================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------
AMENDMENT NO. 1 TO
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
--------------------------------
NEXTWAVE TELECOM INC.
NEXTWAVE PERSONAL COMMUNICATIONS INC.
NEXTWAVE POWER PARTNERS INC.
(Names of Applicants)
3 Skyline Drive
Hawthorne, New York 10532
(Address of Principal Executive Offices)
Securities to be Issued Under the Indenture to be Qualified
<TABLE>
<CAPTION>
Title of Class Amount
-------------- ------
<S> <C>
12% Senior Secured Subordinated Notes Due 2009 The dollar amount of Allowed Claims of Senior
Claimants (as such terms are defined in the Plan
hereinafter referred to), expected, on the basis of
present information, to be approximately
$225,117,051, plus the amount(s) of any additional
such notes as may be issued from time to time in
payment of interest as hereinafter described.
</TABLE>
--------------------------------
Approximate Date of Proposed Public Offering: As soon as practicable after the
effective date of this Application
--------------------------------
Frank A. Cassou, Esq.
3 Skyline Drive
Hawthorne, New York 10532
(Name and Address of Agent for Service)
With a copy to:
Charles E. Harrell, Esq.
Weil, Gotshal & Manges LLP
700 Louisiana, Suite 1600
Houston, Texas 77002
- --------------------------------------------------------------------------------
The obligor hereby amends this application for qualification on such date or
dates as may be necessary to delay its effectiveness until: (i) the 20th day
after the filing of a further amendment which specifically states that it shall
supersede this amendment, or (ii) such date as the Commission, acting pursuant
to Section 307(c) of the Act, may determine upon the written request of the
obligor.
<PAGE>
FORM T-3
GENERAL
ITEM 1. GENERAL INFORMATION.
(A) Form of Organization.
Each of NextWave Telecom Inc. (the "Issuer"), NextWave Personal
Communications Inc. ("NPCI") and NextWave Power Partners Inc. ("NPPI" and,
together with NPCI, the "Guarantors") is a corporation. The Issuer and the
Guarantors are sometimes hereinafter referred to collectively as the
"Applicants" or individually as an "Applicant".
(B) State or Other Sovereign Power Under the Laws of Which Organized.
Each of the Applicants is organized under the laws of the State of
Delaware.
ITEM 2. SECURITIES ACT EXEMPTION APPLICABLE.
If this Application on Form T-3 does not become and is not declared
effective prior to the issuance of the Notes hereinafter referred to, the
Applicants rely upon Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"), as the basis for their claim that registration of the offer
and sale to Senior Claimants (as defined in the Plan (as defined below)) of the
12% Senior Secured Subordinated Notes Due 2009 (the "Notes") to be issued by the
Issuer under an indenture (the "Indenture") to be dated as of the effective date
of the Plan (the "Effective Date"), among the Issuer, the Guarantors, Norwest
Bank Minnesota, National Association, as Collateral Agent, and Norwest Bank
Minnesota, National Association, as Trustee (the "Trustee"), is not required
under the Securities Act. The Applicants rely upon Section 1145(a)(1) of the
Bankruptcy Reform Act of 1978, as amended, Title 11, United States Code (the
"Bankruptcy Code"), as the basis for their claim that registration of the offer
and sale to Senior Claimants of the exchange rights ("Exchange Rights") to be
issued by the Issuer under an Exchange Rights Agreement, pursuant to which
holders of such Notes issued in reliance on Section 4(2) of the Securities Act
("Privately Placed Notes") prior to qualification of the Indenture under the
Trust Indenture Act of 1939, as amended (the "1939 Act"), will have the right to
exchange such Privately Placed Notes, following such qualification, for
otherwise substantially identical Notes issued pursuant to the Indenture, as
described below, is not required under the Securities Act. Such Notes and the
Exchange Rights will be offered and sold to the Senior Claimants in satisfaction
of their claims against all of the Debtors (as defined below), pursuant to the
Plan. The Applicants rely upon Section 1145(a)(2) of the Bankruptcy Code as the
basis for their claim that registration of the offer and sale to Senior
Claimants of each Note to be issued in exchange for a Privately Placed Note and
an Exchange Right is not required under the Securities Act.
If this Application on Form T-3 becomes or is declared effective prior to
the issuance of the Notes, the Applicants rely upon Section 1145(a)(1) of the
Bankruptcy Code as the basis for their claim that registration of the offer and
sale to Senior Claimants in full satisfaction of all of their claims against the
Debtors, pursuant to the Plan, of the Notes to be issued by the Issuer under the
Indenture is not required under the Securities Act.
On June 8, 1998, certain subsidiaries of the Issuer, and thereafter, on
December 23, 1998, the Issuer, filed petitions for relief under Chapter 11
("Chapter 11") of the Bankruptcy Code in the United States District Court for
the Southern District of New York (the Issuer and such subsidiaries, in such
capacity, collectively, the "Debtors," and such District Court, the "Bankruptcy
Court"). Since such time, the Debtors have continued to operate their businesses
and manage their properties as debtors in possession pursuant to Sections 1107
and 1108 of the Bankruptcy Code.
Pursuant to the Debtors' First Amended Joint Plan of Reorganization Under
Chapter 11 of the Bankruptcy Code dated July 27, 1999 (the "Plan"), on the
Effective Date, or as promptly thereafter as practicable, the Privately Placed
Notes and Exchange Rights will be issued to Senior Claimants in full
satisfaction of their claims against all of the Debtors. Each of the Applicants
is a Debtor.
2
<PAGE>
In order to ensure that no such Senior Claimant is an "underwriter" with respect
to the Notes or Exchange Rights within the meaning of Section 1145(b)(1) of the
Bankruptcy Code, each such Senior Claimant will be required, as a condition to
receiving Notes without a legend restricting transfers thereof, to represent and
agree that such Senior Claimant is not such an "underwriter." An integral and
essential element of the Plan is that the issuance of the Notes (each of which
is to be issued in exchange for a Privately Placed Note and an Exchange Right)
pursuant to the Plan shall be exempt from registration under the Securities Act
pursuant to Section 1145 of the Bankruptcy Code.
AFFILIATIONS
ITEM 3. AFFILIATES.
The following is a list of affiliates of the Applicants as of August 2,
1999:
Subsidiaries of the Issuer, 100% of the voting securities
of which are owned directly by the Issuer ("First Tier Subsidiaries")
(all of the First Tier Subsidiaries and the Second Tier Subsidiary named below
are Debtors except for TELE*Code Inc., which is
a non-Debtor subsidiary of the Issuer)
NextWave Personal Communications Inc.
NextWave Partners Inc.
NextWave Wireless Inc.
TELE*Code Inc.
Subsidiary of the Issuer, 100% of the voting securities of which
are owned directly by NextWave Partners Inc.,
a First Tier Subsidiary ("Second Tier Subsidiary")
NextWave Power Partners Inc.
As of the Effective Date (such information is provided,
as required by Form T-3, on the basis of present information)
Pursuant to the Plan, on the Effective Date, holders of the Issuer's Series
A Common Stock, par value $.0001 per share ("Series A Common Stock"), and Series
B Common Stock, par value $.0001 per share ("Series B Common Stock"), will
retain their shares, subject to the rights, privileges and preferences of
holders of Plan Securities (as defined in the Plan). Holders of Existing
Options/Warrants (as defined in the Plan) will be entitled to exercise such
Existing Options/Warrants prior to the Effective Date pursuant to the Plan. Upon
effectiveness of the Issuer's Second Amended and Restated Certificate of
Incorporation, the Issuer will be authorized to issue 60,000,000 shares of
Series A Common Stock, 900,000,000 shares of Series B Common Stock, 1,019,444
shares of Series C Common Stock, par value $.0001 per share ("Series C Common
Stock") and 50,000,000 shares of undesignated preferred stock, par value $.01
per share ("Undesignated Preferred Stock"), which shall include 1,000,000 shares
of Senior Redeemable Preferred Stock (the "Senior Redeemable Preferred Stock")
and 9,500,000 shares of the Series A Convertible Preferred Stock (the "Series A
Preferred Stock"). See "Capital Securities - Capitalization - Capitalization As
of the Effective Date" in Item 7 of this Form T-3.
The following is a list of affiliates of the Applicants as they are
expected to be constituted as of the Effective Date:
Subsidiaries of the Issuer, 100% of the voting
securities of which will be owned directly by the Issuer
NextWave Personal Communications Inc.
NextWave Partners Inc.
NextWave Wireless Inc.
TELE*Code Inc.
3
<PAGE>
Subsidiary of the Issuer, 100% of the voting securities
of which will be owned directly by
NextWave Partners Inc., a First Tier Subsidiary
NextWave Power Partners Inc.
Other Affiliates
On the basis of holdings, commitments and information as of August 2, 1999,
Navation, Inc. beneficially owns 19,091,435 shares of Series A Common Stock,
representing approximately 52.7% of the outstanding shares of Series A Common
Stock, and 20,058,308 shares of the Series B Common Stock, representing
approximately 12.82% of the outstanding shares of Series B Common Stock. The
holders of the Series A Common Stock have the right to elect the minimum number
of directors necessary to constitute a majority of the total number of directors
of the Issuer. See "Management and Control - Principal Owners of Voting
Securities - As of August 2, 1999" in Item 5 and "Capital Securities
Capitalization - Voting Rights - Issuer - Series A Common Stock" and "- Series B
Common Stock" in Item 7 of this Form T-3.
As of the Effective Date, on the basis of present information, Navation,
Inc. is expected to beneficially own 19,091,435 shares of Series A Common Stock,
representing approximately 52.7% of the outstanding shares of Series A Common
Stock as of the Effective Date, and 20,058,308 shares of the Series B Common
Stock, expected to represent approximately 10.67% of the outstanding shares of
Series B Common Stock as of the Effective Date (assuming that none of the shares
of Series A Preferred Stock expected to be outstanding on the Effective Date
were converted into shares of Series B Common Stock as of the Effective Date) or
approximately 5.03% of the outstanding shares of Series B Common Stock and
Series A Preferred Stock as of the Effective Date (assuming that all of the
shares of Series A Preferred Stock expected to be outstanding on the Effective
Date were converted into shares of Series B Common Stock as of the Effective
Date). See "Management and Control - Principal Owners of Voting Securities - As
of the Effective Date" in Item 5 and "Capital Securities Capitalization - Voting
Rights - Issuer - Series A Common Stock", "- Series B Common Stock" and "Series
A Preferred Stock" in Item 7 of this Form T-3.
Navation, Inc. is a corporation the voting securities of which are owned
beneficially and of record by Allen B. Salmasi and his spouse and certain family
members. Navation, Inc. is controlled by Allen B. Salmasi, the Chairman of the
Board, Chief Executive Officer and President of the Issuer. Navation, Inc. or
Allen B. Salmasi may, from time to time, be issued warrants or other rights to
purchase Series B Common Stock in order to maintain control pursuant to
regulations of the Federal Communications Commission ("FCC"). In addition, Allen
B. Salmasi owns options to purchase 1,270,000 shares of Series B Common Stock.
MANAGEMENT AND CONTROL
ITEM 4. DIRECTORS AND EXECUTIVE OFFICERS.
Directors and Executive Officers of the Issuer as of August 2, 1999
<TABLE>
<CAPTION>
Name Address Office/Position
---- ------- ---------------
<S> <C> <C>
Allen B. Salmasi c/o NextWave Telecom Inc. Chairman of the Board, Chief Executive
3 Skyline Drive Officer and President
Hawthorne, NY 10532
Frank A. Cassou c/o NextWave Telecom Inc. Executive Vice President, Corporate
3 Skyline Drive Development and General Counsel; Secretary
Hawthorne, NY 10532
Raymond P. Dolan c/o NextWave Telecom Inc. Chief Operating Officer
3 Skyline Drive
Hawthorne, NY 10532
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Kevin M. Finn c/o NextWave Telecom Inc. Senior Vice President, Special Projects,
3 Skyline Drive Director
Hawthorne, NY 10532
Roy D. Berger c/o NextWave Telecom Inc. Senior Vice President and Chief Marketing
3 Skyline Drive Officer
Hawthorne, NY 10532
James S. Madsen c/o NextWave Telecom Inc. Senior Vice President, Sales & Business
3 Skyline Drive Development
Hawthorne, NY 10532
R. Andrew Salony c/o NextWave Telecom Inc. Senior Vice President, Strategic Relations
3 Skyline Drive and Chief Human Resources Officer
Hawthorne, NY 10532
Michael Regan, Jr. c/o NextWave Telecom Inc. Senior Vice President, External Affairs
3 Skyline Drive
Hawthorne, NY 10532
Edward M. Knapp c/o NextWave Telecom Inc. Senior Vice President, Chief Technical Officer
3 Skyline Drive
Hawthorne, NY 10532
William H. Webster c/o NextWave Telecom Inc. Director
3 Skyline Drive
Hawthorne, NY 10532
Allan E. Puckett c/o NextWave Telecom Inc. Director
3 Skyline Drive
Hawthorne, NY 10532
Alan Cameron c/o NextWave Telecom Inc. Vice President
3 Skyline Drive
Hawthorne, NY 10532
Theresa L. McCarthy c/o NextWave Telecom Inc. Vice President
3 Skyline Drive
Hawthorne, NY 10532
Brian Montgomery c/o NextWave Telecom Inc. Vice President
3 Skyline Drive
Hawthorne, NY 10532
David Needham c/o NextWave Telecom Inc. Vice President
3 Skyline Drive
Hawthorne, NY 10532
Charla Rath c/o NextWave Telecom Inc. Vice President
3 Skyline Drive
Hawthorne, NY 10532
Michael Wack c/o NextWave Telecom Inc. Vice President
3 Skyline Drive
Hawthorne, NY 10532
</TABLE>
5
<PAGE>
Directors and Executive Officers of NPCI as of August 2, 1999
<TABLE>
<CAPTION>
Name Address Office/Position
- ---- ------- ---------------
<S> <C> <C>
Allen B. Salmasi c/o NextWave Personal Communications Inc. Chairman of the Board, Chief
3 Skyline Drive Executive Officer and President
Hawthorne, NY 10532
Kevin M. Finn c/o NextWave Personal Communications Inc. Senior Vice President, Director
3 Skyline Drive
Hawthorne, NY 10532
Edward M. Knapp c/o NextWave Personal Communications Inc. Vice President
3 Skyline Drive
Hawthorne, NY 10532
James S. Madsen c/o NextWave Personal Communications Inc. Vice President
3 Skyline Drive
Hawthorne, NY 10532
Frank A. Cassou c/o NextWave Personal Communications Inc. Secretary
3 Skyline Drive
Hawthorne, NY 10532
</TABLE>
Directors and Executive Officers of NPPI as of August 2, 1999
<TABLE>
<CAPTION>
Name Address Office/Position
- ---- ------- ---------------
<S> <C> <C>
Allen B. Salmasi c/o NextWave Power Partners Inc. Chairman of the Board, Chief
3 Skyline Drive Executive Officer and President
Hawthorne, NY 10532
Kevin M. Finn c/o NextWave Power Partners Inc. Senior Vice President, Director
3 Skyline Drive
Hawthorne, NY 10532
Roy D. Berger c/o NextWave Power Partners Inc. Vice President
3 Skyline Drive
Hawthorne, NY 10532
Edward M. Knapp c/o NextWave Power Partners Inc. Vice President
3 Skyline Drive
Hawthorne, NY 10532
James S. Madsen c/o NextWave Power Partners Inc. Vice President
3 Skyline Drive
Hawthorne, NY 10532
Frank A. Cassou c/o NextWave Power Partners Inc. Secretary
3 Skyline Drive
Hawthorne, NY 10532
</TABLE>
6
<PAGE>
Directors and Executive Officers of the Issuer
as of the Effective Date (such information is provided, as
required by Form T-3, on the basis of present information)
On or prior to the Effective Date, pursuant to the Plan, the Issuer will
file a Second Amended and Restated Certificate of Incorporation with the
Secretary of State of the State of Delaware that will provide that, at the
effective time thereof, the Board of Directors of the Issuer will consist of not
less than nine nor more than fifteen members. On the basis of present
information, some or all of the directors and executive officers of the Issuer
as of August 2, 1999, as well as other persons to be determined, are expected to
be directors and executive officers of the Issuer as of the Effective Date.
Directors and Executive Officers of NPCI as of the Effective
Date (such information is provided, as required by Form T-3, on the
basis of present information)
On the basis of present information, some or all of the directors and
executive officers of NPCI as of August 2, 1999, and possibly certain other
persons to be determined, are expected to be directors and executive officers of
NPCI as of the Effective Date.
Directors and Executive Officers of NPPI as of the Effective
Date (such information is provided, as required by Form T-3, on the
basis of present information)
On the basis of present information, some or all of the directors and
executive officers of NPPI as of August 2, 1999, and possibly certain other
persons to be determined, are expected to be directors and executive officers of
NPPI as of the Effective Date.
ITEM 5. PRINCIPAL OWNERS OF VOTING SECURITIES.
As of August 2, 1999
I. Issuer.
The Issuer's voting securities (as defined in the 1939 Act) outstanding as
of August 2, 1999 consist of (A) the Series A Common Stock, the holders of which
have the right to elect the minimum number of directors necessary to constitute
a majority of the total number of directors, and (B) the Series B Common Stock,
the holders of which have the right, voting with the holders of Series C Common
Stock (none of which is outstanding as of August 2, 1999), to elect a number of
directors equal to the total number of directors less the number of directors to
be elected by the holders of the Series A Common Stock. See "Capital Securities
Capitalization - Voting Rights - Issuer - Series A Common Stock" and "- Series B
Common Stock" in Item 7 of this Form T-3. The principal owners of each such
class of voting securities are set forth below.
7
<PAGE>
(A) Series A Common Stock
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Percentage of
Name and Voting
Complete Mailing Address Title of Class Owned Amount Owned Securities Owned
------------------------ -------------------- ------------ ----------------
<S> <C> <C> <C>
Navation, Inc.(1) Series A Common Stock 19,091,435 52.67%(2)(3)
271 East 86th Street, Suite 352
New York, New York 10028
Good News Communications Co., LLC Series A Common Stock 11,960,866 33.00%(4)(5)
c/o Stephen Park
8 Museum Way #206
Cambridge, MA 02141
</TABLE>
- ----------
(1) Navation, Inc. is a corporation the voting securities of which are owned
beneficially and of record by Allen B. Salmasi and his spouse and certain
family members. Navation, Inc. is controlled by Allen B. Salmasi, the
Chairman of the Board, Chief Executive Officer and President of the Issuer.
Navation, Inc. or Allen B. Salmasi may, from time to time, be issued
warrants or other rights to purchase Series B Common Stock in order to
maintain control pursuant to regulations of the FCC. In addition, Allen B.
Salmasi owns options to purchase 1,270,000 shares of Series B Common Stock.
(2) Represents the percentage of outstanding shares of Series A Common Stock
owned beneficially or of record as of July 30, 1999.
(3) Navation, Inc.'s combined ownership of 19,091,435 shares of Series A Common
Stock and 20,058,308 shares of Series B Common Stock constitutes a total of
20.32% of the outstanding voting securities of the Issuer (i.e., of the
aggregate of the Series A Common Stock and Series B Common Stock
outstanding), assuming that no Existing Options/Warrants are exercised.
(4) Represents the percentage of outstanding shares of Series A Common Stock
owned beneficially or of record as of July 30, 1999.
(5) Good News Communications Co., LLC's combined ownership of 11,960,866 shares
of Series A Common Stock and 12,879,868 shares of Series B Common Stock
constitutes a total of 12.89% of the outstanding voting securities of the
Issuer (i.e., of the aggregate of the Series A Common Stock and Series B
Common Stock outstanding), assuming that no Existing Options/Warrants are
exercised.
(B) Series B Common Stock
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Percentage of
Name and Voting
Complete Mailing Address Title of Class Owned Amount Owned Securities Owned
------------------------ -------------------- ------------ ----------------
<S> <C> <C> <C>
Navation, Inc.(1) Series B Common Stock 20,058,308 12.82%(2)(3)
271 East 86th Street, Suite 352
New York, New York 10028
</TABLE>
- ----------
(1) Navation, Inc. is a corporation the voting securities of which are owned
beneficially and of record by Allen B. Salmasi and his spouse and certain
family members. Navation, Inc. is controlled by Allen B. Salmasi, the
Chairman of the Board, Chief Executive Officer and President of the Issuer.
Navation, Inc. or Allen B. Salmasi may, from time to time, be issued
warrants or other rights to purchase Series B Common Stock in order to
maintain control pursuant to regulations of the FCC. In addition, Allen B.
Salmasi owns options to purchase 1,270,000 shares of Series B Common Stock.
(2) Represents the percentage of outstanding shares of Series B Common Stock
owned beneficially or of record (assuming that no Existing Options/Warrants
are exercised) as of July 30, 1999.
(3) Navation, Inc.'s combined ownership of 19,091,435 shares of Series A Common
Stock and 20,058,308 shares of Series B Common Stock constitutes a total of
20.32% of the outstanding voting securities of the Issuer (i.e., of the
aggregate of the Series A Common Stock and Series B Common Stock
outstanding), assuming that no Existing Options/Warrants are exercised.
8
<PAGE>
II. NPCI.
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Percentage of
Name and Voting
Complete Mailing Address Title of Class Owned Amount Owned Securities Owned
------------------------ -------------------- ------------ ----------------
<S> <C> <C> <C>
NextWave Telecom Inc. Capital Stock, par 1,000 shares 100.00%
3 Skyline Drive value $.0001 per share
Hawthorne, NY 10532
</TABLE>
III. NPPI.
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Percentage of
Name and Voting
Complete Mailing Address Title of Class Owned Amount Owned Securities Owned
------------------------ -------------------- ------------ ----------------
<S> <C> <C> <C>
NextWave Partners Inc. Capital Stock, par 1,000 shares 100.00%
3 Skyline Drive value $.0001 per share
Hawthorne, NY 10532
</TABLE>
As of the Effective Date (such information is
provided, as required by Form T-3, on the basis
of present holdings, commitments and information)
I. Issuer.
The Issuer's voting securities (as defined in the 1939 Act) expected, on
the basis of present holdings, commitments and information, to be outstanding as
of the Effective Date will consist of (A) the Series A Common Stock, the holders
of which will have the right to elect the minimum number of directors necessary
to constitute a majority of the total number of directors, and (B) the Series B
Common Stock and the Series A Preferred Stock, the holders of which will have
the right, voting with the holders of Series C Common Stock (none of which is
expected to be outstanding as of the Effective Date), to elect a number of
directors equal to the total number of directors less the number of directors to
be elected by the holders of the Series A Common Stock. See "Capital Securities
- - Capitalization - Voting Rights - Issuer - Series A Common Stock", "- Series B
Common Stock" and "- Series A Preferred Stock" in Item 7 of this Form T-3.
Holders of Series A Preferred Stock are entitled to vote for such directors on
an as-converted basis. See "Capital Securities - Capitalization Voting Rights -
Issuer - Series A Preferred Stock" in Item 7 of this Form T-3. The principal
owners of (A) the Series A Common Stock and (B) the Series B Common Stock and
the Series A Preferred Stock, treated as one class of voting securities, are set
forth below.
(A) Series A Common Stock
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Percentage of
Name and Voting
Complete Mailing Address Title of Class Owned Amount Owned Securities Owned
------------------------ -------------------- ------------ ----------------
<S> <C> <C> <C>
Navation, Inc.(1) Series A Common Stock 19,091,435 52.67%(2)(3)
271 East 86th Street, Suite 352
New York, New York 10028
Good News Communications Co., LLC Series A Common Stock 11,960,866 33.00%(4)(5)
c/o Stephen Park
8 Museum Way #206
Cambridge, MA 02141
</TABLE>
9
<PAGE>
- ----------
(1) Navation, Inc. is a corporation the voting securities of which are owned
beneficially and of record by Allen B. Salmasi and his spouse and certain
family members. Navation, Inc. is controlled by Allen B. Salmasi, the
Chairman of the Board, Chief Executive Officer and President of the Issuer.
Navation, Inc. or Allen B. Salmasi may, from time to time, be issued
warrants or other rights to purchase Series B Common Stock in order to
maintain control pursuant to regulations of the FCC. In addition, Allen B.
Salmasi owns options to purchase 1,270,000 shares of Series B Common Stock.
(2) Represents the percentage of outstanding shares of Series A Common Stock
expected to be owned beneficially or of record as of the Effective Date.
(3) Navation, Inc.'s combined ownership of 19,091,435 shares of Series A Common
Stock and 20,058,308 shares of Series B Common Stock is expected to
constitute a total of 8.99% of all outstanding voting securities of the
Issuer (i.e., of the aggregate of the Series A Common Stock, Series B
Common Stock and Series A Preferred Stock expected to be outstanding) as of
the Effective Date, assuming that 31,474,508 shares of Series B Common
Stock are issued as a result of the exercise of Existing Options/Warrants
(assuming the absence of any dilution as a result of the issuance or
exercise of any options to purchase Series B Common Stock by, or any grants
of Series B Common Stock to, employees or directors of the Issuer, or the
issuance or exercise of any Series B Warrants (as hereinafter defined)).
(4) Represents the percentage of outstanding shares of Series A Common Stock
expected to be owned beneficially or of record as of the Effective Date.
(5) Good News Communications Co., LLC's combined ownership of 11,960,866 shares
of Series A Common Stock and 12,879,868 shares of Series B Common Stock is
expected to constitute a total of 5.71% of all outstanding voting
securities of the Issuer (i.e., of the aggregate of the Series A Common
Stock, Series B Common Stock and Series A Preferred Stock expected to be
outstanding) as of the Effective Date, assuming that 31,474,508 shares of
Series B Common Stock are issued as a result of the exercise of Existing
Options/Warrants (assuming the absence of any dilution as a result of the
issuance or exercise of any options to purchase Series B Common Stock by,
or any grants of Series B Common Stock to, employees or directors of the
Issuer, or the issuance or exercise of any Series B Warrants).
(B) Series B Common Stock and Series A Preferred Stock
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Percentage of
Name and Voting
Complete Mailing Address Title of Class Owned Amount Owned Securities Owned
------------------------ -------------------- ------------ ----------------
<S> <C> <C> <C>
TPG Partners II, L.P. Series A Preferred Stock 41,662,500(1) 10.44%(2)
345 California Street, Suite 3300
San Francisco, California 94104
Oak Investment Partners VIII, L.P. Series A Preferred Stock 49,995,000(3) 12.53%(4)
525 University Avenue, Suite 1300
Palo Alto, California 94301
</TABLE>
10
<PAGE>
- ----------
(1) Represents the outstanding shares of Series A Preferred Stock (calculated,
based on voting power with respect to the election of directors, on an
as-converted basis; see "Capital Securities - Capitalization - Voting
Rights Issuer - Series A Preferred Stock" in Item 7 of this Form T-3)
expected to be owned beneficially or of record as of the Effective Date. On
a pre-conversion basis, TPG Partners II, L.P. is expected to own 1,250,000
shares of Series A Preferred Stock as of the Effective Date. TPG Partners
II, L.P. is also expected to own warrants exercisable for 833,333 shares of
Series B Common Stock (the "TPG Warrants") as of the Effective Date.
(2) Represents the percentage of outstanding shares of Series B Common Stock
and Series A Preferred Stock (calculated, based on voting power with
respect to the election of directors, on an as-converted basis; see
"Capital Securities Capitalization - Voting Rights - Issuer - Series A
Preferred Stock" in Item 7 of this Form T-3) expected to be owned
beneficially or of record, assuming that 31,474508 shares of Series B
Common Stock are issued as a result of the exercise of Existing
Options/Warrants, as of the Effective Date (assuming the absence of any
dilution as a result of the issuance or exercise of any options to purchase
Series B Common Stock by, or any grants of Series B Common Stock to,
employees or directors of the Issuer, or the issuance or exercise of any
Series B Warrants (including the TPG Warrants)).
(3) Represents the outstanding shares of Series A Preferred Stock (calculated,
based on voting power with respect to the election of directors, on an
as-converted basis; see "Capital Securities - Capitalization - Voting
Rights Issuer - Series A Preferred Stock" in Item 7 of this Form T-3)
expected to be owned beneficially or of record as of the Effective Date. On
a pre-conversion basis, Oak Investment Partners VIII, L.P. is expected to
own 1,500,000 shares of Series A Preferred Stock as of the Effective Date.
Oak Investment Partners VIII, L.P. is also expected to own warrants
exercisable for 1,000,000 shares of Series B Common Stock (the "Oak
Warrants") as of the Effective Date.
(4) Represents the percentage of outstanding shares of Series B Common Stock
and Series A Preferred Stock (calculated, based on voting power with
respect to the election of directors, on an as-converted basis; see
"Capital Securities Capitalization - Voting Rights - Issuer - Series A
Preferred Stock" in Item 7 of this Form T-3) expected to be owned
beneficially or of record, assuming that 31,474508 shares of Series B
Common Stock are issued as a result of the exercise of Existing
Options/Warrants, as of the Effective Date (assuming the absence of any
dilution as a result of the issuance or exercise of any options to purchase
Series B Common Stock by, or any grants of Series B Common Stock to,
employees or directors of the Issuer, or the issuance or exercise of any
Series B Warrants (including the Oak Warrants)).
II. NPCI.
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Percentage of
Name and Voting
Complete Mailing Address Title of Class Owned Amount Owned Securities Owned
------------------------ -------------------- ------------ ----------------
<S> <C> <C> <C>
NextWave Telecom Inc. Capital Stock, par 1,000 shares 100.00%
3 Skyline Drive value $.0001 per share
Hawthorne, NY 10532
</TABLE>
III. NPPI.
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
Percentage of
Name and Voting
Complete Mailing Address Title of Class Owned Amount Owned Securities Owned
------------------------ -------------------- ------------ ----------------
<S> <C> <C> <C>
NextWave Partners Inc. Capital Stock, par 1,000 shares 100.00%
3 Skyline Drive value $.0001 per share
Hawthorne, NY 10532
</TABLE>
11
<PAGE>
UNDERWRITERS
ITEM 6. UNDERWRITERS.
(a) None.
(b) No principal underwriter within the meaning of Section 303(4) of the
1939 Act has been proposed with respect to the Notes.
CAPITAL SECURITIES
ITEM 7. CAPITALIZATION.
As of August 2, 1999
(A) Capitalization.
I. Issuer.
<TABLE>
<CAPTION>
Col. A Col. B Col. C
Title of Class Amount Authorized Amount Outstanding
-------------- ----------------- ------------------
<S> <C> <C>
Series A Common Stock 60,000,000 shares 36,245,031 shares
Series B Common Stock 350,000,000 shares 156,445,055 shares
Series C Common Stock 1,019,444 shares NONE
Undesignated Common Stock 88,980,556 shares NONE
</TABLE>
II. NPCI.
<TABLE>
<CAPTION>
Col. A Col. B Col. C
Title of Class Amount Authorized Amount Outstanding
-------------- ----------------- ------------------
<S> <C> <C>
Capital Stock, par value $.0001 per share 1,000 shares 1,000 shares
</TABLE>
III. NPPI.
<TABLE>
<CAPTION>
Col. A Col. B Col. C
Title of Class Amount Authorized Amount Outstanding
-------------- ----------------- ------------------
<S> <C> <C>
Capital Stock, par value $.0001 per share 1,000 shares 1,000 shares
</TABLE>
12
<PAGE>
As of the Effective Date (such information is provided,
as required by Form T-3, on the basis of present information)(1)
I. Issuer.
<TABLE>
<CAPTION>
Col. A Col. B Col. C
Title of Class Amount Authorized Amount Outstanding
-------------- ----------------- ------------------
<S> <C> <C>
Series A Common Stock 60,000,000 shares 36,245,031 shares
Series B Common Stock 900,000,000 shares 187,919,563 shares
Series C Common Stock 1,019,444 shares NONE
Undesignated Preferred Stock 39,500,000 shares NONE
Series A Preferred Stock 9,500,000 shares 6,336,590 shares
Senior Redeemable Preferred Stock 1,000,000 shares 850,000 shares
12% Senior Secured Subordinated Notes Due 2009 (2) $225,117,051
</TABLE>
- ----------
(1) In addition, pursuant to the Plan, on the basis of present information, the
Issuer will issue to (i) certain new investors who subscribe to purchase
shares of Series A Preferred Stock, (ii) the recipients of Senior
Redeemable Preferred Stock and (iii) the Bridge Noteholders, Hanareum and
LG InfoComm (each as defined in the Disclosure Statement filed as Exhibit
T3E-1 hereto) approximately 45,000,000 Series B Warrants (the "Series B
Warrants"), each of which will be exercisable for one share of Series B
Common Stock at an exercise price of $3.00 per share. The Series B Warrants
will be exercisable until 5:00 p.m., New York City time, on the fifth
anniversary of the Effective Date. The number of shares of Series B Common
Stock purchasable upon the exercise of the Series B Warrants and such
exercise price are subject to adjustment as set forth in the warrant
agreement governing such warrants. Also pursuant to the Plan, the Issuer
will issue to certain employees and directors of the Issuer an aggregate of
up to 6.9 million shares of Series B Common Stock.
(2) The amount of authorized Notes will be equal to the dollar amount of
Allowed Claims of Senior Claimants (as such terms are defined in the Plan),
expected, on the basis of present information, to be approximately
$225,117,051.
II. NPCI.
<TABLE>
<CAPTION>
Col. A Col. B Col. C
Title of Class Amount Authorized Amount Outstanding
-------------- ----------------- ------------------
<S> <C> <C>
Capital Stock, par value $.0001 per share 1,000 shares 1,000 shares
</TABLE>
III. NPPI.
<TABLE>
<CAPTION>
Col. A Col. B Col. C
Title of Class Amount Authorized Amount Outstanding
-------------- ----------------- ------------------
<S> <C> <C>
Capital Stock, par value $.0001 per share 1,000 shares 1,000 shares
</TABLE>
(B) Voting Rights.
13
<PAGE>
I. Issuer.
Series A Common Stock
As of July 30, 1999, each outstanding share of the Series A Common Stock
has one vote for all purposes provided by law, provided that (i) the number of
directors which the holders of shares of Series A Common Stock shall be entitled
to elect shall be limited in that such holders shall be entitled to elect a
number of directors equal to the minimum number necessary to constitute a
majority of the total number of directors (except that, in the event there are
no holders of Series B Common Stock, the holders of Series A Common Stock shall
have the right to elect all of the directors of the Issuer), and (ii) the
holders of Series A Common Stock shall have the right to vote, as a separate
class, on certain matters set forth in Article VIII of the Amended and Restated
Certificate of Incorporation of the Issuer filed as Exhibit T3A-1 hereto (the
"Amended and Restated Certificate of Incorporation").
