning DTC, Euroclear and Clearstream and their book-entry systems has been obtained from sources that we believe to be
reliable, but neither we nor the initial purchasers take any responsibility for or make any representation or warranty with respect to the accuracy of this information. DTC, Euroclear and Clearstream are under no obligation to follow the procedures
described herein to facilitate the transfer of interest in global notes among participants and account holders of DTC, Euroclear and Clearstream, and such procedures may be discontinued or modified at any time. None of SBA, the trustee or any paying
agent will have any responsibility for the performance of DTC, Euroclear and Clearstream or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
DTC has advised us that it is:
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a limited purpose trust company organized under the laws of the State of New York; |
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a banking organization within the meaning of the New York State Banking Law; |
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a member of the Federal Reserve System; |
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a clearing corporation within the meaning of the Uniform Commercial Code; and |
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a clearing agency registered under Section 17A of the Exchange Act. |
DTC was
created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between its participants through electronic book-entry changes to the accounts of its participants. DTCs participants
include securities brokers and dealers, including the initial purchasers; banks and trust companies; clearing corporations and other organizations. Indirect access to DTCs system is also available to others such as banks, brokers, dealers and
trust companies; these indirect participants clear through or maintain a custodial relationship with a DTC participant, either directly or indirectly. Investors who are not DTC participants may beneficially own securities held by or on behalf of DTC
only through DTC participants or indirect participants in DTC.
So long as DTCs nominee is the registered owner of a global note,
that nominee will be considered the sole owner or holder of the notes represented by that global note for all purposes under the indenture. Except as provided below, owners of beneficial interests in a global note:
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will not be entitled to have notes represented by the global note registered in their names; |
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will not receive or be entitled to receive physical, certificated notes; and |
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will not be considered the owners or holders of the notes under the indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the trustee under the indenture.
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As a result, each investor who owns a beneficial interest in a global note must rely on the
procedures of DTC to exercise any rights of a holder of notes under the indenture (and, if the investor is not a participant or an indirect participant in DTC, on the procedures of the DTC participant through which the investor owns its interest).
Payments of principal, premium, if any, and interest and additional interest, if any, with respect to the notes represented by a global
note will be made by the trustee to DTCs nominee as the registered holder of the global note.
Neither we nor the trustee will have
any responsibility or liability for the payment of amounts to owners of beneficial interests in a global note, for any aspect of the records relating to or payments made on account of those interests by DTC, or for maintaining, supervising or
reviewing any records of DTC relating to those interests.
Payments by participants and indirect participants in DTC to the owners of
beneficial interests in a global note will be governed by standing instructions and customary industry practice and will be the responsibility of those participants or indirect participants and DTC.
Transfers between participants in DTC will be effected under DTCs procedures and will be settled in same-day funds. Transfers between
participants in Euroclear or Clearstream will be effected in the ordinary way under the rules and operating procedures of those systems. Cross-market transfers between DTC participants, on the one hand, and Euroclear or Clearstream participants, on
the other hand, will be effected within DTC through the DTC participants that are acting as depositaries for Euroclear and Clearstream. To deliver or receive an interest in a global note held in a Euroclear or Clearstream account, an investor must
send transfer instructions to Euroclear or Clearstream, as the case may be, under the rules and procedures of that system and within the established deadlines of that system. If the transaction meets its settlement requirements, Euroclear or
Clearstream, as the case may be, will send instructions to its DTC depositary to take action to effect final settlement by delivering or receiving interests in the relevant global notes in DTC, and making or receiving payment under normal procedures
for same-day funds settlement applicable to DTC. Euroclear and Clearstream participants may not deliver instructions directly to the DTC depositaries that are acting for Euroclear or Clearstream.
Because of time zone differences, the securities account of a Euroclear or Clearstream participant that purchases an interest in a global note
from a DTC participant will be credited on the business day for Euroclear or Clearstream immediately following the DTC settlement date. Cash received in Euroclear or Clearstream from the sale of an interest in a global note to a DTC participant will
be received with value on the DTC settlement date but will be available in the relevant Euroclear or Clearstream cash account as of the business day for Euroclear or Clearstream following the DTC settlement date.
DTC, Euroclear and Clearstream have agreed to the above procedures to facilitate transfers of interests in the global notes among participants
in those settlement systems. However, the settlement systems are not obligated to perform these procedures and may discontinue or change these procedures at any time. Neither we nor the trustee will have any responsibility for the performance by
DTC, Euroclear or Clearstream or their participants or indirect participants of their obligations under the rules and procedures governing their operations.
Certificated Notes
Notes in physical,
certificated form will be issued and delivered to each person that DTC identifies as a beneficial owner of the related notes only if:
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DTC notifies us at any time that it is unwilling or unable to continue as depositary for the global notes and a successor depositary is not appointed within 90 days; |
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DTC ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days; |
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we, at our option, notify the trustee that we elect to cause the issuance of certificated notes; or |
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certain other events provided in the indenture should occur. |
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Registration Rights
On July 1, 2014, the closing date of the issuance of the Original Notes, SBA entered into a registration rights agreement with J.P.
Morgan Securities LLC, as representatives of the several initial purchasers. In that agreement, SBA agreed for the benefit of the holders of the Original Notes that it would use its reasonable best efforts to file with the Commission and cause to
become effective a registration statement relating to offers to exchange Original Notes for issues of notes registered with the Commission, or the Exchange Notes, with terms identical to Original Notes (except that the Exchange Notes will not be
subject to restrictions on transfer or to any increase in annual interest rate as described below).
When the Commission declares the
exchange offer registration statement effective, SBA will offer the Exchange Notes in return for the Original Notes. The Exchange Offer will remain open for at least 20 business days (or longer if required by applicable law) after the date SBA mails
notice of the Exchange Offer to holders of the Original Notes. For each Original Note surrendered to us under the Exchange Offer, the holder of the Original Note will receive an Exchange Note of equal principal amount. Interest on each Exchange Note
will accrue from the last interest payment date on which interest was paid on the Original Note, or if no interest has been paid on the Original Note, from July 1, 2014. A holder of notes that participates in the exchange offer will be required
to make certain representations to us (as described in the registration rights agreement). Under existing interpretations of the Commission contained in several no-action letters to third parties, the Exchange Notes (and the related note guarantees)
will generally be freely transferable after the Exchange Offer without further registration under the Securities Act, except that any broker-dealer that participates in the exchange must deliver a prospectus meeting the requirements of the
Securities Act when it resells the Exchange Notes.
We agreed to make available, during the period required by the Securities Act, a
prospectus meeting the requirements of the Securities Act for use by participating broker-dealers and other persons, if any, with similar prospectus delivery requirements for use in connection with any resale of Exchange Notes. Original Notes not
tendered in the Exchange Offer will bear interest at the rate set forth in the Original Notes and be subject to all the terms and conditions specified in the indenture, including transfer restrictions, but will not retain any rights under the
registration rights agreement (including with respect to increases in annual interest rate described below) after the consummation of the Exchange Offer.
In the event that (i) SBA Communications determines that a registered exchange offer is not available or may not be completed because it
would violate any applicable law or applicable interpretations of the staff of the Commission, (ii) the Exchange Offer is not for any other reason completed by the 360th day following the closing date of July 1, 2014, or (iii) SBA
Communications receives a written request from any initial purchaser representing that it holds registrable securities that are or were ineligible to be exchanged in the Exchange Offer, then SBA Communications will use its reasonable best efforts to
cause to be filed as soon as practicable after such determination or registration request, as the case may be, a shelf registration statement relating to resales of the Original Notes and to have such shelf registration become effective. SBA
Communications agreed to use reasonable best efforts to keep the shelf registration statement effective until the expiration of the time period referred to in Rule 144 under the Securities Act, or such shorter period that will terminate when all
Original Notes covered by the shelf registration statement have been sold pursuant to the shelf registration statement (the shelf effectiveness period). SBA Communications will, in the event of such a shelf registration, provide to each
participating holder of Original Notes copies of a prospectus, notify each participating holder of Original Notes when the shelf registration statement has become effective and take certain other actions to permit resales of the Original Notes. A
holder of Original Notes that sells notes under the shelf registration statement generally will be required to make certain representations to us (as described in the registration rights agreement), to be named as a selling security holder in the
related prospectus and to deliver a prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with those sales and will be bound by the provisions of the registration rights
agreement that are applicable to such a holder of notes (including certain indemnification obligations). Holders of Original Notes will also be required to suspend their use of the prospectus included in the shelf registration statement under
specified circumstances upon receipt of notice from us. Under applicable interpretations of the staff of the Commission, our affiliates will not be permitted to exchange their Original Notes for registered Exchange Notes in the Exchange Offer.
If the Exchange Offer has not been completed or a shelf registration statement is required because a registered exchange offer is not
available and is not declared effective, on or prior to the 360th day following the closing date of July 1, 2014 (the target registration date), then the interest rate on the principal amount of the notes will be increased by
(i) a rate of 0.25% per annum for the first 90-day period following the target registration date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period thereafter, until the Exchange Offer is
completed or the shelf registration statement, if required, becomes effective, up to a maximum increase of 1.00% per annum.
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Any amounts of additional interest due will be payable in cash on the same original interest
payment dates as interest on the Original Notes is payable. The Exchange Notes will be accepted for clearance through DTC.
This summary
of the provisions of the registration rights agreement does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all the provisions of the registration rights agreement, copies of which are available from
us upon request.
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Material United States Federal Income and Estate Tax Consequences
General
The following
discussion summarizes the material U.S. federal income and, in the case of Non-U.S. Holders (as defined below), estate tax consequences of the purchase, ownership and disposition of the notes as of the date of this prospectus. This summary deals
only with notes purchased for cash upon original issuance at the price indicated on the cover of this prospectus. This summary is written only for holders that will hold their notes as capital assets within the meaning of section 1221 of
the Internal Revenue Code of 1986, as amended (the Code). Each prospective holder is urged to consult its tax advisor regarding the U.S. federal, state, local and foreign income and other tax consequences of the ownership, sale, or other
disposition of the notes.
This summary is based on the provisions of the Code, Treasury Regulations thereunder and administrative and
judicial interpretations thereof, as of the date hereof, all of which are subject to change (possibly retroactively). No rulings have been or will be sought from the Internal Revenue Service (IRS) with respect to any of the U.S. federal
income tax consequences discussed below. The discussion below is not binding on the IRS or the courts and, accordingly, the IRS or a court may take contrary positions. This summary does not discuss all aspects of U.S. federal income taxation that
may be important to particular holders in light of their individual circumstances, such as holders subject to special tax rules (e.g., financial institutions, insurance companies, broker-dealers, tax-exempt organizations, regulated investment
companies, real estate investment trusts, traders in securities that have elected the mark-to-market method of accounting for their securities, persons liable for alternative minimum tax, controlled foreign corporations, passive
foreign investment companies and United States expatriates), persons that will hold the notes as a part of a straddle, hedge, conversion, constructive sale or an integrated transaction for U.S. federal income tax purposes, partnerships or
persons who are investors in partnerships (or other pass-through entities for U.S. federal income tax purposes) or U.S. Holders (as defined below) that have a functional currency other than the United States dollar, all of whom may be subject to tax
rules that differ materially from those summarized below. In addition, this summary does not discuss any foreign, state or local tax considerations.
For purposes of this summary, a U.S. Holder is a beneficial owner of a note that is, for U.S. federal income tax purposes,
(i) an individual who is a citizen or resident of the United States, (ii) a corporation or other entity treated as a corporation for U.S. federal income tax purposes, created in or organized under the law of the United States or any state
or political subdivision thereof, (iii) an estate the income of which is includible in gross income for U.S. federal income tax purposes regardless of its source, or (iv) a trust (A) the administration of which is subject to the
primary supervision of a United States court and with respect to which one or more United States persons have the authority to control all substantial decisions of the trust, or (B) that has in effect a valid election under applicable United
States Treasury Regulations to be treated as a United States person. A beneficial owner of a note that is not a U.S. Holder or a partnership (or another pass- through entity) for U.S. federal income tax purposes is referred to herein as a
Non-U.S. Holder. If a partnership (including any entity or arrangement treated as a partnership for U.S. federal income tax purposes) is a beneficial owner of notes, the treatment of a partner in the partnership generally will depend
upon the status of the partner and the activities of the partnership. A holder of notes that is an entity treated as a partnership for U.S. federal income tax purposes and partners in such a partnership are urged to consult their tax advisors about
the U.S. federal income tax consequences of holding and disposing of notes.