As of the Effective Date, each outstanding share of the Series A Common
Stock will have, on the basis of present information, one vote for all purposes
provided by law, provided that (i) the number of directors which the holders of
shares of Series A Common Stock shall be entitled to elect shall be limited in
that such holders shall be entitled to elect a number of directors equal to the
minimum number necessary to constitute a majority of the total number of
directors (except that, in the event there are no holders of Series B Common
Stock, the holders of Series A Common Stock shall have the right to elect all of
the directors of the Issuer), and (ii) the holders of Series A Common Stock
shall have the right to vote, as a separate class, on certain matters set forth
in Article VII of the Second Amended and Restated Certificate of Incorporation
of the Issuer filed as Exhibit T3A-2 hereto (the "Second Amended and Restated
Certificate of Incorporation").
Series B Common Stock
As of July 30, 1999, each outstanding share of the Series B Common Stock
has no right to vote, except as required by law, provided that (i) the holders
of Series B Common Stock voting with the holders of Series C Common Stock shall
be entitled to elect a limited number of directors equal to the total number of
directors less the number of directors to be elected by the holders of Series A
Common Stock, provided, however, that the number of directors to be elected by
the holders of Series B Common Stock and Series C Common Stock shall always
constitute a minority of the total number of directors and (ii) the holders of
Series B Common Stock voting with the holders of Series C Common Stock shall
have the right to vote, as a separate class, on the matters set forth in Article
VIII of the Amended and Restated Certificate of Incorporation. Notwithstanding
the foregoing and such limitations, upon the date that is ten years after the
License Grant Date (as defined in Amended and Restated Certificate of
Incorporation), each holder of Series B Common Stock shall be entitled to one
vote per share upon any and all matters submitted to the stockholders of the
Issuer for a vote.
As of Effective Date, each outstanding share of the Series B Common Stock
will have, on the basis of present information, no right to vote, except as
required by law, provided that (i) the holders of Series B Common Stock voting
with the holders of Series C Common Stock (and any other class or series of
Preferred Stock (as defined in the Second Amended and Restated Certificate of
Incorporation) to the extent provided in the certificates of designation filed
by the Issuer with Secretary of State of Delaware (including, without
limitation, the Series A Preferred Stock)) shall be entitled to elect a limited
number of directors equal to the total number of directors less the number of
directors to be elected by the holders of Series A Common Stock, provided,
however, that the number of directors to be elected by the holders of Series B
Common Stock and Series C Common Stock (and any other class or series of
Preferred Stock to the extent provided in the certificates of designation filed
by the Issuer with Secretary of State of Delaware (including, without
limitation, the Series A Preferred Stock)) shall always constitute a minority of
the total number of directors and (ii) the holders of Series B Common Stock
voting with the holders of Series C Common Stock shall have the right to vote,
as a separate class, on the matters set forth in Article VII of the Second
Amended and Restated Certificate of Incorporation. Notwithstanding the foregoing
and such limitations, upon the date that is ten years after the License Grant
Date (as defined in Second Amended and Restated Certificate of Incorporation),
each holder of Series B Common Stock shall be entitled to one vote per share
upon any and all matters submitted to the stockholders of the Issuer for a vote.
14
<PAGE>
Series C Common Stock
As of July 30, 1999, each outstanding share of the Series C Common Stock
has no right to vote, except as required by law, provided that (i) the holders
of Series C Common Stock voting with the holders of Series B Common Stock shall
be entitled to elect a limited number of directors equal to the total number of
directors less the number of directors to be elected by the holders of Series A
Common Stock, provided, however, that the number of directors to be elected by
the holders of Series C Common Stock and Series B Common Stock shall always
constitute a minority of the total number of directors and (ii) the holders of
Series C Common Stock voting with the holders of Series B Common Stock shall
have the right to vote, as a separate class, on the matters set forth in Article
VIII of the Amended and Restated Certificate of Incorporation. Notwithstanding
the foregoing and such limitations, upon the date that is ten years after the
License Grant Date (as defined in Amended and Restated Certificate of
Incorporation), each holder of Series C Common Stock shall be entitled to one
vote per share upon any and all matters submitted to the stockholders of the
Issuer for a vote.
As of Effective Date, each outstanding share of the Series C Common Stock
will have, on the basis of present information, no right to vote, except as
required by law, provided that (i) the holders of Series C Common Stock voting
with the holders of Series B Common Stock (and any other class or series of
Preferred Stock (as defined in the Second Amended and Restated Certificate of
Incorporation) to the extent provided in the certificates of designation filed
by the Issuer with Secretary of State of Delaware (including, without
limitation, the Series A Preferred Stock)) shall be entitled to elect a limited
number of directors equal to the total number of directors less the number of
directors to be elected by the holders of Series A Common Stock, provided,
however, that the number of directors to be elected by the holders of Series C
Common Stock and Series B Common Stock (and any other class or series of
Preferred Stock to the extent provided in the certificates of designation filed
by the Issuer with Secretary of State of Delaware (including, without
limitation, the Series A Preferred Stock)) shall always constitute a minority of
the total number of directors and (ii) the holders of Series C Common Stock
voting with the holders of Series B Common Stock shall have the right to vote,
as a separate class, on the matters set forth in Article VII of the Second
Amended and Restated Certificate of Incorporation. Notwithstanding the foregoing
and such limitations, upon the date that is ten years after the License Grant
Date (as defined in Second Amended and Restated Certificate of Incorporation),
each holder of Series C Common Stock shall be entitled to one vote per share
upon any and all matters submitted to the stockholders of the Issuer for a vote.
The information set forth above in this Item 7(b) under the captions
"Series A Common Stock", "Series B Common Stock" and "Series C Common Stock" is
provided pursuant to the requirements of Form T-3. However, the Issuer is
currently under the protection of the Bankruptcy Court and the owners of equity
interests in the Issuer are subject to the provisions of the Bankruptcy Code.
Under the Bankruptcy Code, all actions taken pursuant to the Plan must be
approved by order of the Bankruptcy Court and, in accordance with Section 303 of
the Delaware General Corporation Law, may then be carried out without the
necessity of any further action by any stockholder of the Issuer.
Undesignated Preferred Stock
The Undesignated Preferred Stock will have, on the basis of present
information, such terms (including voting rights), as may be determined by the
Board of Directors of the Issuer pursuant to the Second Amended and Restated
Certificate of Incorporation.
Series A Preferred Stock
As of the Effective Date, each outstanding share of the Series A Preferred
Stock will have, on the basis of present information, no right to vote, except
as required by law, provided that (i) the holders of Series A Preferred Stock
voting with the holders of Series B Common Stock and the Series C Common Stock
shall be entitled to elect a limited number of directors equal to the total
number of directors less the number of directors to be elected by the holders of
Series A Common Stock and (ii) the holders of Series A Preferred Stock shall
have the right to vote, as a separate class, on the matters set forth in Section
VIII(c) of the Certificate of Designation to be filed by the Issuer with
Secretary of State of Delaware with respect to the Series A Preferred Stock (the
"Series A Certificate of Designation"), which matters include (1) authorizing or
approving the issuance of any shares of, or of any security convertible into, or
exercisable or exchangeable for, shares of any other capital stock of the
Issuer, which shares
15
<PAGE>
rank prior to the shares of Series A Preferred Stock in the payment of dividends
or in the distribution of assets upon liquidation (complete or partial),
dissolution or winding up of the affairs of the Issuer (other than any type of
"payment in kind" securities and securities ranking on parity with the Series A
Preferred Stock, including the Senior Redeemable Preferred Stock), (2) the
granting of certain stock options, (3) except for certain permitted transfers,
consolidating or merging with or into or transferring all or substantially all
of its assets to any person or entity, (4) voluntarily liquidating, dissolving
or winding up the Issuer in the absence of a liquidation preference as provided
in the Series A Certificate of Designation, (5) effecting any acquisition
whereby the target of such acquisition would thereby directly or indirectly
acquire or own more than 25.01% of the Issuer's common stock, (6) entering into
or permitting to exist certain material transactions with affiliates, (7)
voluntarily redeeming or repurchasing any outstanding stock (except Senior
Redeemable Preferred Stock) of the Issuer unless such redemption or repurchase
is to be effected in accordance with any stock option plan or any other similar
plan or arrangement of the Issuer duly adopted by the Board of Directors or as
otherwise required by the plan, (8) declaring or paying any cash dividends on
any outstanding stock (except Senior Redeemable Preferred Stock and any other
class of capital stock of the Issuer established by the Board of Directors after
the date of the Series A Certificate of Designation, the terms of which
expressly provide that it ranks on parity with the Series A Preferred Stock as
to dividend rights) of the Issuer, except as expressly provided in the Series A
Certificate of Designation, (9) engaging in any business other than the business
currently engaged in by the Issuer and any business substantially similar or
related thereto or (10) effecting a public offering of any class of stock of the
Issuer other than shares of Series B Common Stock. Each share of Series A
Preferred Stock shall have one vote with respect to such matters and shall vote
together as a single class with the holders of Junior Stock (as defined in the
Series A Certificate of Designation), except as provided otherwise in the Series
A Certificate of Designation. The Series A Certificate of Designation provides
that any voting for directors by holders of Series A Preferred Stock, as
described above, shall be done on an as-converted basis (and provides for an
initial conversion rate of 33.33 shares of Series B Common Stock per share of
Series A Preferred Stock, subject to adjustment as therein provided).
Notwithstanding the foregoing, such voting rights shall terminate upon the
earlier of (a) the completion of a Qualified Public Offering (as defined in the
Series A Certificate of Designation) for the Series B Common Stock and (b) such
time as there is less than 20% of the Series A Preferred Stock issued on the
Issue Date (as defined in the Series A Certificate of Designation) outstanding.
Senior Redeemable Preferred Stock
As of the Effective Date, each outstanding share of the Senior Redeemable
Preferred Stock will have, on the basis of present information, no right to
vote, except as required by law, and except that, in the event that dividends
payable on the Senior Redeemable Preferred Stock shall be in arrears in an
amount equal to at least six full quarterly dividends on the Senior Redeemable
Preferred Stock at the time outstanding, the holders of the outstanding Senior
Redeemable Preferred Stock shall have the exclusive right, voting separately as
a class, to elect two directors of the Issuer at the Issuer's next annual
meeting of stockholders and at each subsequent annual meeting of stockholders,
and as otherwise provided in the Certificate of Designation to be filed by the
Issuer with Secretary of State of Delaware with respect to the Senior Redeemable
Preferred Stock.
II. NPCI.
Each outstanding share of capital stock, par value $.0001 per share, of the
Guarantor has or will have, as applicable, on the basis of current information,
one vote with respect to all matters subject to stockholder vote.
The information set forth above is provided pursuant to the requirements of
Form T-3. However, the Guarantor is currently under the protection of the
Bankruptcy Court and the stockholder that presently holds equity interests in
the Guarantor is subject to the provisions of the Bankruptcy Code. Under the
Bankruptcy Code, all actions taken pursuant to the Plan must be approved by
order of the Bankruptcy Court and, in accordance with Section 303 of the
Delaware General Corporation Law, may then be carried out without further action
by the stockholder of the Guarantor.
III. NPPI.
Each outstanding share of capital stock, par value $.0001 per share, of the
Guarantor has or will have, as applicable, on the basis of current information,
one vote with respect to all matters subject to stockholder vote.
16
<PAGE>
The information set forth above is provided pursuant to the requirements of
Form T-3. However, the Guarantor is currently under the protection of the
Bankruptcy Court and the stockholder that presently holds equity interests in
the Guarantor is subject to the provisions of the Bankruptcy Code. Under the
Bankruptcy Code, all actions taken pursuant to the Plan must be approved by
order of the Bankruptcy Court and, in accordance with Section 303 of the
Delaware General Corporation Law, may then be carried out without further action
by the stockholder of the Guarantor.
INDENTURE SECURITIES
ITEM 8. ANALYSIS OF INDENTURE PROVISIONS.
Events of Default
An Event of Default will have occurred under the terms of the Indenture
with respect to the Notes if: (1) required payments of principal (or premium, if
any) or interest with respect to the Notes are not made when due and payable
(subject to a 10-day grace period in the case of a default upon a payment of
interest and a five Business Day (as defined in the Indenture) grace period in
the case of a default upon a payment of principal or premium); (2) there is a
default in or breach of any other agreement of the Issuer in the Indenture
(subject to a 60-day grace period after notice to the Issuer by the Trustee or
by the holders of at least 33-1/3% in outstanding principal amount of the
Notes); (3) there is a default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Issuer or any of its Restricted
Subsidiaries (as defined in the Indenture) (or the payment of which is
guaranteed by the Issuer or any of its Restricted Subsidiaries), which default
results in the acceleration of such indebtedness prior to its stated final
maturity and the principal amount of any such indebtedness, together with the
principal amount of any other such indebtedness the maturity of which has been
so accelerated, aggregates $50.0 million or more; (4) the Issuer or any of its
Restricted Subsidiaries fails to pay final judgments aggregating in excess of
$50.0 million (net of any amounts with respect to which a reputable and
creditworthy insurance Issuer has acknowledged liability in writing), which
judgments are not paid, discharged or stayed for a period of 60 days; (5) the
Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary
(as defined in the Indenture) commences a voluntary case under any applicable
bankruptcy law, consents to the entry of an order for relief against it in an
involuntary case under any applicable bankruptcy law, consents to the
appointment of a custodian of it or for all or substantially all of its
property, makes a general assignment for the benefit of its creditors, or
generally is not paying its debts as they become due; or (6) a court of
competent jurisdiction enters an order or decree under any bankruptcy law that
is for relief against the Issuer or any of its Restricted Subsidiaries that is a
Significant Subsidiary in an involuntary case, appoints a custodian of the
Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or
for all or substantially all of the property of the Issuer or any of its
Restricted Subsidiaries that is a Significant Subsidiary or orders the
liquidation of the Issuer or any of its Restricted Subsidiaries that is a
Significant Subsidiary, and the order or decree remains unstayed and in effect
for 60 consecutive days.
Withholding of Notice
If a Default or Event of Default (each as defined in the Indenture) occurs
and is continuing under the Indenture with respect to the Notes, the
Trustee will give the holders of the Notes notice thereof as and to the extent
provided by the 1939 Act; provided, however, that except in the case of a
Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers (as defined in the Indenture) in good
faith determines that withholding the notice is in the interests of the holders
of the Notes.
Registration and Delivery of Notes; Application of Proceeds
The aggregate principal amount of the Notes to be issued will be determined
in accordance with the Plan and will be equal to the dollar amount of the
Allowed Claims of Senior Claimants (as such terms are defined in the Plan),
expected, on the basis of present information, to be approximately $225,117,051,
subject to adjustment in the manner provided in the Plan and subject to the
issuance of such additional Notes as the Issuer may elect to issue in payment of
interest on the Notes pursuant to the Indenture. All of the Notes issued on the
Effective Date will, as described under the caption "General - Securities Act
Exemption Applicable" in Item 2 of this Form T-3, be
17
<PAGE>
distributed to Senior Claimants in accordance with the terms of the Plan. Each
Note will be signed by the Issuer, authenticated by the Trustee, registered in
the security register by the Trustee or an agent appointed by the Issuer to act
as the transfer agent and registrar and delivered to the Senior Claimants by the
Issuer or an exchange or disbursing agent on behalf of the Issuer.
Release or Release and Substitution of any Property Subject to Lien of Indenture
The Indenture contains the general provisions for the release of collateral
from the lien of the Collateral Agent (as defined in the Indenture) in
accordance with the 1939 Act, including delivery of the certificates and
opinions of fair value as and to the extent required by Section 314(d) of the
1939 Act. The Indenture permits, among other things, subject only to the
applicable requirements of the 1939 Act, if any, the Issuer or any subsidiary of
the Issuer, at any time and from time to time, in its sole and absolute
discretion, without any other action whatsoever, to effect and consummate, or
permit or cause to be effected and consummated, any sale (including, without
limitation, the issuance of capital stock or high-yield debt securities in a
public or private transaction), exchange, transfer, pledge or any other
disposition of the Collateral under the Indenture, in whole or in part, the
execution, delivery and performance of one or more joint venture agreements by
one or more of the License Holding Subsidiaries (as defined in the Indenture)
(or by the Issuer or any subsidiary of the Issuer that owns any capital stock in
any respective License Holding Subsidiary), the merger, consolidation or other
business combination of any nature of a License Holding Subsidiary with any
other person or entity, or any other similar such transaction, subject to a
requirement that (with certain exceptions), the Issuer shall cause cash in an
amount equal to the Net Proceeds (as defined in the Indenture) from such
transaction allocable to the Collateral under the Indenture, if any, to be
delivered and pledged to the Collateral Agent upon the closing of such
transaction or otherwise apply the Net Proceeds in accordance with the
provisions of the Indenture. The Indenture also provides that the Trustee and
the Collateral Agent shall take, or cause to be taken, any action reasonably
requested by the Issuer to release any and all liens in connection with such a
transaction in accordance with the terms and conditions of the Security
Documents (as defined in the Indenture).
Satisfaction and Discharge of Indenture
The Applicants may satisfy and discharge the Indenture (subject to certain
surviving obligations) if (1) all securities previously authenticated and
delivered (with certain exceptions) have been delivered to the Trustee for
cancellation, or all such securities not so delivered have become due and
payable, or will become due and payable or will be called for redemption within
one year, and the Issuer has deposited in trust with the Trustee an amount
sufficient to pay and discharge the entire indebtedness on such securities, (2)
the Issuer has paid all other sums payable under the Indenture by the Issuer and
(3) the Issuer has delivered to the Trustee an officer's certificate and an
opinion of counsel, each stating that all conditions precedent in the Indenture
relating to such satisfaction and discharge have been satisfied.
The Applicants may effect a legal defeasance (i.e., the discharge of
certain of its obligations under the Indenture, including the indebtedness
represented by the Notes), or covenant defeasance (i.e., the release of certain
covenant obligations of the Issuer under the Indenture) with respect to the
Notes upon the satisfaction of certain conditions, including (1) the deposit by
the Issuer with the Trustee in trust for the benefit of the holders of Notes of
sufficient money, non-callable Government Securities (as defined in the
Indenture) or a combination thereof to pay the principal of and any premium and
interest on the Notes when the same shall be due, and (2) the delivery of
certain prescribed opinions of counsel, including an opinion with respect to
certain federal income tax matters.
Evidence Required to be Furnished by the Obligor Upon the
Indenture Securities to the Trustee as to Compliance
with the Conditions and Covenants Provided for in the Indenture
The Issuer will deliver to the Trustee an annual officers' certificate
stating whether or not the Issuer is in default in the performance and
observance of any of the terms, provisions and conditions of the Indenture and,
if the Issuer is in default, specifying all such defaults and the nature and
status thereof.
ITEM 9. OTHER OBLIGORS.
None.
18
<PAGE>
Contents of Application for Qualification. This Application for Qualification
Comprises -
(a) Pages number 1 to 22, consecutively.
(b) The statement of eligibility and qualification on Form T-1 of the
trustee under the indenture to be qualified (filed herewith).
(c) The following exhibits in addition to those filed as part of the
statement of eligibility and qualification of the trustee:
Exhibit T3A-1 Amended and Restated Certificate of Incorporation
of the Issuer, as in effect on the date of filing
hereof (previously filed).
Exhibit T3A-2 Form of Second Amended and Restated Certificate of
Incorporation of the Issuer, to be filed with the
Secretary of State of the State of Delaware and to
become effective as of the Effective Date (filed
herewith).
Exhibit T3A-3 Certificate of Incorporation of NPCI, as in effect
on the date of filing hereof (filed herewith).
Exhibit T3A-4 Certificate of Incorporation of NPPI, as in effect
on the date of filing hereof (filed herewith).
Exhibit T3B-1 Restated Bylaws of the Issuer, as in effect on the
date of filing hereof (previously filed).
Exhibit T3B-2 Form of Amended and Restated Bylaws of the Issuer
to become effective as of the Effective Date
(filed herewith).
Exhibit T3B-3 Bylaws of NPCI, as in effect on the date of filing
hereof (filed herewith).
Exhibit T3B-4 Bylaws of NPPI, as in effect on the date of filing
hereof (filed herewith).
Exhibit T3C Indenture, to be dated as of the Effective Date,
between the Issuer and Norwest Bank Minnesota,
National Association, as Trustee, in the form to
be qualified, including an itemized table of
contents showing the articles, sections and
subsections of the Indenture, together with the
subject matter thereof and the pages on which they
appear (filed herewith).
Exhibit T3D Not applicable.
Exhibit T3E-1 Debtors' First Amended Joint Disclosure Statement
Pursuant to Section 1125 of the Bankruptcy Code
dated July 27, 1999 (previously filed).
Exhibit T3E-2 Form of ballot (filed herewith).
Exhibit T3E-3 Notice of confirmation hearing (filed herewith).
Exhibit T3E-4 Notice of adjourned hearing on confirmation (filed
herewith).
19
<PAGE>
Exhibit T3F A cross reference sheet showing the location in
the Indenture of the provisions inserted therein
pursuant to Section 310 through 318(a), inclusive,
of the 1939 Act (filed herewith).
Exhibit 99.1 Form of Exchange Rights Agreement (filed
herewith).
20
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Applicants, each of NextWave Telecom Inc., NextWave Personal
Communications Inc. and NextWave Power Partners Inc., each a corporation
organized and existing under the laws of Delaware, has duly caused this
Amendment No. 1 to Application on Form T-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, and its seal to be hereunto affixed and
attested, all in the City of Hawthorne, and State of New York, as of the 21st
day of September, 1999.
(Seal) NEXTWAVE TELECOM INC.
By: /s/ Allen B. Salmasi
----------------------------------------
Name: Allen B. Salmasi
Title: President and Chief Executive Officer
Attest: /s/ Frank A. Cassou
------------------------------
Name: Frank A. Cassou
Title: Executive Vice President,
Corporate Development,
General Counsel and Secretary
(Seal) NEXTWAVE PERSONAL COMMUNICATIONS INC.
By: /s/ Allen B. Salmasi
---------------------------------------
Name: Allen B. Salmasi
Title: President and Chief Executive Officer
Attest: /s/ Frank A. Cassou
------------------------------
Name: Frank A. Cassou
Title: Secretary
(Seal) NEXTWAVE POWER PARTNERS INC.
By: /s/ Allen B. Salmasi
---------------------------------------
Name: Allen B. Salmasi
Title: President and Chief Executive Officer
Attest: /s/ Frank A. Cassou
------------------------------
Name: Frank A. Cassou
Title: Secretary
21
<PAGE>
Exhibit Index
Exhibit No. Exhibit
- ----------- -------
Exhibit 25 Statement of Eligibility and Qualification of Trustee on
Form T-1 (filed herewith).
Exhibit T3A-1 Amended and Restated Certificate of Incorporation of the
Issuer, as in effect on the date of filing hereof
(previously filed).
Exhibit T3A-2 Form of Second Amended and Restated Certificate of
Incorporation of the Issuer, to be filed with the Secretary
of State of the State of Delaware and to become effective as
of the Effective Date (filed herewith).
Exhibit T3A-3 Certificate of Incorporation of NPCI, as in effect on the
date of filing hereof (filed herewith).
Exhibit T3A-4 Certificate of Incorporation of NPPI, as in effect on the
date of filing hereof (filed herewith).
Exhibit T3B-1 Restated Bylaws of the Issuer, as in effect on the date of
filing hereof (previously filed).
Exhibit T3B-2 Form of Amended and Restated Bylaws of the Issuer
to become effective as of the Effective Date (filed
herewith).
Exhibit T3B-3 Bylaws of NPCI, as in effect on the date of filing hereof
(filed herewith).
Exhibit T3B-4 Bylaws of NPPI, as in effect on the date of filing hereof
(filed herewith).
Exhibit T3C Indenture, to be dated as of the Effective Date, between the
Issuer and Norwest Bank Minnesota, National Association, as
Trustee, in the form to be qualified, including an itemized
table of contents showing the articles, sections and
subsections of the Indenture, together with the subject
matter thereof and the pages on which they appear (filed
herewith).
Exhibit T3D Not applicable.
Exhibit T3E-1 Debtors' First Amended Joint Disclosure Statement Pursuant
to Section 1125 of the Bankruptcy Code dated July 27, 1999
(previously filed).
Exhibit T3E-2 Form of ballot (filed herewith).
Exhibit T3E-3 Notice of confirmation hearing (filed herewith).
Exhibit T3E-4 Notice of adjourned hearing on confirmation (filed
herewith).
Exhibit T3F A cross reference sheet showing the location in the
Indenture of the provisions inserted therein pursuant to
Section 310 through 318(a), inclusive, of the 1939 Act
(filed herewith).
Exhibit 99.1 Form of Exchange Rights Agreement (filed herewith).
22
================================================================================
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)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A U.S. NATIONAL BANKING ASSOCIATION 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
SIXTH STREET AND MARQUETTE AVENUE
Minneapolis, Minnesota 55479
(Address of principal executive offices) (Zip code)
Stanley S. Stroup, General Counsel
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(612) 667-1234
(Agent for Service)
-----------------------------
NEXTWAVE TELECOM INC.
(Exact name of obligor as specified in its charter)
DELAWARE 33-0663509
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3 SKYLINE DRIVE
HAWTHORNE, NEW YORK 10532
(Address of principal executive offices) (Zip code)
-----------------------------
12% SENIOR SECURED SUBORDINATED NOTES DUE 2009
(Title of the indenture securities)
================================================================================
<PAGE>
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
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
The Board of Governors of the Federal Reserve
System Washington, D.C.
(b) Whether it is authorized to exercise corporate
trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is
not in default as provided under Item 13.
Item 15. Foreign Trustee. Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as a part of this
Statement of Eligibility. Norwest Bank
incorporates by reference into this Form T-1 the
exhibits attached hereto.
Exhibit 1.a. A copy of the Articles of Association of the
trustee now in effect.*
Exhibit 2. a. A copy of the certificate of authority
of the trustee to commence business
issued June 28, 1872, by the Comptroller
of the Currency to The Northwestern
National Bank of Minneapolis.*
b. A copy of the certificate of the
Comptroller of the Currency dated
January 2, 1934, approving the
consolidation of The Northwestern
National Bank of Minneapolis and The
Minnesota Loan and Trust Company of
Minneapolis, with the surviving entity
being titled Northwestern National Bank
and Trust Company of Minneapolis.*
c. A copy of the certificate of the Acting
Comptroller of the Currency dated
January 12, 1943, as to change of
corporate title of Northwestern National
Bank and Trust Company of Minneapolis to
Northwestern National Bank of
Minneapolis.*
<PAGE>
d. A copy of the letter dated May 12, 1983
from the Regional Counsel, Comptroller
of the Currency, acknowledging receipt
of notice of name change effective May
1, 1983 from Northwestern National Bank
of Minneapolis to Norwest Bank
Minneapolis, National Association.*
e. A copy of the letter dated January 4,
1988 from the Administrator of National
Banks for the Comptroller of the
Currency certifying approval of
consolidation and merger effective
January 1, 1988 of Norwest Bank
Minneapolis, National Association with
various other banks under the title of
"Norwest Bank Minnesota, National
Association."*
Exhibit 3. A copy of the authorization of the trustee to
exercise corporate trust powers issued January 2,
1934, by the Federal Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section
321(b) of the Act.
Exhibit 7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.**
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
* Incorporated by reference to exhibit number 25 filed with registration
statement number 33-66026.
** Incorporated by reference to exhibit number 25 filed with registration
statement number 333-83117
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, Norwest Bank Minnesota, 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 to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Minneapolis and State of Minnesota on the 20th day of August 1999.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Timothy P. Mowdy
----------------------------------
Timothy P. Mowdy
Corporate Trust Officer
<PAGE>
EXHIBIT 6
August 20, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities
authorized to make such examination may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Timothy P. Mowdy
---------------------------------------
Timothy P. Mowdy
Corporate Trust Officer
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
NEXTWAVE TELECOM INC.
NEXTWAVE TELECOM INC. (the "Corporation"), a corporation duly
incorporated by the filing of its original Certificate of Incorporation (the
"Original Certificate of Incorporation") with the Secretary of State of the
State of Delaware on May 16, 1995, as heretofore amended, desiring to amend and
restate said Original Certificate of Incorporation, as heretofore amended, and
such amended and restated Certificate of Incorporation having been duly adopted
in accordance with Sections 245 and 303 of the General Corporation Law of the
State of Delaware, as amended (the "DGCL"), hereby certifies as follows:
1. The name of the Corporation is NextWave Telecom Inc., the same name under
which the Corporation was originally incorporated. The Original Certificate of
Incorporation was amended by that certain Restated Certificate of Incorporation
filed on __________, and by that certain Amended and Restated Certificate of
Incorporation filed on August 5, 1997.
2. This Second Amended and Restated Certificate of Incorporation amends and
restates the Original Certificate of Incorporation, as amended to date, and has
been duly adopted in accordance with Sections 242, 245 and 303 of the DGCL,
pursuant to the authority granted to the Corporation under Section 303 of the
DGCL to put into effect and carry out the Debtors' First Amended Joint Plan of
Reorganization under Chapter 11 of Title 11 of the United States Code (the
"Bankruptcy Code") for the Corporation, et al. (the "Plan"), as confirmed on
___________ __, 1999 by order of the United States Bankruptcy Court for the
Southern District of New York (the "Bankruptcy Court"). Provision for the making
of this Second Amended and Restated Certificate of Incorporation is contained in
the order of the Bankruptcy Court having jurisdiction under the Bankruptcy Code
for the reorganization of the Corporation.
3. The text of the Amended and Restated Certificate of Incorporation is hereby
restated to read as herein set forth in full:
Article I.
The name of the Corporation is NextWave Telecom Inc. (hereinafter referred to as
the "Corporation").
Article II.
The address of the Corporation's registered office in the State of Delaware is
1013 Centre Road, Wilmington, County of New Castle, Delaware. The name of the
registered agent of the Corporation at such address is Corporation Service
Company.
1
<PAGE>
Article III.
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware, as amended (the "DGCL").
Article IV.
1. Authorized Shares. The total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue is 1,011,019,444 shares,
consisting of:
a. 60,000,000 shares of Series A Common Stock, par value $0.0001 per share
(the "Series A Common Stock");
b. 900,000,000 shares of Series B Common Stock, par value $0.0001 per share
(the "Series B Common Stock");
c. 1,019,444 shares of Series C Common Stock, par value $0.0001 per share
(the "Series C Common Stock", and together with the Series A Common Stock
and, the Series B Common Stock, the "Common Stock"); and
d. 50,000,000shares of undesignated Preferred Stock, par value $0.01 per
share (the "Undesignated Preferred Stock"; the Undesignated Preferred Stock
and the Common Stock collectively referred to herein as the "Capital
Stock").
2. Designations, Preferences, etc. The designations, preferences, powers,
qualifications, and special or relative rights, or privileges of the capital
stock of the Corporation shall be as set forth in Article V and Article IX
below.
Article V.
The Board of Directors of the Corporation (the "Board of Directors") has fixed
and determined the powers, preferences, rights, and restrictions of, and other
matters relating to, the Corporation's Common Stock as follows:
1. Voting.
Series A Common Stock. The holders of shares of Series A Common Stock shall
have the right to vote for all purposes provided by law, provided, however,
that the number of directors which the holders of shares of Series A Common
Stock shall be entitled to elect shall be limited as more fully described
in Article VI hereof, and provided further, that the holders of Series A
Common Stock shall have the right to vote, as a separate class, on the
matters set forth in Article VII hereof. With respect to matters on which
the holders of Series A Common Stock may vote, each holder of Series A
Common Stock shall be entitled to one vote for each share thereof held.
2
<PAGE>
Series B Common Stock. The holders of shares of Series B Common Stock shall
have no right to vote, except as required by law, provided, however, that
the holders of Series B Common Stock and the holders of Series C Common
Stock (and any other class or series of Preferred Stock to the extent
provided in certificates of designation filed by the Corporation with the
Secretary of State of Delaware), voting as a class, shall be entitled to
elect a limited number of directors as more fully described in Article VI
hereof, and provided further, that the holders of Series B Common Stock
voting with the holders of Series C Common Stock shall have the right to
vote, as a separate class on the matters set forth in Article VII hereof.
Notwithstanding the foregoing and the limitations set forth in Articles VI
and VII hereof, upon the Termination Date, as defined below in Section 5,
each holder of Series B Common Stock shall be entitled to one (1) vote per
share upon any and all matters submitted to the stockholders of the
Corporation for a vote.
Series C Common Stock. The holders of shares of Series C Common Stock shall
have no right to vote, except as required by law, provided, however, that
the holders of Series C Common Stock voting with the holders of Series B
Common Stock shall be entitled to elect a limited number of directors as
more fully described in Article VI hereof, and provided further, that the
holders of Series C Common Stock voting with the holders of Series B Common
Stock shall have the right to vote, as a separate class, on the matters set
forth in Article VII hereof. Notwithstanding the foregoing and the
limitations set forth in Article VI and VII hereof, upon the Termination
Date, as defined below in Section 4, each holder of Series C Common Stock
shall be entitled to one (1) vote per share upon any and all matters
submitted to the stockholders of the Corporation for a vote.
Action Without a Meeting. Unless otherwise provided herein or the
Corporation's Bylaws, any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the actions so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted;
provided, however, that at least 48 hours prior written notice, stating the
action sought to be taken, the Corporation's reasons therefor and the date
by which such written consent is to be effected, shall be provided to each
stockholder entitled to execute such written consent as herein provided,
with such notice given either personally or by facsimile or telegram (but
not by mail). Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. Such consent shall be filed
with the Minutes of Proceedings of the stockholders and shall have the same
force and effect as the unanimous vote of stockholders.
3
<PAGE>
2. Liquidation Preference. Except to the extent otherwise required by
applicable regulations of the Federal Communications Commission (the
"FCC"), as codified or otherwise adopted in decisions or orders of the FCC
from time to time, in the event of any liquidation, dissolution or winding
up of the Corporation, either voluntary or involuntary, after distribution
in full of the preferential amounts, if any, to be distributed to the
holders of shares of the Preferred Stock, the holders of Common Stock shall
receive such amounts as set forth below:
The holders of shares of Series B Common Stock shall be entitled to receive
out of funds legally available therefor, prior and in preference to any
distribution of any of the assets of the Corporation to the holders of
shares of Series A Common Stock and the holders of shares of Series C
Common Stock by reason of their ownership thereof, an amount per share
equal to the sum of (i) the price originally paid to the Corporation by
such holders (as such amount may be adjusted to reflect recapitalizations
and splits of such Series B Common Stock) for each outstanding share of
Series B Common Stock and (ii) an amount equal to declared but unpaid
dividends on such shares (collectively, the "Series B Preference"). If,
upon the occurrence of such event, the assets and funds thus distributed
among all the holders of Series B Common Stock shall be insufficient to
permit the payment to such holders of the full Series B Preference, then
the entire assets and funds of the Corporation legally available for
distribution shall be distributed ratably among the holders of Series B
Common Stock.
Upon payment in full of the Series B Preference, if assets remain in the
Corporation, the holders of Series C Common Stock shall be entitled to
receive out of funds legally available therefor an amount per share equal
to the sum of (i) the price originally paid to the Corporation by such
holders (as such amount may be adjusted to reflect recapitalizations and
splits of such Series C Common Stock) for each outstanding share of Series
C Common Stock and (ii) an amount equal to declared but unpaid dividends on
such shares (collectively, the "Series C Preference"). If the assets and
funds available for distribution among all the holders of Series C Common
Stock shall be insufficient to permit the payment to such holders of the
full Series C Preference, then the assets and funds of the Corporation
legally available for distribution shall be distributed ratably among the
holders of Series C Common Stock.
Upon payment in full of the Series B Preference and the Series C
Preference, if assets remain in the Corporation, the holders of Series A
Common Stock shall be entitled to receive out of funds legally available
therefor an amount per share equal to the sum of (i) the price originally
paid to the Corporation by such holders (as such amount may be adjusted to
reflect recapitalizations and splits of such Series A Common Stock) for
each outstanding share of Series A Common Stock and (ii) an amount equal to
declared but unpaid dividends on such shares (collectively, the "Series A
Preference"). If the assets and funds available for distribution among all
the holders of Series A Common Stock shall be insufficient to permit the
payment to such holders of the full Series A Preference, then the assets
and funds of the Corporation legally available for distribution shall be
distributed ratably among the holders of Series A Common Stock.
4
<PAGE>
Thereafter, the assets and funds which remain in the Corporation, if any,
shall be distributed ratably on a per share basis among the holders of
shares of Series A Common Stock, Series B Common Stock, and Series C Common
Stock. In the event of any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made to holders of other shares of
capital stock of the Corporation.
Neither the consolidation, merger or other business combination of the
Corporation with or into any other person or persons nor the sale, lease,
exchange or conveyance of less than all or substantially all of the
property, assets or business of the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for purposes of
this Article V, Section 2.
3. Dividend Rights. Except to the extent otherwise required by applicable
regulations of the FCC, as codified, or otherwise adopted in decisions or
orders of the FCC from time to time, as and when dividends are declared and
paid by the Corporation, whether in cash, property or securities of the
Corporation, the holders of Series A Common Stock and the holders of Series
B Common Stock shall be entitled to participate in such dividends ratably
on a per share basis in preference to the holders of shares of Series C
Common Stock and any other shares of common stock of the Corporation.
4. Conversion. The shares of Series A Common Stock and the shares of Series C
Common Stock shall be convertible into shares of Series B Common Stock at
the times and in the manner set forth below:
a. Special Definitions. For purposes of this Section 4 only, the
following definitions shall apply:
"Additional Shares of Capital Stock" shall mean all shares of Common Stock
and Preferred Stock (collectively, "Capital Stock") issued (or deemed to be
issued pursuant to Section 4.f) by the Corporation, other than shares of
Series B Common Stock issued or issuable or deemed to be issued:
1) upon conversion of shares of Series A Common Stock, including the
issuance of Control Group Warrants, as defined below, and upon the
exercise of Control Group Warrants;
2) upon conversion of shares of Series C Common Stock;
3) as a result of an adjustment made pursuant to subsection g hereof;
4) as a result of an adjustment made pursuant to subsection h hereof; or
5
<PAGE>
5) as a dividend or distribution on shares of Series A Common Stock or
Series B Common Stock for which an adjustment is made pursuant to
subsection g hereof.
"Control Group" shall mean the holders of Series A Common Stock all of whom
are required, under applicable FCC rules and regulations, to beneficially
own the Required Percentage Interest, as defined below, and to control at
least fifty and one-tenth percent (50.1%) of the voting power of the
Corporation.
"Control Group Warrant" shall mean a warrant to purchase one share of
Series B Common Stock at the Fair Market Price as of the date of the
Control Group Warrant issuance, which warrant shall be exercisable until
the Termination Date.
"Convertible Securities" shall mean any evidence of indebtedness, shares or
other securities convertible into or exchangeable for (whether subject to
the occurrence of a condition or otherwise) shares of Common Stock.
"Dilutive Issuance" shall mean an issuance of Additional Shares of Capital
Stock, which issuance, in the absence of an automatic conversion of shares
of Series A Common Stock or issuance of Control Group Warrants pursuant to
Section 4.b hereof, would cause the aggregate equity interest in the
Corporation of the Control Group or the Qualifying Principals to fall below
the Required Percentage Interest, as defined below.
"Fair Market Price" shall mean the Market Price of the Series B Common
Stock as of the date at which the relevant Dilutive Issuance occurs.
"License Grant Date" shall mean the date when the FCC grants the last of
the C-Block or F-Block licenses to the Corporation or a Subsidiary of the
Corporation. For purposes of this definition, C-Block license means a
license awarded by the FCC in the FCC's C-Block auction restricted to
entities meeting certain financial and other criteria, and F-Block license
means a license awarded by the FCC in the FCC's F-Block auction restricted
to entities meeting certain financial and other criteria.
"Market Price" shall mean (i) with respect to Series B Common Stock, if
such security is listed on one or more stock exchanges or quoted on the
National Market System or Small Cap Market of NASDAQ (the "NASDAQ Market"),
the average of the closing or last reported sales prices of a share of
Series B Common Stock on the primary national or regional stock exchange on
which such security is listed or on the NASDAQ Market if quoted thereon or
(ii) if the Series B Common Stock is not so listed or quoted but is traded
in the over-the-counter market (other than the NASDAQ Market), the average
of the closing bid and asked prices of a share of such Series B Common
Stock, in each case quoted for the 30 Business Days (or such lesser number
of Business Days as such Series B Common Stock shall have been so listed,
quoted or traded) next preceding the date of measurement; provided,
6
<PAGE>
however, that if no such sales price or bid and asked prices have been
quoted during the preceding 30-day period or there is otherwise no
established trading market for such security, then "Market Price" means the
value of such Series B Common Stock as determined by the Board of Directors
of the Corporation in its sole discretion and in good faith following
consultation with an investment banker of national standing, which
determination shall be final and binding; and provided, further, however,
that in the event the current market price of a share of such Series B
Common Stock is determined during a period following the announcement by
the Corporation of (x) a dividend or distribution on the Series B Common
Stock payable in shares of Series B Common Stock, or (y) any subdivision,
combination or reclassification of the Series B Common Stock, and prior to
the expiration of 30 Business Days after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the "Market
Price" shall be appropriately adjusted to take into account ex-dividend
trading. Anything herein to the contrary notwithstanding, in case the
Corporation shall issue any shares of Series B Common Stock, rights,
options or other securities in connection with the acquisition by the
Corporation of the stock or assets of any other person or entity or the
merger of any other person or entity into the Corporation, the Market Price
of the Series B Common Stock so issued shall be determined as of the date
the number of shares of Series B Common Stock, rights, options or other
securities was determined (as set forth in a written agreement between the
Corporation and the other party to the transaction) rather than on the date
of issuance of such shares of Series B Common Stock, rights, options or
other securities.
"Minimum Ownership Requirements" shall mean the three thousand (3,000)
shares of Series A Common Stock which the Control Group collectively shall
maintain in order to comply with the regulations of the FCC until the
Termination Date, as defined below.
"Options" shall mean rights, options or warrants to subscribe for, purchase
or otherwise acquire (whether subject to the occurrence of a condition or
otherwise) either shares of Common Stock or Convertible Securities.
"Qualified Public Offering" shall mean a firm commitment underwritten
public offering of the Series B Common Stock pursuant to an effective
registration statement under the Securities Act of 1933, as amended, in
which the aggregate price paid by the public is (i) at least $4.50 per
share (provided that in the event the Corporation shall effect any stock
dividend, stock split, reverse stock split or other combination of shares
of common stock, recapitalization, reclassification, merger, consolidation
or exchange offer, or similar events and transactions, then, and in each
such case, such minimum price per share in effect immediately prior to such
event or transaction or the record date therefor, whichever is earlier,
shall be appropriately adjusted as determined by the Board of Directors);
and (ii) no less than $200 million, subject to reduction of such amount by
the Board of Directors (provided that such amount may not be reduced by the
7
<PAGE>
Board of Directors without the affirmative vote at a meeting or the written
consent with or without a meeting of, in each case, no less than two (2) of
the Series B Directors).
"Qualifying Principals" shall mean those members of the Control Group
designated as such to the FCC from time to time.
"Required Percentage Interest" shall mean a twenty-five percent (25%)
aggregate equity interest in the Corporation, on a fully-diluted basis,
required hereunder to be held by the Control Group for a period of three
(3) years from the License Grant Date, of which the Qualifying Principals
are required to hold a fifteen percent (15%) aggregate equity interest, and
thereafter at all times prior to the Termination Date shall mean a ten
percent (10%) aggregate equity interest in the Corporation, on a fully
diluted basis, required hereunder to be held by the Qualifying Principals.
"Series A Conversion Ratio" shall mean the ratio at which shares of Series
A Common Stock shall convert (i) as provided in Sections 4.b.(1) and 4.c
below, into shares of Series B Common Stock and Control Group Warrants
which shall be initially at a ratio of one share of Series B Common Stock
and one Control Group Warrant to one share of Series A Common Stock and
(ii) as provided in Section 4.b.(2), into shares of Series B Common Stock,
which shall be initially at a ratio of one share of Series B Common Stock
to one share of Series A Common Stock.
"Series C Conversion Ratio" shall mean the ratio at which shares of Series
C Common Stock shall convert into shares of Series B Common Stock which
shall be initially at a ratio of one share of Series B Common Stock to one
share of Series C Common Stock.
"Subsidiary" shall mean NextWave Personal Communications, Inc., a Delaware
corporation and/or any other corporation which will hold one or more
C-Block or F-Block licenses and the majority of the capital stock of which
is owned directly or indirectly by the Corporation.
"Termination Date" shall mean ten years after the License Grant Date.
b. Automatic Conversion of Series A Common Stock; Automatic Issuance of
Control Group Warrants.
(1) In the event of a Dilutive Issuance, the Corporation shall convert at
the Series A Conversion Ratio for no consideration a number of shares of
Series A Common Stock held by the Control Group into shares of Series B
Common Stock and Control Group Warrants such that (i) prior to the third
anniversary of the License Grant Date, the number of shares of Series A
Common Stock held by the Control Group when added to the number of shares
of Series B Common Stock and Control Group Warrants held by the Control
Group, in the aggregate, equals the Required Percentage Interest and (ii)
thereafter until the Termination Date, the number of shares of Series A
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Common Stock held by the Qualifying Principals when added to the number of
shares of Series B Common Stock and Control Group Warrants held by the
Qualifying Principals, in the aggregate equals the Required Percentage
Interest. Such conversions shall be effected on a pro rata basis among all
holders of shares of Series A Common Stock. Upon conversion of shares of
Series A Common Stock pursuant to this Section 4.b.(1), any accrued but
unpaid dividends with respect to the shares of Series A Common Stock so
converted shall be due and payable in full. Notwithstanding the foregoing
provisions of this Section 4.b.(1), there shall be no conversion prior to
the Termination Date of the shares of Series A Common Stock constituting
the Minimum Ownership Requirement. In the event of a Dilutive Issuance
subsequent to the conversion of all shares (except the shares comprising
the Minimum Ownership Requirement) of Series A Common Stock held by the
Control Group as set forth above, prior to the third anniversary of the
License Grant Date, the Control Group shall be issued, and thereafter until
the Termination Date, the Qualifying Principals shall be issued, on a pro
rata basis (based upon their ownership of Series A Common Stock) and at no
additional consideration, Control Group Warrants in an amount sufficient to
maintain the Required Percentage Interest.
(2) Upon the Termination Date, except to the extent otherwise required by
applicable regulations of the FCC, as codified or otherwise adopted in
decisions or orders of the FCC from time to time, all shares of Series A
Common Stock, including the shares constituting the Minimum Ownership
Requirement, shall be converted at the applicable Series A Conversion Ratio
into fully paid and non-assessable shares of Series B Common Stock. The
Series A Conversion Ratio shall be subject to adjustment as set forth
below. Upon conversion of the Series A Common Stock pursuant to this
Section 4.b.(2), any declared but unpaid dividends with respect to the
shares of Series A Common Stock so converted shall be due and payable in
full.
c. Voluntary Conversion of Series A Common Stock. From and after the
closing of a Qualified Public Offering and upon the approval of a
majority in interest of the holders of the Series A Common Stock, all
or part of the shares of Series A Common Stock shall, subject to the
Minimum Ownership Requirement, convert at the applicable Series A
Conversion Ratio, on a pro rata basis, at no consideration, into fully
paid and non-assessable shares of Series B Common Stock. Upon any such
conversion, any declared but unpaid dividends with respect to the
shares of Series A Common Stock so converted shall be due and payable
in full.
d. Conversion of Series C Common Stock. Any holder of shares of Series C
Common Stock may convert at the Series C Conversion Ratio, at no
consideration, all or part of its shares of Series C Common Stock into
fully paid and non-assessable shares of Series B Common Stock (i) from
and after the first anniversary of the License Grant Date, (ii)
immediately prior to a change in control, whether by consolidation,
merger or the sale or issuance of securities of the Corporation, which
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will result in the Corporation's shareholders immediately prior to
such transaction not holding (by virtue of such shares or securities
issued solely with respect thereto) at least fifty percent (50%) of
the voting power of the surviving or continuing entity or (iii)
immediately prior to the closing of the sale, lease, exchange or
conveyance of all or substantially all of the property, assets or
business of the Corporation. Immediately prior to a Qualified Public
Offering, any and all unconverted shares of Series C Common Stock
shall convert, at the Series C Conversion Ratio, into shares of Series
B Common Stock. Upon any conversion pursuant to this paragraph (d),
any accrued but unpaid dividends with respect to the shares of Series
C Common Stock so converted shall be due and payable in full.
e. Mechanics of Conversion.
(1) Upon the conversion of shares of Series A Common Stock as set forth in
Sections 4.b and 4.c, above, the Corporation shall, as soon as practicable
thereafter, issue and deliver to such holder, or to the nominee or nominees
of such holder, a certificate or certificates for the number of shares of
Series B Common Stock rounded to the nearest whole share and, if
applicable, a Control Group Warrant to which such holder shall be entitled.
Upon such conversion, the person(s) entitled to receive the shares of
Series B Common Stock shall be treated for all purposes as the record
holder or holders of such shares of Series B Common Stock as of such date.
No fractional shares of Series B Common Stock shall be issued upon
conversion of shares of Series A Common Stock.
(2) Upon conversion of shares of Series C Common Stock as set forth in
Section 4.d above, the Corporation shall, as soon as practicable
thereafter, issue and deliver to such holder, or to the nominee or nominees
of such holder, a certificate or certificates for the number of shares of
Series B Common Stock to which such holder shall be entitled, rounded to
the nearest whole share. Upon such conversion, the person(s) entitled to
receive the shares of Series B Common Stock shall be treated for all
purposes as the record holder or holders of such shares of Series B Common
Stock as of such date. No fractional shares of Series B Common Stock shall
be issued upon conversion of shares of Series C Common Stock.
f. Options and Convertible Securities. In the event the Corporation at
any time or from time to time after the License Grant Date shall issue
any Options or Convertible Securities or shall fix a record date for
the determination of holders of any class of securities entitled to
receive any such Options or Convertible Securities, then the maximum
number of shares (as set forth in the instrument relating thereto
without regard to any provisions contained therein for a subsequent
adjustment of such number) of Common Stock issuable upon the exercise
of such Options or, in the case of Convertible Securities and Options
therefore, the maximum number of shares issuable upon the conversion
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or exchange of such Convertible Securities, shall be deemed to be
issued as of the time of such issue or, in case such a record date
shall have been fixed, as of the close of business on such record
date, provided that in any such case in which shares of Series B
Common Stock are deemed to be issued:
(1) no further shares of Series B Common Stock shall be deemed to be issued
upon the subsequent issuance of shares of Series B Common Stock upon the
exercise of such Options or conversion or exchange of such Convertible
Securities; and
(2) if such Options or Convertible Securities by their terms provide, with
the passage of time or otherwise, for any increase in the number of shares
of Series B Common Stock issuable upon the exercise, conversion or exchange
thereof, the calculation of the number of additional shares of Series B
Common Stock to be deemed to be issued to the holders of Series B Common
Stock hereunder shall, upon any such increase becoming effective, be
recomputed by the Board of Directors to reflect such increase.
(3) Upon the expiration of the right to convert, exchange or exercise any
such Options or Convertible Securities, the issuance of which resulted in
an increase in the number of shares of Series B Common Stock, if any such
Options or Convertible Securities shall not have been converted, exercised
or exchanged, the number of shares of Series B Common Stock shall be
decreased as appropriate by the Board of Directors.
g. Adjustments for Subdivisions, Dividends, Combinations or
Consolidations affecting the Series A Conversion Ratio.
(1) In the event the outstanding shares of Series A Common Stock or Series
B Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Series A Common Stock and
Series B Common Stock, respectively, the Series A Conversion Ratio in
effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation,
be proportionately increased or decreased as appropriate by the Board of
Directors.
(2) In the event the Corporation shall declare or pay any dividend on the
Series A Common Stock payable in shares of Series A Common Stock or on the
Series B Common Stock payable in shares of Series B Common Stock or on the
Preferred Stock payable in Common Stock, Options or Convertible Securities
or in the event the outstanding shares of Series B Common Stock shall be
subdivided, by reclassification or otherwise than by payment of a dividend
in Series A Common Stock or Series B Common Stock, respectively, into a
greater number of shares of Series A Common Stock or Series B Common Stock,
respectively, the Series A Conversion Ratio in effect immediately prior to
such dividend or subdivision shall be proportionately decreased or
increased as appropriate by the Board of Directors, (1) in the case of any
such dividend immediately after the close of business on the record date
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for the determination of holders of any class of securities entitled to
receive such dividend, (2) in the case of any such subdivision, at the
close of business on the date immediately prior to the date upon which such
corporate action becomes effective. If such record date shall have been
fixed and such dividend shall not have been fully paid on the date fixed
therefor, the adjustment previously made in the Series A Conversion Ratio
which became effective on such record date shall be canceled as of the
close of business on such record date, and thereafter the Series A
Conversion Ratio shall be adjusted as of the time of actual payment of such
dividend.
h. Adjustments for Subdivisions, Dividends, Combinations or
Consolidations affecting the Series C Conversion Ratio.
(1) In the event the outstanding shares of Series C Common Stock or Series
B Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Series C Common Stock or
Series B Common Stock, respectively, the Series C Conversion Ratio in
effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation,
be proportionately increased or decreased as appropriate by the Board of
Directors.
(2) In the event the Corporation shall declare or pay any dividend on the
Series C Common Stock payable in shares of Series C Common Stock or on the
Series B Common Stock payable in shares of Series B Common Stock or on the
Preferred Stock payable in Common Stock, Options or Convertible Securities
or in the event the outstanding shares of Series B Common Stock shall be
subdivided, by reclassification or otherwise than by payment of a dividend
in Series C Common Stock or Series B Common Stock, respectively, into a
greater number of shares of Series C Common Stock or Series B Common Stock,
respectively, the Series C Conversion Ratio in effect immediately prior to
such dividend or subdivision shall be proportionately decreased or
increased as appropriate by the Board of Directors, (1) in the case of any
such dividend, immediately after the close of business on the record date
for the determination of holders of any class of securities entitled to
receive such dividend, or (2) in the case of any such subdivision, at the
close of business on the date immediately prior to the date upon which such
corporate action becomes effective. If such record date shall have been
fixed and such dividend shall not have been fully paid on the date fixed
therefor, the adjustment previously made in the Series C Conversion Ratio
which became effective on such record date shall be canceled as of the
close of business on such record date, and thereafter the Series C
Conversion Ratio shall be adjusted as of the time of actual payment of such
dividend.
i. Notices of Record Date. In the event that this Corporation shall
propose at any time:
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(1) to declare any dividend or distribution upon its Common Stock, whether
in cash, property, stock or other securities, whether or not a regular cash
dividend and whether or not out of earnings or earned surplus;
(2) to offer for subscription pro rata to the holders of any class or
series of its stock any additional shares of stock of any class or series
or other rights;
(3) to effect any reclassification or recapitalization of its Common Stock
outstanding involving a change in the Common Stock; or
(4) to merge or consolidate with or into any other corporation, or sell,
lease or convey all or substantially all of its property or business, or to
liquidate, dissolve or wind up;
then, in connection with each such event, this Corporation shall send to
the holders of the Common Stock:
(a) at least 10 days' prior written notice of the date on which a record
shall be taken for such dividend, distribution or subscription rights (and
specifying the date on which the holders of Common Stock shall be entitled
thereto) or for determining rights to vote in respect of the matters
referred to in subsection i.(3) and i.(4), above, if any; and
(b) in the case of the matters referred to in subsection i.(3) and i.(4)
above, at least 10 days' prior written notice of the date when the same
shall take place (and specifying, if practicable, or estimating the date on
which the holders of Common Stock shall be entitled to exchange their
Common Stock for securities or other property deliverable upon the
occurrence of such event).
Each such written notice shall be given via facsimile or by first class
mail, postage prepaid, addressed to the holders of Common Stock at the
address for each such holder as shown on the books of this Corporation.
5. No Fractional Shares. No fractional shares of Series B Common Stock
shall be issued hereunder and fractional interests shall be paid in
cash on the basis of the adjusted purchase price.
6. Notices. Any notice to the Corporation provided for herein shall be
addressed to it in care of its Secretary, 3 Skyline Drive, Hawthorne,
New York 10532, and any notice to a shareholder shall be addressed to
its address as shown in the records of the Corporation's transfer
agent or as otherwise on file with the Corporation, or to such other
address as either may designate to the other in writing. Any notice
shall be deemed to be duly given if and when enclosed in a properly
sealed envelope and addressed as stated above and deposited, postage
prepaid, in a Post Office or branch Post Office regularly maintained
by the United State Government. In lieu of giving notice by mail as
aforesaid, any written notice under this Agreement may be given to a
shareholder by personal delivery.
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Article VI.
1. As long as shares of Series A Common Stock remain outstanding, the election
of the Directors of the Corporation shall be as follows:
a. Election of Directors by Holders of Series A Common Stock. The holders
of Series A Common Stock shall have the right, voting separately as a
class, to elect a number of directors equal to the minimum number
necessary to constitute a majority of the total number of directors
(the "Series A Directors"). In the event there are no holders of
Series B Common Stock, Series C Common Stock or, if applicable (as
provided below), Preferred Stock, the holders of Series A Common Stock
shall have the right to elect all of the directors of the Corporation.
b. Election of Directors by Holders of Series B Common Stock and Series C
Common Stock. The holders of Series B Common Stock and the holders of
Series C Common Stock (and any other class or series of Preferred
Stock to the extent provided in certificates of designation filed by
the Corporation with the Secretary of State of Delaware) shall have
the right, voting together as a class, to elect a number of directors
equal to the total number of directors less the number of directors to
be elected by the holders of Series A Common Stock, provided, however,
that the number of directors to be elected by the holders of Series B
Common Stock and Series C Common Stock (and any other class or series
of Preferred Stock to the extent provided in certificates of
designation filed by the Corporation with the Secretary of State of
Delaware) shall always constitute a minority of the total number of
directors (the "Series B Directors").
2. A quorum for a meeting of the Board of Directors of the Corporation shall
consist of a majority of the total number of directors plus one (1)
director, provided, however, that in no event shall a quorum exist unless
the Series A Directors constitute a majority of the directors present at
such meeting. Resolutions of the Board of Directors of the Corporation
shall be adopted by a majority of the directors voting.
3. Subject to the provisions of Section 141(k) of the DGCL, (i) a director
elected by the holders of Series A Common Stock may be removed by the
holders of Series A Common Stock, voting separately, and (ii) a director
elected by the holders of Series B Common Stock, Series C Common Stock and,
if applicable, Preferred Stock may be removed by the holders of Series B
Common Stock, Series C Common Stock and, if applicable, Preferred Stock. A
vacancy in the Board of Directors created by the departure or removal of a
Series A Director shall be filled by the other Series A Directors, and a
vacancy in the Board of Directors created by the departure or removal of a
Series B Director shall be filled by the holders of Series B Common Stock,
Series C Common Stock and, if applicable, Preferred Stock, voting together
as a class. Vacancies created by any increase in the total number of
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directors shall be filled in such a manner as to ensure that the number of
Series A Directors is equal to the minimum number of directors necessary to
constitute a majority of the total number of directors and the number of
Series B Directors shall be equal to the total number of directors less the
number of directors elected by the Series A Directors; provided, however,
that the Series B Directors shall constitute a minority of the total number
of directors.
4. The Board of Directors shall consist of not less than nine (9) nor more
than fifteen (15) Directors, with the exact number of directors to be
determined from time to time solely by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors. The
directors shall be divided into three classes as determined by the Board of
Directors, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
directors constituting the entire Board of Directors. To the extent
practicable, each class of directors shall consist of a pro rata share of
the Series A Directors and the Series B Directors as determined by the
Board of Directors. Except as otherwise provided in the Certificate of
Incorporation, each director shall serve for a term ending on the date of
the second annual meeting of stockholders next following the annual meeting
at which such director was elected. Notwithstanding the foregoing, each
director shall hold office until such director's successor shall have been
duly elected and qualified or until such director's earlier death,
resignation or removal.
5. Elections of directors need not be by written ballot except and to the
extent provided in the Bylaws of the Corporation.
Article VII.
At all times prior to the Termination Date, unless this Article VII is nullified
or modified, in whole or in part, as set forth herein, the Corporation shall not
directly or indirectly take or engage in any of the following actions without
the prior approval of the holders of a majority of the shares of (i) Series A
Common Stock, voting separately as a class and (ii) Series B Common Stock and
Series C Common Stock, voting together as a class:
1. Amendments. An amendment to the Certificate of Incorporation or the Bylaws
which would adversely affect the rights of the holders of Series B Common
Stock or Series C Common Stock conferred under the Certificate of
Incorporation or the Bylaws, provided, however, that, except as otherwise
provided by law, no amendment to the Certificate of Incorporation or the
Bylaws shall first require the approval of the holders of Series B Common
Stock or Series C Common Stock if such amendment is necessary to comply
with any rules, regulations or orders of the FCC, or otherwise deemed
necessary by a majority of the Board of Directors of this Corporation to
comply with Article VIII hereof.
2. Assets. A sale, lease, mortgage, or other disposal or encumbrance involving
all or substantially all of the Corporation's assets.
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3. Merger. A merger or other business combination involving the Corporation
which will result in the Corporation's shareholders immediately prior to
such transaction not holding (by virtue of such shares on securities issued
solely with respect thereto) at least fifty percent (50%) of the voting
power of the surviving or continuing entity.
4. Dissolution. The liquidation, dissolution or winding up of the Corporation.
5. Issuances. An issuance by the Corporation of any Capital Stock or debt or
rights to obtain Capital Stock or debt (including, without limitation,
issuances pursuant to mergers and other business combinations) with class
voting rights equal or superior to those of the Series A Common Stock or
Series B Common Stock.
6. Dividends. The declaration of any dividends other than (a) a dividend
payable solely in shares of Capital Stock or in options to purchase shares
of Capital Stock, or (b) a regular periodic dividend (whether on Common
Stock or, if any, Preferred Stock) payable in cash and declared out of the
earned surplus of this Corporation.
7. Issuance of Shares of Series C Common Stock. The issuance of any shares of
Series C Common Stock other than shares of Series C Common Stock which the
Corporation has issued or has committed to issue on or prior to the License
Grant Date, as defined in Article V, hereof.
8. Employee Benefit Plans. The issuance or deemed issuance of Common Stock to
officers or employees of, or consultants to, the Corporation pursuant to a
stock grant, option plan, purchase plan or other stock incentive program
(collectively, the "Plans") which issuance or deemed issuance would cause
the number of shares issued or reserved for issuance under such Plans after
the Effective Date (as defined in the First Amended Joint Plan of
Reorganization as confirmed by order dated _________, 1999 under Chapter 11
of Title 11 of the United States Code for the Corporation, et al.) to
exceed in the aggregate 12.5% of the equity of the Corporation, determined
on a fully diluted basis.
9. Reorganizations/Recapitalizations. Any capital reorganization of the
Corporation, any reclassification or recapitalization of the Capital Stock
of the Corporation or any transfer of all or substantially all the assets
of the Corporation to any other corporation.
10. Public Offerings. Effect a public offering of any class of stock of the
Corporation other than shares of Series B Common Stock.
Notwithstanding the foregoing, any and all special approval rights, preferences
or designations granted to the holders of Series B Common Stock and Series C
Common Stock pursuant to paragraphs 5, 7, 8 and 10 of this Article VII shall
become null and void and unenforceable immediately prior to upon consummation of
a Qualified Public Offering, as defined in Section 4 of Article V hereof. In
addition, any special approval rights, preference or designation granted to the
holders of Series B Common Stock and Series C Common Stock pursuant to this
Article VII shall become null, void and unenforceable to the extent that it
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would prevent the Corporation, as determined by a majority of the Board of
Directors of the Corporation, from qualifying as a "Designated Entity" and
"Small Business" under Part 24 of the Rules of the FCC applicable to broadband
Personal Communications Services.
The Board of Directors may prescribe additional special approval or other rights
of the Series B Common Stock and, or Series C Common Stock through a resolution
passed by a majority of such Board pursuant to Section 151 of the DGCL,
provided, however, that in authorizing such additional rights, if any, the Board
of Directors shall comply with the provisions of Article VI hereof.
Notwithstanding the provisions of this Article VII, the Board of Directors may
also prescribe special approval or other rights to the holders of the Preferred
Stock pursuant to a certificate of designation filed with the Secretary of State
of the State of Delaware.
Article VIII.
In recognition of the fact that one or more Subsidiaries of the Corporation has
been or will be granted one or more Personal Communications Services licenses,
as determined by the FCC during certain auctions administered by the FCC and is
required to comply with the foreign ownership restrictions of Section 310(b) of
the Communications Act of 1934, as amended, the Corporation may not issue shares
to a foreign party, if such issuance will cause the foreign ownership of the
capital stock of the Corporation to exceed, in the aggregate, twenty five
percent (25%), as determined by the rules and regulations of the FCC, except to
the extent permitted by an order or decision of the FCC addressing the amount of
foreign ownership of the Corporation or other C-block or F-block licensees
generally. Any transfer of Capital Stock of the Corporation by any party shall
be void and of no force and effect to the extent that such transfer will cause
the Corporation to violate the foreign ownership restrictions. If any issuance
is made which subsequently is determined to be in violation of the foregoing
sentence, such issuance shall be void and of no force and effect to the extent
of such violation, and any and all consideration previously paid to the
Corporation in respect of such voided issuance shall be returned immediately
upon such determination.
In addition, in recognition of the fact that one or more Subsidiaries of the
Corporation has been or will be granted one or more C-block or F-block Personal
Communications Services licenses and must maintain its Designated Entity and
Small Business eligibility until the Termination Date in order to maintain
favorable bidding and financing preferences, any transfer of Capital Stock of
the Corporation by any party shall be void and of no force and effect to the
extent that such transfer will prevent the Corporation from qualifying as a
"Designated Entity" and "Small Business" under Part 24 of the Rules of the FCC
applicable to broadband Personal Communications Services, including the 25%
limitation on non-attributable equity contained in Section 24.709(b) of the
Rules of the FCC or any successor provision thereto.
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Article IX.
The shares of Undesignated Preferred Stock of the Corporation may be issued from
time to time in one or more series as may be determined by the Board of
Directors. Subject to the provisions of this Second Amended and Restated
Certificate of Incorporation, the Board of Directors is hereby authorized to fix
by resolution or resolutions, adopted by majority vote, the designations and the
powers, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof, including,
without limitation, the dividend rate, conversion rights, redemption price and
liquidation preference, of any series of shares of Undesignated Preferred Stock,
and to fix the number of shares constituting any such series, and to increase or
decrease the number of shares of any such series (but not below the number of
shares thereof then outstanding). In case the number of shares of any such
series shall be so decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of the resolution or resolutions
originally fixing the number of shares of such series.
Article X.
The Corporation shall indemnify to the fullest extent permitted by the DGCL any
person who has been made, or is threatened to be made, a party to an action,
suit, or proceeding, whether civil criminal, administrative, investigative, or
otherwise (including an action, suit or proceeding by or in the right of the
Corporation), by reason of the fact that the person is or was a director or
officer of the Corporation, or a fiduciary within the meaning of the Employee
Retirement Income Security Act of 1974 with respect to an employee benefit plan
of the Corporation, or serves or served at the request of the Corporation as a
director, or as an officer, or as a fiduciary of an employee benefit plan, of
another corporation, partnership, joint venture, trust or other enterprise. In
addition, subject to the terms of the Corporation's Bylaws, the Corporation
shall pay for or reimburse any expenses incurred by such persons who are parties
to such proceedings, in advance of the final disposition of such proceedings, to
the full extent permitted by the DGCL.
Article XI.
No director of the Corporation shall be personally liable to the Corporation or
its shareholders for monetary damages for conduct as a director, provided that
this Article shall not eliminate the liability of a director for any act or
omission for which such elimination of liability is not permitted under the
DGCL. No amendment to that Act that further limits the acts or omissions for
which elimination of liability is permitted shall affect the liability of a
director for any act or omission which occurs prior to the effective date of
such amendment.
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Article XII.
The Board of Directors shall have the power to make, alter, or repeal the Bylaws
of the Corporation, subject to the right of the holders of Capital Stock of the
Corporation, expressly conferred herein or under the DGCL, to alter or repeal
any bylaw made by the Board of Directors.
Article XIII.
Notwithstanding any other provision contained herein, the Corporation, as a
Debtor (as defined in the Plan) under the Plan shall not issue nonvoting equity
securities in connection with the Plan and shall comply, to the extent
applicable, with Section 1123(a)(6) of the Bankruptcy Code. After the Effective
Time, this Article XIII may be amended or repealed by the affirmative vote of a
majority of the outstanding stock entitled to vote thereon in accordance with
Section 242 of the DGCL.
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IN WITNESS WHEREOF, said NextWave Telecom Inc. has caused this Second
Amended and Restated Certificate of Incorporation to be signed by Frank A.
Cassou, its General Counsel, this ____ day of _____, 1999.
By:
------------------------------
Its: General Counsel
CERTIFICATE OF INCORPORATION
OF
NEXTWAVE PERSONAL COMMUNICATIONS INC.
Article I
The name of the corporation is Nextwave Personal
Communications Inc. (hereinafter referred to as the "Corporation").
Article II
The address of the Corporation's registered office in the
State of Delaware is 1013 Centre Road, City of Wilmington, County of New Castle,
Delaware. The name of the registered agent at such address is Corporation
Service Company.
Article III
The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
Article IV
The total number of shares which the Corporation shall have
authority to issue is 1,000 shares of capital stock, 0.0001 par value.