Exchange of Original Notes for Exchange Notes
The exchange of Original Notes for Exchange Notes pursuant to the Exchange Offer will not constitute a taxable event to holders. Rather, the
Exchange Notes will be treated as a continuation of the Original Notes for federal income tax purposes, and are referred to together as notes in this summary of federal income tax consequences. Consequently, no gain or loss will be
recognized by a holder upon receipt of an Exchange Note, the holding period of the Exchange Note will include the holding period of the Original Note, and the initial basis of the Exchange Note will be the same as the basis of the Original Note
immediately before the exchange.
Certain Additional Payments
In certain circumstances, we may be required to make additional payments on the notes. Pursuant to applicable Treasury Regulations, we believe
that the likelihood of us making any such additional payments is considered remote and/or incidental, and therefore should not cause the notes to be treated as contingent payment debt instruments for U.S. federal
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income tax purposes. Our determination is binding on all holders, other than a holder that discloses its differing position in a statement attached to its timely filed U.S. federal income tax
return for the taxable year during which such holder acquired a note. However, there can be no assurance that the IRS will agree with our determination, or that our position would be sustained if challenged by the IRS. This summary assumes that the
notes will not be treated as contingent payment debt instruments for U.S. federal income tax purposes. Each holder is urged to consult its tax advisor regarding the potential application to the notes of the contingent payment debt instrument rules
and the consequences thereof.
U.S. Holders
Payments of interest. Generally, qualified stated interest on a note will be taxable to a U.S. Holder as ordinary interest
income (in accordance with the holders regular method of accounting for U.S. federal income tax purposes) at the time such payments are accrued or received. The term qualified stated interest means stated interest that is
unconditionally payable in cash or in property (other than debt instruments of the issuer), at least annually over the entire term of the note at a single fixed rate or, subject to certain conditions, based on one or more interest indices. The
stated interest on the notes will be qualified stated interest.
Sale, exchange, retirement or other disposition of the notes. Upon
a sale, exchange, retirement or other disposition of notes, a U.S. Holder generally will recognize gain or loss in an amount equal to the difference between the amount realized on the disposition (other than an amount attributable to accrued but
unpaid qualified stated interest, which will be taxable as ordinary interest income as discussed above to the extent not previously included in income) and the U.S. Holders adjusted tax basis in such notes. A U.S. Holders adjusted tax
basis in a note generally will be equal to the cost of the note to such U.S. Holder. Generally, any such gain or loss will be capital gain or loss, and will be long-term capital gain or loss if the U.S. Holders holding period for the notes is
more than one year at the time of disposition. For non-corporate U.S. Holders, long-term capital gains generally will be subject to reduced rates of taxation. The deductibility of capital losses is subject to certain limitations.
Additional tax on net investment income. Certain U.S. Holders, including individuals and estates and trusts, are subject to an
additional 3.8% Medicare tax on all or a portion of their net investment income, which may include interest and net gains from the disposition of notes. U.S. Holders are urged to consult their own tax advisors regarding the implications
of the additional Medicare tax resulting from an investment in the notes.
Non-U.S. Holders
Interest. Subject to the discussion below with respect to FATCA and the discussion below with respect to backup withholding, all
payments of interest on the notes made to a Non-U.S. Holder, will be exempt from U.S. federal withholding tax under the portfolio interest rule, provided that: (i) such Non-U.S. Holder does not own, actually or
constructively, 10% or more of the total combined voting power of all classes of our stock entitled to vote, (ii) such Non-U.S. Holder is not a controlled foreign corporation related, directly or indirectly, to us through stock ownership,
(iii) such Non-U.S. Holder is not a bank whose receipt of interest on the notes is described in Section 881(c)(3)(A) of the Code, (iv) such Non-U.S. Holder certifies, under penalties of perjury,
to us or our paying agent on applicable IRS Form W-8 (or appropriate substitute form) that it is not a United States person and provides its name, address and certain other required information or certain other certification requirements are
satisfied and (v) interest paid on the notes is not effectively connected with such Non-U.S. Holders conduct of a trade or business in the United States.
If a Non-U.S. Holder cannot satisfy the requirements described above, payments of interest made to such Non-U.S. Holder will be subject to the
30% U.S. federal withholding tax unless such Non-U.S. Holder provides us with a properly executed (i) IRS Form W-8BEN or Form W-8BEN-E(or appropriate substitute form) claiming an exemption from or reduction in withholding under the benefit
of an applicable income tax treaty or (ii) IRS Form W-8ECI (or appropriate substitute form) stating that interest paid or accrued on the notes is not subject to U.S. federal withholding tax because it is effectively connected with the conduct
of a trade or business in the United States.
Sale, exchange, retirement or other disposition of the notes. Subject to the
discussion below with respect to FATCA and the discussion below concerning backup withholding and except with respect to amounts attributable to accrued but unpaid qualified stated interest, which will be taxable as described above under
Interest, a Non-U.S. Holder generally will not be subject to U.S. federal income or withholding tax on the receipt of payments of principal on a note, or on any gain recognized upon the sale, exchange, retirement or other
disposition of a note, unless in the case of any such gain (i) such gain
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is effectively connected with the conduct by such Non-U.S. Holder of a trade or business within the United States and, if a treaty applies (and the
Non-U.S. Holder complies with applicable certification and other requirements to claim treaty benefits), is attributable to a permanent establishment maintained by the Non-U.S. Holder within the United States (as described below under
Income effectively connected with a U.S. trade or business) or (ii) such Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of disposition, and certain other
conditions are met.
Income effectively connected with a U.S. trade or business. If a Non-U.S. Holder of notes is engaged in a
trade or business in the United States, and if interest on the notes or gain realized on the sale, exchange or other disposition of the notes is effectively connected with the conduct of such trade or business (and if required by an applicable
income tax treaty, is attributable to a United States permanent establishment), the Non-U.S. Holder generally will be subject to U.S. federal income tax on such income or gain, as applicable, in generally the same manner as if the Non-U.S. Holder
were a U.S. Holder. Payments of interest, or gain realized on the sale, exchange or other disposition of the notes, that are effectively connected with a U.S. trade or business (and, if an income tax treaty applies, attributable to a permanent
establishment or fixed base), and therefore included in the gross income of a Non-U.S. Holder, will not be subject to the 30% U.S. federal withholding tax provided that the Non-U.S. Holder claims exemption from withholding on a properly
executed IRS Form W-8ECI (or appropriate substitute form). In addition, if such Non-U.S. Holder is a foreign corporation, such corporation may also be subject to a branch profits tax equal to 30% (or such lower rate provided by an applicable treaty)
of its effectively connected earnings and profits for the taxable year, subject to certain adjustments.
FATCA. Under the Foreign
Account Tax Compliance Act (FATCA), gross proceeds from the sale, exchange or other disposition of a note realized after December 31, 2016 by, and payments of interest on a note made to, certain non-U.S. persons, including certain
foreign financial institutions and investment funds, could be subject to a 30% withholding tax unless such non-U.S. person complies with certain requirements, including reporting requirements regarding its direct and indirect U.S. owners and/or U.S.
account holders. Such withholding could apply to payments made to a non-U.S. person regardless of whether the non-U.S. person is the beneficial owner of a note or holds a note for the account of others. Potential investors are encouraged to consult
with their tax advisors regarding the possible implications of FATCA on an investment in the notes. To comply with the requirements of FATCA, we may, in appropriate circumstances, require the holders of the notes to provide information and tax
documentation regarding their direct and indirect owners.
U.S. federal estate tax. A Non-U.S. Holders estate will not be
subject to U.S. federal estate tax on notes beneficially owned by him or her at the time of his or her death, provided that any payment to him or her on the notes would be eligible for exemption from the 30% U.S. federal withholding tax under
the portfolio interest rule described above under Interest without regard to the certification requirement described in that section.
Information Reporting and Backup Withholding
U.S.
Holders
Payments of interest on, or the proceeds of the sale or other disposition of, a note are generally subject to information
reporting unless the U.S. Holder is an exempt recipient (such as a corporation). Such payments may also be subject to backup withholding tax at the applicable rate if the recipient of such payment fails to supply a taxpayer identification number,
certified under penalties of perjury, as well as certain other information or otherwise fails to establish an exemption from backup withholding or if the U.S. Holder fails to report in full dividend and interest income. Any amounts withheld under
the backup withholding rules will be allowed as a refund or credit against that U.S. Holders U.S. federal income tax liability provided the required information is timely furnished to the IRS.
Non-U.S. Holders
In general, a Non-U.S.
Holder will not be subject to backup withholding tax with respect to payments of interest on the notes provided that we do not have actual knowledge or reason to know that such a Non-U.S. Holder is a United States person as defined under the
Code, and we have received from the Non-U.S. Holder the required certification that it is a Non-U.S. Holder. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against that Non-U.S. Holders U.S.
federal income tax liability provided the required information is timely furnished to the IRS. Generally, the name and address of the beneficial owner and the amount of interest paid on a note, as well as the amount, if any, of tax withheld, will be
reported to the IRS. Copies of the information returns reporting such payments may also be made available under the provisions of a specific treaty or agreement to the tax authorities of the country in which the Non-U.S. Holder resides.
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Foreign, State and Local Tax Considerations
In addition to the U.S. federal income tax consequences described above, holders of notes should consider the foreign, state and local tax
consequences of purchasing, owning, and disposing of the notes. Foreign, state and local tax laws may differ substantially from the corresponding U.S. federal law, and this discussion does not purport to describe any aspect of the tax laws of any
foreign jurisdiction, state or locality. Holders of the notes should therefore consult their own tax advisors with respect to the various foreign, state and local tax consequences of an investment in the notes.
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Plan of Distribution
Each broker-dealer that receives Exchange Notes for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Notes received in exchange for Original
Notes where such Original Notes were acquired as a result of market-making activities or other trading activities. We have agreed that, for a period of up to 180 days after consummation of the Exchange Offer, we will make this prospectus, as amended
or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until [ ], all dealers effecting transactions in the Exchange Notes may
be required to deliver a prospectus.
We will not receive any proceeds from any sale of Exchange Notes by broker-dealers or any other
persons. Exchange Notes received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any such Exchange Notes. Any broker-dealer that resells Exchange Notes that were received
by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Notes may be deemed to be an underwriter within the meaning of the Securities Act and any profit of
any such resale of Exchange Notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act.
Pursuant to the terms of the Registration Rights Agreement, we have agreed to pay all expenses incident to the Exchange Offer, excluding
underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, related to the sale or disposition of notes by a Holder, and will indemnify the Holders of the Original Notes, including any broker-dealers, against certain
liabilities, including liabilities under the Securities Act in connection with the Exchange Offer. For purposes of the Registration Rights Agreement only, the term Holder is defined as each initial purchaser of the Original Notes, for so
long as it owns any registrable securities, and each of the initial purchasers successors, assigns and direct and indirect transferees who becomes an owner of registrable securities under the indenture; provided that for purposes of the
Registration Rights Agreement, the term Holders shall include participating broker-dealers.
Each broker-dealer further
acknowledges and agrees that, upon receipt of notice from us of the happening of any event which makes any statement in the prospectus untrue in any material respect or which requires the making of any changes in the prospectus to make the
statements in the prospectus not misleading, which notice we agree to deliver promptly to such broker-dealer, such broker-dealer will suspend use of the prospectus until we have notified such broker-dealer that delivery of the prospectus may resume
and have furnished copies of any amendment or supplement to the prospectus to the broker-dealer.
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Legal Matters
Certain legal matters relating to the validity of the Exchange Notes will be passed upon for us by Greenberg Traurig, P.A., Ft. Lauderdale,
Florida.
Experts
The consolidated financial statements of SBA appearing in SBAs Annual Report on Form 10-K for the year ended December 31, 2014, and
the effectiveness of internal control over financial reporting as of December 31, 2014, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and
incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
Where You Can Find More Information; Incorporation By Reference
We file annual, quarterly and current reports, proxy statements and other information with the Commission. Our SEC filings are available over
the Internet at the Commissions web site at http://www.sec.gov. You may also read and copy any document we file at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the Commission at 1-800-SEC-0330
for more information on the Public Reference Room and its copy charges.
We are incorporating by reference into this
prospectus specific documents that we file with the Commission, which means that we can disclose important information to you by referring you to those documents that are considered part of this prospectus. Information that we file subsequently with
the Commission will automatically update and supersede this information. We incorporate by reference the documents listed below, and any future documents that we file with the Commission under Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act until the termination of the offerings of all of the securities covered by this prospectus has been completed including all such documents filed after the date of the initial registration statement and prior to effectiveness of the registration
statement. This prospectus is part of a registration statement filed with the Commission.
We incorporate by reference into this
prospectus the following documents filed by us with the Commission, other than information furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, each of which should be considered an important part of this prospectus:
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SEC Filing (File No. 000-30110) |
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Period Covered or Date of Filing |
Annual Report on Form 10-K |
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Year ended December 31, 2014 |
Current Reports on Form 8-K |
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February 11, 2015 and April 8, 2015 |
All subsequent documents filed by us under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act of 1934 |
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After the date of this prospectus |
You may request a copy of each of SBAs filings at no cost, by writing or telephoning SBA at the
following address, telephone or facsimile number:
SBA Communications Corporation
8051 Congress Avenue
Boca Raton,
Florida 33487
Phone: (561) 995-7670
Fax: (561) 998-3448
Exhibits to a document will not be provided unless they are specifically incorporated by reference in that document.
We maintain an internet website at http://www.sbasite.com, which contains information relating to us and our business. We do not incorporate
the information on our internet website by reference.
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You should rely only on the information contained in and incorporated by reference into this
prospectus. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to exchange the Original Notes in
any jurisdiction where the exchange is not permitted. You should not assume that the information in this prospectus or incorporated by reference into this prospectus is accurate as of any date other than the date on the front of the respective
document. Our business, financial condition, results of operations and prospects may have changed since that date.
The information in
this prospectus may not contain all of the information that may be important to you. You should read the entire prospectus, as well as the documents incorporated by reference into this prospectus, before making an investment decision.
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Part II
Information Not Required in Prospectus
Item 20. |
Indemnification of Directors and Officers |
Under Section 607.0831 of the Florida
Business Corporation Act (the FBCA), a director is not personally liable for monetary damages to the corporation or any other person for any statement, vote, decision, or failure to act regarding corporate management or policy unless
(1) the director breached or failed to perform his or her duties as a director and (2) the directors breach of, or failure to perform, those duties constitutes: (a) a violation of the criminal law, unless the director had
reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful, (b) a transaction from which the director derived an improper personal benefit, either directly or indirectly,
(c) a circumstance under which the liability provisions of Section 607.0834 are applicable, (d) in a proceeding by or in the right of the corporation to procure a judgment in its favor or by or in the right of a shareholder, conscious
disregard for the best interest of the corporation, or willful misconduct, or (e) in a proceeding by or in the right of someone other than the corporation or a shareholder, recklessness or an act or omission which was committed in bad faith or
with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. A judgment or other final adjudication against a director in any criminal proceeding for a violation of the criminal law estops that
director from contesting the fact that his or her breach, or failure to perform, constitutes a violation of the criminal law; but does not estop the director from establishing that he or she had reasonable cause to believe that his or her conduct
was lawful or had no reasonable cause to believe that his or her conduct was unlawful.
Under Section 607.0850 of the FBCA, a
corporation has power to indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of the corporation), by reason of the fact that he or she is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against liability incurred in connection with such proceeding,
including any appeal thereof, 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 corporation and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The termination of any proceeding by judgment, order, settlement or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the corporation or, with respect to any criminal action or proceeding, has reasonable cause to believe that his or her conduct
was unlawful.
In addition, under Section 607.0850 of the FBCA, a corporation has the power to indemnify any person, who was or is a
party to any proceeding by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the
estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof. Such indemnification shall be authorized if such person
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 corporation, except that no indemnification shall be made under this subsection in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable unless, and only to the extent that, the court in which such proceeding was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
Under Section 607.0850 of the FBCA, the indemnification and advancement of expenses provided pursuant to Section 607.0850 of the
FBCA are not exclusive, and a corporation may make any other or further indemnification or advancement of expenses of any of its directors, officers, employees, or agents, under any bylaw, agreement, vote of shareholders or disinterested directors,
or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. However, indemnification or advancement of expenses shall not be made to or on behalf of any director, officer, employee
or agent if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (a) a violation of the criminal law, unless the director, officer,
employee or agent had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful; (b) a transaction from which the director, officer, employee or agent derived an improper
personal benefit; (c) in the case of a director, a circumstance under which the above liability provisions of Section 607.0834
1
are applicable; or (d) willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in
its favor or in a proceeding by or in the right of a shareholder.
Our articles of incorporation provide that we will, to the fullest
extent permitted by applicable law and our bylaws, as amended from time to time, indemnify all of our officers and directors. Our bylaws provide that the board of directors, in its discretion, may on behalf of the Company purchase insurance on
behalf of a person who was or is a director, officer or employee of the Company. To the extent that such insurance is not in effect or does not apply, and is it permitted by the bylaws, the Company will indemnify each officer and director who is a
party to a suit or action by reason of the fact that he or she served in such capacity for expenses reasonably incurred in connection with an action or suit if he or she acted in good faith, and with respect to a criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Additionally, to the extent that such insurance is not in effect or does not apply, and it is permitted by the bylaws, the Company will indemnify each officer and director who was or is a
party to a suit or action by or in the right of the Company by reason of the fact that he or she served in such capacity for expenses reasonably incurred in connection with such action or suit if he or she acted in good faith, except that no
indemnification will be made in respect of a claim or action for which the person is adjudged to be liable for negligence or misconduct in the performance of his or her duties to the Company, unless and to the extent that the court in which the
claim is brought determines that such person is entitled to indemnity.
We have entered into indemnification agreements with our directors
and certain officers that provide for the indemnification of our directors and certain officers, to the fullest extent permitted by the Florida Business Corporation Act, our articles of incorporation and our bylaws, against expenses incurred by such
persons in connection with their service as (i) our director or officer, (ii) in any capacity with respect to any of our employee benefit plans, or (iii) as a director, partner, trustee, officer, employee or agent of any other entity
at our request. In addition, the agreements provide for our obligation to advance expenses, under certain circumstances, and provide for additional procedural protections.
We maintain directors and officers liability insurance for our directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and
controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and
is, therefore, unenforceable.
Item 21. |
Exhibits and Financial Statement Schedules |
|
|
|
|
|
|
|
|
|
|
|
Incorporated by Reference |
Exhibit No. |
|
Exhibit Description |
|
Form |
|
Period Covered or Date of Filing |
|
|
|
|
3.4 |
|
Fourth Amended and Restated Articles of Incorporation, as Amended, of SBA Communications Corporation. |
|
S-4
(333-166966) |
|
05/19/10 |
|
|
|
|
3.5A |
|
Amended and Restated Bylaws of SBA Communications Corporation, effective as of January 16, 2012. |
|
8-K |
|
02/01/12 |
|
|
|
|
4.24 |
|
Indenture, dated July 1, 2014, between SBA Communications Corporation and U.S. Bank National Association. |
|
8-K |
|
07/01/14 |
|
|
|
|
4.25 |
|
Form of 4.875% Senior Notes due 2022 (included in Exhibit 4.24). |
|
8-K |
|
07/01/14 |
|
|
|
|
5.1 |
|
Opinion of Greenberg Traurig, P.A. regarding the legality of the securities being registered.* |
|
|
|
|
|
|
|
|
10.10 |
|
Registration Rights Agreement, dated July 1, 2014, among SBA Communications Corporation and the several initial purchasers listed on Schedule I thereto. |
|
8-K |
|
07/01/14 |
|
|
|
|
12.1 |
|
Statement of Computation of Ratio of Earnings to Fixed Charges.* |
|
|
|
|
|
|
|
|
23.1 |
|
Consent of Ernst & Young LLP.* |
|
|
|
|
|
|
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23.2 |
|
Consent of Greenberg Traurig, P.A. (included in Exhibit 5.1). |
|
|
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24.1 |
|
Power of Attorney (included in the signature page herein). |
|
|
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|
|
25.1 |
|
Form T-1 Statement of Eligibility of Trustee.* |
|
|
|
|
|
|
|
|
99.1 |
|
Form of Letter of Transmittal.* |
|
|
|
|
|
|
|
|
99.2 |
|
Form of Notice of Guaranteed Delivery.* |
|
|
|
|
|
|
|
|
99.3 |
|
Form of Letter to Clients.* |
|
|
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99.4 |
|
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* |
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99.5 |
|
Guidelines for Certification of Taxpayer Identification Number on Substitute IRS Form W-9.* |
|
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|
(a) |
The undersigned registrant hereby undertakes: |
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth
in the Calculation of Registration Fee table in the effective Registration Statement;
(iii) To include any
material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was
made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(c) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(e) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent
to the effective date of the registration statement through the date of responding to the request.
(f) The undersigned registrant hereby undertakes to
supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
(g) The undersigned registrant hereby undertakes that, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any
purchaser in the initial distribution of the securities, in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(1) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(2) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(3) The portion of any other free writing prospectus relating to the offering containing material information
about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(4) Any other
communication that is an offer in the offering made by the undersigned registrant to the purchaser.
Signatures
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton, State of Florida, on April 24, 2015.
|
|
|
SBA COMMUNICATIONS CORPORATION |
|
|
By: |
|
/s/ Jeffrey A. Stoops |
Name: |
|
Jeffrey A. Stoops |
Title: |
|
President and Chief Executive Officer |
Power of Attorney
Each person whose signature appears below hereby constitutes and appoints Jeffrey A. Stoops and Brendan T. Cavanagh, and each of them, with
full power to act without the other, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for such person and in his or her name, place and stead, in any and all capacities, to execute this
registration statement on Form S-4 relating to the registration of securities, and any additional registration statement and other instruments necessary or appropriate in connection therewith, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and
necessary or desirable to be done, and to take or cause to be taken any and all such further actions in connection with such registration statement as such attorneys-in-fact and agents, in each of their sole discretion, deems necessary or
appropriate, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
/s/ Steven E. Bernstein
Steven E. Bernstein |
|
Chairman of the Board of Directors |
|
April 24, 2015 |
|
|
|
/s/ Jeffrey A. Stoops
Jeffrey A. Stoops |
|
Chief Executive Officer, President and Director (Principal Executive Officer) |
|
April 24, 2015 |
|
|
|
/s/ Brendan T. Cavanagh
Brendan T. Cavanagh |
|
Chief Financial Officer and Executive Vice President (Principal Financial Officer) |
|
April 24, 2015 |
|
|
|
/s/ Brian D. Lazarus
Brian D. Lazarus |
|
Chief Accounting Officer and Senior Vice President (Principal Accounting Officer) |
|
April 24, 2015 |
|
|
|
/s/ Kevin L. Beebe
Kevin L. Beebe |
|
Director |
|
April 24, 2015 |
|
|
|
/s/ Brian C. Carr
Brian C. Carr |
|
Director |
|
April 24, 2015 |
|
|
|
/s/ Duncan H. Cocroft
Duncan H. Cocroft |
|
Director |
|
April 24, 2015 |
|
|
|
/s/ George R. Krouse, Jr.