Article V
The name and mailing address of the Incorporator is Theresa
L. McCarthy, c/o Baker & McKenzie, 101 West Broadway, San Diego, California
92101.
Article VI
Elections of directors need not be written ballot except
and to the extent provided in the bylaws of the Corporation.
Article VII
In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors of the Corporation is expressly
authorized to make, alter or repeal bylaws of the Corporation, but the
stockholders may make additional bylaws and may alter or repeal any bylaws
whether adopted by them or otherwise.
<PAGE>
Article VIII
The Corporation shall indemnify to the fullest extent
permitted by the General Corporation Law of Delaware any person who has been
made, or is threatened to be made, a party to an action, suit, or proceeding,
whether civil, criminal, administrative, investigative, or otherwise (including
an action, suit or proceeding by or in the right of the corporation), by reason
of the fact that the person is or was a director or officer of the Corporation,
or a fiduciary within the meaning of the Employee Retirement Income Security Act
of 1974 with respect to an employee benefit plan of the Corporation, or serves
or served at the request of the Corporation as a director, or as an officer, or
as a fiduciary of an employee benefit plan, of another corporation, partnership,
joint venture, trust or other enterprise. In addition, the Corporation shall pay
for or reimburse any expenses incurred by such persons who are parties to such
proceedings, in advance of the final disposition of such proceedings, to the
full extent permitted by the General Corporation Law of Delaware.
Article IX
The Corporation shall not be subject to the provisions of
Section 203 of the Delaware General Corporation Law.
Article X
No director of the Corporation shall be personally liable
to the Corporation or its stockholders for monetary damages for conduct as a
director; provided that this Article shall not eliminate the liability of a
director for any act or omission for which such elimination of liability is not
permitted under the General Corporation Law of Delaware. No amendment to that
Act that further limits the acts or omissions for which elimination of liability
is permitted shall affect the liability of a director for any act or omission
which occurs prior to the effective date of such amendment.
The undersigned Incorporator hereby acknowledges that the
foregoing certificate of incorporation is her act and deed and that the facts
stated therein are true.
Dated: May 16, 1995
/s/ Theresa L. McCarthy
----------------------------
Theresa L. McCarthy,
Incorporator
CERTIFICATE OF INCORPORATION
OF
NEXTWAVE POWER PARTNERS INC.
Article I
The name of the corporation is Nextwave Power Partners Inc.
(hereinafter referred to as the "Corporation").
Article II
The address of the Corporation's registered office in the
State of Delaware is 1013 Centre Road, City of Wilmington, County of New Castle,
Delaware. The name of the registered agent at such address is Corporation
Service Company.
Article III
The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
Article IV
The total number of shares which the Corporation shall have
authority to issue is 1,000 shares of capital stock, 0.0001 par value.
Article V
The name and mailing address of the Incorporator is Theresa
L. McCarthy, c/o NextWave Partners Inc., 9455 Towne Centre Drive, San Diego,
California 92121.
Article VI
Elections of directors need not be written ballot except
and to the extent provided in the bylaws of the Corporation.
Article VII
In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors of the Corporation is expressly
authorized to make, alter or repeal bylaws of the Corporation, but the
stockholders may make additional bylaws and may alter or repeal any bylaws
whether adopted by them or otherwise.
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Article VIII
The Corporation shall indemnify to the fullest extent
permitted by the General Corporation Law of Delaware any person who has been
made, or is threatened to be made, a party to an action, suit, or proceeding,
whether civil, criminal, administrative, investigative, or otherwise (including
an action, suit or proceeding by or in the right of the Corporation), by reason
of the fact that the person is or was a director or officer of the Corporation,
or a fiduciary within the meaning of the Employee Retirement Income Security Act
of 1974 with respect to an employee benefit plan of the Corporation, or serves
or served at the request of the Corporation as a director, or as an officer, or
as a fiduciary of an employee benefit plan, of another corporation, partnership,
joint venture, trust or other enterprise. In addition, the Corporation shall pay
for or reimburse any expenses incurred by such persons who are parties to such
proceedings, in advance of the final disposition of such proceedings, to the
full extent permitted by the General Corporation Law of Delaware.
Article IX
No director of the Corporation shall be personally liable
to the Corporation or its stockholders for monetary damages for conduct as a
director; provided that this Article shall not eliminate the liability of a
director for any act or omission for which such elimination of liability is not
permitted under the General Corporation Law of Delaware. No amendment to that
Act that further limits the acts or omissions for which elimination of liability
is permitted shall affect the liability of a director for any act or omission
which occurs prior to the effective date of such amendment.
The undersigned Incorporator hereby acknowledges that the
foregoing certificate of incorporation is her act and deed and that the facts
stated therein are true.
Dated: July 29, 1996
/s/ Theresa L. McCarthy
---------------------------
Theresa L. McCarthy,
Incorporator
AMENDED AND RESTATED
BYLAWS
OF
NEXTWAVE TELECOM INC.
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TABLE OF CONTENTS
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Article I OFFICES.............................................................................1
Section 1. Registered Office..............................................................1
Section 2. Other Offices..................................................................1
Article II MEETINGS OF STOCKHOLDERS............................................................1
Section 1. Time and Place of Meetings.....................................................1
Section 2. Annual Meeting.................................................................1
Section 3. Special Meetings...............................................................1
Section 4. Notice of Meetings.............................................................2
Section 5. Stockholder List...............................................................2
Section 6. Quorum.........................................................................2
Section 7. Proxies........................................................................2
Section 8. Voting.........................................................................2
Section 9. Voting of Certain Shares.......................................................3
Section 10. Action Without Meeting.........................................................3
Section 11. Treasury Stock.................................................................3
Section 12. Notice of Stockholder Business and Nominations.................................3
Section 13. Record Date for Action by Written Consent......................................5
Section 14. Inspectors of Written Consent..................................................6
Section 15. Effectiveness of Written Consent...............................................6
Article III DIRECTORS...........................................................................7
Section 1. Powers.........................................................................7
Section 2. Number and Term of Office......................................................7
Section 3. Resignations, Removal and Vacancies............................................7
Section 4. Dividends and Reserves.........................................................8
Section 5. Regular Meetings...............................................................8
Section 6. Special Meetings...............................................................8
Section 7. Quorum.........................................................................8
Section 8. Written Action.................................................................9
Section 9. Presumption of Assent..........................................................9
Section 10. Participation in Meetings by Conference Telephone..............................9
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TABLE OF CONTENTS
(CONTINUED)
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Section 11. Committees.....................................................................9
Section 12. Fees and Compensation of Directors............................................10
Section 13. Rules.........................................................................10
Article IV NOTICES............................................................................10
Section 1. Generally.....................................................................10
Section 2. Waivers.......................................................................10
Article V OFFICERS...........................................................................11
Section 1. Offices and Official Positions................................................11
Section 2. Compensation..................................................................11
Section 3. Succession....................................................................11
Section 4. Authority and Duties..........................................................11
Section 5. Chairman of the Board.........................................................11
Section 6. President/Chief Executive Officer.............................................11
Section 7. Vice Presidents...............................................................12
Section 8. Secretary and Assistant Secretaries...........................................12
Section 9. Treasurer and Assistant Treasurers............................................12
Section 10. Controller....................................................................13
Section 11. General Counsel...............................................................13
Article VI STOCKS.............................................................................13
Section 1. Certificates..................................................................13
Section 2. Transfer......................................................................13
Section 3. Lost, Stolen or Destroyed Certificates........................................14
Section 4. Record Date...................................................................14
Article VII INDEMNIFICATION....................................................................15
Section 1. Indemnification...............................................................15
Article VIII GENERAL PROVISIONS.................................................................16
Section 1. Fiscal Year...................................................................16
Section 2. Corporate Seal................................................................16
Section 3. Reliance upon Books, Reports and Records......................................16
Section 4. Time Periods..................................................................16
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TABLE OF CONTENTS
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Section 5. Dividends.....................................................................16
Article IX CONTRACTS, LOANS, CHECKS AND DEPOSITS..............................................16
Section 1. Contracts and Other Instruments...............................................16
Section 2. Loans.........................................................................17
Section 3. Checks, Drafts, etc...........................................................17
Section 4. Deposits......................................................................17
Article X AMENDMENTS.........................................................................17
Section 1. Amendments....................................................................17
Article XI FCC COMPLIANCE.....................................................................17
Section 1. Compliance with FCC Rules and Regulations.....................................17
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RESTATED BYLAWS
OF
NEXTWAVE TELECOM INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of NextWave Telecom Inc., a
Delaware corporation (the "Corporation"), in the State of Delaware shall be
located in the City of Wilmington, County of New Castle, State of Delaware, and
the name of its registered agent is Corporation Service Company.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
of the Corporation (the "Board of Directors") may from time to time determine or
the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at any place within
or without the State of Delaware, as may be authorized by the Board of Directors
and stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual Meeting. Annual meetings of stockholders shall be held on the
date as shall be designated by the Board of Directors at which meeting the
stockholders shall elect by plurality vote by the directors to succeed those
whose terms expire and shall transact such other business as may properly be
brought before such annual meeting.
Section 3. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by Certificate of
Incorporation of the Corporation as the same may be amended, supplemented or
modified from time to time (the "Certificate of Incorporation"), may be called
by the Board of Directors, the Chairman of the Board or the President, and shall
be called by the President or the Secretary at the requests in writing of
stockholders owning a majority in the amount of entire capital stock of the
Corporation issued and outstanding and entitled to vote. Such request shall be
sent to the President and the Secretary and shall state the purpose or purposes
of the proposed meeting. Any special meeting of the stockholders shall be held
at such place, on such date and at such time as the Chairman of the Board, the
President or the Secretary, as the case may be, shall fix.
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Section 4. Notice of Meetings. Written notice of every meeting of the
stockholders, stating the place, date and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting, except
as otherwise provided herein or by law. When a meeting is adjourned to another
place, date or time, written notice need not be given of the adjourned meeting
if the place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, written notice of the place, date and time of the adjourned
meeting shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting.
Section 5. Stockholder List. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting, arranged in alphabetical order, and showing the address of each
such stockholder and the number of shares registered in the name of each such
stockholder. Such list shall be open to examination of any stockholder of the
Corporation during ordinary business hours, for any purpose germane to the
meeting, for a period of at least ten (10) days prior to the meeting, either at
a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of meeting during the whole time thereof, and subject to the
inspection for any purpose germane to the meeting of any stockholder who may be
present.
Section 6. Quorum. The holders of at least a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by law or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented.
Section 7. Proxies. At every meeting of the stockholders, each stockholder
having the right to vote thereat shall be entitled to vote in person or by
proxy. Such proxy shall be appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three (3) years prior to such
meeting, unless such proxy provides for a longer period; and it shall be filed
with the Secretary of the Corporation before, or at the time of, the meeting.
Section 8. Voting. Except as otherwise provided by statute or by the Certificate
of Incorporation, each stockholder shall be entitled at every meeting of the
stockholders to one vote for each share of stock having voting power standing in
the name of such stockholder on the books of the Corporation on the record date
for the meeting and such votes may be cast either in person or by written proxy.
Every proxy must be executed in writing by the stockholder or his or her duly
authorized attorney. Such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. When a quorum is present at
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any meeting, the vote of the holders of a majority of the stock which have
voting power present in person or represented by proxy and which have actually
voted shall decide any question properly brought before such meeting, unless the
question is one upon which by express provision of law, the Certificate of
Incorporation or these Bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question.
Section 9. Voting of Certain Shares. Shares standing in the name of another
corporation, domestic or foreign, and entitled to vote may be voted by such
officer, agent, or proxy as the bylaws of such corporation may prescribe or, in
the absence of such provision, as the board of directors of such corporation may
determine. Shares standing in the name of a deceased person, a minor or an
incompetent and entitled to vote may be voted by his administrator, executor,
guardian or conservator, as the case may be, either in person or by proxy.
Shares standing in the name of a trustee, receiver or pledgee and entitled to
vote maybe voted by such trustee, receiver or pledgee either in person or by
proxy as provided by Delaware law.
Section 10. Action Without Meeting. Unless otherwise provided in the Certificate
of Incorporation or these Bylaws, any action required to be taken at any annual
or special meeting of stockholders of the Corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the actions so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted; provided, however, that at
least 48 hours prior written notice, stating the action sought to be taken, the
Corporation's reasons therefor and the date by which such written consent is to
be effected, shall be provided to each stockholder entitled to execute such
written consent as provided in this Section 10, with such notice given either
personally or by facsimile or telegram (but not by mail). Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
Such consent shall be filed with the Minutes of Proceedings of the stockholders
and shall have the same force and effect as the unanimous vote of stockholders.
Section 11. Treasury Stock. Shares of its own stock belonging to the Corporation
or to another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held by this Corporation,
shall not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares for the purpose of determining whether a
quorum is present Nothing in this section shall be construed to limit the right
of this Corporation to vote shares of its own stock held by it in a fiduciary
capacity.
Section 12. Notice of Stockholder Business and Nominations.
(A) Annual Meeting of Stockholders.
(1) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (a) pursuant to the
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Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this Bylaw, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Bylaw.
(2) For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this
Bylaw, the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation and such other business must otherwise be a proper
matter for stockholder action. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 60th day nor earlier than the close
of business on the 90th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is more than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the Corporation. In no
event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as director if elected); (b) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made, and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class and number
of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this
Bylaw to the contrary, in the event that the number of directors to be elected
to the Board of Directors is increased and there is no public announcement by
the Corporation naming all of the nominees for director or specifying the size
of the increased Board of Directors at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Bylaw shall also be considered timely but only with respect to
nominees for any new positions creased by such increase, if it shall be
delivered to the Secretary at the principal execution offices of the Corporation
not later than the close of business on the 10th day following the day on which
such public announcement is first made by the Corporation.
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(B) Special Meeting of Stockholders.
Only such business shall be conducted at a special meeting of stockholders as
shall have been brought before the meeting pursuant to the Corporation's notice
of meeting. Nominations of persons for election to the Board of Directors may be
made at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at the direction of
the Board of Directors at (b) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any stockholder
of the Corporation who is a stockholder of record at the time of giving of
notice provided for in this Bylaw who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this Bylaw. In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A)(2) of this Bylaw shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(C) General.
(1) Only such persons who are nominated in accordance with the procedures set
forth in this Bylaw shall be eligible to serve as director, and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Bylaw. Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, the Chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Bylaw and, in any proposed nomination or business
is not in compliance with this Bylaw, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of the Bylaw, "public announcement" shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act
(3) Notwithstanding the foregoing provision of this Bylaw, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this Bylaw.
Nothing in this Bylaw shall be deemed to affect any rights (i) of stockholders
to request inclusion of proposal in the Corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of
Preferred Stock to elect directors under specified circumstances.
Section 13. Record Date for Action by Written Consent. In order that the
Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record
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date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which date
shall not be more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorized or take corporate action by written
consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within 10 days after the date on which such a request is received,
adopt a resolution fixing the record date. If no record date has been filed by
the Board of Directors within 10 days of the date on which such a request is
received, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by applicable law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in Delaware,
its principal place of business or to any officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
Section 14. Inspectors of Written Consent. In the event of the delivery, in the
manner provided by Section 13, to the Corporation of the requisite written
consent or consents to take corporate action and/or any related revocation or
revocations, the Corporation shall engage nationally recognized independent
inspectors of elections for the purpose of promptly performing a ministerial
review of the validity of the consents and revocations. For the purpose of
permitting the inspectors to perform such review, no action by written consent
without a meeting shall be effective until such date as the independent
inspectors certify to the Corporation that the consents delivered to the
Corporation in accordance with Section 13 represent at least the minimum number
of votes that would be necessary to take the corporate action. Nothing contained
in this paragraph shall in any way be construed to suggest or imply that the
Board of Directors or any stockholder shall not be entitled to contest the
validity of any consent or revocation thereof, whether before or after such
certification by the independent inspectors, or to take any other actions
(including. without limitation, the commencement, prosecution or defense of any
litigation with respect thereto, and the seeking of injunctive relief in such
litigation).
Section 15. Effectiveness of Written Consent. Every written consent shall bear
the date of signature of each stockholder who signs the consent and no written
consent shall be effective to take the corporate action referred to therein
unless, within 60 days of the date the earliest dated written consent was
received in accordance with Section 13, a written consent or consents signed by
a sufficient number of holders to take such action are delivered to the
Corporation in the manner prescribed in Section 13.
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ARTICLE III
DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall be managed
by or under the direction of its Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders.
Section 2. Number and Term of Office. The Board of Directors shall consist of
not less than nine (9) nor more than fifteen (15) directors, with the exact
number of directors to be determined from time to time solely by resolution
adopted by the affirmative vote of a majority of the entire Board of Directors.
The directors shall be divided into three classes as determined by the Board of
Directors, designated Class I, Class II and Class III. Each class shall consist,
as nearly as may be possible, of one-third of the total number of directors
constituting the entire Board of Directors. To the extent practicable, each
class of directors shall consist of a pro rata share of the Series A Directors
and the Series B Directors as determined by the Board of Directors. Except as
otherwise provided in the Certificate of Incorporation, each director shall
serve for a term ending on the date of the second annual meeting of stockholders
next following the annual meeting at which such director was elected.
Notwithstanding the foregoing, each director shall hold office until such
director's successor shall have been duly elected and qualified or until such
director's earlier death, resignation or removal.
a. Election of Directors by Holders of Series A Common
Stock. The holders of Series A Common Stock shall have the
right, voting separately as a class, to elect a number of
directors equal to the minimum number necessary to
constitute a majority of the total number of directors (the
"Series A Directors"). In the event there are no holders of
Series B Common Stock, Series C Common Stock or, if
applicable (as provided below), Preferred Stock, the
holders of Series A Common Stock shall have the right to
elect all of the directors of the Corporation.
b. Election of Directors by Holders of Series B Common
Stock and Series C Common Stock. The holders of Series B
Common Stock and the holders of Series C Common Stock (and
any other class or series of Preferred Stock to the extent
provided in certificates of designation filed by the
Corporation with the Secretary of State of Delaware) shall
have the right, voting together as a class, to elect a
number of directors equal to the total number of directors
less the number of directors to be elected by the holders
of Series A Common Stock, provided, however, that the
number of directors to be elected by the holders of Series
B Common Stock and Series C Common Stock (and any other
class or series of Preferred Stock to the extent provided
in certificates of designation filed by the Corporation
with the Secretary of State of Delaware) shall always
constitute a minority of the total number of directors (the
"Series B Directors").
Section 3. Resignations, Removal and Vacancies. Subject to the provisions of
Section 141(k) of the Delaware General Corporation Law, as amended, (i) a
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director elected by the holders of Series A Common Stock may be removed by the
holders of Series A Common Stock, voting separately and (ii) a director elected
by the holders of Series B Common Stock, Series C Common Stock and, if
applicable, Preferred Stock may be removed by the holders of Series B Common
Stock, Series C Common Stock and, if applicable, Preferred Stock. A vacancy in
the Board of Directors created by the departure or removal of a Series A
Director shall be filled by the other Series A Directors, and a vacancy in the
Board of Directors created by the departure or removal of a Series B Director
shall be filled by the holders of Series B Common Stock, Series C Common Stock
and, if applicable, Preferred Stock, voting together as a class. Vacancies
created by any increase in the total number of directors shall be filled in such
a manner as to insure that the number of Series A Directors is equal to the
minimum number of directors necessary to constitute a majority of the total
number of directors and the number of Series B Directors shall be equal to the
total number of directors less the number of directors elected by the Series A
Directors; provided, however, that the Series B Directors shall constitute a
minority of the total number of directors.
Section 4. Dividends and Reserves. Dividends upon stock of the Corporation may
be declared by the Board of Directors at any regular or special meeting pursuant
to law and subject to the terms of the Certificate of Incorporation. Dividends
may be paid in cash, in property, in shares of stock or otherwise in the form,
and to the extent permitted by law. The Board of Directors may set apart, out of
any funds of the corporation available for dividends, a reserve or reserves for
working capital or for any other lawful purpose, and also may abolish any such
reserve in the manner in which it was created.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be
held without notice immediately after the annual meeting of the stockholders and
at such other time and place as shall from time to time be determined by the
Board of Directors.
Section 6. Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board or the President on one day's written notice
to each director by whom such notice is not waived, given either personally or
by facsimile, or telegram, or shall be called by the President or the Secretary
in like manner and on like notice on the written request of any two directors.
Section 7. Quorum. A quorum for a meeting of the Board of Directors of the
corporation shall consist of a majority of the total number of directors plus
one (1) director; provided, however, that notwithstanding the foregoing, if a
quorum shall not be present at any regular or special meeting of the Board of
Directors held or called in accordance with this Article III, then a special
meeting of the Board of Directors (a "Majority Quorum Board Meeting") may be
called by the Chairman of the Board or the President on 48 hours written notice
to each director by whom such notice is not waived, given either personally or
by facsimile or telegram (but not by mail); or shall be called by the President
or the Secretary in like manner and on like notice on the written request of two
directors, and, in the event of any such Majority Quorum Board Meeting, a quorum
(for purposes of such Majority Quorum Board Meeting) shall consist of a majority
of the total number of directors; provided further, however, that in no event
shall a quorum exist unless the Series A Directors constitute a majority of the
directors present at such meeting for the transaction of business, and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
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specifically provided by statute or by the Certificate of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time to another
place, time or date, without notice other than announcement at the meeting until
a quorum shall be present
Section 8. Written Action. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board of Directors, or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes or proceedings of the Board of Directors or Committee.
Section 9. Presumption of Assent. Unless otherwise provided by statute, a
director of the corporation who is present, at a meeting of the Board of
Directors at which action is taken on any corporate matter shall be presumed to
have assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as Secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 10. Participation in Meetings by Conference Telephone. Members of the
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any such committee, by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
Section 11. Committees. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation and each to have such
lawfully delegable powers and duties as the Board may confer; provided, however,
that if the Board of Directors shall designate an "Executive Committee" or any
other committee, then such committee shall consist of (i) such number of the
Series A Directors as is pro rata to the number of Series A Directors then on
the Board and (ii) such number of the Series B Directors as is pro rata to the
number of Series A Directors then on the Board; provided, however, that in no
event shall any committee consist of less than a majority of the Series A
Directors. Each such committee shall serve at the pleasure of the Board of
Directors. The Board may designate one or more directors as alternate members of
any committee who may replace any absent or disqualified member at any meeting
of the committee. Except as otherwise provided by law, any such committee, to
the extent provided in the resolution of the Board of Directors, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation adopting, an Agreement of Merger or Consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of dissolution, or
amending the Bylaws of the Corporation; and unless the resolution or the
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Certificate of Incorporation expressly so provides, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock. Any committee or committees so designated by the Board shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors. Unless otherwise prescribed by the Board of Directors, a
majority of the members of the committee shall constitute a quorum for the
transaction of business, and the act of a majority of the members present at a
meeting at which there is a quorum shall be the act of such committee. Each
committee shall prescribe its own rules for calling and holding meetings and its
method of procedure, subject to any rules prescribed by the Board of Directors,
and shall keep a written record of all actions taken by it.
Section 12. Fees and Compensation of Directors. Directors shall not receive any
stated salary for their services as such; but, by resolution of the Board of
Directors, a fixed fee, with or without expenses of attendance, may be allowed
for attendance at each regular or special meeting of the Board. Members of the
Board shall be allowed their reasonable traveling expenses when actually engaged
in the business of the Corporation. Members of any committee may be allowed like
fees and expenses for attending committee meetings. Nothing herein contained
shall be construed to preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
Section 13. Rules. The Board of Directors may adopt such special rules and
regulations for the conduct of their meetings and the management of the affairs
of the Corporation as they may deem proper, not inconsistent with law or these
Bylaws.
ARTICLE IV
NOTICES
Section 1. Generally. Whenever under the provisions of the statutes or the
Certificate of Incorporation or these Bylaws, notice is required to be given to
any director or stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail (except as herein expressly
provided otherwise) or overnight delivery, addressed to such director or
stockholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail or with an
overnight courier, as applicable. Notice to the directors may also be given by
telegram, telephone or facsimile.
Section 2. Waivers. Whenever any notice is required to be given under the
provisions of the statutes or the Certificate of Incorporation or these Bylaws,
a waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time of the event for which notice is to be
given shall be deemed equivalent to such notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened.
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ARTICLE V
OFFICERS
Section 1. Offices and Official Positions. The officers of the Corporation shall
be a Chairman of the Board, President, one or more Vice Presidents, a Secretary,
a Treasurer, and such Assistant Vice Presidents, Assistant Secretaries,
Assistant Treasurers, and other officers as the Board of Directors shall
determine. Any two or more offices may be held by the same person. None of the
officers need be a director, a stockholder of the corporation or a resident of
the State of Delaware.
Section 2. Compensation. The compensation of all officers and agents of the
Corporation who are also directors of the Corporation shall be fixed by the
Board of Directors. The Board of Directors may delegate the power to fix the
compensation of other officers and agents of the Corporation to an officer of
the Corporation.
Section 3. Succession. The officers of the Corporation shall hold office until
their successors are elected and qualified. Any officer elected or appointed by
the Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
Section 4. Authority and Duties. Each of the officers of the Corporation shall
have such authority and shall perform such duties as are stated in these Bylaws
or as may be specified by the Board of Directors in a resolution which is not
inconsistent with these Bylaws customarily incident to their respective offices,
or as may be specified from time to time by the Board of Directors in a
resolution which is not inconsistent with these Bylaws.
Section 5. Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the stockholders and of the Board of Directors and he shall have
such other duties and responsibilities as may be assigned to him by the Board of
Directors. The Chairman shall have overall responsibility for the management and
direction of the business and affairs of the Corporation. The Chairman shall be
the senior officer of the Corporation and in case of the inability or failure of
the President to perform the duties of that office, shall perform the duties of
the President. The Chairman may delegate to any qualified person authority to
chair any meeting of the stockholders, either on a temporary or a permanent
basis.
In the absence of the Chairman of the Board, the Vice Chairman of the Board, if
any, shall preside at all meetings of the Board of Directors and of the
stockholders at which he shall be present. He shall have and may exercise such
powers as are, from time to time, assigned to him by the Board of Directors and
as may be provided by law.
Section 6. President/Chief Executive Officer. The President may or may not be
the Chief Executive Officer of the corporation and either the Chief Executive
Officer or the President shall preside at all meetings of the stockholders, the
Board of Directors or any committee of the Board if either officer is a member.
The President and Chief Executive Officer shall each have the overall
supervision of the business of the Corporation and shall direct the affairs and
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policies of the Corporation, subject to such policies and directions as may be
determined by the Chairman of the Board or provided by the Board of Directors.
Both the Chief Executive Officer and the President shall have authority to
designate the duties and powers of other officers and delegate special powers
and duties to specified officers, so long as such designation shall not be
inconsistent with the statutes, these Bylaws or action of the Board of
Directors. The President and Chief Executive Officer in general shall have all
other powers and shall perform all other duties as may be prescribed by the
Board of Directors from time to time.
Section 7. Vice Presidents. In the absence of the President and the Chief
Executive Officer, or in the event of such individuals inability or refusal to
act, the Vice Presidents in order of their rank as fixed by the Board of
Directors or, if not ranked, the Vice President designated by the Board of
Directors or the President, shall perform all duties of the President, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the President. The Vice Presidents shall have such other powers and perform
such other duties, not inconsistent with the statutes, these Bylaws, or action
of the Board of Directors, as from time to time may be prescribed for them,
respectively, by the Board of Directors or the President. Any Vice President may
sign, with the Secretary or an Assistant Secretary, or the Treasurer or an
Assistant Treasurer, certificates for shares of stock of the Corporation the
issuance of which shall have been duly authorized by the Board of Directors.
Section 8. Secretary and Assistant Secretaries. The Secretary shall attend all
meetings of the stockholders and all meetings of the Board of Directors and
record all the proceedings of the meetings of the stockholders and of the Board
of Directors and shall perform like duties for the standing committees when
requested by the Board of Directors, the Chairman, or the President. The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and meetings of the Board of Directors. The Secretary shall perform
such duties as may be prescribed by the Board of Directors, the Chairman, or the
President. The Secretary shall have charge of the seal of the Corporation and
authority to affix the seal to any instrument. The Secretary or any Assistant
Secretary may attest to the corporate seal by handwritten or facsimile
signature. The Secretary shall keep and account for all books, documents, papers
and records of the Corporation except for those for which some other officer or
agent has been designated or is otherwise properly accountable. The Secretary
shall have authority to sign stock certificates.
Assistant Secretaries, in order of their seniority, shall assist the Secretary
and, if the Secretary is unavailable or fails to act, perform the duties and
exercise the authorities of the Secretary and shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
Section 9. Treasurer and Assistant Treasurers. The Treasurer shall have the
custody of the corporate funds and securities belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Treasurer with the prior approval of the Board of Directors, the Chairman, and
the President. The Treasurer shall disburse the funds and pledge the credit of
the Corporation as may be directed by the Board of Directors and shall render to
the Board of Directors, the Chairman, and the President, as and when required by
them, or any of them, an account of all transactions by the Treasurer.
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If required by the Board of Directors, he shall give the Corporation a bond
(which shall be renewed every six years) in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all boxes, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Assistant Treasurers, in the order of their seniority, shall assist the
Treasurer and, if the Treasurer is unable or fails to act, perform the duties
and exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
Section 10. Controller. The Controller shall be the chief accounting officer of
the Corporation. The Controller shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation in accordance
with accepted accounting methods and procedures. The Controller shall initiate
periodic audits of the accounting records, methods and systems of the
Corporation. The Controller shall render to the Board of Directors, the
Chairman, and the President, as and when required by them, or any of them, a
statement of the financial condition of the Corporation.
Section 11. General Counsel. The General Counsel shall be the chief legal
officer of the Corporation. The General Counsel shall provide legal counsel and
advice to the Board of Directors and to the officers with respect to compliance
with applicable laws and regulations. The General Counsel shall also provide or
obtain legal defense of the Corporation. The General Counsel shall render to the
Board of Directors, the Chairman, and the President, as and when required by
them, or any of them, a report on the status of claims against, and pending
litigation of the Corporation.
ARTICLE VI
STOCKS
Section 1. Certificates. Certificates representing shares of stock of the
Corporation shall be in such form as shall be determined by the Board of
Directors, subject to applicable legal requirements. Such certificates shall be
numbered and their issuance recorded in the books of the Corporation, and such
certificate shall exhibit the holder's name and the number of shares and shall
be signed by, or in the name of the Corporation by, the Chairman of the Board or
the President and the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the Corporation and shall bear the corporate seal. Where
any such certificate is countersigned by a transfer agent or a registrar other
than the Corporation or its employee, the signatures of any such officers of the
Corporation and the seal of the Corporation, if any, upon such certificates may
be facsimiles, engraved or printed.
Section 2. Transfer. Except as provided in the Certificate of Incorporation or
by law, upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation to issue, or to cause its transfer agent to issue, a new
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certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 3. Lost, Stolen or Destroyed Certificates. The President or the Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact, satisfactory to the President, by the person claiming the certificate of
stock to be lost, stolen or destroyed. As a condition precedent to the issuance
of a new certificate or certificates the President requires the owner of such
lost, stolen or destroyed certificate or certificates to give the Corporation a
bond in such sum and with such surety or sureties as the President may direct as
indemnity against any claims that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed or the
issuance of the new certificate.
Section 4. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to consent
to corporate action in writing without a meeting, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
this chapter, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
a Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action.
In order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
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stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date which record date shall not precede
the date upon which the resolution fixing the record date is adopted, and which
record date shall be not more than sixty (60) days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
ARTICLE VII
INDEMNIFICATION
Section 1. Indemnification. The Corporation shall indemnify every person who was
or is a party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or, while
a director or officer of the Corporation, is or was serving at the request of
the Corporation, as a director, officer, employee, agent or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including counsel fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding, to the full extent permitted by applicable
law. Expenses incurred by a person who is or was a director or officer of the
Corporation in appearing at, participating in or defending any such action, suit
or proceeding shall be paid by the Corporation at reasonable intervals in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized by this Section 1. If a claim under
this Section 1 is not paid in full by the Corporation within ninety days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be paid
also the expense of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law or other applicable law for the Corporation
to indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in the Delaware
General Corporation Law or other applicable law, nor an actual determination by
the Corporation (including its board of directors, independent legal counsel or
its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
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ARTICLE VIII
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed from
time to time by resolution of the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may adopt a corporate seal and
use the same by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 3. Reliance upon Books, Reports and Records. Each director, each member
of a committee designated by the Board of Directors, and each officer of the
Corporation shall, in the performance of his or her duties, be fully protected
in relying in good faith upon the records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by any
of the Corporation's officers or employees, or committees of the Board of
Directors, or by any other person as to matters the director, committee member
or officer believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Corporation.
Section 4. Time Periods. In applying any provision of these Bylaws which
requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded and the day of the event shall be included.
Section 5. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to statute. Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purposes as the directors
shall think conducive to the interest of the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE IX
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts and Other Instruments. The Board of Directors may authorize
any officer or officers, agent or agents, to enter into any contract or execute
and deliver any instrument in the name of and on behalf of the Corporation, or
of any division thereof, and such authority may be general or confirmed to
specific instances.
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Section 2. Loans. No loans shall be contracted on behalf of the Corporation, or
any division thereof, and no evidence of indebtedness shall be issued in the
name of the Corporation or any division thereof, unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
Section 3. Checks, Drafts, etc. All checks, demands, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation, or any division thereof, shall be signed by such
officer or officers, agent or agents of the Corporation, and in such manner, as
shall from time to time be authorized by the Board of Directors.
Section 4. Deposits. All funds of the Corporation, or any division thereof, not
otherwise employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositories as the Board of
Directors may select.
ARTICLE X
AMENDMENTS
Section 1. Amendments. These Bylaws may be altered, amended or repealed or new
Bylaws may be adopted by the stockholders or by the Board of Directors, when
such power is conferred upon the Board of Directors by the Certificate of
Incorporation. If the power to adopt, amend or repeal these Bylaws is conferred
upon the Board of Directors by the Certificate of Incorporation it shall not
divest or limit the power of the stockholders to adopt, amend or repeal these
Bylaws. An amendment to the Certificate of Incorporation or these Bylaws that
would adversely affect the rights of the holders of the Series A Common Stock,
shall require the approval of the majority of the holders of a majority of the
shares of the Series A Common Stock. An amendment to the Certificate of
Incorporation or these Bylaws that would adversely affect the rights of the
holders of the Series B Common Stock, the Series C Common Stock and, if
applicable, the Preferred Stock, shall require the approval of the majority of
the holders of a majority of the shares of the Series B Common Stock, the Series
C Common Stock and, if applicable, the Preferred Stock, voting together as a
class; provided, however, that no amendment to the Certificate of Incorporation
or the Bylaws shall first require the approval of the holders of the Series B
Common Stock, the Series C Common Stock and, if applicable, the Preferred Stock,
if such amendment is necessary to comply with any rules, regulations or orders
of the Federal Communications Commission ("FCC"), or otherwise deemed necessary
by a majority of the Board of Directors of the Corporation to comply with
Article VIII of the Certificate of Incorporation.
ARTICLE XI
FCC COMPLIANCE
Compliance with FCC Rules and Regulations. Notwithstanding anything to the
contrary provided herein, any and all special approval rights, preferences or
designations granted to the holders of Series B Common Stock and Series C Common
Stock and, if applicable, the Preferred Stock shall become null, void and
unenforceable to the extent that it would prevent the Corporation, as determined
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by a majority of the Board of Directors of the Corporation, from qualifying as a
"Designated Entity" and "Small Business" under Part 24 of the Rules of the FCC
applicable to broadband Personal Communications Services.
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CERTIFICATE OF SECRETARY
I, Frank Cassou, Secretary of NextWave Telecom Inc., a
Delaware corporation, do hereby certify that the foregoing Amended and Restated
Bylaws of NextWave Telecom Inc. are the duly adopted Bylaws of said Corporation
as they are in effect on the date hereof
Executed at New York effective as of _____ ___, 1999.
-------------------------------
Frank Cassou, Secretary
BYLAWS
OF
NEXTWAVE PERSONAL COMMUNICATIONS, INC.
<PAGE>
BYLAWS
of
NEXTWAVE PERSONAL COMMUNICATIONS INC.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
ARTICLE I OFFICES......................................................................1
Section 1. Registered Office.......................................................1
Section 2. Other Offices...........................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS.....................................................1
Section 1. Time and Place of Meetings..............................................1
Section 2. Annual Meeting..........................................................1
Section 3. Special Meetings........................................................1
Section 4. Notice of Meetings......................................................1
Section 5. Stockholder List........................................................2
Section 6. Quorum..................................................................2
Section 7. Proxies.................................................................2
Section 8. Voting..................................................................2
Section 9. Voting of Certain Shares................................................3
Section 10. Action Without Meeting..................................................3
Section 11. Treasury Stock..........................................................3
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ARTICLE III DIRECTORS....................................................................3
Section 1. Powers..................................................................3
Section 2. Number and Term of Office...............................................4
Section 3. Resignations and Vacancies..............................................4
Section 4. Removal.................................................................4
Section 5. Dividends and Reserves..................................................4
Section 6. Regular Meetings........................................................4
Section 7. Special Meetings........................................................4
Section 8. Quorum..................................................................4
Section 9. Written Action..........................................................5
Section 10. Presumption of Assent...................................................5
Section 11. Participation in Meetings by Conference Telephone.......................5
Section 12. Committees..............................................................5
Section 13. Fees and Compensation of Directors......................................6
Section 14. Rules...................................................................6
ARTICLE IV NOTICES......................................................................6
Section 1. Generally...............................................................6
Section 2. Waivers.................................................................6
ARTICLE V OFFICERS.....................................................................7
Section 1. Offices and Official Positions..........................................7
Section 2. Compensation............................................................7
Section 3. Succession..............................................................7
Section 4. Authority and Duties....................................................7
Section 5. Chairman of the Board...................................................7
Section 6. President/Chief Executive Officer.......................................7
Section 7. Execution of Documents..................................................8
Section 8. Vice Presidents.........................................................8
Section 9. Secretary and Assistant Secretaries.....................................8
Section 10. Treasurer and Assistant Treasurers......................................9
Section 11. Controller..............................................................9
Section 12. General Counsel.........................................................9
ARTICLE VI STOCKS......................................................................10
Section 1. Certificates...........................................................10
Section 2. Transfer...............................................................10
Section 3. Lost, Stolen or Destroyed Certificates.................................10
Section 4. Record Date............................................................10
ARTICLE VII INDEMNIFICATION.............................................................11
Section 1. Indemnification........................................................11
ARTICLE VIII GENERAL PROVISIONS..........................................................12
Section 1. Fiscal Year............................................................12
Section 2. Corporate Seal.........................................................12
Section 3. Reliance upon Books, Reports and Records...............................12
Section 4. Time Periods...........................................................12
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Section 5. Dividends..............................................................12
ARTICLE IX CONTRACTS, LOANS, CHECKS AND DEPOSITS.......................................12
Section 1. Contracts and Other Instruments........................................12
Section 2. Loans..................................................................13
Section 3. Checks, Drafts, etc....................................................13
Section 4. Deposits...............................................................13
ARTICLE X AMENDMENTS..................................................................13
Section 1. Amendments.............................................................13
</TABLE>
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BYLAWS
OF
NEXTWAVE PERSONAL COMMUNICATIONS INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of NextWave Personal
communications Inc., a Delaware corporation (the "Corporation") in the State of
Delaware shall be located in the City of Wilmington, County of New Castle, State
of Delaware, and the name of its registered agent is Corporation Service
Company.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at any place within
or without the State of Delaware, as may be authorized by the Board of Directors
and stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual Meeting. Annual meetings of stockholders shall be held on the
date as shall be designated by the Board of Directors at which meeting the
stockholders shall elect by plurality vote by the directors to succeed those
whose terms expire and shall transact such other business as may properly be
brought before the meeting.
Section 3. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by Certificate of
Incorporation, may be called by the Board of Directors, the Chairman of the
Board or the President, and shall be called by the President or the Secretary at
the request in writing of stockholders owning a majority in the amount of entire
capital stock of the Corporation issued and outstanding and entitled to vote.
Such request shall be sent to the President and the Secretary and shall state
the purpose or purposes of the proposed meeting. Any special meeting of the
stockholders shall be held at such place, on such date and at such time as the
Chairman of the Board, the President or the Secretary, as the case may be, shall
fix.
Section 4. Notice of Meetings. Written notice of every meeting of the
stockholders, stating the place, date and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting, except
as otherwise provided herein or by law. When a meeting is adjourned to another
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place, date or time, written notice need not be given of the adjourned meeting
if the place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, written notice of the place, date and time of the adjourned
meeting shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting.
Section 5. Stockholder List. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting, arranged in alphabetical order, and showing the address of each
such stockholder and the number of shares registered in the name of each such
stockholder. Such list shall be open to examination of any stockholder of the
Corporation during ordinary business hours, for any purpose germane to the
meeting, for a period of at least ten (10) days prior to the meeting, either at
a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of meeting during the whole time thereof, and subject to the
inspection for any purpose germane to the meeting of any stockholder who may be
present.
Section 6. Quorum. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by law or by the Certificate of
Incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, meeting, without notice other than announcement at
the meeting, until a quorum shall be present or represented.
Section 7. Proxies. At every meeting of the stockholders, each stockholder
having the right to vote thereat shall be entitled to vote in person or by
proxy. Such proxy shall be appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three (3) years prior to such
meeting, unless such proxy provides for a longer period; and it shall be filed
with the Secretary of the Corporation before, or at the time of, the meeting.
Section 8. Voting. Except as otherwise provided by statute or by the Certificate
of Incorporation, each stockholder shall be entitled at every meeting of the
stockholders to one vote for each share of stock having voting power standing in
the name of such stockholder on the books of the Corporation on the record date
for the meeting and such votes may be cast either in person or by written proxy.
Every proxy must be executed in writing by the stockholder or his or her duly
authorized attorney. Such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. The vote upon any question
brought before a meeting of the stockholders shall be by written ballot, except
as otherwise required by these Bylaws, may be by voice vote. Every vote taken by
written ballot shall be counted by one or more inspectors of election appointed
by the Board of Directors. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock which has voting power present in person
or represented by proxy and which has actually voted shall decide any question
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properly brought before such meeting, unless the question is one upon which by
express provision of law, the Certificate of Incorporation or these Bylaws, a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
Section 9. Voting of Certain Shares. Shares standing in the name of another
corporation, domestic or foreign, and entitled to vote may be voted by such
officer, agent, or proxy as the bylaws of such corporation may prescribe or, in
the absence of such provision, as the Board of Directors of such corporation may
determine. Shares standing in the name of a deceased person, a minor or an
incompetent and entitled to vote may be voted by his administrator, executor,
guardian or conservator, as the case may be, either in person or by proxy.
Shares standing in the name of a trustee, receiver or pledgee and entitled to
vote maybe voted by such trustee, receiver or pledgee either in person or by
proxy as provided by Delaware law.
Section 10. Action Without Meeting. Unless otherwise provided in the Certificate
of Incorporation or these Bylaws, any action required to be taken at any annual
or special meeting of stockholders of the Corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the actions so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing. Such
consent shall be filed with the Minutes of Proceedings of the stockholders and
shall have the same force and effect as the unanimous vote of stockholders.
Section 11. Treasury Stock. Shares of its own stock belonging to the Corporation
or to another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held by this Corporation,
shall not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares for the purpose of determining whether a
quorum is present. Nothing in this section shall be construed to limit the right
of this Corporation to vote shares of its own stock held by it in a fiduciary
capacity.
ARTICLE III
DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall be managed
by or under the direction of its Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders.
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Section 2. Number and Term of Office. The Board of Directors shall consist of at
least one (1) director. The number of directors shall be fixed by resolution of
the Board of Directors or by the stockholders at the annual meeting or a special
meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 3 of this Article, and each director
elected shall hold office until his successor is elected and qualified, except
as required by law. Any decrease in the authorized number of directors shall not
be effective until the expiration of the term of the directors then in office,
unless, at the time of such decrease there shall be vacancies on the Board which
are being eliminated by such decrease.
Section 3. Resignations and Vacancies. Any director may resign at any time by
giving written notice to the Board of Directors or to the President. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. If,
at any other time than the annual meeting of the stockholders, any vacancy
occurs in the Board of Directors caused by resignation, death, retirement,
disqualification or removal from office of any director or otherwise, or any new
directorship is created by an increase in the authorized number of directors by
amendment of Section 2 of Article III of these Bylaws, a majority of the
directors then in office, although less than a quorum, may choose a successor,
or fill the newly created directorship, and the director so chosen shall hold
office until the next annual election of directors by the stockholders and until
his successor shall be duly elected and qualified, unless sooner displaced.
Section 4. Removal. Any director or the entire Board of Directors may be
removed, with or without cause, at any meeting of the stockholders, by the
affirmative vote of the holders of a majority of the stock of the Corporation
having voting power, and the vacancy in the Board of Directors caused by such
removal may be filled by the stockholders at such meeting.
Section 5. Dividends and Reserves. Dividends upon stock of the Corporation may
be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, in shares of stock
or otherwise in the form, and to the extent, permitted by law. The Board of
Directors may set apart, out of any funds of the corporation available for
dividends, a reserve or reserves for working capital or for any other lawful
purpose, and also may abolish any such reserve in the manner in which it was
created.
Section 6. Regular Meetings. Regular meetings of the Board of Directors nay be
held without notice immediately after the annual meeting of the stockholders and
at such other time and place as shall from time to time be determined by the
Board of Directors.
Section 7. Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board or the President on one day's written notice
to each director by whom such notice is not waived, given either personally or
by mail, facsimile or telegram, shall be called by the President or the
Secretary in like manner and on like notice on the written request of any two
directors.
Section 8. Quorum. At all meetings of the Board of Directors, a majority of the
total number of directors then in office shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at
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any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn the meeting
from time to time to another place, time or date, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. Written Action. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes or proceedings of the Board of Directors or Committee.
Section 10. Presumption of Assent. Unless otherwise provided by statute, a
director of the corporation who is present at a meeting of the Board of
Directors at which action is taken on any corporate matter shall be presumed to
have assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as Secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 11. Participation in Meetings by Conference Telephone. Members of the
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any such committee, by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
Section 12. Committees. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation and each to have such
lawfully delegable powers and duties as the Board may confer. Each such
committee shall serve at the pleasure of the Board of Directors. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Except as otherwise provided by law, any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to amending the Certificate of
Incorporation, adopting an Agreement of Merger or Consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of dissolution, or amending the
Bylaws of the Corporation; and unless the resolution or the Certificate of
Incorporation expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Any
committee or committees so designated by the Board shall have such name or names
as may be determined from time to time by resolution adopted by the Board of
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Directors. Unless otherwise prescribed by the Board of Directors, a majority of
the members of the committee shall constitute a quorum for the transaction of
business, and the act of a majority of the members present at a meeting at which
there is a quorum shall be the act of such committee.
Each committee shall prescribe its own rules for calling and holding meetings
and its method of procedure, subject to any rules prescribed by the Board of
Directors, and shall keep a written record of all actions taken by it.
Section 13. Fees and Compensation of Directors. Directors shall not receive any
stated salary for their services as such; but, by resolution of the Board of
Directors, a fixed fee, with or without expenses of attendance, may be allowed
for attendance at each regular or special meeting of the board. Members of the
board shall be allowed their reasonable traveling expenses when actually engaged
in the business of the corporation. Members of any committee may be allowed like
fees and expenses for attending committee meetings. Nothing herein contained
shall be construed to preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
Section 14. Rules. The Board of Directors may adopt such special rules and
regulations for the conduct of their meetings and the management of the affairs
of the Corporation as they may deem proper, not inconsistent with law or these
by-laws.
ARTICLE IV
NOTICES
Section 1. Generally. Whenever under the provisions of the statues or the
certificate of Incorporation or these Bylaws, notice is required to be given to
any director or stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the Corporation;
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to the
directors may also be given by telegram, telephone or facsimile.
Section 2. Waivers. Whenever any notice is required to be given under the
provisions of the statutes or the certificate of Incorporation or these Bylaws,
a waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time of the event for which notice is to be
given, shall be deemed equivalent to such notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened.
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ARTICLE V
OFFICERS
Section 1. Offices and Official Positions. The officers of the Corporation shall
be a Chairman of the Board, Chief Executive officer, President, one or more Vice
Presidents, a Secretary, a Treasurer, and such Assistant Vice Presidents,
Assistant Secretaries, Assistant Treasurers, and other officers as the Board of
Directors shall determine. Any two or more offices may be held by the same
person. None of the officers need be a director, a stockholder of the
corporation or a resident of the State of Delaware.
Section 2. Compensation. The compensation of all officers and agents of the
Corporation who are also directors of the Corporation shall be fixed by the
Board of Directors. The Board of Directors may delegate the power to fix the
compensation of other officers and agents of the Corporation to an officer of
the Corporation.
Section 3. Succession. The officers of the Corporation shall hold office until
their successors are elected and qualified. Any officer elected or appointed by
the Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
Section 4. Authority and Duties. Each of the officers of the Corporation shall
have such authority and shall perform such duties as are stated in these Bylaws
or as may be specified by the Board of Directors in a resolution which is not
inconsistent with these Bylaws customarily incident to their respective offices,
or as may be specified from time to time by the Board of Directors in a
resolution which is not inconsistent with these Bylaws.
Section 5. Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the stockholders and of the Board of Directors and he shall have
such other duties and responsibilities as may be assigned to him by the Board of
Directors. The Chairman shall have overall responsibility for the management and
direction of the business and affairs of the Corporation. The Chairman shall be
the senior officer of the Corporation and in case of the inability or failure of
the President to perform the duties of that office, shall perform the duties of
the President. The Chairman may delegate to any qualified person authority to
chair any meeting of the stockholders, either on a temporary or a permanent
basis.
In the absence of the Chairman of the Board, the Vice Chairman of the Board, if
any, shall preside at all meetings of the Board of Directors and of the
stockholders at which he shall be present. He shall have and may exercise such
powers as are, from time to time, assigned to him by the Board of Directors and
as may be provided by law.
Section 6. President/Chief Executive Officer. The President may or may not be
the Chief Executive Officer of the Corporation and either the Chief Executive
officer or the President shall preside at all meetings of the stockholders, the
Board of Directors or any committee officer is a member. The President and Chief
Executive Officer shall each have the overall supervision of the business of the
Corporation and shall direct the affairs and policies of the Corporation,
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subject to such policies and directions as may be determined by the Chairman of
the Board or provided by the Board of Directors. Both the Chief Executive
Officer and the President shall have authority to designate the duties and
powers of other officers and delegate special powers and duties to specified
officers, so long as such designation shall not be inconsistent with the
statutes, these Bylaws or action of the Board of Directors. The Chief Executive
Officer and the President shall each also have power to execute, and shall
execute, deeds, mortgages, bonds, contracts or other instruments of the
Corporation except where required or permitted by statute to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors or to some other officer or agent
of the Corporation. The President may sign with the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer, certificates for shares of
stock of the Corporation the issuance of which shall have been duly authorized
by the Board of Directors, and shall vote, or give a proxy to any other person
to vote, all shares of the stock of any other corporation standing in the name
of the Corporation. The President and Chief Executive officer in general shall
have all other powers and shall perform all other duties as may be prescribed by
the Board of Directors from time to time.
Section 7. Execution of Documents. The Chairman of the Board and the President
and Chief Executive Officer shall have, and each of them is hereby given, full
power and authority to execute all duly authorized contracts, agreements, deeds,
conveyances or other obligations of the Corporation, applications, consents,
proxies and other powers of attorney, and other documents and instruments,
except where required or permitted by law to be otherwise executed and except
where the execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation. In addition, the
Chairman of the Board, the Chief Executive Officer and the President may
delegate to other officers, employees, and agents of the Corporation the power
and authority to execute, on behalf of the Corporation, duly authorized
contracts, agreements, deeds, conveyances, or other obligations of the
Corporation, applications, consents, proxies and other powers of attorney, and
other documents and instruments, with such limitations as the Chairman of the
Board, the Chief Executive officer or the President may specify; such authority
so delegated by the Chairman of the Board, the Chief Executive officer or the
President shall not be re-delegated by the person to whom such execution
authority has been delegated.
Section 8. Vice Presidents. In the absence of the President and the Chief
Executive Officer, or in the event of such individual(s) inability or refusal to
act, the Vice Presidents in order of their rank as fixed by the Board of
Directors or, if not ranked, the Vice President designated by the Board of
Directors or the President, shall perform all duties of the President, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the President. The Vice Presidents shall have such other powers and perform
such other duties, not inconsistent with the statutes, these Bylaws, or action
of the Board of Directors, as from time to time may be prescribed for them,
respectively, by the Board of Directors or the President. Any Vice President may
sign, with the Secretary or an Assistant Secretary, or the Treasurer or an
Assistant Treasurer, certificates for shares of stock of the Corporation the
issuance of which shall have been duly authorized by the Board of Directors.
Section 9. Secretary and Assistant Secretaries. The Secretary shall attend all
meetings of the stockholders and all meetings of the Board of Directors and
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record all the proceedings of the meetings of the stockholders and of the Board
of Directors and shall perform like duties for the standing committees when
requested by the Board of Directors, the Chairman, or the President. The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and meetings of the Board of Directors. The Secretary shall perform
such duties as may be prescribed by the Board of Directors, the Chairman, or the
President. The Secretary shall have charge of the seal of the Corporation and
authority to affix the seal to any instrument. The Secretary or any Assistant
Secretary may attest to the corporate seal by handwritten or facsimile
signature. The Secretary shall keep and account for all books, documents, papers
and records of the Corporation except for those for which some other officer or
agent has been designated or is otherwise properly accountable. The Secretary
shall have authority to sign stock certificates.
Assistant Secretaries, in order of their seniority, shall assist the Secretary
and, if the Secretary is unavailable or fails to act, perform the duties and
exercise the authorities of the Secretary and shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
Section 10. Treasurer and Assistant Treasurers. The Treasurer shall have the
custody of the corporate funds and securities belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Treasurer with the prior approval of the Board of Directors, the Chairman, and
the President. The Treasurer shall disburse the funds and pledge the credit of
the Corporation as may be directed by the Board of Directors and shall render to
the Board of Directors, the Chairman, and the President, as and when required by
them, or any of them, an account of all transactions by the Treasurer.
If required by the Board of Directors, he shall give the Corporation a bond
(which shall be renewed every six years) in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all boxes, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Assistant Treasurers, in the order of their seniority, shall assist the
Treasurer and, if the Treasurer is unable or fails to act, perform the duties
and exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
Section 11. Controller. The Controller shall be the chief accounting officer of
the Corporation. The Controller shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation in accordance
with accepted accounting methods and procedures. The Controller shall initiate
periodic audits of the accounting records, methods and systems of the
Corporation. The Controller shall render to the Board of Directors, the
Chairman, and the President, as and when required by them, or any of them, a
statement of the financial condition of the Corporation.
Section 12. General Counsel. The General Counsel shall be the chief legal
officer of the Corporation. The General Counsel shall provide legal counsel and
advice to the Board of Directors and to the officers with respect to compliance
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with applicable laws and regulations. The General Counsel shall also provide or
obtain legal defense of the Corporation. The General Counsel shall render to the
Board of Directors, the Chairman, and the President, as and when required by
them, or any of them, a report on the status of claims against, and pending
litigation of the corporation.
ARTICLE VI
STOCKS
Section 1. Certificates. Certificates representing shares of stock of the
Corporation shall be in such form as shall be determined by the Board of
Directors, subject to applicable legal requirements. Such certificates shall be
numbered and their issuance recorded in the books of the Corporation, and such
certificate shall exhibit the holder's name and the number of shares and shall
be signed by, or in the name of the Corporation by, the Chairman of the Board or
the President and the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the Corporation and shall bear the corporate seal. Where
any such certificate is countersigned by a transfer agent or a registrar other
than the Corporation or its employee, the signatures of any such officers of the
Corporation and the seal of the Corporation, if any; upon such certificates may
be facsimiles, engraved or printed.
Section 2. Transfer. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the Corporation to issue, or to cause its transfer agent to issue, a
new certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 3. Lost, Stolen or Destroyed Certificates. The President or the Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact, satisfactory to the President, by the person claiming the certificate of
stock to be lost, stolen or destroyed. As a condition precedent to the issuance
of a new certificate or certificates the President requires the owner of such
lost, stolen or destroyed certificate or certificates to give the Corporation a
bond in such sum and with such surety or sureties as the President may direct as
indemnity against any claims that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed or the
issuance of the new certificate.
Section 4. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
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stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to consent
to corporate action in writing without a meeting, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
this chapter, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
a Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action.
In order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) action. If no record
date is fixed. the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
ARTICLE VII
INDEMNIFICATION
Section 1. Indemnification. Each person who at any time is or shall have been a
director, officer, employee or agent of this Corporation, or is or shall have
been serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, and his heirs, executors and administrators, shall be indemnified by
this Corporation in accordance with and to the full extent permitted by the
Delaware General Corporation Law as in effect at the time of adoption of this
Bylaw or as amended from time to time. No director of the Corporation shall be
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty.
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ARTICLE VIII
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed from
time to time by resolution of the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may adopt a corporate seal and
use the same by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 3. Reliance upon Books, Reports and Records. Each director, each member
of a committee designated by the Board of Directors, and each officer of the
Corporation shall, in the performance of his or her duties, be fully protected
in relying in good faith upon the records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by any
of the Corporation's officers or employees, or committees of the Board of
Directors, or by person as to matters the director, committee member or officer
believes are within such other person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the Corporation.
Section 4. Time Periods. In applying any provision of these Bylaws which
requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded and the day of the event shall be included.
Section 5. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to statute. Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the. Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purposes as the directors
shall think conducive to the interest of the Corporation; and the directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE IX
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts and Other Instruments. The Board of Directors may authorize
any officer or officers, agent or agents, to enter into any contract or execute
and deliver any instrument in the name of and on behalf of the Corporation, or
of any division thereof, and such authority may be general or confirmed to
specific instances.
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Section 2. Loans. No loans shall be contracted on behalf of the Corporation, or
any division thereof, and no evidence of indebtedness shall be issued in the
name of the Corporation or any division thereof, unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
Section 3. Checks, Drafts, etc. All checks, demands, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation, or any division thereof, shall be signed by such
officer or officers, agent or agents of the Corporation, and in such manner, as
shall from time to time be authorized by the Board of Directors.
Section 4. Deposits. All funds of the Corporation, or any division thereof, not
otherwise employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositories as the Board of
Directors may select.
ARTICLE X
AMENDMENTS
Section 1. Amendments. These Bylaws may be altered, amended or repealed or new
Bylaws may be adopted by the stockholders or by the Board of Directors, when
such power is conferred upon the Board of Directors by the Certificate of
Incorporation at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
Bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal Bylaws is conferred upon the Board of Directors by the
Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal Bylaws.
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CERTIFICATE OF SECRETARY
I, Stephen C. Park, Secretary of NextWave Personal
Communications Inc., a Delaware corporation, do hereby certify that the
foregoing Bylaws of NextWave Personal Communications Inc. are the duly adopted
Bylaws of said Corporation as they are in effect on the date hereof.
Executed at ________________, effective as of May ____, 1995.
----------------------------------
Stephen C. Park, Secretary
BYLAWS
OF
NEXTWAVE POWER PARTNERS INC.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Article I OFFICES........................................................................1
Section 1.Registered Office...................................................................1
Section 2.Other Offices.......................................................................1
Article II MEETINGS OF STOCKHOLDERS.......................................................1
Section 1.Time and Place of Meetings..........................................................1
Section 2.Annual Meeting......................................................................1
Section 3.Special Meetings....................................................................1
Section 4.Notice of Meetings..................................................................1
Section 5.Stockholder List....................................................................2
Section 6.Quorum 2
Section 7.Proxies 2
Section 8.Voting 2
Section 9.Voting of Certain Shares............................................................3
Section 10. Action Without Meeting....................................................3
Section 11. Treasury Stock............................................................3
Section 12. Notice of Stockholder Business and Nominations............................3
Section 13. Record Date for Action by Written Consent.................................5
Section 14. Inspectors of Written Consent.............................................6
Section 15. Effectiveness of Written Consent..........................................6
Article III DIRECTORS......................................................................6
Section 1.Powers .............................................................................6
Section 2.Number and Term of Office...........................................................6
Section 3.Resignations and Vacancies..........................................................7
Section 4.Removal 7
Section 5.Dividends and Reserves..............................................................7
Section 6.Regular Meetings....................................................................7
Section 7.Special Meetings....................................................................7
Section 8.Quorum 7
Section 9.Written Action......................................................................8
i
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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Section 10. Presumption of Assent.....................................................8
Section 11. Participation in Meetings by Conference Telephone.........................8
Section 12. Committees................................................................8
Section 13. Fees and Compensation of Directors........................................9
Section 14. Rules.....................................................................9
Article IV NOTICES........................................................................9
Section 1.Generally ..........................................................................9
Section 2.Waivers ..........................................................................9
Article V OFFICERS.......................................................................9
Section 1.Offices and Official Positions......................................................9
Section 2.Compensation.......................................................................10
Section 3.Succession10
Section 4.Authority and Duties...............................................................10
Section 5.Chairman of the Board..............................................................10
Section 6.President/Chief Executive Officer..................................................10
Section 7.Vice Presidents....................................................................11
Section 8.Secretary and Assistant Secretaries................................................11
Section 9.Treasurer and Assistant Treasurers.................................................11
Section 10. Controller...............................................................12
Section 11. General Counsel..........................................................12
Article VI STOCKS........................................................................12
Section 1.Certificates.......................................................................12
Section 2.Transfer 12
Section 3.Lost, Stolen or Destroyed Certificates.............................................12
Section 4.Record Date........................................................................13
Article VII INDEMNIFICATION...............................................................14
Section 1.Indemnification....................................................................14
Article VIII GENERAL PROVISIONS............................................................14
Section 1.Fiscal Year........................................................................14
ii
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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Section 2.Corporate Seal.....................................................................14
Section 3.Reliance upon Books, Reports and Records...........................................15
Section 4.Time Periods.......................................................................15
Section 5.Dividends 15
Article IX CONTRACTS, LOANS, CHECKS AND DEPOSITS.........................................15
Section 1.Contracts and Other Instruments....................................................15
Section 2.Loans 15
Section 3.Checks, Drafts, etc................................................................15
Section 4.Deposits 16
Article X AMENDMENTS....................................................................16
Section 1.Amendments.........................................................................16
</TABLE>
iii
<PAGE>
BYLAWS
OF
NEXTWAVE POWER PARTNERS INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of NextWave Power Partners
Inc., a Delaware corporation (the "Corporation") in the State of Delaware shall
be located in the City of Wilmington, County of New Castle, State of Delaware,
and the name of its registered agent is Corporation Service Company.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at any place within
or without the State of Delaware, as may be authorized by the Board of Directors
and stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual Meeting. Annual meetings of stockholders shall be held on the
date as shall be designated by the Board of Directors at which meeting the
stockholders shall elect by plurality vote by the directors to succeed those
whose terms expire and shall transact such other business as may properly be
brought before the meeting.
Section 3. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by Certificate of
Incorporation, may be called by the Board of Directors, the Chairman of the
Board or the President, and shall be called by the President or the Secretary at
the request in writing of stockholders owning a majority in the amount of entire
capital stock of the Corporation issued and outstanding and entitled to vote.
Such request shall be sent to the President and the Secretary and shall state
the purpose or purposes of the proposed meeting. Any special meeting of the
stockholders shall be held at such place, on such date and at such time as the
Chairman of the Board, the President or the Secretary, as the case may be, shall
fix.
Section 4. Notice of Meetings. Written notice of every meeting of the
stockholders, stating the place, date and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting, except
as otherwise provided herein or by law. When a meeting is adjourned to another
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place, date or time, written notice need not be given of the adjourned meeting
if the place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, written notice of the place, date and time of the adjourned
meeting shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting.
Section 5. Stockholder List. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting, arranged in alphabetical order, and showing the address of each
such stockholder and the number of shares registered in the name of each such
stockholder. Such list shall be open to examination of any stockholder of the
Corporation during ordinary business hours, for any purpose germane to the
meeting, for a period of at least ten (10) days prior to the meeting, either at
a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of meeting during the whole time thereof, and subject to the
inspection for any purpose germane to the meeting of any stockholder who may be
present.
Section 6. Quorum. The holders of at least a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by law or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented.
Section 7. Proxies. At every meeting of the stockholders, each stockholder
having the right to vote thereat shall be entitled to vote in person or by
proxy. Such proxy shall be appointed by an instrument in writing subscribed by
such stockholder and bearing a date not more than three (3) years prior to such
meeting, unless such proxy provides for a longer period; and it shall be filed
with the Secretary of the Corporation before, or at the time of, the meeting.
Section 8. Voting. Except as otherwise provided by statute or by the Certificate
of Incorporation, each stockholder shall be entitled at every meeting of the
stockholders to one vote for each share of stock having voting power standing in
the name of such stockholder on the books of the Corporation on the record date
for the meeting and such votes may be cast either in person or by written proxy.
Every proxy must be executed in writing by the stockholder or his or her duly
authorized attorney. Such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. When a quorum is present at
any meeting, the vote of the holders of a majority of the stock which has voting
power present in person or represented by proxy and which has actually voted
shall decide any question properly brought before such meeting, unless the
question is one upon which by express provision of law, the Certificate of
Incorporation or these Bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question.
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Section 9. Voting of Certain Shares. Shares standing in the name of another
corporation, domestic or foreign, and entitled to vote may be voted by such
officer, agent, or proxy as the bylaws of such corporation may prescribe or, in
the absence of such provision, as the Board of Directors of such corporation may
determine. Shares standing in the name of a deceased person, a minor or an
incompetent and entitled to vote may be voted by his administrator, executor,
guardian or conservator, as the case may be, either in person or by proxy.
Shares standing in the name of a trustee, receiver or pledgee and entitled to
vote maybe voted by such trustee, receiver or pledgee either in person or by
proxy as provided by Delaware law.
Section 10. Action Without Meeting. Unless otherwise provided in the Certificate
of Incorporation or these Bylaws, any action required to be taken at any annual
or special meeting of stockholders of the Corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the actions so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing. Such
consent shall be filed with the Minutes of Proceedings of the stockholders and
shall have the same force and effect as the unanimous vote of stockholders.
Section 11. Treasury Stock. Shares of its own stock belonging to the Corporation
or to another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held by this Corporation,
shall not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares for the purpose of determining whether a
quorum is present. Nothing in this section shall be construed to limit the right
of this Corporation to vote shares of its own stock held by it in a fiduciary
capacity.
Section 12. Notice of Stockholder Business and Nominations.
(A) Annual Meeting of Stockholders.
(1) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (a) pursuant to the
Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this Bylaw, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Bylaw.
(2) For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this
Bylaw, the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation and such other business must otherwise be a proper
matter for stockholder action. To be timely, a stockholder's notice shall be
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delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 60th day nor earlier than the close
of business on the 90th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is more than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the Corporation. In no
event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as director if elected); (b) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made, and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class and number
of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this
Bylaw to the contrary, in the event that the number of Directors to be elected
to the Board of Directors of the Corporation is increased and there is no public
announcement by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 70 days prior
to the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Bylaw shall also be considered timely but only with
respect to nominees for any new positions creased by such increase, if it shall
be delivered to the Secretary at the principal execution offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the Corporation.
(B) Special Meetings of Stockholders.
Only such business shall be conducted at a special meeting of stockholders as
shall have been brought before the meeting pursuant to the Corporation's notice
of meeting. Nominations of persons for election to the Board of Directors may be
made at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at the direction of
the Board of Directors at (b) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any stockholder
of the Corporation who is a stockholder of record at the time of giving of
notice provided for in this Bylaw who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this Bylaw. In the
event the Corporation calls a special meeting of stockholders for the purpose of
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electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A)(2) of this Bylaw shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(C) General.
(1) Only such persons who are nominated in accordance with the procedures set
forth in this Bylaw shall be eligible to serve as director; and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Bylaw. Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, the Chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Bylaw and, in any proposed nomination or business
is not in compliance with this Bylaw, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of the Bylaw, "public announcement" shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this Bylaw.
Nothing in this Bylaw shall be deemed to affect any rights (i) of stockholders
to request inclusion of proposal in the Corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of
Preferred Stock to elect directors under specified circumstances.
Section 13. Record Date for Action by Written Consent. In order that the
Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board. of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which date
shall not be more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorized or take corporate action by written
consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within 10 days after the date on which such a request is received,
adopt a resolution fixing the record date. If no record date has been filed by
the Board of Directors within 10 days of the date on which such a request is
received, the record date for determining stockholders entitled to consent to
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corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by applicable law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in Delaware,
its principal place of business or to any officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
Section 14. Inspectors of Written Consent. In the event of the delivery, in the
manner provided by Section 13, to the Corporation of the requisite written
consent or consents to take corporate action and/or any related revocation or
revocations, the Corporation shall engage nationally recognized independent
inspectors of elections for the purpose of promptly performing a ministerial
review of the validity of the consents and revocations. For the purpose of
permitting the inspectors to perform such review, no action by written consent
without a meeting shall be effective until such date as the independent
inspectors certify to the Corporation that the consents delivered to the
Corporation in accordance with Section 13 represent at least the minimum number
of votes that would be necessary to take the corporate action. Nothing contained
in this paragraph shall in. any way be construed to suggest or imply that the
Board of Directors or any stockholder shall not be entitled to contest the
validity of any consent or revocation thereof, whether before or after such
certification by the independent inspectors, or to take any other actions
(including, without limitation, the commencement, prosecution or defense of any
litigation with respect thereto, and the seeking of injunctive relief in such
litigation).