George R. Krouse, Jr. |
|
Director |
|
April 24, 2015 |
|
|
|
/s/ Jack Langer
Jack Langer |
|
Director |
|
April 24, 2015 |
Exhibit Index
|
|
|
Number |
|
Description |
|
|
5.1 |
|
Opinion of Greenberg Traurig, P.A. regarding the legality of the securities being registered |
|
|
12.1 |
|
Statement of Computation of Ratio of Earnings to Fixed Charges |
|
|
23.1 |
|
Consent of Ernst & Young LLP |
|
|
25.1 |
|
Form T-1 Statement of Eligibility of Trustee |
|
|
99.1 |
|
Form of Letter of Transmittal |
|
|
99.2 |
|
Form of Notice of Guaranteed Delivery |
|
|
99.3 |
|
Form of Letter to Clients |
|
|
99.4 |
|
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees |
|
|
99.5 |
|
Guidelines for Certification of Taxpayer Identification Number on Substitute IRS Form W-9 |
Exhibit 5.1
Opinion of Greenberg Traurig, P.A.
April 24, 2015
SBA Communications Corporation
8051 Congress Avenue
Boca Raton, FL 33487
Ladies and Gentlemen:
We have acted as counsel to SBA
Communications Corporation, a Florida corporation (SBA Communications), in connection with a registration statement on Form S-4 (the Registration Statement), filed with the Securities and Exchange Commission (the
Commission) under the Securities Act of 1933, as amended (the Act), relating to the offer to exchange (the Exchange Offer) SBA Communications $750,000,000 4.875% Senior Notes due 2022 that have been
registered under the Act (the Exchange Notes), for a like principal amount of SBA Communications currently outstanding $750,000,000 4.875% Senior Notes due 2022 (the Original Notes). The Original Notes were issued, and
the Exchange Notes will be issued, pursuant to an indenture dated July 1, 2014 (the Indenture) between SBA Communications and U.S. Bank National Association, as trustee (the Trustee).
In rendering the opinions expressed below, we have examined originals or copies of: (a) the Registration Statement, in the form filed with the
Commission; (b) the Registration Rights Agreement, dated as of July 1, 2014 (the Registration Rights Agreement), by and among SBA Communications and the several initial purchasers named therein; (c) the Indenture;
(d) specimens of the certificates representing the Exchange Notes; and (e) the other documents delivered by or on behalf of SBA Communications and the Trustee as of the date hereof in connection with the delivery of the Exchange Notes. We
have also examined such other instruments, corporate records, certificates of public officials, certificates of officers or other representatives of SBA Communications and others and other documents as we have deemed necessary or appropriate as a
basis for the opinions set forth herein.
We have assumed the following: (a) the genuineness of all signatures; (b) the authenticity of all
documents submitted to us as originals; (c) the conformity to authentic original documents of all documents submitted to us as copies; (d) the truth, accuracy and completeness of the information, factual matters, representations and
warranties contained in the records, documents, instruments and certificates we have reviewed as of their stated dates and as of the date hereof; (e) the legal capacity of natural persons; (f) that the Indenture has been duly authorized,
executed and delivered by the Trustee and constitutes a legally valid, binding and enforceable obligation of the Trustee enforceable against the Trustee in accordance with its terms; (g) that the Exchange Notes will be duly authenticated by the
Trustee; and (h) the absence of any evidence extrinsic to the provisions of the written agreements between the parties that the parties intended a meaning contrary to that expressed by those provisions. As to any facts material to the opinions
expressed herein that were not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of SBA Communications and others.
Based upon and subject to the foregoing, we are of opinion that the Exchange Notes, when duly executed and delivered by or on behalf of SBA Communications in
the form contemplated by the Indenture upon the terms set forth in the Exchange Offer and authenticated by the Trustee, will be legally issued and constitute the valid and binding obligations of SBA Communications enforceable in accordance with
their terms.
This opinion is subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws of
general applicability, affecting or limiting the rights of creditors, and general principles of equity, including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing, and other similar doctrines affecting the
enforceability of agreements generally (regardless of whether considered in a proceeding in equity or at law).
We are admitted to practice in the States
of New York and Florida and we express no opinion as to matters governed by any laws other than the laws of the State of New York, the State of Florida and the Federal laws of the United States of America.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our firm
under the caption Legal Matters in the prospectus constituting a part of the Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission.
Sincerely,
/s/ Greenberg Traurig, P.A.
Greenberg Traurig, P.A.
1
Exhibit 12.1
Ratio/Deficiency of Earnings to Fixed Charges
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended 12/31/10 |
|
|
Year Ended 12/31/11 |
|
|
Year Ended 12/31/12 |
|
|
Year Ended 12/31/13 |
|
|
Year Ended 12/31/14 |
|
Earnings: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing ops before taxes |
|
|
(193,416 |
) |
|
|
(124,779 |
) |
|
|
(177,092 |
) |
|
|
(57,219 |
) |
|
|
(15,659 |
) |
Plus: Fixed charges, less preferred dividends |
|
|
244,596 |
|
|
|
261,508 |
|
|
|
315,081 |
|
|
|
368,006 |
|
|
|
390,098 |
|
Plus: Current period amortization of interest capitalized in prior periods |
|
|
543 |
|
|
|
549 |
|
|
|
583 |
|
|
|
553 |
|
|
|
521 |
|
Less: Capitalized interest |
|
|
(391 |
) |
|
|
(225 |
) |
|
|
(318 |
) |
|
|
(108 |
) |
|
|
(304 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Earnings |
|
|
51,332 |
|
|
|
137,053 |
|
|
|
138,253 |
|
|
|
311,233 |
|
|
|
374,656 |
|
|
|
|
|
|
|
Fixed Charges: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Expensecash |
|
|
149,921 |
|
|
|
160,896 |
|
|
|
196,241 |
|
|
|
249,051 |
|
|
|
292,600 |
|
Capitalized interest |
|
|
391 |
|
|
|
225 |
|
|
|
318 |
|
|
|
108 |
|
|
|
304 |
|
Interest Expensenon cash |
|
|
60,070 |
|
|
|
63,629 |
|
|
|
70,110 |
|
|
|
49,085 |
|
|
|
27,112 |
|
Amortization of Debt Issue Costs |
|
|
9,099 |
|
|
|
9,188 |
|
|
|
12,870 |
|
|
|
15,560 |
|
|
|
17,572 |
|
Interest Component of Operating Leases |
|
|
25,115 |
|
|
|
27,570 |
|
|
|
35,542 |
|
|
|
54,202 |
|
|
|
52,510 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fixed Charges |
|
|
244,596 |
|
|
|
261,508 |
|
|
|
315,081 |
|
|
|
368,006 |
|
|
|
390,098 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Deficiency |
|
$ |
193,264 |
|
|
$ |
124,455 |
|
|
$ |
176,828 |
|
|
$ |
56,774 |
|
|
$ |
15,442 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption Experts in the Registration Statement (Form S-4 No. 333-XXXXX) and related
Prospectus of SBA Communications Corporation and Subsidiaries for the registration of $750,000,000 4.875% Senior Notes due 2022 and to the incorporation by reference therein of our reports dated March 2, 2015, with respect to the consolidated
financial statements of SBA Communications Corporation and Subsidiaries, and the effectiveness of internal control over financial reporting of SBA Communications Corporation and Subsidiaries, included in its Annual Report (Form 10-K) for the year
ended December 31, 2014, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Certified Public Accountants
Boca Raton, Florida
April 22, 2015
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
¨ |
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK
NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S.
Employer Identification No.
|
|
|
800 Nicollet Mall
Minneapolis, Minnesota |
|
55402 |
(Address of principal executive offices) |
|
(Zip Code) |
Michael C. Daly
U.S. Bank National Association
200 South Biscayne Blvd., Suite 1870
Miami, FL 33131
(305)
350-1738
(Name, address and telephone number of agent for service)
SBA Communications Corporation
(Issuer with respect to the Securities)
|
|
|
Florida |
|
65-0716501 |
(State or other jurisdiction of incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
|
|
8051 Congress Avenue
Boca Raton, Florida |
|
33487 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
4.875% Senior Notes due 2022
(Title of the Indenture Securities)
FORM T-1
Item 1. |
GENERAL INFORMATION. Furnish the following information as to the Trustee. |
|
a) |
Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
|
b) |
Whether it is authorized to exercise corporate trust powers. |
Yes
Item 2. |
AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
Items 3-15 |
Items 3-15 are not applicable because to the best of the Trustees knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
Item 16. |
LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
|
1. |
A copy of the Articles of Association of the Trustee.* |
|
2. |
A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
|
3. |
A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
|
4. |
A copy of the existing bylaws of the Trustee.** |
|
5. |
A copy of each Indenture referred to in Item 4. Not applicable. |
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6. |
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
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7. |
Report of Condition of the Trustee as of December 31, 2014 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
* |
Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005. |
** |
Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Miami,
Florida on the 21st of April, 2015.
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By: |
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/s/ Michael C. Daly |
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Michael C. Daly |
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Vice President |
3
Exhibit 2
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Office of the Comptroller of the Currency |
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Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE
I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and
control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. U.S. Bank National
Association, Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.
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IN TESTIMONY WHEREOF, today, January 21, 2015, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of
Columbia. |
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Comptroller of the Currency |
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4
Exhibit 3
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Office of the Comptroller of the Currency |
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Washington, DC 20219 |
CERTIFICATION OF FIDUCIARY POWERS
1, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:
1. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession,
custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. U.S. Bank
National Association, Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28,
1962, 76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.
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IN TESTIMONY WHEREOF, today, January 21, 2015, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of
Columbia. |
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Comptroller of the Currency |
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5
Exhibit 6
CONSENT
In accordance
with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon its request therefor.
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Dated: April 21, 2015 |
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By: |
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/s/ Michael C. Daly |
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Michael C. Daly |
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Vice President |
6
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 12/31/2014
($000s)
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12/31/2014 |
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Assets |
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Cash and Balances Due From Depository Institutions |
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$ |
10,622,022 |
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Securities |
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|
100,557,832 |
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Federal Funds |
|
|
79,987 |
|
Loans & Lease Financing Receivables |
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|
247,427,720 |
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Fixed Assets |
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4,246,071 |
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Intangible Assets |
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13,078,376 |
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Other Assets |
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22,967,351 |
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Total Assets |
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$ |
398,978,359 |
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Liabilities |
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Deposits |
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$ |
294,158,985 |
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Fed Funds |
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1,722,932 |
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Treasury Demand Notes |
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0 |
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Trading Liabilities |
|
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734,026 |
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Other Borrowed Money |
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45,457,856 |
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Acceptances |
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0 |
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Subordinated Notes and Debentures |
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3,650,000 |
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Other Liabilities |
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11,857,789 |
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Total Liabilities |
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$ |
357,581,588 |
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Equity |
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Common and Preferred Stock |
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18,200 |
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Surplus |
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14,266,400 |
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Undivided Profits |
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26,256,268 |
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Minority Interest in Subsidiaries |
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855,903 |
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Total Equity Capital |
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$ |
41,396,771 |
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Total Liabilities and Equity Capital |
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$ |
398,978,359 |
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7
Exhibit 99.1
LETTER OF TRANSMITTAL
SBA COMMUNICATIONS CORPORATION
Offer to Exchange
$750,000,000 4.875% Senior Notes due 2022
for
$750,000,000
4.875% Senior Notes due 2022, that have been registered under the Securities Act
Pursuant to the Prospectus, dated
, 2015
The Exchange Offer will expire at 12:00 midnight, New York City
time, on [20 business days after commencement], 2015, unless extended. Tenders of Original Notes may be withdrawn at any time prior to 12:00 midnight, New York City time, on the expiration date.
The exchange agent for the Exchange Offer is
U.S. Bank National Association
Facsimile Transmission:
(for eligible institutions only):
(651) 466-7372
Attn: Specialized
Finance
To Confirm by Telephone:
1-800-934-6802
By Hand and
Overnight Delivery or Certified Mail:
U.S. Bank National Association
West Side Flats Operations Center
60 Livingston Ave.
St. Paul, MN
55107
Attn: Specialized Finance
SBA Communications Corporation
4.875% Senior Notes due 2022
For Information:
U.S. Bank
National Association
West Side Flats Operations Center
60 Livingston Ave.
St. Paul, MN
55107
Attn: Specialized Finance
Delivery
of this letter of transmittal to an address other than as set forth above or transmission of this letter of transmittal via facsimile to a number other than as set forth above will not constitute a valid delivery.