Section 15. Effectiveness of Written Consent. Every written consent shall bear
the date of signature of each stockholder who signs the consent and no written
consent shall be effective to take the corporate action referred to therein
unless, within 60 days of the date the earliest dated written consent was
received in accordance with Section 13, a written consent or consents signed by
a sufficient number of holders to take such action are delivered to the
Corporation in the manner prescribed in Section 13.
ARTICLE III
DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall be managed
by or under the direction of its Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders.
Section 2. Number and Term of Office. The Board of Directors shall consist of
four directors. The total number of directors of each series shall be fixed by
resolution of the Board of Directors. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3 of this
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Article, and each director elected shall hold office until his successor is
elected and qualified, except as required by law. Any decrease in the authorized
number of directors shall not be effective until the expiration of the term of
the directors then in office, unless, at the time of such decrease there shall
be vacancies on the Board which are being eliminated by such decrease.
Section 3. Resignations and Vacancies. Any director may resign at any time by
giving written notice to the Board of Directors or to the President. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. If,
at any other time than the annual meeting of the stockholders, any vacancy
occurs in the Board of Directors caused by resignation, death, retirement,
disqualification or removal from office of any director or otherwise, or any new
directorship is created by an increase in the authorized number of directors by
amendment of Section 2 of Article III of these Bylaws, a majority of each class
of the directors then in office, although less than a quorum, may choose a
successor, or fill the newly created directorship, and the director so chosen
shall hold office until the next annual election of directors by the
stockholders and until his successor shall be duly elected and qualified, unless
sooner displaced.
Section 4. Removal. Any director may be removed with or without cause, at any
meeting of the stockholders, by the affirmative vote of the majority of common
stock.
Section 5. Dividends and Reserves. Dividends upon stock of the Corporation may
be declared by the Board of Directors at any regular or special meeting,
pursuant to law and subject to the terms of the Certificate of Incorporation.
Dividends may be paid in cash, in property, in shares of stock or otherwise in
the form, and to the extent, permitted by law. The Board of Directors may set
apart, out of any funds of the corporation available for dividends, a reserve or
reserves for working capital or for any other lawful purpose, and also may
abolish any such reserve in the manner in which it was created.
Section 6. Regular Meetings. Regular meetings of the Board of Directors may be
held without notice immediately after the annual meeting of the stockholders and
at such other time and place as shall from time to time be determined by the
Board of Directors.
Section 7. Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board or the President on one day's written notice
to each director by whom such notice is not waived, given either personally or
by mail, facsimile, or telegram, or shall be called by the President or the
Secretary in like manner and on like notice on the written request of any two
directors.
Section 8. Quorum. A quorum for a meeting of the Board of Directors of the
Corporation shall consist of a majority of the total number of directors present
at such meeting for the transaction of business, and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute or by the Certificate of Incorporation. If a quorum shall not be present
at any meeting of the Board of Directors, the directors present thereat may
adjourn the meeting from time to time to another place, time or date, without
notice other than announcement at the meeting, until a quorum shall be present.
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Section 9. Written Action. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes or proceedings of the Board of Directors or Committee.
Section 10. Presumption of Assent. Unless otherwise provided by statute, a
director of the corporation who is present, at a meeting of the Board of
Directors at which action is taken on any corporate matter shall be presumed to
have assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as Secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 11. Participation in Meetings by Conference Telephone. Members of the
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any such committee, by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
Section 12. Committees. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation and each to have such
lawfully delegable powers and duties as the Board may confer. Each such
committee shall serve at the pleasure of the Board of Directors. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Except as otherwise provided by law, any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to amending the Certificate of
Incorporation, adopting an Agreement of Merger or Consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of dissolution, or amending the
Bylaws of the Corporation; and unless the resolution or the Certificate of
Incorporation expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Any
committee or committees so designated by the Board shall have such name or names
as may be determined from time to time by resolution adopted by the Board of
Directors. Unless otherwise prescribed by the Board of Directors, a majority of
the members of the committee shall constitute a quorum for the transaction of
business, and the act of a majority of the members present at a meeting at which
there is a quorum shall be the act of such committee.
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Each committee shall prescribe its own rules for calling and holding meeting s
and its method of procedure, subject to any rules prescribed by the Board of
Directors, and shall keep a written record of all actions taken by it.
Section 13. Fees and Compensation of Directors. Directors shall not receive any
stated salary for their services as such; but, by resolution of the Board of
Directors, a fixed fee, with or without expenses of attendance, may be allowed
for attendance at each regular or special meeting of the board. Members of the
board shall be allowed their reasonable traveling expenses when actually engaged
in the business of the corporation. Members of any committee may be allowed like
fees and expenses for attending committee meetings. Nothing herein contained
shall be construed to preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
Section 14. Rules. The Board of Directors may adopt such special rules and
regulations for the conduct of their meetings and the management of the affairs
of the Corporation as they may deem proper, not inconsistent with law or these
by-laws.
ARTICLE IV
NOTICES
Section 1. Generally. Whenever under the provisions of the statutes or the
Certificate of Incorporation or these Bylaws, notice is required to be given to
any director or stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to the
directors may also be given by telegram, telephone or facsimile.
Section 2. Waivers. Whenever any notice is required to be given under the
provisions of the statutes or the Certificate of Incorporation or these Bylaws,
a waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time of the event for which notice is to be
given, shall be deemed equivalent to such notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened.
ARTICLE V
OFFICERS
Section 1. Offices and Official Positions. The officers of the Corporation shall
be a Chairman of the Board, President, one or more Vice Presidents, a Secretary,
a Treasurer, and such Assistant Vice Presidents, Assistant Secretaries,
Assistant Treasurers, and other officers as the Board of Directors shall
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determine. Any two or more offices may be held by the same person. None of the
officers need be a director, a stockholder of the corporation or a resident of
the State of Delaware.
Section 2. Compensation. The compensation of all officers and agents of the
Corporation who are also directors of the Corporation shall be fixed by the
Board of Directors. The Board of Directors may delegate the power to fix the
compensation of other officers and agents of the Corporation to an officer of
the Corporation.
Section 3. Succession. The officers of the Corporation shall hold office until
their successors are elected and qualified. Any officer elected or appointed by
the Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
Section 4. Authority and Duties. Each of the officers of the Corporation shall
have such authority and shall perform such duties as are stated in these Bylaws
or as may be specified by the Board of Directors in a resolution which is not
inconsistent with these Bylaws customarily incident to their respective offices,
or as may be specified from time to time by the Board of Directors in a
resolution which is not inconsistent with these Bylaws.
Section 5. Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the stockholders and of the Board of Directors and he shall have
such other duties and responsibilities as may be assigned to him by the Board of
Directors. The Chairman shall have overall responsibility for the management and
direction of the business and affairs of the Corporation. The Chairman shall be
the senior officer of the Corporation and in case of the inability or failure of
the President to perform the duties of that office, shall perform the duties of
the President. The Chairman may delegate to any qualified person authority to
chair any meeting of the stockholders, either on a temporary or a permanent
basis.
In the absence of the Chairman of the Board, the Vice Chairman of the Board, if
any, shall preside at all meetings of the Board of Directors and of the
stockholders at which he shall be present. He shall have and may exercise such
powers as are, from time to time, assigned to him by the Board of Directors and
as may be provided by law.
Section 6. President/Chief Executive Officer. The President may or may not be
the Chief Executive Officer of the corporation and either the Chief Executive
Officer or the President shall preside at all meetings of the stockholders, the
Board of Directors or any committee of the Board if either officer is a member.
The President and Chief Executive Officer shall each have the overall
supervision of the business of the Corporation and shall direct the affairs and
policies of the Corporation, subject to such policies and directions as may be
determined by the Chairman of the Board or provided by the Board of Directors.
Both the Chief Executive Officer and the President shall have authority to
designate the duties and powers of other officers and delegate special powers
and duties to specified officers, so long as such designation shall not be
inconsistent with the statutes, these Bylaws or action of the Board of
Directors. The President and Chief Executive Officer in general shall have all
other powers and shall perform all other duties as may be prescribed by the
Board of Directors from time to time.
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Section 7. Vice Presidents. In the absence of the President and the Chief
Executive Officer, or in the event of such individuals inability or refusal to
act, the Vice Presidents in order of their rank as fixed by the Board of
Directors or, if not ranked, the Vice President designated by the Board of
Directors or the President, shall perform all duties of the President, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the President. The Vice Presidents shall have. such other powers and
perform such other duties, not inconsistent with the statutes, these Bylaws, or
action of the Board of Directors, as from time to time may be prescribed for
them, respectively, by the Board of Directors or the President. Any Vice
President may sign, with the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer, certificates for shares of stock of the
Corporation the issuance of which shall have been duly authorized by the Board
of Directors.
Section 8. Secretary and Assistant Secretaries. The Secretary shall attend all
meetings of the stockholders and all meetings of the Board of Directors and
record all the proceedings of the meetings of the stockholders and of the Board
of Directors and shall perform like duties for the standing committees when
requested by the Board of Directors, the Chairman, or the President. The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and meetings of the Board of Directors. The Secretary shall perform
such duties as may be prescribed by the Board of Directors, the Chairman, or the
President. The Secretary shall have charge of the seal of the Corporation and
authority to affix the seal to any instrument. The Secretary or any Assistant
Secretary may attest to the corporate seal by handwritten or facsimile
signature. The Secretary shall keep and account for all books, documents, papers
and records of the Corporation except for those for which some other officer or
agent has been designated or is otherwise properly accountable. The Secretary
shall have authority to sign stock certificates.
Assistant Secretaries, in order of their seniority, shall assist the Secretary
and, if the Secretary is unavailable or fails to act, perform the duties and
exercise the authorities of the Secretary and shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
Section 9. Treasurer and Assistant Treasurers. The Treasurer shall have the
custody of the corporate funds and securities belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Treasurer with the prior approval of the Board of Directors, the Chairman, and
the President. The Treasurer shall disburse the funds and pledge the credit of
the Corporation as may be directed by the Board of Directors and shall render to
the Board of Directors, the Chairman, and the President, as and when required by
them, or any of them, an account of all transactions by the Treasurer.
If required by the Board of Directors, he shall give the Corporation a bond
(which shall be renewed every six years) in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all boxes, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
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Assistant Treasurers, in the order of their seniority, shall assist the
Treasurer and, if the Treasurer is unable or fails to act, perform the duties
and exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
Section 10. Controller. The Controller shall be the chief accounting officer of
the Corporation. The Controller shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation in accordance
with accepted accounting methods and procedures. . The Controller shall initiate
periodic audits of the accounting records, methods and systems of the
Corporation. The Controller shall render to the Board of Directors, the
Chairman, and the President, as and when required by them, or any of them', a
statement of the financial condition of the Corporation.
Section 11. General Counsel. The General Counsel shall be the chief legal
officer of the Corporation. The General Counsel shall provide legal counsel and
advice to the Board of Directors and to the officers with respect to compliance
with applicable laws and regulations. The General Counsel shall also provide or
obtain legal defense of the Corporation. The General Counsel shall render to the
Board of Directors, the Chairman, and the President, as and when required by
them, or any of diem, a report on the status of claims against, and pending
litigation of the Corporation.
ARTICLE VI
STOCKS
Section 1. Certificates. Certificates representing shares of stock of the
Corporation shall be in such form as shall be determined by the Board of
Directors, subject to applicable legal requirements, Such certificates shall be
numbered and their issuance recorded in the books of the Corporation, and such
certificate shall exhibit the holder's name and the number of shares and shall
be signed by, or in the name of the Corporation by, the Chairman of the Board or
the President and the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the Corporation and shall bear the corporate seal. Where
any such certificate is countersigned by a transfer agent or a registrar other
than the Corporation or its employee, the signatures of any such officers of the
Corporation and the seal of the Corporation, if any, upon such certificates may
be facsimiles, engraved or printed.
Section 2. Transfer. Except as provided in the Certificate of Incorporation or
by law, upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation to issue, or to cause its transfer agent to issue, a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 3. Lost, Stolen or Destroyed Certificates. The President or the Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact, satisfactory to the President, by the person claiming the certificate of
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stock to be lost, stolen or destroyed. As a condition precedent to the issuance
of a new certificate or certificates the President requires the owner of such
lost, stolen or destroyed certificate or certificates to give the Corporation a
bond in such sum and with such surety or sureties as the President may direct as
indemnity against any claims that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed or the
issuance of the new certificate.
Section 4. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to consent
to corporate action in writing without a meeting, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
this chapter, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
a Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action.
In order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
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ARTICLE VII
INDEMNIFICATION
Section 1. Indemnification. The Corporation shall indemnify every person who was
or is a party or is or was threatened to be made a party to any action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Corporation or, while
a director or officer of the Corporation, is or was serving at the request of
the Corporation, as a director, officer, employee, agent or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including counsel fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding, to the full extent permitted by applicable
law. Expenses incurred by a person who is or was a director or officer of the
Corporation in appearing at, participating in or defending any such action, suit
or proceeding shall be paid by the Corporation at reasonable intervals in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized by this Section 1. If a claim under
this Section 1 is not paid in full by the Corporation within ninety days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be paid
also the expense of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law or other applicable law for the Corporation
to indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in the Delaware
General Corporation Law or other applicable law, nor an actual determination by
the Corporation (including its board of directors, independent legal counsel, or
its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed from
time to time by resolution of the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may adopt a corporate seal and
use the same by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
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Section 3. Reliance upon Books, Reports and Records. Each director, each member
of a committee designated by the Board of Directors, and each officer of the
corporation shall, in the performance of his or her duties, be fully protected
in relying in good faith upon the records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by any
of the Corporation's officers or employees, or committees of the Board of
Directors, or by any other person as to matters the director, committee member
or officer believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Corporation.
Section 4. Time Periods. In applying any provision of these Bylaws which
requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded and the day of the event shall be included.
Section 5. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to statute. Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purposes as the directors
shall think conducive to the interest of the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE IX
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts and Other Instruments. The Board of Directors may authorize
any officer or officers, agent or agents, to enter into any contract or execute
and deliver any instrument in the name of and on behalf of the Corporation, or
of any division thereof, and such authority may be general or confirmed to
specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the Corporation, or
any division thereof, and no evidence of indebtedness shall be issued in the
name of the Corporation or any division thereof, unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
Section 3. Checks, Drafts, etc. All checks, demands, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation, or any division thereof, shall be signed by such
officer or officers, agent or agents of the Corporation, and in such manner, as
shall from time to time be authorized by the Board of Directors.
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Section 4. Deposits. All funds of the Corporation, or any division thereof, not
otherwise employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositories as the Board of
Directors may select.
ARTICLE X
AMENDMENTS
Section 1. Amendments. These Bylaws may be altered, amended or repealed or new
Bylaws may be adopted by the stockholders or by the Board of Directors, when
such power is conferred upon the Board of Directors by the Certificate of
Incorporation. If the power to adopt, amend or repeal these Bylaws is conferred
upon the Board of Directors by the Certificate of Incorporation it shall not
divest or limit the power of the stockholders to adopt, amend or repeal these
Bylaws.
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CERTIFICATE OF SECRETARY
I, Frank Cassou, Secretary of NextWave Power Partners Inc.,
a Delaware corporation, do hereby certify that the foregoing Bylaws of NextWave
Power Partners Inc. are the duly adopted Bylaws of said Corporation as they are
in effect on the date hereof.
Executed at San Diego effective as of July ___,1996.
--------------------------------
Frank Cassou, Secretary
================================================================================
NEXTWAVE TELECOM INC.,
as Issuer,
THE GUARANTORS,
party hereto from time to time,
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Collateral Agent
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
---------------------------
INDENTURE
Dated as of ___________ ___, 1999
---------------------------
12% SENIOR SECURED SUBORDINATED NOTES DUE 2009
================================================================================
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TABLE OF CONTENTS
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Article 1 DEFINITIONS AND INCORPORATION BY REFERENCE........................................2
SECTION 1.01 DEFINITIONS.........................................................2
SECTION 1.02 OTHER DEFINITIONS..................................................19
SECTION 1.03 INCORPORATION OF TIA PROVISIONS....................................19
SECTION 1.04 RULES OF CONSTRUCTION..............................................20
Article 2 THE NOTES........................................................................20
SECTION 2.01 FORM AND DATING....................................................20
SECTION 2.02 EXECUTION AND AUTHENTICATION.......................................21
SECTION 2.03 REGISTRAR AND PAYING AGENT.........................................23
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST................................23
SECTION 2.05 HOLDER LISTS.......................................................23
SECTION 2.06 TRANSFER AND EXCHANGE..............................................24
SECTION 2.07 REPLACEMENT NOTES..................................................28
SECTION 2.08 OUTSTANDING NOTES..................................................29
SECTION 2.09 TREASURY NOTES.....................................................29
SECTION 2.10 TEMPORARY NOTES....................................................29
SECTION 2.11 CANCELLATION.......................................................30
SECTION 2.12 DEFAULTED INTEREST.................................................30
SECTION 2.13 SATISFACTION AND DISCHARGE OF INDENTURE............................30
Article 3 REDEMPTION AND PREPAYMENT........................................................31
SECTION 3.01 NOTICES TO TRUSTEE.................................................31
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED..................................32
SECTION 3.03 NOTICE OF REDEMPTION...............................................32
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.....................................33
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE........................................33
SECTION 3.06 NOTES REDEEMED IN PART.............................................33
SECTION 3.07 OPTIONAL REDEMPTION................................................34
SECTION 3.08 MANDATORY REDEMPTION...............................................34
Article 4 COVENANTS........................................................................34
SECTION 4.01 PAYMENT OF NOTES...................................................34
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY....................................35
</TABLE>
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SECTION 4.03 REPORTS............................................................35
SECTION 4.04 COMPLIANCE CERTIFICATE.............................................35
SECTION 4.05 STAY, EXTENSION AND USURY LAWS.....................................36
SECTION 4.06 RESTRICTED PAYMENTS................................................36
SECTION 4.07 ASSET SALES........................................................39
SECTION 4.08 TRANSACTIONS WITH AFFILIATES.......................................41
SECTION 4.09 LIENS..............................................................42
SECTION 4.10 CORPORATE EXISTENCE................................................42
SECTION 4.11 NO SENIOR SUBORDINATED INDEBTEDNESS................................42
SECTION 4.12 PAYMENTS FOR CONSENT...............................................42
SECTION 4.13 ESTABLISHMENT OF SUBSIDIARIES......................................42
SECTION 4.14 ISSUANCE OF SUBSIDIARY CAPITAL STOCK...............................43
SECTION 4.15 OFFER TO REPURCHASE UPON CHANGE OF CONTROL.........................43
SECTION 4.16 GUARANTEES BY LICENSE HOLDING SUBSIDIARIES.........................44
SECTION 4.17 CONSUMMATION OF PLAN OF REORGANIZATION.............................44
Article 5 SUCCESSORS.......................................................................45
SECTION 5.01 MERGER, CONSOLIDATION, OR SALE OF ASSETS...........................45
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED..................................45
Article 6 DEFAULTS AND REMEDIES............................................................46
SECTION 6.01 EVENTS OF DEFAULT..................................................46
SECTION 6.02 ACCELERATION.......................................................47
SECTION 6.03 OTHER REMEDIES.....................................................47
SECTION 6.04 WAIVER OF PAST DEFAULTS............................................48
SECTION 6.05 CONTROL BY MAJORITY................................................48
SECTION 6.06 LIMITATION ON SUITS................................................48
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT......................49
SECTION 6.08 COLLECTION SUIT BY TRUSTEE.........................................49
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM...................................49
SECTION 6.10 PRIORITIES.........................................................50
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SECTION 6.11 UNDERTAKING FOR COSTS..............................................50
Article 7 TRUSTEE..........................................................................50
SECTION 7.01 DUTIES OF TRUSTEE..................................................50
SECTION 7.02 RIGHTS OF TRUSTEE..................................................51
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.......................................52
SECTION 7.04 TRUSTEE'S DISCLAIMER...............................................53
SECTION 7.05 NOTICE OF DEFAULTS.................................................53
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.........................53
SECTION 7.07 COMPENSATION AND INDEMNITY.........................................53
SECTION 7.08 REPLACEMENT OF TRUSTEE.............................................54
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC...................................55
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION......................................55
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..................55
Article 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE.........................................56
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE...........56
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE.....................................56
SECTION 8.03 COVENANT DEFEASANCE................................................56
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.........................57
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS...........................................58
SECTION 8.06 REPAYMENT TO COMPANY...............................................59
SECTION 8.07 REINSTATEMENT......................................................59
Article 9 AMENDMENT, SUPPLEMENT AND WAIVER.................................................59
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES................................59
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES...................................60
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT................................61
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS..................................61
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES...................................62
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC....................................63
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Article 10 SUBORDINATION....................................................................63
SECTION 10.01 AGREEMENT TO SUBORDINATE AND PRIORITY..............................63
SECTION 10.02 LIQUIDATION; DISSOLUTION; BANKRUPTCY...............................64
SECTION 10.03 DEFAULT ON ANY SENIOR INDEBTEDNESS.................................64
SECTION 10.04 ACCELERATION OF SECURITIES.........................................65
SECTION 10.05 WHEN DISTRIBUTION MUST BE PAID OVER................................65
SECTION 10.06 NOTICE BY COMPANY..................................................65
SECTION 10.07 SUBROGATION........................................................65
SECTION 10.08 RELATIVE RIGHTS....................................................66
SECTION 10.09 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.......................66
SECTION 10.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE...........................66
SECTION 10.11 RIGHTS OF TRUSTEE AND PAYING AGENT.................................67
SECTION 10.12 AUTHORIZATION TO EFFECT SUBORDINATION..............................67
SECTION 10.13 NO WAIVER OF SUBORDINATION PROVISIONS..............................67
SECTION 10.14 AMENDMENTS.........................................................67
SECTION 10.15 TRUSTEE'S COMPENSATION NOT PREJUDICED..............................68
Article 11 COLLATERAL AND SECURITY..........................................................68
SECTION 11.01 CASH COLLATERAL ACCOUNT............................................68
SECTION 11.02 INSTRUMENTS........................................................69
SECTION 11.03 PLEDGED SUBSIDIARY SHARES..........................................70
SECTION 11.04 GENERAL AUTHORITY..................................................71
SECTION 11.05 LIMITATION ON DUTY OF TRUSTEE IN RESPECT OF COLLATERAL;
INDEMNIFICATION....................................................71
SECTION 11.06 SECURITY DOCUMENTS; PRIORITY.......................................72
SECTION 11.07 CERTIFICATES OF THE COMPANY........................................72
SECTION 11.08 MISCELLANEOUS......................................................73
Article 12 NOTE GUARANTEES..................................................................73
SECTION 12.01 GUARANTEE..........................................................73
SECTION 12.02 NO WAIVER, ETC.....................................................75
SECTION 12.03 SUBORDINATION OF NOTE GUARANTEES...................................75
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SECTION 12.04 EXECUTION AND DELIVERY OF NOTE GUARANTEES..........................75
SECTION 12.05 RELEASES FOLLOWING SALE FOR ASSETS.................................76
SECTION 12.06 NO PERSONAL LIABILITY OF PARTNERS, STOCKHOLDERS, OFFICERS OR
DIRECTORS76
Article 13 MISCELLANEOUS....................................................................76
SECTION 13.01 TRUST INDENTURE ACT CONTROLS.......................................76
SECTION 13.02 NOTICES............................................................76
SECTION 13.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES......78
SECTION 13.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.................78
SECTION 13.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION......................78
SECTION 13.06 RULES BY TRUSTEE AND AGENTS........................................78
SECTION 13.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.......................................................79
SECTION 13.08 GOVERNING LAW......................................................79
SECTION 13.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS......................79
SECTION 13.10 SUCCESSORS.........................................................79
SECTION 13.11 SEVERABILITY.......................................................79
SECTION 13.12 COUNTERPART ORIGINALS..............................................79
SECTION 13.13 TABLE OF CONTENTS, HEADINGS, ETC...................................79
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INDENTURE dated as of ______________ __, 1999, between NextWave Telecom
Inc., a Delaware corporation (referred to herein as the "Company"), NextWave
Personal Communications Inc., a Delaware corporation ("NPCI"), NextWave Power
Partners Inc., a Delaware corporation ("NPPI") (NPPI and NPCI collectively
referred to herein as the "Guarantors") and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee") and Norwest Bank Minnesota, National
Association, as the collateral agent (the "Collateral Agent").
GRANTING CLAUSE
THIS INDENTURE WITNESSETH, that, to secure the payment of the principal,
premium, if any, and interest on all the Notes (as hereinafter defined) from
time to time outstanding hereunder and the performance and observance of the
agreements, covenants and provisions contained herein, and in the other Security
Documents, and in consideration of the premises and of the issuance of the Notes
to the Holders (as hereinafter defined), the Company and the License Holding
Subsidiaries hereby irrevocably grant, assign, pledge, hypothecate, and create
in favor of the Collateral Agent, its successors and assigns, in the trust
created by the Security Documents for the ratable security and benefit of the
Holders of the Notes, a continuing security interest in and Lien on the
following described property, rights and privileges, whether now owned or
existing or hereafter acquired or arising and regardless of where located
(including, without limitation, all property, rights and privileges hereafter
subjected to the Lien of this Indenture); provided, however, that any such Liens
or security interests existing on, in or under the Collateral shall be subject
to the terms and the conditions of the Security Documents.
(a) The License Holding Subsidiary Shares of each License Holding
Subsidiary and the certificates representing such License Holding Subsidiary
Shares, and all dividends, distributions, cash, instruments and other property
or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the License Holding Subsidiary
Shares of each such License Holding Subsidiary;
(b) subject to the exceptions set forth in this Indenture, all additional
shares of Capital Stock of any License Holding Subsidiary from time to time
acquired by the Company in any manner (which shares shall be deemed to be part
of the License Holding Subsidiary Shares), and the certificates representing
such additional shares, and all dividends, distributions, cash, instruments and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any and all such shares;
(c) all shares of any Person who, after the date of this Indenture,
becomes, as a result of any occurrence, a License Holding Subsidiary (which
shares shall be deemed to be part of the License Holding Subsidiary Shares) and
the certificates representing such shares, and all dividends, cash, instruments
and other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all such shares;
(d) all right, title and interest of the Company in, to and under the funds
on deposit, and the Permitted Investment Accounts held from time to time by the
Collateral Agent, in the Cash Collateral Account, including the rights of
enforcement with respect to the Permitted Investment Accounts, together with any
certificates or other instruments representing or evidencing such Permitted
Investment Accounts and all other rights, property and money at any time and
from time to time received, receivable or otherwise distributed on or in respect
of or in exchange for any or all of such Permitted Investment Accounts;
<PAGE>
(e) all Instruments hereafter acquired by the Company as part of the Net
Proceeds from any Permitted License Holding Subsidiary Transaction, including
rights of enforcement with respect to the Instruments, together with any
certificates or other instruments representing or evidencing such Instruments
and all other rights, property and money at any time and from time to time
received, receivable or exchanged for any or all of such Instruments;
(f) all property hereafter delivered to or acquired by, or on behalf of,
the Collateral Agent in substitution for or in addition to any of the foregoing,
and all other rights whatsoever of the Company in and to the same and every part
thereof with respect to all such property and all other property from time to
time subjected or required to be subjected to this Indenture; and
(g) all Proceeds of the foregoing (all of the foregoing being referred to
herein as the "Collateral").
TO HAVE AND TO HOLD the Collateral unto the Collateral Agent, its
successors and assigns;
BUT IN TRUST, NEVERTHELESS, for the equal and ratable benefit and security
of the Holders from time to time of all the Notes, without priority of one
Holder over any other, and for the uses and purposes, and subject to the terms
and provisions, of this Indenture and the other Security Documents;
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED that all the Notes are to
be issued and delivered, and that all property subject or to become subject
hereto is to be held, subject to further covenants, conditions, uses and trusts
hereinafter set forth, and the Company hereby binds itself and its successors
and assigns to warrant and forever defend to the Collateral Agent and its
successors and assigns all the properties included in the Collateral, and the
Company hereby further warrants and agrees to and with the Trustee for the equal
and proportionate benefit and security of those who shall hold the Notes, as
hereinafter set forth.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"Accounts Receivable Subsidiary" means an Unrestricted Subsidiary of the
Company to which the Company or any of its Restricted Subsidiaries sells any of
its accounts receivable pursuant to a Receivables Facility.
"Acquired Indebtedness" means, with respect to any specified Person, (a)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (b) Indebtedness secured by a Lien
encumbering
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an asset acquired by such specified Person at the time such asset is acquired by
such specified Person.
"Affiliate" of any specified Person means any other Person which, directly
or indirectly, controls, is controlled by or is under direct or indirect common
control with, such specified Person. For purposes of this definition, "control,"
when used with respect to any Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary that apply to such transfer or exchange.
"Asset Sale" means the sale, conveyance, disposition or other transfer (a
"disposition") of any properties, assets or rights (provided that the sale,
conveyance or other disposition of all or substantially all of the assets of the
Company and its Subsidiaries taken as a whole, whether by sale, merger,
consolidation or otherwise, will be governed by the Section 5.01 and not by the
provisions of Section 4.07). Notwithstanding the foregoing, the following items
shall not be deemed to be Asset Sales: (a) dispositions in the ordinary course
of business; (b) a disposition of assets by the Company to a Restricted
Subsidiary or by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary; (c) the sale and leaseback of any assets within 90 days of the
acquisition thereof; (d) foreclosures on assets; (e) any exchange of property
for use in a Permitted Business including, without limitation, pursuant to
Section 1031 of the Internal Revenue Code of 1986, as amended; (f) any lease or
lease transaction, including, without limitation, a financing lease or a
sale-leaseback transaction; (g) any Indebtedness or other securities of, an
Unrestricted Subsidiary; (h) a Permitted Investment or a Restricted Payment that
is permitted by Section 4.06 hereof; and (i) sales of accounts receivable, or
participations therein, in connection with any Receivables Facility.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company, or any
authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Expenditure Indebtedness" means with respect to any Vendor
Financing Facility, Indebtedness incurred by any Person to finance the purchase
or construction of any property or assets acquired or constructed by such Person
which have a useful life of more than one year so long as (a) the purchase or
construction price for such property or assets is included in "addition to
property, plant or equipment" in accordance with GAAP, (b) the acquisition or
construction of such property or assets is not part of any acquisition of a
Person or line of business and (c) such Indebtedness is incurred within 90 days
of the acquisition or completion of construction of
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such property or assets, and includes, without limitation, any and all
Indebtedness incurred pursuant to any Vendor Financing Facility.
"Capital Lease Obligation" means with respect to any Vendor Financing
Facility at the time any determination thereof is to be made, the amount of the
liability in respect of a capital lease that would at such time be required to
be capitalized on a balance sheet in accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation, corporate stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) 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 (i) Government Securities, (ii) any certificate of
deposit maturing not more than 365 days after the date of acquisition issued by,
or demand deposit or time deposit of, an Eligible Institution, (iii) commercial
paper maturing not more than 365 days after the date of acquisition of an issuer
(other than an Affiliate of the Company) with a rating, at the time as of which
any investment therein is made, of "A-1" (or higher) according to S&P or "P-1"
(or higher) according to Moody's or carrying an equivalent rating by a
nationally recognized rating agency if both of the two named rating agencies
cease publishing ratings of investments, (iv) any bankers acceptances or money
market deposit accounts issued by an Eligible Institution, (v) any fund
investing substantially in investments of the types described in clauses (i)
through (iv) above and (vi) in the case of any Subsidiary organized or having
its principal place of business outside the United States, investments
denominated in the currency of the jurisdiction in which such Subsidiary is
organized or has its principal place of business which are similar to the items
specified in clauses (i) through (v) above (including, without limitation, any
deposit with a bank that is a lender to any Restricted Subsidiary).
"cash equivalents" means, for purposes of Article 10 of this Indenture,
Cash Equivalents of the type described in clause (i) of the definition thereof
maturing not more than 90 days after the date of the acquisition thereof.
"Change of Control" means the occurrence of any of the following: (a) 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 the Company and its Subsidiaries, taken as a
whole, to any "person" or "group" (as such terms are used in Section 13(d) of
the Exchange Act), other than the Principals and their Related Parties or (b)
the consummation of any transaction (including, without limitation, any merger
or consolidation) the result of which is that any "person" or "group" (as such
terms are used in Section 13(d) of the Exchange Act), other than the Principals
and their Related Parties, becomes the "beneficial owner" (as such term is
defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly through one or more intermediaries, of 50% or more of the voting
power of the outstanding voting equity interests of the Company. Notwithstanding
anything contained herein to the contrary, neither the sale, lease, transfer,
conveyance or other disposition or the consummation of any transaction shall be
deemed to constitute a "Change of Control" to the extent (x) it arises from a
change in FCC rules and regulations that either require or make it
4
<PAGE>
desirable that such transaction be consummated or (y) that such transaction is
permitted or desirable as a result of a decrease in ownership as subsequently
permitted by applicable FCC rules and regulations concerning "control group"
requirements (as therein defined from time to time).
"Collateral" has the meaning set forth in the Granting Clause hereto.
"Collateral Agency Agreement" means the Collateral Agency Agreement of even
date herewith among the Collateral Agent, the Trustee, the Company, the
Guarantors (as defined therein) and the Senior Indebtedness Creditors (as
defined therein), substantially in the form attached hereto as Exhibit ___, as
the same may be amended or supplemented from time to time in accordance with its
terms.
"Collateral Agent" means Norwest Bank Minnesota, National Association or
such other institution or institutions acting as collateral agent(s) under the
Collateral Agency Agreement as the Trustee may from time to time advise the
Company in writing.
"Commission" means the Securities and Exchange Commission.
"Company" means NextWave Telecom Inc., a Delaware corporation, until a
successor corporation shall have become such pursuant to Section 5.02 and
thereafter "Company" shall mean such successor corporation.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such common stock.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"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.
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 hereof, in the form of
Exhibit A hereto except that such Note shall not bear the Global Note Legend and
shall not have the "Schedule of Exchanges of Interests in the Global Note"
attached thereto.
"Depositary" means DTC or any successor thereto.
"Designated Noncash Consideration" means the fair market value of non-cash
consideration received by the Company or one of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers'
5
<PAGE>
Certificate, setting forth the basis of such valuation, executed by the
principal executive officer and the principal financial officer of the Company,
less the amount of cash or Cash Equivalents received in connection with a sale
of such Designated Noncash Consideration.