The undersigned acknowledges that the undersigned has received the prospectus, dated ,
2015, of SBA Communications Corporation, a Florida corporation, which we refer to as SBA in this letter, and this letter of transmittal, which together constitute SBAs offer to exchange, which we refer to as the Exchange Offer in this letter.
SBA is offering to exchange all of its outstanding unregistered $750,000,000 4.875% Senior Notes due 2022, which we refer to as the Original Notes, for registered $750,000,000 4.875% Senior Notes due 2022, which we refer to as the Exchange Notes. We
refer to this letter of transmittal as this letter.
For each Original Note accepted for exchange, the holder of such Original Note will receive an Exchange Note
having a principal amount equal to that of the surrendered Original Note. The Exchange Notes will bear interest from the most recent date to which interest has been paid on the Original Notes. As a result, registered holders of Exchange Notes on the
relevant record date for the first interest payment date following the consummation of the Exchange Offer will receive interest accruing from the most recent date to which interest has been paid. Original Notes accepted for exchange will cease to
accrue interest from and after the closing date of the Exchange Offer. Holders of Original Notes accepted for exchange will not receive any payment of accrued interest on such Original Notes on any interest payment date if the relevant record date
occurs on or after the closing date of the Exchange Offer.
This letter is to be completed by a holder of Original Notes if certificates for Original
Notes are to be forwarded with this letter. Tenders of Original Notes by book-entry transfer by holders of Original Notes in book-entry form must be made by delivering an agents message transmitted by The Depository Trust Company, which we
refer to as DTC in this letter, pursuant to the procedures set forth in The Exchange OfferBook-Entry Delivery Procedures for Tendering Original Notes Held with DTC section of the prospectus in lieu of this letter. The term
agents message means a message, transmitted by DTC to, and received by, the exchange agent and forming a part of a book-entry confirmation (as defined below), which states that DTC has received an express acknowledgment from the
tendering participant, which acknowledgment states that such participant has received and agreed to be bound by the terms and conditions of the Exchange Offer, including the representations and warranties contained in this letter of transmittal, and
that SBA may enforce this letter of transmittal against such participant. Holders of Original Notes whose certificates are not immediately available, or who are unable to deliver their certificates or confirmation of the book-entry tender of their
Original Notes into the exchange agents account at DTC, which we refer to as a book-entry confirmation in this letter, and all other documents required by this letter to the exchange agent at or prior to 12:00 midnight, New York City time, on
the expiration date, must tender their Original Notes according to the guaranteed delivery procedures set forth in this letter. See Instruction 1.
Delivery of documents to DTC does not constitute delivery to the exchange agent.
The undersigned has completed the appropriate boxes below and signed this letter to indicate the action the undersigned desires to take with respect to the
Exchange Offer. List below the Original Notes to which this letter relates. If the space provided below is inadequate, the certificate numbers and principal amount of Original Notes should be listed on a separate signed schedule affixed hereto.
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DESCRIPTION OF ORIGINAL NOTES
* |
Name and Address of Registered Holder |
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(1) Certificate Number(s) (Delivered Herewith) |
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(2) Aggregate Principal Amount of Original Notes |
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(3) Aggregate Principal Amount of Original Notes Tendered** |
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Total |
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* |
Do not complete if Original Notes are being tendered by book-entry transfer. |
** |
Unless otherwise indicated in this column, a holder will be deemed to have tendered ALL of the Original Notes indicated in column 2. See Instruction 2. The Original Notes tendered hereby must be in denominations of
$2,000 principal amount or integral multiples of $1,000 in excess of $2,000. See Instruction 1. |
¨ |
Check here if certificates representing tendered Original Notes are enclosed herewith. |
¨ |
Check here if tendered Original Notes are being delivered by book-entry transfer made to the account maintained by the exchange agent with DTC and complete the following: |
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Name of Tendering Institution: |
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Name of Tendering Institution: |
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Name of Tendering Institution: |
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By crediting the Original Notes to the exchange agents account at DTCs Automated Tender Offer Program, which we
refer to as ATOP in this letter, and by complying with applicable ATOP procedures with respect to the Exchange Offer, including transmitting to the exchange agent a computer-generated agents message in which the holder of the Original Notes
acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this letter, the participant in DTC confirms on behalf of itself and the beneficial owners of such Original Notes all provisions of this
letter (including all representations and warranties) are applicable to it and such beneficial owner as fully as if it had completed the information required herein and executed and transmitted this letter to the exchange agent. Please Note:
There is no requirement to deliver a completed letter of transmittal to the exchange agent in the Exchange Offer if a holder is tendering their Original Notes held in book-entry form in the Exchange Offer in compliance with applicable ATOP
procedures and an agents message is properly delivered.
¨ |
Check here if tendered Original Notes are being delivered pursuant to a notice of guaranteed delivery previously sent to the exchange agent and complete the following: |
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Name(s) of Registered Holder(s): Window Ticket Number (if any): |
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Window Ticket Number (if any): |
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Date of Execution of Notice of Guaranteed Delivery: |
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Name of Institution Which Guaranteed Delivery: |
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If delivered by book-entry transfer, complete the following:
¨ |
Check here if you are a broker-dealer and wish to receive 10 additional copies of the prospectus and 10 copies of any amendments or supplements thereto. |
SIGNATURE MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of
the Exchange Offer, the undersigned hereby tenders to SBA the aggregate principal amount of Original Notes indicated above. Subject to, and effective upon, the acceptance for exchange of the Original Notes tendered hereby, the undersigned hereby
sells, assigns and transfers to, or upon the order of, SBA all right, title and interest in and to such Original Notes as are being tendered hereby.
The
undersigned hereby irrevocably constitutes and appoints the exchange agent as the undersigneds true and lawful agent and attorney-in-fact with respect to such tendered Original Notes, with full power of substitution, among other things, to
cause the Original Notes to be assigned, transferred and exchanged.
The undersigned hereby represents and warrants that the undersigned has full power
and authority to tender, sell, assign and transfer the Original Notes, and to acquire the Exchange Notes issuable upon the exchange of such tendered Original Notes, and that, when the same are accepted for exchange, SBA will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim when the same are accepted by SBA. The undersigned also acknowledges that the Exchange Offer is being made in
reliance upon an interpretation by the staff of the Securities and Exchange Commission that the Exchange Notes issued in exchange for the Original Notes pursuant to the Exchange Offer may be offered for sale, resold and otherwise transferred by
holders thereof (other than a broker-dealer who purchased such Original Notes directly from SBA for resale pursuant to Rule 144A or any other available exemption under the Securities Act or a holder that is an affiliate of SBA as
defined in Rule 405 under the Securities Act) without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such exchange notes are acquired by a non-affiliate in the ordinary course of
such holders business and such holders have no arrangement or understanding with any person to participate in the distribution of such exchange notes.
The undersigned holder represents and warrants that:
(a) the Exchange Notes acquired pursuant to the Exchange Offer are being acquired in the ordinary course of business of the person receiving
the Exchange Notes, whether or not the person is the holder;
(b) neither the undersigned holder nor any other recipient of the Exchange
Notes (if different than the holder) is engaged in, intends to engage in, or has any arrangement or understanding with any person to participate in, the distribution of the Original Notes or Exchange Notes;
(c) neither the undersigned holder nor any other recipient is an affiliate of SBA as defined in Rule 405 promulgated under the
Securities Act or, if the holder or such recipient is an affiliate, that the holder or such recipient will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable;
(d) if the undersigned is a broker-dealer, it has not entered into any arrangement or understanding with SBA or any affiliate of
SBA as defined in Rule 405 promulgated under the Securities Act to distribute the Exchange Notes;
(e) if the undersigned is a
broker-dealer, the undersigned further represents and warrants that, if it will receive Exchange Notes for its own account in exchange for Original Notes that were acquired as a result of market-making activities or other trading activities, the
undersigned will deliver a prospectus meeting the requirements of the Securities Act (for which purposes, the delivery of the prospectus, as the same may be hereafter supplemented or amended, shall be sufficient) in connection with any resale of
Exchange Notes received in the Exchange Offer, and
Any broker-dealer acknowledging that it will deliver, and by delivering, a prospectus meeting the
requirements of the Securities Act in connection with any resale of Exchange Notes, will not be deemed to admit that it is an underwriter within the meaning of the Securities Act.
The undersigned acknowledges that SBAs acceptance of Original Notes validly tendered for exchange pursuant to any one of the procedures described in the
section of the prospectus entitled The Exchange Offer and in the instructions hereto will constitute a binding agreement between the undersigned and SBA upon the terms and subject to the conditions of the Exchange Offer.
The undersigned will, upon request, execute and deliver any additional documents deemed by SBA to be necessary or
desirable to complete the sale, assignment and transfer of the Original Notes tendered hereby. All authority conferred or agreed to be conferred in this letter and every obligation of the undersigned hereunder shall be binding upon the successors,
assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. This tender may be withdrawn only in
accordance with the procedures set forth in The Exchange OfferWithdrawal of Tenders section of the prospectus.
Unless otherwise
indicated herein in the box entitled Special Issuance Instructions below, please issue the Exchange Notes (and, if applicable, substitute certificates representing Original Notes for any Original Notes not exchanged) in the name of the
undersigned. Similarly, unless otherwise indicated under the box entitled Special Delivery Instructions below, please send the Exchange Notes (and, if applicable, substitute certificates representing Original Notes for any Original Notes
not exchanged) to the undersigned at the address shown above in the box entitled Description of Original Notes.
The undersigned, by
completing the table entitled Description of Original Notes above and signing this letter of transmittal, will be deemed to have tendered the Original Notes, as set forth in such table above. Please read this entire letter of transmittal
carefully before completing the table above.
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 3 and 4)
To be
completed ONLY if Original Notes are exchanged and/or Exchange Notes are to be issued in the name of someone other than the person or persons whose signature (s) appear(s) on this letter of transmittal above.
Issue: (please check one or more)
¨ |
Exchange Notes in the name of: |
¨ |
Original Notes in the name of: |
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Name(s) |
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(Please Type or Print) |
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(Please Type or Print) |
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Address: |
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(Zip Code) |
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TIN |
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(Social Security Number or
Employer Identification Number) |
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 3 and 4)
To be
completed ONLY if certificates for Original Notes not exchanged and/or Exchange Notes are to be delivered to someone other than the person or persons whose signature(s) appear(s) on this letter of transmittal above or to such person or persons at an
address other than that shown in the table entitled Description of Original Notes above.
Mail: (please check one or more)
to:
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Name(s) |
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(Please Type or Print) |
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(Please Type or Print) |
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Address: |
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(Zip Code) |
Important: Unless guaranteed delivery procedures are complied with, this letter of transmittal (or a manually signed
facsimile hereof) or an agents message in lieu thereof pursuant to DTCs ATOP system (together with the certificates evidencing Original Notes or a book-entry confirmation, as applicable, and all other required documents) must be received
by the exchange agent at or prior to 12:00 midnight, New York City time, on the expiration date.
In order to validly tender Original Notes for the
Exchange Notes, holders of Original Notes in certificated form that wish to tender their Original Notes for the Exchange Notes in the Exchange Offer must complete, execute and deliver this letter of transmittal.
Except as stated in the prospectus, all authority herein conferred or agreed to be conferred shall survive the death, incapacity or dissolution of the
undersigned, and any obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Except as otherwise stated in the prospectus, this tender for exchange of Original
Notes is irrevocable.
PLEASE SIGN HERE
(To be completed by all tendering and consenting holders)
(Accompanying Substitute Form W-9 on reverse side)
By completing, executing and delivering this letter of transmittal, the undersigned hereby tenders the principal amount of the Original Notes
listed above in the table labeled Description of Original Notes under the column heading Aggregate Principal Amount of Original Notes Tendered or, if nothing is indicated in such column, with respect to the entire aggregate
principal amount represented by the Original Notes described in such table.
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Signature(s) of Owner |
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Dated: , 2015 |
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Area Code and Telephone |
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Number: |
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If a holder is tendering Original Notes, this letter must be signed by the registered holder(s) as the name(s)
appear(s) on the certificate(s) for the Original Notes or by any person(s) authorized to become the registered holder(s) by endorsements and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, officer or
other person acting in a fiduciary or representative capacity, please set forth full title. See Instruction 3.
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Name(s): |
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(Please Type or Print) |
SIGNATURE GUARANTEE
(If required by Instruction 3)
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Signature(s) Guaranteed
by an Eligible Institution: |
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(Authorized Signature) |
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(Title) |
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(Name and Firm) |
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Dated: , 2015 |
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INSTRUCTIONS
Forming part of the terms and conditions of the Exchange Offer of SBA Communications Corporation
1. |
Delivery of this letter and Original Notes; Guaranteed delivery procedures. |
This letter is to be
completed by holders of Original Notes if certificates for Original Notes are to be forwarded with this letter. Tender of Original Notes by book-entry transfer by holders of Original Notes in book-entry form must be made by delivering an
agents message transmitted by The Depository Trust Company, which we refer to as DTC in this letter, in lieu of this letter pursuant to the procedures set forth in The Exchange OfferProcedures for Tendering and The
Exchange OfferBook-Entry Delivery Procedures for Tendering Original Notes Held with DTC sections of the prospectus. The term agents message means a message transmitted by DTC to, and received by, the exchange agent and
forming a part of a book-entry confirmation, which states that DTC has received an express acknowledgment from the DTC participant tendering Original Notes on behalf of the holder of such Original Notes, which acknowledgment states that such DTC
participant has received and agrees to be bound by the terms and conditions of the Exchange Offer, including the representations and warranties contained in this letter, as set forth in the prospectus and this letter and that SBA may enforce such
agreement against such participant. To effectively tender Original Notes by book-entry transfer, holders of Original Notes must request a DTC participant to, on their behalf, electronically transmit their acceptance through DTCs Automated
Tender Offer Program (ATOP). In the case of Original Notes held:
|
(1) |
in certificated form, certificates for all physically tendered Original Notes as well as a properly completed and duly executed letter of transmittal (or manually signed facsimile of this letter) or |
|
(2) |
in book-entry form, by a book-entry confirmation and delivery of an agents message, |
and in either case
any other documents required by this letter, must be received by the exchange agent at the address set forth herein at or prior to 12:00 midnight, New York City time, on the expiration date, or the tendering holder must comply with the guaranteed
delivery procedures set forth below. Original Notes tendered hereby must be in denominations of principal amount of $2,000 and integral multiples of $1,000 in excess of $2,000.
Holders whose certificates for Original Notes are not immediately available or who cannot deliver their certificates and all other required documents to the
exchange agent at or prior to 12:00 midnight, New York City time, on the expiration date, or who cannot complete the procedures for book-entry transfer at or prior to 12:00 midnight, New York City time, on the expiration date, may tender their
Original Notes pursuant to the guaranteed delivery procedures set forth in the letter. Pursuant to such procedures,
|
(1) |
such tender must be made through an eligible institution, |
|
(2) |
at or prior to 12:00 midnight, New York City time, on the expiration date, the exchange agent must receive from such eligible institution a validly completed and duly executed notice of guaranteed delivery,
substantially in the form provided by SBA (by facsimile transmission, mail or hand delivery) or an agents message with respect to guaranteed delivery, setting forth the name and address of the holder of Original Notes and the amount of
Original Notes tendered, stating that the tender is being made thereby and guaranteeing that within three trading days after the date of execution of the notice of guaranteed delivery, the certificates for all physically tendered Original Notes, in
proper form for transfer, together with a properly completed and duly executed letter of transmittal (or facsimile of this letter) or a book-entry confirmation for Original Notes held in book-entry form together with an agents message instead
of this letter, as the case may be, with any required signature guarantees and any other documents required by this letter will be deposited by the eligible institution with the exchange agent, and |
|
(3) |
the certificates for all physically tendered Original Notes, in proper form for transfer, together with a properly completed and duly executed letter of transmittal (or facsimile of this letter) or a book-entry
confirmation for Original Notes held in book-entry form together with an agents message instead of this letter, as the case may be, with any required signature guarantees and all other documents required by this letter, are received by the
exchange agent within three trading days after the date of execution of the notice of guaranteed delivery. |
The method of delivery of this letter, any required signature guarantees, the Original Notes and all other
required documents, including delivery of Original Notes through DTC, and transmission of an agents message through DTCs ATOP system, is at the election and risk of the tendering holders, and the delivery will be deemed made only when
actually received or confirmed by the exchange agent. If Original Notes are sent by mail, it is suggested that the mailing be registered mail, properly insured, with return receipt requested, made sufficiently in advance of the expiration date to
permit delivery to the exchange agent at or prior to 12:00 midnight, New York City time, on the expiration date.
See The Exchange Offer
section of the prospectus.
2. |
Partial tenders (not applicable to noteholders who tender by book-entry transfer). |
If less than all of
the Original Notes evidenced by a submitted certificate are to be tendered, the tendering holder(s) should fill in the aggregate principal amount of Original Notes to be tendered in the relevant box above entitled Description of Original
NotesAggregate Principal Amount of Original Notes Tendered. A reissued certificate representing the balance of non-tendered Original Notes will be sent to such tendering holder, unless otherwise provided in the appropriate box on this
letter, promptly after the expiration date. All of the Original Notes delivered to the exchange agent will be deemed to have been tendered unless otherwise indicated.
3. |
Signatures on this letter; Bond powers and endorsements; Guarantee of signatures. |
If this letter is
signed by the registered holder of the Original Notes tendered hereby, the signature must correspond exactly with the name as written on the face of the certificates without any change whatsoever.
If any tendered Original Notes are owned of record by two or more joint owners, all of such owners must sign this letter.
If any tendered Original Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate
copies of this letter as there are different registrations of certificates.
When this letter is signed by the registered holder or holders of the
Original Notes specified herein and tendered hereby, no endorsements of certificates or separate bond powers are required. If, however, the Exchange Notes are to be issued, or any untendered Original Notes are to be reissued, to a person other than
the registered holder, then endorsements of any certificates transmitted hereby or separate bond powers are required. Signatures on such certificate(s) must be guaranteed by an eligible institution.
If this letter is signed by a person other than the registered holder, the Original Notes must be endorsed or accompanied by a properly completed bond power,
signed by the registered holder as the registered holders name appears on the Original Notes.
If this letter is signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by SBA, evidence satisfactory to SBA of their
authority to so act must be submitted.
Signatures on this letter or a notice of withdrawal must be guaranteed by a member of a firm of a registered
national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States or an eligible guarantor institution within the meaning of
Rule 17Ad-15 under the Exchange Act (each an eligible institution).
Signatures on this letter or a notice of withdrawal need not be
guaranteed by an eligible institution, provided the Original Notes are tendered: (i) by a registered holder of Original Notes (which term, for purposes of the Exchange Offer, includes any participant in the DTC system whose name appears on a
security position listing as the holder of such Original Notes) who has not completed the box entitled Special Issuance Instructions or Special Delivery Instructions on this letter, or (ii) for the account of an eligible
institution.
4. |
Special issuance and delivery instructions. |
Tendering holders of Original Notes should indicate in the
applicable box the name and address to which Exchange Notes issued pursuant to the Exchange Offer and/or substitute certificates evidencing Original Notes not exchanged
are to be issued or sent, if different from the name or address of the person signing this letter. In the case of issuance in a different name, the employer identification or social security
number of the person named must also be indicated. If no such instructions are given, such Original Notes not exchanged will be returned to the name and address of the person signing this letter.
5. |
Backup and Nonresident Withholding |
A U.S. holder of Exchange Notes may be subject to backup withholding
at a rate of 28% with respect to interest paid on the Exchange Notes and proceeds from the sale, exchange, redemption or retirement of the Exchange Notes. In order to avoid backup withholding, a U.S. holder of Exchange Notes should provide the
exchange agent with such holders correct Taxpayer Identification Number (TIN) and other certifications on the Substitute Form W-9 enclosed with this Letter of Transmittal. If the shares are in more than one name or are not in the
name of the actual owner, please consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute IRS Form W-9 for additional guidance on which number to report. If the holder does not have a TIN, the holder should
write Applied For in the space provided for the TIN. If a U.S. holder does not provide a TIN within 60 days of a reportable payment, backup withholding at a rate of 28% may apply to such payment. Backup withholding is not an additional
tax. Rather, the tax liability of a person subject to backup withholding may be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund from the Internal Revenue Service may be obtained.
Certain holders (including, among others, corporations and non-U.S. holders) are exempt from these backup withholding and reporting requirements. However,
non-U.S. holders may be subject to nonresident withholding on interest payments unless they provide a United States Internal Revenue Service Form W-8BEN or another appropriate version of Form W-8 and are otherwise eligible for the portfolio interest
exception, as described in the prospectus relating to the Original Notes, and non-U.S. holders may in any case be subject to nonresident reporting on interest payments.
A non-U.S. holder should submit to the exchange agent the appropriate version of Form W-8, properly completed, including certification of such
individuals foreign status, and signed under penalty of perjury. Form W-8BEN is the version of Form W-8 most likely to apply to foreign persons claiming exemption from withholding. Non-U.S. holders should carefully read the
instructions to Form W-8BEN and, if applicable, complete the required information, sign and date the Form W-8BEN and return the form to the exchange agent with the completed Letter of Transmittal. In certain cases, Form W-8BEN may not be the proper
United States Internal Revenue Service form to be completed and returned, depending on the status of the foreign person claiming exemption from backup withholding. If you are a non-U.S. holder, you must complete and return the appropriate version of
Form W-8. Form W-8BEN and other Forms W-8 are available from the exchange agent or from the Internal Revenue web site, at http://www.irs.gov.
If the
exchange agent is not provided with a properly completed Substitute Form W-9 or the appropriate IRS Form W-8, the holder may be subject to penalties imposed by the Internal Revenue Service. In addition, the depositary may be required to withhold
under the backup withholding rules 28% of any reportable payment made to the holder with respect to Exchange Notes, or to withhold against interest payments under the nonresident withholding rules.
Please consult your accountant or tax advisor for further guidance regarding the completion of Substitute Form W-9, Form W-8BEN, or another version of Form
W-8 to claim exemption from withholding and backup withholding, or contact the exchange agent.
SBA will pay all transfer taxes, if any, applicable to the exchange of Original Notes
pursuant to the Exchange Offer. If, however, Exchange Notes are to be issued for principal amounts not tendered or accepted for exchange in the name of any person other than the registered holder of the Original Notes tendered hereby, or if tendered
Original Notes are registered in the name of any person other than the person signing this letter, or if a transfer tax is imposed for any reason other than the exchange of Original Notes pursuant to the Exchange Offer, then the amount of any such
transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted with the consent and this letter, the
amount of such transfer taxes will be billed directly to such tendering holder.
Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to
the Original Notes specified in this letter.
SBA reserves the absolute right to waive satisfaction of any or all conditions
enumerated in the prospectus with respect to the Exchange Offer and accept all Original Notes tendered and not validly withdrawn, subject to any requirement to extend the period of time during which the Exchange Offer is open.
8. |
No conditional tenders. |
No alternative, conditional, irregular or contingent tenders will be accepted.
All tendering holders of Original Notes, by execution of this letter or an agents message in lieu thereof, shall waive any right to receive notice of the acceptance of their Original Notes for exchange.
Neither SBA, the exchange agent nor any other person is obligated to give notice of any defect or irregularity with respect to any tender of Original Notes
nor shall any of them incur any liability for failure to give any such notice.
9. |
Mutilated, lost, stolen or destroyed Original Notes. |
Any holder whose Original Notes have been
mutilated, lost, stolen or destroyed should contact the exchange agent at the address indicated above for further instructions.
Tenders of Original Notes may be withdrawn at any time prior to 12:00 midnight, New
York City time, on the expiration date.