"Distribution", for purposes of Article 10 of this Indenture, may consist
of a distribution, payment or other transfer of assets by or on behalf of the
Company (including, without limitation, a redemption, repurchase or other
acquisition of the Notes) from any source, of any kind or character, whether in
cash, securities or other property, by set-off or otherwise.
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus not less than $100.0 million or its equivalent in
foreign currency, whose short-term debt is rated "A-3" or higher according to
Standard & Poor's Ratings Group ("S&P") or "P-2" or higher according to Moody's
Investor Services, Inc. ("Moody's") or carrying an equivalent rating by a
nationally recognized rating agency if both of the two named rating agencies
cease publishing ratings of investments.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries in existence on the Original Issuance Date, until such
amounts are repaid.
"Fair Market Value" means, with respect to any asset or property, the price
which could be negotiated in an arm's-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Unless the TIA
otherwise requires, Fair Market Value shall be determined by the Board of
Directors of the Company acting in good faith and shall be evidenced by a
resolution of the Board of Directors of the Company delivered to the Trustee.
"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, which are in effect on the Original Issuance Date.
"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, letters of credit or
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Global Notes" means one or more permanent global Notes in substantially
the form of Exhibit A hereto bearing the Global Note Legend and having the
"Schedule of Exchanges of Interests in the Global Note" attached thereto and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in accordance with Section 2.01(b) or 2.06(d)(ii), as
applicable.
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"Global Note Legend" means the legend set forth in Section 2.06(f), which
is required to be placed on all Global Notes issued under this Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (a) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (b) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" means a Person in whose name a Note is registered.
"incur" means to, directly or indirectly, create, incur, issue, assume,
Guarantee or otherwise become directly or in indirectly liable, contingently or
otherwise with respect to any Indebtedness.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person 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 banker's acceptances or representing Capital Lease Obligations or
the balance deferred and unpaid of the purchase price of any property or
representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable or customer advances, 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, as well as all Indebtedness of others secured
by a Lien on any asset of such Person (whether or not such Indebtedness is
assumed by such Person) and, to the extent not otherwise included, the Guarantee
by such Person of any Indebtedness of any other Person, provided that
Indebtedness shall not include the pledge by the Company of the Capital Stock of
an Unrestricted Subsidiary of the Company to secure Non-Recourse Debt of such
Unrestricted Subsidiary. The amount of any Indebtedness outstanding as of any
date shall be (a) the outstanding principal amount at any date of any
Indebtedness less the unamortized portion of such Indebtedness (together with
any interest thereon that is more than 30 days past due), in the case of any
Indebtedness that does not require current payments of interest, and (b) the
principal amount thereof, in the case of any other Indebtedness provided that
the principal amount of any Indebtedness that is denominated in any currency
other than United States dollars shall be the amount thereof, as determined
pursuant to the foregoing provision, converted into United States dollars at the
Spot Rate in effect on the date that such Indebtedness was incurred (or, if such
indebtedness was incurred prior to the Original Issuance Date, the Spot Rate in
effect on the Original Issuance Date). The incurrence by the Company or any of
its Restricted Subsidiaries of Indebtedness represented by (i) the accrual of
interest (including the issuance of Secondary Notes, "payment in kind"
securities or similar instruments in respect of such accrued interest), (ii) the
accretion of original issue discount or (iii) the mere extension of the maturity
of any Indebtedness shall not be deemed to be an incurrence of Indebtedness).
"Indenture" means this Indenture, as amended or supplemented from time to
time.
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"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Instruments" means all "instruments", "chattel paper" or "letters of
credit" (each as defined in the Uniform Commercial Code) evidencing,
representing, arising from or existing in respect of, relating to, securing or
otherwise supporting the payment of any non-cash consideration to the extent
that such non-cash consideration consists of (i) publicly traded debt securities
of a Person, which securities are rated at least "BBB-" by S&P and at least
"Baa3" by Moody's or (ii) other Indebtedness or publicly traded Capital Stock of
a Person if (x) the lowest rated long-term, unsecured debt obligation issued by
such Person is rated at least "BBB-" by S&P and at least "Baa3" by Moody's or
(y) in the case of other Indebtedness, the payment of such other Indebtedness is
secured by an irrevocable letter of credit issued by a commercial bank having
capital and surplus in excess of $100,000,000 and long-term unsecured debt
obligations rated at least "A-" by S&P and least "A3" by Moody's. For purposes
of this definition, debt securities or Capital Stock of a Person shall be deemed
to be publicly traded if listed, or admitted to unlisted trading privileges, on
a national securities exchange or quoted in an automated interdealer quotation
system.
"Interest Payment Date" has the meaning assigned to such term in Exhibit A
hereto.
"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, without limitation, Guarantees by the referent Person
of, and Liens on any assets of the referent Person securing, Indebtedness or
other obligations of other Persons), 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, provided that an investment by the Company for
consideration consisting of common equity securities of the Company shall not be
deemed to be an Investment (other than for purposes of clause (iii) of the
definition of "Qualified Proceeds"). If the Company or any Restricted Subsidiary
of the Company sells or otherwise disposes of any Equity Interests of any direct
or indirect Restricted Subsidiary of the Company such that, after giving effect
to any such sale or disposition, such Person is no longer a Subsidiary of the
Company, the Company shall be deemed to have made an Investment on the date of
any such sale or disposition equal to the greater of book value or Fair Market
Value of the Equity Interests of such Restricted Subsidiary not sold or disposed
of in an amount determined as provided in the final paragraph of Section 4.06
hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or the city in which the principal
corporate trust office of the Trustee is located, or at a place of payment, are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue on such payment for the intervening period.
"License Holding Subsidiary" means any Subsidiary of the Company that owns,
leases or has a legal ownership interest, directly or indirectly, in those
certain C-, D-, E- or F-Block personal communications services licenses granted
by the FCC to any Subsidiary of the Company
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on or prior to the date hereof or any substitute property therefor that the
Company may, in its sole discretion, expressly designate in writing from time to
time hereafter. The License Holding Subsidiaries existing on the Original
Issuance Date are identified on Schedule ____ hereto.
"License Holding Subsidiary Pledge Agreement" means each of the License
Holding Subsidiary Pledge Agreements, of even date herewith, between the Company
or a Restricted Subsidiary of the Company, as pledgor, and the Collateral Agent
as the secured party, to be executed in substantially the form of Exhibit __
hereto, as such agreement may be amended or supplemented from time to time
pursuant to the terms thereof, and any License Holding Subsidiary Pledge
Agreement hereafter entered into pursuant to Section 4.13 hereof pursuant to a
License Holding Subsidiary Pledge Agreement.
"License Holding Subsidiary Shares" means all shares of Capital Stock and
the certificates, if any, representing such Capital Stock, of the License
Holding Subsidiaries.
"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, without limitation, 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).
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (a) any gain (or
loss), together with any related provision for taxes on such gain (or loss),
realized in connection with (i) any Asset Sale (including, without limitation,
dispositions pursuant to sale and leaseback transactions) or (ii) the
extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries; and (b) any extraordinary or nonrecurring gain (or loss), together
with any related provision for taxes on such extraordinary or nonrecurring gain
(or loss).
"Maturity Date" means, with respect to the Notes, ______________ __, 2009.
"Net Proceeds" means, with respect to any Asset Sale (including any
Permitted License Holding Subsidiary Transaction that would otherwise constitute
an Asset Sale), the aggregate cash proceeds received by the Company or any of
its Restricted Subsidiaries in respect of any such 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, without duplication,
(a) the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions, recording
fees, title transfer fees and appraiser fees and cost of preparation of assets
for sale) and any relocation expenses incurred as a result thereof, (b) taxes
paid or payable as a result thereof , (c) amounts required to be applied to the
repayment of Indebtedness secured by a Lien on the asset or assets that were the
subject of such Asset Sale and (d) any reserve established in accordance with
GAAP or any amount placed in escrow, in either case for adjustment in respect of
the sale price of such asset or assets until such time as such reserve is
reversed or such escrow arrangement is terminated, in which case Net Proceeds
shall include only the amount of the reserve so reversed or the amount returned
to the Company or its Restricted Subsidiaries from such escrow arrangement, as
the case may be.
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"Non-Recourse Debt" means Indebtedness (i) no default with respect to which
(including, without limitation, any rights that the holders thereof may have to
take enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any Indebtedness having a principal
amount or available undrawn commitment in excess of [$_________] of the Company
or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (ii) as to which the lenders have been notified in
writing that they will not have any recourse to the stock (other than the stock
of an Unrestricted Subsidiary pledged by the Company to secure debt of such
Unrestricted Subsidiary) or assets of the Company or any of its Restricted
Subsidiaries; provided that in no event shall Indebtedness of any Unrestricted
Subsidiary fail to be Non-Recourse Debt solely as a result of any default
provisions contained in a guarantee thereof by the Company or any of its
Restricted Subsidiaries if the Company or such Restricted Subsidiary was
otherwise permitted to incur such guarantee pursuant to this Indenture.
"Note Custodian" means the Trustee, as custodian with respect to the Global
Notes, or any successor entity thereto.
"Notes" means the 12% Senior Secured Subordinated Notes due 2009 issued
pursuant to this Indenture, including, without limitation, all Secondary Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Notes issued on the Original Issuance
Date by the Company.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements of Sections 13.04
and 13.05 hereof.
"Opinion of Counsel" means an opinion in form and substance reasonably
satisfactory to the Trustee and from legal counsel who is reasonably acceptable
to the Trustee, that meets the requirements of Sections 13.04 and 13.05 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"Original Issuance Date" means ______________ __, 1999, the date on which
Notes are first issued and authenticated under this Indenture.
"Pari Passu Indebtedness" means Indebtedness of the Company that ranks pari
passu in right of payment to the Notes.
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"Participant" means, with respect to the Depositary, a Person who has an
account with the Depositary.
"Payment", for purposes of Article 10 of this Indenture, may consist of a
distribution, payment or other transfer of assets by or on behalf of the Company
(including, without limitation, a redemption, repurchase or other acquisition of
the Notes) from any source, of any kind or character, whether in cash,
securities or other property, by set-off or otherwise.
"Permitted Business" means the acquisition, construction or operation by
the Company, individually or in combination with its Subsidiaries in selected
markets, of a wireless personal communications services network and acquisition
and operations of assets and/or businesses that are incidental thereto.
"Permitted Investments" means (a) any Investment in the Company or in a
Restricted Subsidiary of the Company; (b) any Investment in cash or Cash
Equivalents; (c) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of such Investment (i) such Person
becomes a Restricted Subsidiary of the Company or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Restricted
Subsidiary of the Company; (d) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.07 hereof; (e) any Investment acquired solely in
exchange for Equity Interests of the Company; (f) any Investment in a Person
engaged in a Permitted Business (other than an Investment in an Unrestricted
Subsidiary) having an aggregate Fair Market Value, taken together with all other
Investments made pursuant to this clause (f) that are at that time outstanding,
not to exceed the greater of (i) $20.0 million and (ii) 15% of Total Assets at
the time of such Investment (with the Fair Market Value of each Investment being
measured at the time made and without giving effect to subsequent changes in
value); and (g) Investments relating to any special purpose Wholly Owned
Subsidiary of the Company organized in connection with a Receivables Facility
that, in the good faith determination of the Board of Directors, are necessary
or advisable to effect such Receivables Facility.
"Permitted Investment Accounts" means (a) certificates of deposit, time
deposits, Eurocurrency deposits and similar types of investments routinely
offered by commercial banks with final maturities of one year or less issued by
commercial banks having capital and surplus in excess of $100,000,000 or for
terms in excess of one year if such investment secures an obligation incurred in
the ordinary course of business; (b) commercial paper issued by any corporation,
if such commercial paper has credit ratings of at least "A-1" by S&P and at
least "P-1" by Moody's; (c) U.S. Government Obligations and other securities
that are obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America, with a maturity of
one year or less; provided that investments of the type described in (c) may be
for terms in excess of one year if such investment secures an obligation
incurred in the ordinary course of business; (d) purchase obligations having a
term not exceeding one year for instruments of the type described in (c); (e)
shares of money market mutual or similar funds having assets in excess of
$100,000,000; provided that such funds are sponsored by commercial banks in
which investments pursuant to clause (a) of this definition have been made, and
such shares do not have an aggregate net asset value at any one time in excess
of $5,000,000; (f) certificates of deposit and time deposits in commercial banks
made for the purpose of supporting performance or surety bonds or letters of
credit posted in the ordinary course of business, to the
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extent any related Lien is a Permitted Lien, or customs deposits made in the
ordinary course of business; (g) accounts receivable owing to the Company or any
Restricted Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms, and
provided that nothing in this clause shall prevent the Company or any Restricted
Subsidiary from providing such concessionary trade terms as management deems
reasonable in the circumstances, and Investments resulting from settlements or
compromises of accounts receivables or trade payables in the ordinary course of
business; (h) payroll advances in the ordinary course of business; (i) other
advances and loans to officers and employees of the Company or any Restricted
Subsidiary, so long as the aggregate principal amount of such advances and loans
(determined without regard to any write-downs or write-offs) does not exceed
$1,000,000 at any one time outstanding; (j) advances to officers and employees
of the Company or any Restricted Subsidiary to cover travel expenses; (k)
Investments made after the Original Issuance Date pursuant to binding agreements
existing on the Original Issuance Date in a cumulative amount not to exceed
$1,000,000 from and after the Original Issuance Date; and (l) Investments in
Allowable Investments.
"Permitted Junior Securities" means Equity Interests in the Company or debt
securities of the Company that are subordinated to all Senior Indebtedness (and
any debt securities issued in exchange for Senior Indebtedness) to substantially
the same extent as, or to a greater extent than, the Notes are subordinated to
Senior Indebtedness.
"Permitted License Holding Subsidiary Transaction" means the sale
(including, without limitation, the issuance of Capital Stock or high-yield debt
securities in a public or private transaction), exchange, transfer, pledge or
any other disposition of the Collateral, in whole or in part, the execution,
delivery and performance of one or more joint venture agreements by one or more
of the License Holding Subsidiaries (or by the Company or any Subsidiary of the
Company that owns any Capital Stock in any respective License Holding
Subsidiary), the merger, consolidation or other business combination of any
nature of a License Holding Subsidiary with any other Person, or any other
similar such transaction.
"Permitted Liens" means: (i) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the Company or any
Restricted Subsidiary, provided that such Liens were not incurred in
contemplation of such merger or consolidation and do not secure any property or
assets of the Company or any Restricted Subsidiary other than the property or
assets subject to the Liens prior to such merger or consolidation; (ii) Liens
existing on the Original Issuance Date; (iii) Liens securing Indebtedness
consisting of Capitalized Lease Obligations, purchase money Indebtedness,
mortgage financings, industrial revenue bonds or other monetary obligations, in
each case incurred solely for the purpose of financing all or any part of the
purchase price or cost of construction or installation of assets used in the
business of the Company or its Restricted Subsidiaries, or repairs, additions or
improvements to such assets, provided that (A) such Liens secure Indebtedness in
an amount not in excess of the original purchase price or the original cost of
any such assets or repair, additional or improvement thereto (plus an amount
equal to the reasonable fees and expenses in connection with the incurrence of
such Indebtedness), (B) such Liens do not extend to any other assets of the
Company or its Restricted Subsidiaries (and, in the case of repair, addition or
improvements to any such assets, such Lien extends only to the assets (and
improvements thereto or thereon) repaired, added to or improved), (C) such Liens
relate to or arise in connection with either the incurrence or maintenance of
such Indebtedness in connection with any Vendor Financing Facilities, or Capital
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Expenditure Indebtedness and (D) such Liens attach within 365 days of such
purchase, construction, installation, repair, addition or improvement; (iv)
Liens to secure any refinancings, renewals, extensions, modification or
replacements (collectively, "refinancing") (or successive refinancings), in
whole or in part, of any Indebtedness secured by Liens referred to in the
clauses above so long as such Lien does not extend to any other property (other
than improvements thereto); (v) Liens securing letters of credit entered into in
the ordinary course of business and consistent with past business practice; (vi)
Liens on and pledges of the capital stock of any Unrestricted Subsidiary
securing Non-Recourse Debt of such Unrestricted Subsidiary; (vii) Liens securing
Indebtedness incurred pursuant to any Vendor Financing Facility; provided,
however, that any such Lien securing Indebtedness incurred pursuant to any
Vendor Financing Facility shall be limited to the License Holding Subsidiary
Shares, properties (whether tangible or intangible) and other assets of such
License Holding Subsidiary and/or such other License Holding Subsidiaries that
own or hold FCC Licenses for markets in which all or any Vendor Financing
Facility proceeds are used to finance all or any part of the purchase price or
cost or construction or improvements of property, plant or equipment or as
otherwise provided herein, (viii) Liens securing existing Indebtedness; and (ix)
other Liens securing Indebtedness that is permitted by the terms of this
Indenture to be outstanding having an aggregate principal amount at any one time
outstanding not to exceed $20.0 million.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued within 120 days after repayment of,
in exchange for, or the net proceeds of which are used to extend, refinance,
renew, replace, defease or refund other Indebtedness of the Company or any of
its Restricted Subsidiaries; provided that (a) the principal amount (or accreted
value, if applicable) of such Permitted Refinancing Indebtedness does not exceed
the principal amount of (or accreted value, if applicable), plus premium, if
any, and accrued interest on the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable expenses incurred
in connection therewith), (b) such Permitted Refinancing Indebtedness has a
final maturity date no earlier 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, and (c) 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, taken as a whole,
to the Holders of Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or agency or political subdivision thereof
(including, without limitation, any subdivision or ongoing business of any such
entity or substantially all of the assets of any such entity, subdivision or
business).
"Plan" means the Joint Plan of Reorganization Under Chapter 11 of the
Bankruptcy Code of the Company and certain of its Subsidiaries, dated July 27,
1999, as amended and modified.
"Principals" means each "person" or "group" (as such terms are used in
Section 13(d) of the Exchange Act) that on the Original Issuance Date is the
"beneficial owner" (as such term is
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defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly through one or more intermediaries of ten percent or more of the
voting power of the outstanding voting equity interests of the Company or that
is a member of the Board of Directors of the Company.
"Proceeds" means all proceeds of, and all other profits, income or
receipts, in whatever form, arising from the ownership, collection, sale,
exchange, assignment or other disposition of, or realization upon, the
Collateral, including without limitation, all claims of the Company against
third parties for loss of, or for proceeds payable under, or unearned premiums
with respect to, any such Collateral, and all interest, dividends (cash or
otherwise) and other payments and distributions on or with respect to such
Collateral or in exchange for such Collateral, in each case whether now existing
or hereafter arising.
"Property" means, with respect to any Person, any interest of such Person
in any kind of property or asset, whether real, personal or mixed, or tangible
or intangible, including, without limitation, Capital Stock in any other Person.
"Qualified Proceeds" means any of the following or any combination of the
following: (i) cash; (ii) Cash Equivalents; (iii) assets (other than
Investments) that are used or useful in a Permitted Business; and (iv) the
Capital Stock of any Person engaged in a Permitted Business if, in connection
with the receipt by the Company or any Restricted Subsidiary of the Company of
such Capital Stock, (A) such Person becomes a Restricted Subsidiary of the
Company or any Restricted Subsidiary of the Company or (B) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or any
Restricted Subsidiary of the Company.
"Receivables Facility" means one or more receivables financing facilities,
as amended from time to time, pursuant to which the Company or any of its
Restricted Subsidiaries sells its accounts receivable to an Accounts Receivable
Subsidiary.
"Receivables Fees" means distributions or payments made directly or by
means of discounts with respect to any participation interests issued or sold in
connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Facility.
"Related Party" means, with respect to any Principal, (i) any controlling
stockholder or partner of such Principal on the Original Issuance Date, or (ii)
any trust, corporation, partnership or other entity, the beneficiaries,
shareholders, partners, owners or Persons beneficially holding (directly or
through one or more Subsidiaries) a 51% or more controlling interest of which
consist of the Principals and/or such other Persons referred to in the
immediately preceding clauses (i) or (ii).
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Indebtedness.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust
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matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject. "Restricted
Investment" means an Investment other than a Permitted Investment.
"Restricted Subsidiary" of a Person means any direct or indirect Subsidiary
of the referent Person that is not an Unrestricted Subsidiary and shall include
any and all direct or indirect License Holding Subsidiaries.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Documents" means the Indenture, the Collateral Agency Agreement
and the License Holding Subsidiary Pledge Agreements.
"Secured Obligations" means (i) the obligations of the Company under this
Indenture and under the Notes, whether in respect of principal, premium, if any,
interest, or otherwise, (ii) the obligations of the Company under the Security
Documents and (iii) the obligations of the Company under each of its Vendor
Financing Facilities, to the extent the Collateral constitutes collateral
securing any such Vendor Financing Facility.
"Senior Indebtedness" means, with respect to any Person, (i) Indebtedness
pursuant to any Vendor Financing Facility or other obligations including without
limitation Capital Expenditure Indebtedness, Capital Lease Obligations, in each
case, the proceeds of which are used for the purpose of financing all or any
part of the purchase price by such Person or cost of construction or improvement
of property, plant or equipment (including, without limitation, acquisitions of
Capital Stock of a Person that becomes a Restricted Subsidiary to the extent of
the Fair Market Value of the property, plant or equipment so acquired) by such
Person, (ii) any other Indebtedness consented to by the Trustee and by the
Holders of at least 50% in principal amount of the Notes then outstanding to be
Senior Indebtedness and (iii) all Obligations with respect to the foregoing.
Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
will not include (i) any liability for federal, state, local or other taxes,
(ii) any Indebtedness of such Person to any of its Subsidiaries or (iii) any
trade payables.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date
hereof.
"Solvent" means, when used with respect to any Person, that (a) the present
fair salable value of such Person's assets is in excess of the total amount of
such Person's liabilities; (b) such Person is able to pay its debts as they
become due; and (c) such Person does not have unreasonably small capital to
carry on such Person's business as theretofore operated and all businesses in
which such Person is about to engage.
"Spot Rate" means, for any currency, the spot rate at which such currency
is offered for sale against United States dollars as determined by reference to
the New York foreign exchange selling rates, as published in The Wall Street
Journal on such date of determination for the immediately preceding business day
or, if such rate is not available, as determined in any publicly available
source of similar market data.
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"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.
"Subordinated Note Obligations" means all Obligations with respect to the
Notes, including, without limitation, principal, premium, if any, and interest
payable pursuant to the terms of the Notes (including, without limitation, upon
the acceleration or redemption thereof), together with and including, without
limitation, any amounts received or receivable upon the exercise of rights of
rescission or other rights of action (including, without limitation, claims for
damages) or otherwise.
"Subsidiary" means, with respect to any Person, (a) 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 (b) any partnership or limited liability company (i) the sole
general partner or the managing general partner or managing member of which is
such Person or a Subsidiary of such Person or (ii) the only general partners or
managing members of which are such Person or of one or more Subsidiaries of such
Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb)
as in effect on the date on which this Indenture is qualified under the TIA.
"Total Assets" means the total consolidated assets of the Company and its
Restricted Subsidiaries, as shown on the most recent balance sheet (excluding
the footnotes thereto) of the Company.
"Trustee" means, except solely for purposes of Section 8.05 hereof as
otherwise specified therein, the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary that is designated by the
Board of Directors as an Unrestricted Subsidiary pursuant to a board resolution,
but only to the extent that such Subsidiary: (a) is not a License Holding
Subsidiary or immediate parent thereof at the time of determination; (b) has no
Indebtedness other than Non-Recourse Debt; (c) is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company; and (d) no Default or Event of Default is
existing or will occur as a consequence of such designation. 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 Section
4.06 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as a Unrestricted Subsidiary, it shall thereafter cease
to be an
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Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date. The Board of Directors may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if no Default or Event
of Default would be in existence following such designation.
"Uniform Commercial Code" means the Uniform Commercial Code as in effect
from time to time in the State of New York.
"Vendor Financing Facility" means any agreement(s) between the Company or a
Restricted Subsidiary of the Borrower and one or more vendors, banks, financial
institution, companies, lessors or other third parties (or any affiliate of such
Persons) providing financing for the acquisition (whether by lease, purchase or
otherwise), construction, installation, leasing or operation by the Company or
such Restricted Subsidiary of any equipment or capital assets, and shall
include, without limitation, additional financing or working capital that is
made available to the Company as part of such "vendor financing" to facilitate
and for the purpose of the construction or installation of the Company's PCS
telecommunications network; provided that, notwithstanding the foregoing, a
Vendor Financing Facility shall not include additional financing or working
capital that is provided to the Company by such Person(s) (x) pursuant to
private placements of debentures issued by the Company under Section 4(2) of the
Securities Act or (y) pursuant to capital market transactions involving private
placements of notes, bonds or debentures issued by the Company.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (a) the sum of the
products obtained by multiplying (i) 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 (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person, all of whose outstanding Capital Stock or other
ownership interests having by the terms thereof ordinary voting power to elect a
majority of the directors of such Restricted Subsidiary is at the time directly
or indirectly owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any Person means a 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 Subsidiaries of such Person.
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SECTION 1.02 OTHER DEFINITIONS.
Term Defined in Section
- ---- ------------------
"Affiliate Transaction"...................................... 4.08
"Allowable Investments"...................................... 4.07(c)
"Authentication Order"....................................... 2.02(d)
"Cash Collateral Account".................................... 11.01
"Change of Control Offer".................................... 4.15
"Change of Control Payment".................................. 4.15
"Change of Control Payment Date"............................. 4.15
"Computation Period"......................................... 4.06(ii)
"Covenant Defeasance"........................................ 8.03
"DTC"........................................................ 2.06(f)
"Event of Default"........................................... 6.01
"Exchange Date".............................................. 9.05
"Exchange Right"............................................. 9.05
"Fractional Secondary Note".................................. 2.02(e)
"Guarantee Obligations"...................................... 12.01
"Issuing Subsidiary"......................................... 4.14
"Legal Defeasance"........................................... 8.02
"Paying Agent"............................................... 2.03
"Payment Blockage Notice".................................... 10.03
"Registrar".................................................. 2.03
"Restricted Notes"........................................... 9.05
"Restricted Payments"........................................ 4.06
"Secondary Notes"........................................... 2.02(e)
"SEC Reports"............................................... 4.03
SECTION 1.03 INCORPORATION OF TIA PROVISIONS.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and any successor obligor upon the
Notes.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
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SECTION 1.04 RULES OF CONSTRUCTION.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural
include the singular;
(v) provisions apply to successive events and transactions; and
(vi) references to sections of or rules under the Securities Act shall
be deemed to include substitute, replacement of successor sections or rules
adopted by the Commission from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01 FORM AND DATING.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(b) Global Notes. Notes (including Secondary Notes) shall be issued
initially in global form substantially in the form of Exhibit A attached hereto
(including, without limitation, the Global Note Legend and the "Schedule of
Exchanges of Interests in the Global Note" attached thereto), which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, at its principal office, as custodian for the Depositary, and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of Participants, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. Each Global Note shall represent such of
the outstanding Notes as shall be specified therein and each shall provide that
it shall represent the aggregate principal amount of outstanding Notes from time
to time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and the issuance of Secondary
Notes. The aggregate principal amount of the Global
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Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, as the
case may be, as herein provided. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the Note
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(c) Definitive Notes. Notes issued in definitive form shall be issued
substantially in the form of Exhibit A attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto), duly executed by the Company and authenticated
by Trustee as hereinafter provided.
SECTION 2.02 EXECUTION AND AUTHENTICATION.
(a) One Officer shall sign the Notes for the Company by manual or facsimile
signature.
(b) If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
(c) A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
At any time after the execution and delivery of this Indenture, the Company
may deliver Notes executed by the Company to the Trustee for authentication,
together with a written request or order signed in the name of the Company by
its chairman, its president, any vice president, its treasurer or an assistant
treasurer, its secretary or an assistant secretary, and delivered to the Trustee
for the authentication and delivery of such Notes; and the Trustee in accordance
with such a written order of the Company shall authenticate and deliver such
Notes as in this Indenture provided and not otherwise upon receipt by the
Trustee of the following:
(i) an Officer's Certificate complying with Section 13.05 hereof;
(ii) stock certificates representing all License Holding Subsidiary Shares
with respect to all License Holding Subsidiaries identified in
Schedule [_] hereto, registered in the name of the Company or a
Restricted Subsidiary of the Company, as applicable, and accompanied
by undated stock powers duly executed in blank, and accompanied by any
required transfer tax stamps, all in form and substance reasonably
satisfactory to the Trustee;
(iii)the Collateral Agency Agreement executed and delivered by the parties
thereto setting forth, among other things, the relative rights and
remedies of the parties with respect to the Collateral; and
(iv) the License Holding Subsidiary Pledge Agreements executed by the
Company or one or more of the Restricted Subsidiaries of the Company
and covering, in the aggregate, all of the Collateral.
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(d) The Trustee shall, upon a written order of the Company signed by one
Officer (an "Authentication Order"), authenticate Notes for original issue up to
$225,000,000 in aggregate principal amount plus the aggregate principal amount
of any Secondary Notes issued pursuant to this Section 2.02. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.08 hereof.
(e) On each Interest Payment Date, the Company shall, in lieu of a payment
in cash, execute and deliver to the Trustee for authentication, together with an
Authentication Order given not less than 15 nor more than 45 days prior to such
Interest Payment Date for the authentication and delivery thereof, additional
Notes ("Secondary Notes") in an aggregate principal amount equal to such
interest due and payable on the Notes on such Interest Payment Date in
accordance with Section 2.01(b) hereof. The Trustee, in accordance with such
Authentication Order, shall so authenticate and deliver to the Holders of record
on such record date such Secondary Notes requested in such Authentication Order
(such duly executed and authenticated Secondary Notes being of the same series
as the Notes), and the due issuance of such Secondary Notes shall constitute
full payment of such interest; provided, however, the Company may, at its
option, duly authorize the payment in cash of all or a portion of any interest
due on any such Interest Payment Date, in lieu of a payment in Secondary Notes,
by giving notice to the Holders and the Trustee not less than 15 nor more than
45 days prior to the record date for such Interest Payment Date; and provided
further, however, that in lieu of the issuance of any Secondary Notes the
principal amount of which (x) would be less than $1,000 or (y) would exceed the
largest integral multiple of $1,000 which is less than or equal to such
principal amount (in each case, a "Fractional Secondary Note"), the Company
shall, in the case of clause (y), issue a Secondary Note with a principal amount
equal to such largest integral multiple and shall, in the case of clauses (x)
and (y), in its sole discretion, either (1) on behalf of and for the accounts of
all Holders of Notes who would be entitled to Fractional Secondary Notes,
aggregate all such Fractional Secondary Notes and, on or before the tenth
Business Day following the applicable Interest Payment Date, sell such
aggregated Fractional Secondary Notes and, within six Business Days of such
sale, pay each such Holder its proportionate share of the net proceeds of such
sale, or (2) pay (on the applicable Interest Payment Date) each such Holder,
with respect to any Fractional Secondary Note that such Holder would otherwise
be entitled to receive, an amount in cash equal to the average closing price per
$1,000 principal amount of Notes for the ten trading days preceding the Business
Day immediately preceding the applicable Interest Payment Date multiplied by a
fraction, the numerator of which is the principal amount of such Fractional
Secondary Note otherwise issuable to such Holder and the denominator of which is
$1,000.
Each issuance of Secondary Notes in lieu of the payment in cash of all or
any portion of interest on the Notes shall be made pro rata with respect to the
outstanding Notes. All Secondary Notes shall be issued in the same series as the
Notes originally issued pursuant to this Indenture, and all Holders of Secondary
Notes shall be treated as Holders of Notes for any and all purposes of any
action of Holders or otherwise pursuant to this Indenture except as may
otherwise be required by law. Any such Secondary Notes shall be governed by this
Indenture and the terms of each such Secondary Note shall be identical to the
terms of the Notes except with respect to, as the case may be, the designation
of such Secondary Note (which may (but need not) indicate the Interest Payment
Date of its original issuance), its aggregate principal amount, its CUSIP number
or other required identifications, any required legends (including with respect
to taxation) and the date from which interest accrues and except as may
otherwise be required by law. Notwithstanding the foregoing, Secondary Notes may
be issued on any given Interest Payment
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Date in separate series if such is required pursuant to a change in law after
the date hereof, and, in such event, the Holders of Secondary Notes shall
continue to be treated in all respects as Holders of Notes for all purposes of
this Indenture (including with respect to any action of Holders or otherwise
pursuant to this Indenture) except as required by such change in law.
(f) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes (including, without limitation, Secondary Notes,
if any). An authenticating agent may authenticate Notes whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with Holders or an Affiliate of the Company.
SECTION 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be presented
for registration of transfer or for exchange ("Registrar") and an office or
agency where Notes may be presented for payment ("Paying Agent"). The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrar and the term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints DTC to act as Depositary with respect to the
Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money, if any, held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Notes, and will notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Notes.
SECTION 2.05 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply
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with TIA ss. 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least seven Business Days before each Interest Payment
Date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of the Holders of Notes and the Company shall otherwise comply
with TIA ss. 312(a).
SECTION 2.06 TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue as
Depositary for the Notes or that it is no longer a clearing agency registered
under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 90 days after the date of such notice from the
Depositary, (ii) the Company, at its option, elects to cause the Global Notes
(in whole but not in part) to be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee or (iii) there shall have occurred
and be continuing a Default or Event of Default. In addition, beneficial
interests in a Global Note may be exchanged for Definitive Notes upon request
but only upon at least 20 days' prior written notice given to the Trustee by or
on behalf of DTC in accordance with customary procedures and subject to
compliance with Section 2.06(b)(ii) and Section 2.06(c). Upon the occurrence of
any of the preceding events upon which Definitive Notes are to be issued in
exchange for any Global Note or beneficial interests therein as specified above,
Definitive Notes shall be issued in such names and approved denominations as the
Depositary shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or
2.10 hereof, shall be authenticated and delivered in the form of, and shall be,
a Global Note except as provided in this Section 2.06(a). A Global Note may not
be exchanged for another Note other than as provided in this Section 2.06(a) and
Sections 2.07 and 2.10; provided, however, that, beneficial interests in a
Global Note may be transferred and exchanged for beneficial interests in another
Global Note as provided in Section 2.06(b) hereof.
(b) Transfer and Exchange of Beneficial Interests in Global Notes for
Beneficial Interests in Global Notes or for Definitive Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through
the Depositary, in accordance with the provisions of this Indenture and the
Applicable Procedures. Transfers or exchanges of beneficial interests in Global
Notes for Definitive Notes shall also require compliance with Section 2.06(a),
Section 2.06(b)(ii) below and Section 2.06(c), and transfers or exchanges of
beneficial interests in Global Notes for beneficial interests in Global Notes
also shall require compliance with one or more of the other following
subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in the same
Global Note. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
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(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests in a Global Note that are not subject to Section 2.06(b)(i)
above, the owner of such beneficial interest must deliver to the Registrar
either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B)
(1) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding
the Person in whose name such Definitive Note shall be registered to effect
the transfer or exchange referred to in clause (B)(1) above. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.06(i) hereof.