For a withdrawal of a tender to be effective, a written or facsimile transmission notice of withdrawal must be
received by the Exchange Agent prior to the Expiration Date at its address set forth below under the caption Exchange Agent. The withdrawal notice must:
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specify the name of the tendering holder of Original Notes; |
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bear a description of the Original Notes to be withdrawn; |
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specify, in the case of Original Notes tendered by delivery of certificates for those Original Notes, the certificate numbers shown on the particular certificates evidencing those Original Notes; |
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specify the aggregate principal amount represented by those Original Notes; |
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(5) |
specify, in the case of Original Notes tendered by delivery of certificates for those Original Notes, the name of the registered holder, if different from that of the tendering holder, or specify, in the case of
Original Notes tendered by book-entry transfer, the name and number of the account at DTC to be credited with the withdrawn Original Notes; and |
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be signed by the holder of those Original Notes in the same manner as the original signature on the letter of transmittal, including any required signature guarantees, or be accompanied by evidence satisfactory to us
that the person withdrawing the tender has succeeded to the beneficial ownership of those Original Notes. |
The signature on any notice of
withdrawal must be guaranteed by an eligible guarantor institution, unless the Original Notes have been tendered for the account of an eligible guarantor institution.
If Original Notes have been tendered pursuant to the procedure for book-entry transfer set forth in The Exchange OfferBook-Entry Delivery
Procedures for Tendering Original Notes Held with DTC section of the prospectus, any notice of withdrawal must comply with the applicable procedures of DTC. All questions as to the validity, form and eligibility and time of receipt of such
notice will be determined by SBA, whose determination shall be final and binding on all parties. Any Original Notes so properly withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer and no
Exchange Notes will be issued with respect thereto unless the Original Notes so withdrawn are validly retendered. Any Original Notes that have been tendered for exchange
but which are not exchanged for any reason will be returned to the holder thereof without cost to such holder (or, in the case of Original Notes tendered by book-entry transfer into the exchange
agents account at DTC pursuant to the book-entry transfer procedures set forth in The Exchange OfferBook-Entry Delivery Procedures for Tendering Original Notes Held with DTC section of the prospectus, such Original Notes will
be credited to an account maintained with DTC for the Original Notes) as soon as practicable after withdrawal, rejection of the tender or termination of the Exchange Offer. Properly withdrawn Original Notes may be retendered by following the
procedures described above at any time at or prior to 12:00 midnight, New York City time, on the expiration date.
11. |
Requests for assistance or additional copies. |
Questions relating to the procedure for tendering, as
well as requests for additional copies of the prospectus and this letter, and requests for notices of guaranteed delivery and other related documents may be directed to the exchange agent, at the address and telephone number indicated above.
PAYORS NAME: U.S. Bank National Association
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SUBSTITUTE Form W-9 |
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Name:
Address:
Check appropriate space:
Individual/Sole Proprietor Corporation
Partnership Other (specify) Exempt from Backup
Withholding |
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Department of the Treasury
Internal Revenue Service |
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Part 1PLEASE PROVIDE YOUR TIN IN THE BOX AT THE RIGHT AND CERTIFY BY SIGNING AND DATING BELOW |
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Social Security number (or Individual Taxpayer Identification Number) (If awaiting TIN, write Applied For |
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or
Employee Identification number (If awaiting TIN, write Applied For) |
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Payors Request for Taxpayer
Identification Number (TIN) |
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Part 2CertificationUnder penalties of perjury, I certify that:
(1) The number shown on
this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me), and
(2) I am not subject to backup withholding because (a) I am exempt from backup withholding or
(b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup
withholding, and (3) I
am a U.S. citizen or other U.S. person (including a U.S. resident alien). |
Certification InstructionsYou must cross out item (2) in Part 2 above if you have been notified by the
IRS that you are subject to backup withholding because of under-reporting interest or dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the
IRS that you are no longer subject to backup withholding, do not cross out item (2).
NOTE: |
FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE TENDER OFFER PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. |
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU INDICATED IN
PART 1 THAT
YOU ARE AWAITING A TIN.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I do
not provide a taxpayer identification number within 60 days of the Payment Date the withholding amount will be remitted to the IRS.
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
SBA COMMUNICATIONS CORPORATION
Offer to Exchange
$750,000,000 4.875% Senior Notes due 2022
for
$750,000,000 4.875%
Senior Notes due 2022, that have been registered under the Securities Act of 1933
Pursuant to the Prospectus, dated
, 2015
The Exchange Offer
will expire at 12:00 midnight, New York City time, on [20 business days after commencement], 2015, unless extended. Tenders of Original Notes may be withdrawn at any time prior to 12:00 midnight, New York City time, on the expiration date.
This form or one substantially equivalent hereto must be used to accept the Exchange Offer of SBA Communications Corporation, which we refer to as SBA in this
notice, made pursuant to the prospectus, dated, 2015, if certificates for all of the outstanding $750,000,000 4.875% Senior Notes
due 2022 of SBA, which we refer to as the Original Notes in this notice, are not immediately available or if the procedure for book-entry transfer cannot be completed at or prior to 12:00 midnight, New York City time, on the expiration date or time
will not permit all required documents to reach U.S. Bank National Association, as exchange agent, at or prior to 12:00 midnight, New York City time, on [20 business days after commencement], 2015, unless extended, which we refer to as the
expiration date in this notice. Such form may be delivered or transmitted by facsimile transmission, mail or hand delivery to the exchange agent as set forth below. In addition, in order to utilize the guaranteed delivery procedure to tender
Original Notes pursuant to the Exchange Offer, a completed, signed and dated letter of transmittal for Original Notes held in certificated form (or a facsimile of the letter of transmittal) or an agents message instead of a letter of
transmittal for Original Notes held in book-entry form must also be received by the exchange agent at or prior to 12:00 midnight, New York City time, on the expiration date. Capitalized terms not defined herein shall have the respective meanings
ascribed to them in the prospectus.
The exchange agent for the Exchange Offer is:
U.S. Bank National Association
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By Hand and Overnight Delivery or Certified Mail:
U.S. Bank National Association
West Side Flats Operations Center
60 Livingston Ave. St. Paul, MN
55107 Attn: Specialized Finance
SBA Communications Corporation
4.875% Senior Notes due 2022 |
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By Facsimile (for eligible institutions only):
(651) 466-7372
To Confirm by Telephone:
1-800-954-6802
For Information: U.S. Bank
National Association West Side Flats Operations Center
60 Livingston Ave. St. Paul, MN
55107 Attn: Specialized Finance |
Delivery of this notice to an address other than as set forth above or transmission of this notice via
facsimile to a number other than as set forth above will not constitute a valid delivery.
This notice is not to be used to guarantee signatures. If a
signature on a letter of transmittal is required to be guaranteed by an eligible institution under the instructions thereto, such signature guarantee must appear in the applicable space provided in the signature box on the letter of
transmittal.
Ladies and Gentlemen:
The undersigned hereby
tenders to SBA, upon the terms and subject to the conditions set forth in the prospectus and the related letter of transmittal, receipt of each of which the undersigned hereby acknowledges, the aggregate principal amount of Original Notes set forth
below, pursuant to the guaranteed delivery procedures described in the letter of transmittal.
Original Notes To Be Tendered
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PLEASE SIGN HERE |
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Aggregate principal amount of Original Notes tendered (must be in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000) |
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Signature(s) of owners or |
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authorized signatory |
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Name(s) of holder(s) |
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Area code
and telephone number |
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Name of eligible guarantor institution guaranteeing
delivery |
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Must be signed by the holder(s) of the Original Notes being tendered as the name(s) appear(s) on the certificates evidencing such Original Notes or on a security position listing, or by person(s) authorized
to become registered holder(s) by endorsement and documents transmitted with this notice of guaranteed delivery. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must set forth his or her full title below. Please print name(s) and address(es). |
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Provide the following information for the Original Notes certificates to be delivered to the exchange agent: |
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Certificate numbers for Original Notes tendered |
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Provide the following information for Original Notes to be
tendered by book-entry delivery: |
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Name of tendering institution |
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DTC account number |
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Name(s): |
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All authority herein conferred or agreed to be conferred
shall survive the death or incapacity of the undersigned, and every obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. |
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Capacity: |
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Address(es): |
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GUARANTEE
(not to be used for signature guarantees)
The undersigned, a firm or other entity identified in Rule l7Ad-15 under the United States Securities Exchange Act of 1934, as amended, as an Eligible
Guarantor Institution, which definition includes: (i) banks (as that term is defined in Section 3(a) of the Federal Deposit Insurance Act); (ii) brokers, dealers, municipal securities dealers, municipal securities brokers,
government securities dealers, and government securities brokers, as those terms are defined under the Act; (iii) credit unions (as that term is defined in Section 19(b)(1)(A) of the Federal Reserve Act); (iv) national securities
exchanges, registered securities associations, and clearing agencies, as those terms are used under the Act; and (v) savings associations (as that term is defined in Section 3(b) of the Federal Deposit Insurance Act), hereby guarantees to
deliver to the exchange agent, within three trading days after the date of execution of this notice, the Original Notes tendered hereby, either: (a) by book-entry transfer, to the account of the exchange agent at DTC, pursuant to the procedures
for book-entry delivery set forth in the prospectus together with an agent s message, with any required signature guarantees, and any other required documents, or (b) by delivering certificates representing the Original Notes tendered
hereby, together with the properly completed, dated and duly executed letter of transmittal (or a manually signed facsimile of the letter of transmittal), with any required signature guarantees, and any other required documents.
The undersigned acknowledges that it must deliver the Original Notes tendered hereby, either (i) in the case of Original Notes held in book-entry form,
by book-entry transfer into the account of the exchange agent at DTC, together with an agents message, and any required signature guarantees and other required documents, or (ii) in the case of Original Notes held in certificated form, by
delivering to the exchange agent certificates representing the Original Notes tendered hereby, together with the letter of transmittal (or a manually signed facsimile copy of the letter of transmittal), and any required signature guarantees and
other required documents, in either case, within the time period set forth above and that failure to do so could result in a financial loss to the undersigned.
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(Please Type or Print) |
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(Firm Name) |
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(Authorized Signature) |
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(Print or Type Name of Signatory) |
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(Firm Address) |
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(Area Code and Telephone Number and Fax Number) |
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Do not send physical certificates representing Original Notes with this notice. Such physical certificates should be sent
to the exchange agent, together with a properly completed and executed letter of transmittal.
Exhibit 99.3
SBA COMMUNICATIONS CORPORATION
Offer to Exchange
$750,000,000 4.875% Senior Notes due 2022
for
$750,000,000 4.875%
Senior Notes due 2022, that have been registered under the Securities Act of 1933
Pursuant to the Prospectus, dated
, 2015
The Exchange Offer will expire at 12:00
midnight, New York City time, on [20 business days after commencement], 2015, unless extended. Tenders of Original Notes may be withdrawn at any time prior to 12:00 midnight, New York City time, on the expiration date.
, 2015
To Our Clients:
Enclosed for your consideration is a
prospectus, dated , 2015, and the related letter of transmittal relating to the offer by SBA Communications Corporation, which we refer to as SBA in this
letter, to exchange all of its outstanding unregistered $750,000,000 4.875% Senior Notes due 2022, which we refer to as the Original Notes, for registered $750,000,000 4.875% Senior Notes due 2022, which we refer to as the Exchange Notes. The
Exchange Offer is being made in order to satisfy certain obligations of SBA contained in the Registration Rights Agreement, dated July 1, 2014, by and among SBA and the several initial purchasers named therein.
This material is being forwarded to you as the beneficial owner of the Original Notes held by us for your account but not registered in your name. A tender
of such Original Notes may only be made by us as the holder of record and pursuant to your instructions.
Accordingly, we request instructions as to
whether you wish us to tender on your behalf the Original Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed prospectus and letter of transmittal.
Your instructions should be forwarded to us as promptly as possible in order to permit us to tender the Original Notes on your behalf in accordance with the
provisions of the Exchange Offer. The Exchange Offer will expire at 12:00 midnight, New York City time, on [20 business days after commencement], 2015, unless extended, which we refer to as the expiration date in this letter. Any Original Notes
tendered pursuant to the Exchange Offer may be withdrawn at any time prior to 12:00 midnight, New York City time, on the expiration date.
Your attention
is directed to the following:
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The Exchange Offer is for any and all Original Notes. |
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The Exchange Offer is subject to certain conditions set forth in the prospectus in the section captioned The Exchange OfferConditions to the Exchange Offer. |
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Any transfer taxes incident to the transfer of Original Notes from the holder to SBA will be paid by SBA, except as otherwise provided in the instructions in the letter of transmittal. |
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The Exchange Offer expires at 12:00 midnight, New York City time, on [20 business days after commencement], 2015, unless extended by SBA. |
If you wish to have us tender your Original Notes, please so instruct us by completing, executing and returning to us the instruction form on the back of this
letter. The letter of transmittal is furnished to you for information only and may not be used directly by you to tender Original Notes.
INSTRUCTIONS
The undersigned acknowledge(s) receipt of your letter and the enclosed materials referred to therein relating to the Exchange Offer of SBA with respect to the
Original Notes.
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer all
right, title and interest in the Original Notes and to acquire the Exchange Notes, issuable upon the exchange of such Original Notes, and that, when such validly tendered Original Notes are accepted by SBA for exchange, SBA will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim.
By completing,
executing and delivering these instructions, the undersigned hereby makes the acknowledgments, representations and warranties referred to above and instructs you to tender the Original Notes held by you for the account of the undersigned, upon the
terms and subject to the conditions set forth in the prospectus and letter of transmittal.
Original Notes Which Are to be Tendered
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Certificate Numbers (if available) |
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Principal Amount Held by the Undersigned |
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All Original Notes Are to be Tendered (Yes or No)* |
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Unless otherwise indicated, yes will be assumed. |
None of the Original Notes held by you for the
undersigneds account will be tendered unless you receive written instructions from the undersigned to do so. Unless a specific contrary instruction is given in the space provided, the undersigneds signature(s) hereon shall constitute an
instruction to you to tender all the Original Notes held by you for the undersigneds account.
IMPORTANT
PLEASE SIGN HERE
(to be
completed by all tendering holders)
The completion, execution and timely delivery of these instructions will be deemed to constitute an instruction to
tender Original Notes as indicated above.
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Area Code and Telephone No.: |
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Tax Identification or Social Security No.: |
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My Account Number with You: |
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(Must be signed by the registered holder(s) of the Original Notes exactly as its (their) name(s) appear(s) on certificate(s)
or on a security position listing, or by the person(s) authorized to become registered holder(s) by endorsement and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must set forth his or her full title next to his or her name above. See Instruction 3 to the letter of transmittal.)
Exhibit 99.4
SBA COMMUNICATIONS CORPORATION
Offer to Exchange
$750,000,000 4.875% Senior Notes due 2022
for
$750,000,000 4.875%
Senior Notes due 2022, that have been registered under the Securities Act of 1933
Pursuant to the Prospectus, dated
, 2015
The Exchange Offer will expire at 12:00
midnight, New York City time, on [20 business days after commencement], 2015, unless extended. Tenders of Original Notes may be withdrawn at any time prior to 12:00 midnight, New York City time, on the expiration date.
, 2015
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
Your prompt action is requested. The Exchange Offer will expire at 12:00 midnight, New York City time, on [20 business days after commencement], 2015, unless
extended, which we refer to as the expiration date in this letter. Original Notes (as defined below) tendered pursuant to the Exchange Offer may be withdrawn at any time prior to 12:00 midnight, New York City time, the expiration date. Please
furnish copies of the enclosed materials as quickly as possible to those of your clients for whom you hold Original Notes in your name or in the name of your nominee.
SBA Communications Corporation, which we refer to as SBA in this letter, is offering, upon and subject to the terms and conditions set forth in the
prospectus, dated , 2015 and the enclosed letter of transmittal to exchange in the Exchange Offer all of the outstanding unregistered $750,000,000 4.875%
Senior Notes due 2022, which we refer to as the Original Notes, for registered $750,000,000 4.875% Senior Notes due 2022, which we refer to as the Exchange Notes. The Exchange Offer is being made in order to satisfy certain obligations of SBA
contained in the Registration Rights Agreement, dated July 1, 2014, by and among SBA and the several initial purchasers named therein.
We are
requesting that you contact your clients for whom you hold Original Notes regarding the Exchange Offer. For your information and for forwarding to your clients for whom you hold Original Notes registered in your name or in the name of your nominee,
or who hold Original Notes registered in their own names, we are enclosing the following documents:
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Prospectus, dated , 2015; |
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The letter of transmittal for your use and for the information of your clients; |
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A notice of guaranteed delivery to be used to accept the Exchange Offer if certificates for Original Notes are not immediately available or time will not permit all required documents to reach the exchange agent at or
prior to 12:00 midnight, New York City time, on the expiration date or if the procedure for book-entry transfer cannot be completed at or prior to 12:00 midnight, New York City time, on the expiration date; |
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A form of letter which may be sent to your clients for whose account you hold Original Notes registered in your name or the name of your nominee, with space provided for obtaining such clients instructions with
regard to the Exchange Offer; and |
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Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. |
To participate in the
Exchange Offer, a duly executed and properly completed letter of transmittal for Original Notes held in certificated form (or facsimile of the letter of transmittal) or an agents message instead of the letter of transmittal for Original Notes
held in book-entry form, with any required signature guarantees and any other required documents, should be sent to the exchange agent, and certificates representing the Original Notes should be delivered to the exchange agent or the Original Notes
should be tendered by the book-entry procedures described in the prospectus under The Exchange OfferBook-Entry Delivery Procedures for Tendering Original Notes Held with DTC, all in accordance with the instructions set forth in the
letter of transmittal and the prospectus.
If a registered holder of Original Notes desires to tender Original Notes, but such Original Notes are not
immediately available, or time will not permit such holders Original Notes or other required documents to reach the exchange agent at or prior to 12:00 midnight, New York City time, on the expiration date, or the procedure for book-entry
transfer cannot be completed at or prior to 12:00 midnight, New York City time, on the expiration date, a tender may be effected by following the guaranteed delivery procedures described in the letter of transmittal.
SBA will, upon request, reimburse brokers, dealers, commercial banks and trust companies for reasonable and necessary costs and expenses incurred by them in
forwarding the prospectus and the related documents to the beneficial owners of Original Notes held by them as nominee or in a fiduciary capacity. SBA will pay or cause to be paid all transfer taxes applicable to the exchange of Original Notes
pursuant to the Exchange Offer, except as set forth in Instruction 6 of the letter of transmittal.
Any inquiries you may have with respect to the
procedure for tendering Original Notes pursuant to the Exchange Offer, or requests for additional copies of the enclosed materials, should be directed to U.S. Bank National Association, the exchange agent for the Exchange Offer, at its address and
telephone number set forth on the front of the letter of transmittal.
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Very truly yours, |
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SBA Communications Corporation |
Nothing herein or in the enclosed documents shall constitute you or any person as an agent of SBA or the exchange
agent, or authorize you or any other person to use any document or make any statements on behalf of either of them with respect to the Exchange Offer, except for statements expressly made in the prospectus or the letter of transmittal.
Enclosures
Exhibit 99.5
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the PayerSocial security numbers have nine digits separated by two
hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the payer.
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For this type of account: |
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Give the SOCIAL
SECURITY number
of |
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For this type of account: |
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Give the EMPLOYER IDENTIFICATION
number of |
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Individual |
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The individual |
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6. |
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Disregarded entity not owned by an individual |
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The owner |
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Two or more individuals (joint account) |
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The actual owner of the account or, if combined funds, the first individual on the account1 |
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A valid trust, estate, pension trust |
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Legal entity (Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title.)4 |
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Custodian account of a minor (Uniform Gift to Minors Act) |
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The minor2 |
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8. |
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Corporate or LLC electing corporate status on Form 8832 |
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The corporation |
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a. |
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The usual revocable savings trust account (grantor is also trustee) |
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The grantor-trustee1 |
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Religious, charitable, or educational organization |
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The organization |
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So-called trust account that is not a legal or valid trust under State law |
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The actual owner1 |
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Partnership or multi member LLC |
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The partnership |
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Sole proprietorship or disregarded entity owned by an individual |
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The owner3 |
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Association, club or other tax-exempt organization |
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The organization |
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A broker or registered nominee |
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The broker or nominee |
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Account with the Department of Agriculture in the name of a public entity (such as a State or local government, school district or prison) that receives agricultural program payments |
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The public entity |
(1) |
List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that persons social security number must be furnished. |
(2) |
Circle the minors name and furnish the minors social security number. |
(3) |
You must show your individual name, but you may also enter your business or doing business as name. You may use either your social security number or your employer identification number (if you have one).
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List first and circle the name of the legal trust, estate or pension trust. |
NOTE: If no name
is circled when there is more than one name listed, the number will be considered to be that of the first name listed.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Page 2
Obtaining a Number
If you dont have a taxpayer identification number (TIN) or you dont know your number, obtain Form SS-5, Application for a Social Security Number
Card, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service and apply for a number.
Payees Exempt from Backup Withholding
Payees
specifically exempted from backup withholding on ALL payments include the following:
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An organization exempt from tax under Section 501(a), any individual retirement plan, or a custodial account under Section 403(b)(7) if the account satisfies the requirements of Section 401(f)(2).
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The United States or any agency or instrumentality thereof. |
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A state, the District of Columbia, a possession of the United States, or any subdivision or instrumentality thereof. |
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A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof. |
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An international organization or any agency or instrumentality thereof. |
Other payees that may be exempt from
backup withholding on payments include the following:
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A financial institution. |
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A registered dealer in securities or commodities registered in the U.S. or a possession of the U.S. |
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A real estate investment trust. |
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A common trust fund operated by a bank under Section 584(a). |
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An entity registered at all times under the Investment Company Act of 1940. |
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A foreign central bank of issue. |
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A middleman known in the investment community as a nominee or custodian. |
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A futures commission merchant registered with the Commodity Futures Trading Commission. |
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A trust exempt from tax under Section 664 or described in Section 4947. |
Payments of dividends and
patronage dividends not generally subject to backup withholding include the following:
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Payments to nonresident aliens subject to withholding under Section 1441. |
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Payments to partnerships not engaged in a trade or business in the U.S. and which have at least one nonresident partner. |
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Payments of patronage dividends not paid in money. |
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Payments made by certain foreign organizations. |
Payments of interest not generally subject to backup
withholding include the following:
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Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payers trade or business and you have not
provided your correct taxpayer identification number to the payer. |
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Payments of tax-exempt interest (including exempt-interest dividends under Section 852). |
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Payments described in Section 6049(b)(5) to nonresident aliens. |
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Payments on tax-free covenant bonds under Section 1451. |
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Payments made by certain foreign organizations. |
Exempt payees described above should complete a substitute
Form W-9 to avoid possible erroneous backup withholding.
Certain payments other than interest, dividends, and patronage dividends that are not subject to
information reporting are also not subject to backup withholding.
For details, see Sections 6041, 6041A(a), 6042, 6044, 6045, 6049, 6050A and 6050N, and
their regulations.
Privacy Act NoticeSection 6109 requires most recipients of dividend, interest, or other payments to give their correct
tax-payer identification numbers to payers who must report the payments to the IRS. The IRS uses the numbers for identification purposes and to help verify the accuracy of tax returns. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers must generally withhold federal income tax on taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply.
Penalties
(1) Penalty for Failure to
Furnish Taxpayer Identification Number.If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful
neglect.
(2) Civil Penalty for False Information With Respect to Withholding.If you make a false statement with no reasonable basis
which results in no imposition of backup withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying
Information.Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
(4) Misuse of Taxpayer Identification Numbers.If the requester disclosed or uses taxpayer identification numbers in violation of federal
law, the requester may be subject to civil and criminal penalties.
FOR ADDITIONAL INFORMATION, CONTACT YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.
SBA Communications (NASDAQ:SBAC)
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