(c) Transfer and Exchange of Beneficial Interests in Global Notes for
Definitive Notes. Subject to Section 2.06(a) hereof, if any holder of a
beneficial interest in a Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the
Trustee shall cause the aggregate principal amount of the applicable Global Note
to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Company
shall execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c) shall be registered in such name or names and
in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests in
Global Notes.
(i) Definitive Notes to Beneficial Interests in Global Notes. A Holder
of a Definitive Note may exchange such Note for a beneficial interest in a
Global Note or transfer such Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in a Global Note at any time.
Upon receipt of a request for such an exchange or transfer, the Trustee
shall cancel the applicable Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Global Notes.
(ii) Issuance of Global Note. If any such exchange or transfer from a
Definitive Note to a beneficial interest is effected pursuant to Section
2.06(d)(i) above at a time when a Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee
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shall authenticate one or more Global Notes in an aggregate principal
amount equal to the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.06(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Definitive Notes to Definitive Notes. A Holder of Definitive Notes
may transfer such Notes to a Person who takes delivery thereof in the form
of a Definitive Note. Upon receipt of a request to register such a
transfer, the Registrar shall register the Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Legend. The face of each Global Note issued under this Indenture shall
bear a legend (comprising two paragraphs) in substantially the following form:
"Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such
successor Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) ("DTC"), to the issuer or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name
of Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL in as much as the registered owner hereof, Cede & Co.,
has an interest herein.
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE OR CAUSE TO BE MADE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION
2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV)
THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF NEXTWAVE TELECOM INC."
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In addition, if the Company elects to issue the Notes under Section 4(2) of
the Securities Act, each Global Note and Note authenticated and delivered
hereunder shall bear the following legend:
"THIS SECURITY HAS BEEN ISSUED TO THE HOLDER HEREOF PURSUANT TO SECTION
4(2) OF THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THIS SECURITY
HAS NOT BEEN ISSUED PURSUANT TO AN INDENTURE QUALIFIED UNDER THE TRUST
INDENTURE ACT OF 1939 (THE "TIA"), BUT IS EXEMPT FROM THE APPLICABLE
PROVISIONS OF THE TIA PURSUANT TO SECTION 304(b)(1) OF THE TIA. THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE INITIAL
INVESTOR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR OTHER AVAILABLE
EXEMPTION UNDER THE SECURITIES ACT OR BANKRUPTCY LAW OR (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (C) BY
SUBSEQUENT INVESTORS AS SET FORTH IN (A) AND (B) ABOVE. IN EACH CASE (A)
AND (B) SHALL BE IN ACCORDANCE WITH ALL APPLICABLE LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS."
(g) Cancellation or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 3.06 and 4.08 hereof).
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(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global Notes
or Definitive Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business on
the day of selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (c) to register the transfer
of or to exchange a Note between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.07 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
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SECTION 2.08 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note; provided, however, Notes held by the Company or a
Subsidiary of the Company shall not be deemed to be outstanding for purposes of
Section 3.07 hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
Secondary Notes shall be deemed outstanding commencing as of the Interest
Payment Date with respect to which they are authenticated and delivered in lieu
of cash interest.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes shall
be deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.09 TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, including, without
limitation, for purposes of Section 9.02 hereof, Notes owned by the Company, or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so disregarded.
SECTION 2.10 TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the Company
may prepare, and the Trustee, upon receipt of an Authentication Order, shall
authenticate, temporary Notes. Temporary Notes shall be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall, as soon as practicable upon receipt of an Authentication Order,
authenticate Definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this
Indenture.
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SECTION 2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
cancelled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all cancelled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it shall pay
the defaulted interest on such overdue amount, at the rate of 15% per annum,
which shall accrue from the date on which such payment was due and owing to the
date on which payment of such overdue amount has been provided for or has been
made, to the Persons who are Holders on a subsequent special record date. If on
the Maturity Date the Company defaults in the payment of principal on the Notes
then outstanding, the Company shall pay default interest on such principal, at
the rate of 15% per annum, which shall accrue from the date on which such
payment was due and owing to the date on which payment of such overdue amount
has been provided for or has been made. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
SECTION 2.13 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon a written request or order signed in the name of
the Company by its chairman, its president, any vice president, its treasurer or
any assistant treasurer, and delivered to the Trustee, cease to be of further
effect as to all outstanding Notes (except as to surviving rights of exchange of
the Notes, as expressly provided for herein or pursuant hereto) and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when:
(a) either
(A) all Notes theretofore authenticated and delivered (other than (i)
Notes which have been destroyed, lost or stolen and which have been
replaced or repaid as provided in Section 2.07 hereof and (ii) Notes for
whose payment money has theretofore been deposited in trust with the
Trustee or any Paying Agent or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust, as
provided in Section 8.06 hereof) have been delivered to the Trustee for
cancellation; or
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(B) all Notes not theretofore delivered to the Trustee for
cancellation (other than Notes which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.07 hereof)
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity within
one year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, and the Company, in the case of (i), (ii) and (iii) above,
has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for such purpose in an amount sufficient to
pay and discharge the entire Indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for principal,
premium, if any and accrued interest on the Notes to the date such
deposit (in the case of Notes which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be, together
with irrevocable written instructions from the Company directing the
Trustee to apply such funds to the payment thereof at Stated Maturity
or redemption, as the case may be;
(b) the Company has paid or cause to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to compensate the Trustee under Section 7.07 hereof
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (a) of this Section 2.13, the obligations of the Trustee to hold
money in trust for the benefit of the holders of the Note, including, without
limitation, pursuant to Section 8.05 hereof shall survive such satisfaction and
discharge.
The Company shall, subject to the satisfaction of the conditions in this
Section 2.13, be deemed to have been discharged from all of its obligations with
respect to all outstanding Notes, and each Guarantor's obligations shall be
deemed to have been discharged with respect to its respective Guarantee
Obligations on the date the conditions of this Section 2.13 are satisfied.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of
Notes to be redeemed and (iv) the redemption price.
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed, or, if the Notes are not so listed, on a pro rata basis, by
lot or by such method as the Trustee shall deem fair and appropriate; provided
that no Notes of $1,000 or less shall be redeemed in part.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03 NOTICE OF REDEMPTION.
Notices of redemption shall 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. 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 thereof to be redeemed. A new Note in principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Note. Notes called for redemption
become due on the date fixed for redemption. On and after the redemption date,
interest ceases to accrue on Notes or portions of them called for redemption.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
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(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture pursuant to
which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related Interest Payment Date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
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SECTION 3.06 NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and, upon receipt of the Company's written request, the Trustee shall as soon as
practicable authenticate for the Holder at the expense of the Company a new Note
equal in principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07 OPTIONAL REDEMPTION.
The Company may redeem the Notes, in whole or in part, at any time at the
option of the Company, upon not less than 30 nor more than 60 days' notice, in
cash at the redemption prices (expressed as percentages of principal amount) set
forth below, plus accrued and unpaid interest, if any, thereon to the applicable
redemption date, if redeemed during the twelve month period (or, with respect to
years (i) 1999, such shorter period beginning on the Original Issuance Date, and
(ii) 2009, such shorter period ending on the Maturity Date) beginning on April 1
of the years indicated below:
Year Percentage
---- ----------
1999............................................... 100.000%
2000............................................... 100.000%
2001............................................... 102.000%
2002............................................... 103.000%
2003............................................... 104.000%
2004............................................... 105.000%
2005............................................... 104.000%
2006............................................... 103.000%
2007............................................... 102.000%
2008............................................... 101.000%
2009............................................... 100.000%
Any redemption pursuant to this Section 3.07 shall be made pursuant to the
provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08 MANDATORY REDEMPTION.
Except as provided in Section 4.07, the Company is not required to make
mandatory redemption of, or sinking fund payments with respect to, the Notes.
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
(i) holds as of 10:00 a.m. Eastern Time on the due date money
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deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due and (ii)
is not prohibited from paying such money to the Holders pursuant to the terms of
this Indenture or the Notes; provided, that any interest paid in Secondary Notes
in lieu of cash pursuant to Section 2.02 hereof shall be considered paid on the
date due if such Secondary Notes are executed, authenticated and delivered, and
any cash payment therein provided for is paid or deposited with the Paying Agent
in immediately available funds, in accordance with such Sections 2.02 and 2.03,
as applicable.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
the City of New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03 hereof.
SECTION 4.03 REPORTS.
The Company shall file with the Trustee, within 15 days after it files them
with the Commission, copies of any information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
("SEC Reports"). The Company will furnish copies of the SEC Reports to the
Holders of Notes at the time the Company is required to file the same with the
Trustee and will make such information available to investors who request it in
writing and who execute a confidentiality agreement in form and substance
satisfactory to the Company. The Company and any obligor on the Notes shall also
comply with the other provisions of Section 314(a) of the TIA.
SECTION 4.04 COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and
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fulfilled its obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his or her knowledge
the Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or interest
on the Notes is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect
thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements when, and if, delivered pursuant to Section 4.03 above shall be
accompanied by a written statement of the Company's independent public
accountants (which shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5 hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Notes are outstanding, deliver
to the Trustee, forthwith upon any Officer becoming aware of any Default or
Event of Default, an Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.
SECTION 4.05 STAY, EXTENSION AND USURY LAWS.
The Company covenants that it shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Company hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
SECTION 4.06 RESTRICTED PAYMENTS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or make
any other payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (other than dividends or distributions
payable in Equity Interests of the Company or dividends or distributions payable
to the Company or any Wholly Owned Restricted Subsidiary of the Company); (b)
purchase, redeem, retire or otherwise acquire for value any Equity Interests of
the Company or any of its Restricted Subsidiaries (other than any such Equity
Interests owned by the Company or any Restricted Subsidiary of the Company); (c)
make any principal payment on or with respect to, or purchase, redeem, defease,
retire or otherwise acquire for value, any
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Indebtedness of the Company that is subordinated in right of payment to the
Notes, except in accordance with the mandatory redemption or repayment
provisions set forth in the original documentation governing such Indebtedness;
or (d) make any Restricted Investment (all such payments and other actions set
forth in clauses (a) through (d) above being collectively referred to as
"Restricted Payments").
The foregoing provisions will not prohibit:
(a) the payment of any dividend or other payment or distribution to the
extent that such dividend, payment or distribution consists of stock, options,
warrants, payments-in-kind of securities or other securities;
(b) the redemption, repurchase, retirement, defeasance or other acquisition
of any subordinated Indebtedness or Equity Interests of the Company in exchange
for, or out of a reserve, sinking fund or other fund established for such
purpose as part of the issuance of such subordinated Indebtedness or Equity
Interests of the Company;
(c) the defeasance, redemption, repurchase, retirement or other acquisition
of subordinated Indebtedness of the Company with the net cash proceeds from an
incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the repurchase, redemption or other acquisition or retirement for value
of any Equity Interests of the Company or held by any member of the Company's
(or any of its Restricted Subsidiaries') management pursuant to any management
equity subscription agreement or stock option agreement, provided that the
aggregate cash portion of the price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed (x) $5 million in any
calendar year (with unused amounts in any calendar year being carried over to
succeeding calendar years subject to a maximum of $10 million in any calendar
year), plus (y) the aggregate net cash proceeds received by the Company during
such calendar year from any issuance of Equity Interests by the Company to
members of management of the Company and its Restricted Subsidiaries (provided
that the amount of any such net cash proceeds that are used to permit an
acquisition or retirement for value pursuant to this clause (d) shall be
excluded from clause (ii)(B) of the preceding paragraph) and (ii) no Default or
Event of Default shall have occurred and be continuing immediately after such
transaction;
(e) payments and transactions in connection with the Plan, the Offering,
any Vendor Financing Facility, Capital Lease Obligations or similar obligations
(including, without limitation, commitment, syndication and arrangement fees
payable thereunder) and the application of the proceeds thereof, and the payment
of fees and expenses with respect thereto;
(f) the payment of dividends by a Restricted Subsidiary on any class of
common stock of such Restricted Subsidiary if (i) such dividend is paid pro rata
to all holders of such class of common stock and (ii) at least 51% of such class
of common stock is held by the Company or one or more of its Restricted
Subsidiaries;
(g) the repurchase of any class of common stock of a Restricted Subsidiary
if (i) such repurchase is made pro rata with respect to such class of common
stock and (ii) at least 51% of such class of common stock is held by the Company
or one or more of its Restricted Subsidiaries;
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(h) repurchases by the Company or any Subsidiary of Equity Interests to the
extent of cash-less exercises of stock options if such Equity Interests
represent a portion of the exercise price of such options;
(i) any other Restricted Payment which, together with all other Restricted
Payments made pursuant to this clause (k) since the Original Issuance Date, up
to $2 million during any 12 month period (determined from time to time by giving
effect to all subsequent reductions in the amount of any Restricted Investment
made pursuant to this clause (k) either as a result of (i) the repayment or
disposition thereof for cash or (ii) the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary (valued proportionate to the Company's
Equity Interest in such Subsidiary at the time of such redesignation) at the
Fair Market Value of the net assets of such Subsidiary at the time of such
redesignation), in the case of clause (i) and (ii), not to exceed the amount of
such Restricted Investment previously made pursuant to this clause (k); provided
that no Default or Event of Default shall have occurred and be continuing
immediately after making such Restricted Payment;
(j) the pledge by the Company of the Capital Stock of an Unrestricted
Subsidiary of the Company to secure Non-Recourse Debt of such Unrestricted
Subsidiary;
(k) any Investment in an Unrestricted Subsidiary that is funded by
Qualified Proceeds received by the Company on or after the Original Issuance
Date from contributions to the Company's capital or from the issue and sale on
or after the Original Issuance Date of Equity Interests of the Company or
convertible debt securities to the extent they have been converted into such
Equity Interests (other than Equity Interests) or convertible debt securities
sold to a Subsidiary of the Company in an amount (measured at the time such
Investment is made and without giving effect to subsequent changes in value)
that does not exceed the amount of such Qualified Proceeds; and
(l) distributions or payments of Receivables Fees.
The Board of Directors may designate any Subsidiary (other than a License
Holding Subsidiary) to be an Unrestricted Subsidiary if such designation would
not cause a Default or an Event of Default. For purposes of making such
designation, all outstanding Investments by the Company 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 such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this Section 4.06. All such outstanding Investments will
be deemed to constitute Restricted Investments in an amount equal to the greater
of (i) the net book value of such Investments at the time of such designation
and (ii) the Fair Market Value of such Investments at the time of such
designation. Such designation will only be permitted if such Restricted
Investment would be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
For determining the amount of Restricted Payments for the purpose of
paragraph (i) above, the amount of all Restricted Payments (other than cash)
shall be the Fair Market Value on the date of the Restricted Payment of the
asset(s) or securities proposed to be transferred or issued by the Company or
such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The Fair Market Value of any non-cash Restricted Payment shall be
determined by the
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Board of Directors whose resolution with respect thereto shall be delivered to
the Trustee. Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.06 were computed.
SECTION 4.07 ASSET SALES.
(a) Except as otherwise provided in clauses (c) and (d) below, the Company
shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless (a) the Company or such Restricted Subsidiary,
as the case may be, receives consideration at the time of such Asset Sale at
least equal to the Fair Market Value (evidenced by a resolution of the board of
directors set forth in an Officers' Certificate delivered to the Trustee) of the
assets (net of the Fair Market Value of Liens on such assets) issued or sold or
otherwise disposed of and (b) at least 75% of the consideration therefor
received by the Company or such Restricted Subsidiary is in the form of (i) cash
or Cash Equivalents or (ii) property or assets that are used or useful in a
Permitted Business, or the Capital Stock of any Person engaged in a Permitted
Business if, as a result of the acquisition by the Company or any Restricted
Subsidiary thereof, such Person becomes a Restricted Subsidiary.
(b) For purposes of this Section 4.07 each of the following shall be deemed
cash: (x) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet), of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Notes or any Guarantee thereof) that are assumed by
the transferee of any such assets pursuant to a customary novation agreement
that releases the Company or such Restricted Subsidiary from further liability,
(y) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are contemporaneously
(subject to ordinary settlement periods) converted by the Company or such
Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash
or Cash Equivalents received), and (z) any Designated Noncash Consideration
received by the Company or any of its Restricted Subsidiaries in such Asset Sale
having an aggregate Fair Market Value, taken together with all other Designated
Noncash Consideration received pursuant to this clause (z) that is at that time
outstanding, not to exceed 15% of Total Assets at the time of the receipt of
such Designated Noncash Consideration (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); provided that the 75%
limitation referred to in clause (b) above will not apply to any Asset Sale in
which the cash or Cash Equivalents portion of the consideration received
therefrom, determined in accordance with subclauses (x), (y) and (z) above, is
equal to or greater than what the after-tax proceeds would have been had such
Asset Sale complied with the aforementioned 75% limitation.
(c) Subject to the applicable requirements of the TIA, if any, the Company
or any Subsidiary of the Company may, at any time and from time to time, in its
sole and absolute discretion, without any other action whatsoever, effect and
consummate, or permit or cause to be effected and consummated, any Permitted
License Holding Subsidiary Transaction. In the event of the consummation of any
Permitted License Holding Subsidiary Transaction, the Company shall, except as
otherwise provided below, cause cash in an amount equal to the Net Proceeds from
such Permitted License Holding Subsidiary Transaction allocable to the
Collateral (as determined by the Board of Directors based upon an opinion as to
fairness to the Holders from a
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financial point of view issued by an accounting, appraisal or investment banking
firm of national standing; provided no such fairness opinion or valuation shall
be required in the event the value of the assets transferred does not exceed, in
the aggregate with all prior Permitted License Holding Subsidiary
Transaction(s), $25 million), if any, to be delivered and pledged to the
Collateral Agent upon the closing of such Permitted License Holding Subsidiary
Transaction (i) for deposit in the Cash Collateral Account pursuant to Section
11.01 or (ii) if the consideration for any Permitted License Holding Subsidiary
Transaction includes Instruments, the Company shall cause such Instruments to be
delivered and pledged to the Collateral Agent on or prior to the third day after
the closing of such Permitted License Holding Subsidiary Transaction (or upon
the closing thereof, if the Capital Stock or Property disposed of therein is
part of the Collateral) for deposit in the Cash Collateral Account pursuant to
Section 11.02 hereof, and pending such delivery, the Company shall hold such
cash or Instruments, as applicable, in trust for the Collateral Agent and the
Holders. Notwithstanding the foregoing, the Company may promptly apply (or cause
to be applied), in its sole and absolute discretion, the Net Proceeds of any one
or more Permitted License Holding Subsidiary Transactions allocable to the
Collateral (as determined by the Board of Directors based upon an opinion as to
the fairness to the Holders from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing; provided
no such fairness opinion or valuation shall be required in the event the value
of the assets transferred does not exceed, in the aggregate with all prior
Permitted License Holding Subsidiary Transaction(s), $25 million) to either (i)
redeem the Notes, provided that, in the event that the aggregate principal
amount of the Notes then outstanding exceeds the available Net Proceeds of such
Permitted License Holding Subsidiary Transaction(s), the Trustee shall select
the Notes to be purchased on a pro rata basis; or (ii) invest in any other
assets related to the Company's wireless telecommunications business, provided
that (a) such investment is made within 60 days after the consummation of the
Permitted License Holding Subsidiary Transaction, and (b) such investment is
made in a Restricted Subsidiary, all of the stock which is pledged to the
Collateral Agent for the benefit of the Trustee and the holders of the Notes and
that, at the time of such investment, has (x) no material assets other than
direct or indirect interests in personal communications services licenses
granted by the FCC (as defined below), direct or indirect interests in
Restricted Subsidiaries owning such licenses, and assets related to the
Company's and/or any Restricted Subsidiary's wireless communications business
and (y) no material liabilities (as defined in accordance with GAAP and
consolidated with all of such Restricted Subsidiaries, direct and indirect
subsidiaries) other than liabilities arising under or in connection with Vendor
Financing, this Indenture or obligations owed to the FCC in connection with the
acquisition and/or maintenance of any such licenses. Notwithstanding anything
contained herein to the contrary, to the extent that a consummated Permitted
License Holding Subsidiary Transaction constitutes or involves (a) the issuance
or sale of Capital Stock or the issuance, collateralization or guarantee of
high-yield debt securities, or any borrowing other than Vendor Financing, or (b)
the sale to a Person of all or any portion of the FCC licenses held by the
applicable Restricted Subsidiary (or the applicable direct or indirect
subsidiary thereof) or the Collateral (in each of (a) and (b) excluding
transactions and/or transfers between or among Restricted Subsidiaries or direct
or indirect subsidiaries thereof) that together with the Net Proceeds of all
prior Permitted License Holdings Subsidiary Transactions (other than of the
type(s) referenced in the preceding parenthetical) exceeds 25% of the total
value of all of the Collateral as of the Issuance Date, the Net Proceeds of such
Permitted License Holding Subsidiary Transaction shall be used solely in
accordance with subclause (i) of the foregoing sentence. Subclauses (i) and (ii)
shall be referred to herein as an Allowable Investment.
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The Collateral Agent and the Trustee shall take, or cause to be taken, any
other action, including, without limitation, releasing any Liens in connection
with a Permitted License Holding Subsidiary Transaction, as may be reasonably
requested by the Company in connection with the consummation of a Permitted
License Holding Subsidiary Transaction.
(d) Notwithstanding anything to the contrary in this Indenture, the Company
may sell, lease, convey, dispose or transfer C-block licenses that are owned,
leased or otherwise held by License Holding Subsidiaries with a value up to 5%
of the Aggregate License Value (as defined below) to the Federal Communications
Commission ("FCC") or as otherwise directed by the FCC. Such 5% determination
shall be made by the Board of Directors and shall be based upon (i) the
aggregate value of the Company's C-block licenses, as determined by the
bankruptcy court by decision dated May 12, 1999, in Adversary Proceeding No.
98-5178A, as captioned NEXTWAVE PERSONAL COMMUNICATIONS INC. against FEDERAL
COMMUNICATIONS COMMISSION (the "Aggregate License Value") and (ii) valuation
reports prepared on behalf of the Company in connection with such adversary
proceeding.
The consent of fifty-one percent of the Holders shall be required for the
Company to sell, lease, convey, dispose or transfer C-block licenses with a
value exceeding 5% of the Aggregate License Value to the FCC or as otherwise
directed by the FCC.
(e) To the extent that any Person forecloses on any of the assets of the
Company or any Restricted Subsidiary and such foreclosure yields a surplus, the
Company or such Restricted Subsidiary shall apply such surplus to an Allowable
Investment.
SECTION 4.08 TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit
of, any Affiliate of the Company (each of the foregoing, an "Affiliate
Transaction"), unless (a) such Affiliate Transaction is on terms that are no
less favorable to the Company or such Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person and (b) the Company delivers to
the Trustee, with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $10
million, either (i) a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies with
clause (a) above and that such Affiliate Transaction has been approved by a
majority of the disinterested members of the Board of Directors or (ii) an
opinion as to the fairness to the Holders of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment banking
firm of national standing; provided, further, that, if the Affiliate Transaction
involves the transfer of cash proceeds from one Restricted Subsidiary to another
Restricted Subsidiary, it shall be a condition precedent to such transfer that
the transferee Restricted Subsidiary is Solvent as determined by the
disinterested members of the Board of Directors in good faith.
Notwithstanding the foregoing, the following items shall not be deemed to
be Affiliate Transactions: (a) customary directors' fees, indemnification or
similar arrangements or any employment agreement or other compensation plan or
arrangement entered into by the Company
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or any of its Restricted Subsidiaries in the ordinary course of business
(including, without limitation, loans made to employees in the ordinary course
of business) and consistent with the past practice of the Company or such
Restricted Subsidiary; (b) Permitted License Holding Subsidiary Transactions;
(c) any agreement as in effect on the Original Issuance Date or any amendment
thereto (so long as such amendment is not disadvantageous to the Holders of the
Notes in any material respect) or any transaction contemplated thereby as more
specifically set forth on Schedule __ hereto; (d) payments and transactions in
connection with the Plan, and the Offering and the application of the proceeds
thereof, and the payment of the fees and expenses with respect thereto; (e)
Restricted Payments that are permitted by Section 4.06 hereof and any Permitted
Investments; (f) transactions that are permitted or implemented in accordance
with the Plan; and (g) any issuance of capital stock of the Company or any
Restricted Subsidiary.
SECTION 4.09 LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien, other than a Permitted Lien; provided that, in any case
involving a Lien securing subordinated Indebtedness of the Company, such Lien is
subordinated to the Lien securing the Notes to the same extent that such
subordinated Indebtedness is subordinated to the Notes. With the exception of
Liens securing Senior Indebtedness, the Company shall grant no additional Liens
on Capital Stock of a License Holding Subsidiary that is pledged pursuant to a
License Holding Subsidiary Pledge Agreement without the prior consent of 50% of
the Holders.
SECTION 4.10 CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) the
corporate, partnership or other existence of itself and each of its
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company or any such Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the Company
and its Subsidiaries; provided, however, that the Company shall not be required
to preserve any such right, license or franchise, or the corporate, partnership
or other existence of itself and any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
SECTION 4.11 NO SENIOR SUBORDINATED INDEBTEDNESS.
The Company shall not incur any Indebtedness that is subordinate or junior
in right of payment to any Senior Indebtedness and senior in right of payment to
the Notes.
SECTION 4.12 PAYMENTS FOR CONSENT.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or is
paid
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to all Holders of the Notes that consent, waive or agree to amend in the time
frame set forth in the solicitation documents relating to such consent, waiver
or agreement.
SECTION 4.13 ESTABLISHMENT OF SUBSIDIARIES.
If any new License Holding Subsidiary is established or acquired, or the
Company designates a Subsidiary as a "License Holding Subsidiary" (in accordance
the definition of the term License Holding Subsidiary), or ownership of one or
more of the FCC licenses described in the definition of License Holding
Subsidiary is transferred from a License Holding Subsidiary to any Subsidiary
which is not then a party to a License Holding Subsidiary Pledge Agreement, the
Company shall, as a condition precedent to such establishment, acquisition,
designation or transfer, execute and deliver to the Collateral Agent (or cause
any Subsidiary of the Company that holds of record all or part of the Capital
Stock of any such new License Holding Subsidiary or Subsidiary to execute and
deliver) a License Holding Subsidiary Pledge Agreement and to deliver and pledge
to the Collateral Agent pursuant to such License Holding Subsidiary Pledge
Agreement all such License Holding Subsidiary Shares, in the form required by
the License Holding Subsidiary Pledge Agreement, and free of all Liens other
than the Lien of such License Holding Subsidiary Pledge Agreement. For purposes
of this Section 4.13, if the License Holding Subsidiary Shares being pledged are
the Capital Stock of a Subsidiary organized under the laws of a jurisdiction
other than the United States, a State thereof or the District of Columbia, the
License Holding Subsidiary Pledge Agreement with respect thereto shall be
substantially in the form of Exhibit ___ hereto, with such changes therein
(which shall be satisfactory to the Collateral Agent), as are required by the
law of the jurisdiction in which such License Holding Subsidiary is organized in
order to grant a security interest in such Capital Stock comparable to that
provided for in Exhibit ___ hereto, as evidenced by an Opinion of Counsel (which
shall also address the validity of such agreement and the creation, perfection
and enforceability of such security interest).
SECTION 4.14 ISSUANCE OF SUBSIDIARY CAPITAL STOCK.
Except as provided in Section 4.07(c) hereof and in the proviso to this
sentence, the Company will cause each License Holding Subsidiary not to issue
any Capital Stock in such License Holding Subsidiary or any debt securities
exchangeable or convertible for or into such Capital Stock, provided that (i)
such License Holding Subsidiary (the "Issuing Subsidiary") may issue additional
Capital Stock to the Company or a License Holding Subsidiary, which Capital
Stock shall be delivered and pledged to the Collateral Agent pursuant to Section
11.03(a) of this Indenture or in accordance with the terms of the applicable
License Holding Subsidiary Pledge Agreement, as the case may be, and (ii) if the
Issuing Subsidiary is not a Wholly Owned Subsidiary, the Issuing Subsidiary may
also simultaneously issue additional shares of Capital Stock of the same class
to other shareholders of the Issuing Subsidiary, provided that the issuance of
Capital Stock pursuant to this clause (ii), when combined with the issuance
pursuant to clause (i), will not reduce the percentage of Capital Stock of the
Issuing Subsidiary which was owned directly or indirectly by the Company
immediately prior to such issuances.
SECTION 4.15 OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder of Notes will
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple
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thereof) of such Holder's Notes pursuant to the offer described below (the
"Change of Control Offer") at an offer price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the date of repurchase (the "Change of Control Payment"). Within 60
days following any Change of Control, the Company will (or will cause the
Trustee to) mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and offering to repurchase
Notes on the date specified in such notice, which date shall be no earlier than
30 days and no later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date"), pursuant to the procedures required by this
Indenture and described in such notice. The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Indenture relating to such
Change of Control Offer, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
described in this Indenture by virtue thereof.
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (a) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (b) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (c) 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 thereof being purchased by the
Company. The Paying Agent will promptly mail to each Holder of Notes so 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 each such new Note will be in a principal
amount of $1,000 or an integral multiple thereof. Prior to complying with the
provisions of this Section 4.15, but in any event within 90 days following a
Change of Control, the Company shall use commercially reasonable efforts to
obtain the requisite consents, if any, under all agreements governing
outstanding Senior Indebtedness to permit the repurchase of Notes required by
this Section 4.15. The Company shall publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
Notwithstanding anything to the contrary in this Section 4.15, the Company
will not be required to make a Change of Control Offer upon a Change of Control
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 this Indenture
applicable to a Change of Control Offer made by the Company and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
SECTION 4.16 GUARANTEES BY LICENSE HOLDING SUBSIDIARIES.
If any new License Holding Subsidiary is established, or the Company
designates a Subsidiary as a "License Holding Subsidiary" (in accordance the
definition of the term License Holding Subsidiary), or ownership of one or more
of the FCC licenses described in the definition of License Holding Subsidiary is
transferred from a License Holding Subsidiary to any Subsidiary which has not
executed a Guarantee in favor of the Holders, the Company shall, as a condition
precedent to such establishment, designation or transfer, execute and deliver to
the
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Collateral Agent (or cause any Subsidiary of the Company that holds of record
all or part of the Capital Stock of any such new License Holding Subsidiary or
Subsidiary to execute and deliver) a Guarantee Agreement in accordance with
Article 12 of this Indenture; provided that the Company shall have the option to
designate from time to time any Subsidiary as a guarantor for the purposes of
Article 12 of this Indenture.
SECTION 4.17 CONSUMMATION OF PLAN OF REORGANIZATION.
No provision of this Indenture shall prevent the Company or any Subsidiary
of the Company from consummating the Plan and the transactions contemplated
thereby.
ARTICLE 5
SUCCESSORS
SECTION 5.01 MERGER, CONSOLIDATION, OR SALE OF ASSETS.
Subject to Section 4.15, the Company may not consolidate or merge with or
into (whether or not the Company is the surviving corporation), or sell, assign,
transfer, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, another Person,
unless (a) the Company is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other disposition shall
have been made is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia, (b) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, conveyance or
other disposition shall have been made assumes all the obligations of the
Company under the Notes and this Indenture pursuant to a supplemental indenture
in a form reasonably satisfactory to the Trustee and (c) immediately after such
transaction no Default or Event of Default exists. The foregoing will not
prohibit the consummation of any transaction(s) contemplated by the Plan or (i)
a merger between the Company and a Wholly Owned Restricted Subsidiary or (ii) a
merger between the Company and an Affiliate incorporated solely for the purpose
of reincorporating the Company in another State of the United States so long as,
in each case, the amount of Indebtedness of the Company and its Restricted
Subsidiaries is not increased thereby. The Company shall not lease all or
substantially all of its assets to any Person.
SECTION 5.02 SUCCESSOR CORPORATION OR GUARANTORS SUBSTITUTED.
Upon any consolidation of the Company with or any merger of the Company
into another Person, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest
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on the Notes except in the case of a sale of all of the Company's assets that
meets the requirements of Section 5.01 hereof.
Upon any consolidation of a Guarantor with or any merger of a Guarantor
into another Person, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of a Guarantor in
accordance with the provisions hereof, the successor corporation formed by such
consolidation or into or with which such Guarantor is merged or to which such
sale, assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to "Guarantor" shall apply to the
successor Person, including the successor Person succeeding to, and being
substituted for, such Guarantor's Guarantee Obligation), and may exercise every
right and power of a Guarantor under this Indenture with the same effect as if
such successor Person had been named as the Guarantor herein.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
Each of the following constitutes an Event of Default:
(a) default for 10 days in the payment when due of interest on the Notes
(whether or not prohibited by Article 10 hereof); or
(b) default in payment when due of the principal of or premium, if any, on
the Notes (whether or not prohibited by Article 10 hereof) and such default
continues for a period of five Business Days; or
(c) failure by the Company for 60 days after notice from the Trustee or the
Holders of at least 33-1/3% in principal amount of the Notes then outstanding to
comply with any of its other agreements in this Indenture or the Notes; or
(d) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created
after the Original Issuance Date, which default results in the acceleration of
such Indebtedness prior to its stated final maturity and the principal amount of
any such Indebtedness, together with the principal amount of any other such
Indebtedness the maturity of which has been so accelerated, aggregates $50.0
million or more; or
(e) failure by the Company or any of its Restricted Subsidiaries to pay
final judgments aggregating in excess of $50.0 million (net of any amounts with
respect to which a reputable and creditworthy insurance company has acknowledged
liability in writing), which judgments are not paid, discharged or stayed for a
period of 60 days; or
(f) the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary:
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(i) commences a voluntary case under any applicable Bankruptcy Law,
(ii) consents to the entry of an order for relief against it in an
involuntary case under any applicable Bankruptcy Law,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; or
(g) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or for all or substantially
all of the property of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days.
SECTION 6.02 ACCELERATION.
If any Event of Default (other than an Event of Default specified in clause
(f) or (g) of Section 6.01 hereof with respect to the Company) occurs and is
continuing, the Holders of at least 25% in principal amount of the then
outstanding Notes may, only on the terms and subject to the conditions set forth
in the Collateral Agency Agreement, direct the Trustee to declare all the Notes
to be due and payable immediately; provided, that so long as any Senior
Indebtedness shall be outstanding, such acceleration shall not be effective
until five Business Days after receipt by the Company of written notice of such
acceleration. Upon any such declaration, the Notes shall become due and payable
immediately. Notwithstanding the foregoing, if an Event of Default specified in
clause (f) or (g) of Section 6.01 hereof occurs with respect to the Company, (i)
all outstanding Notes shall, ipso facto, be due and payable immediately without
further action or notice and (ii) the Company shall promptly notify the Trustee
of such Event of Default (although the Notes shall become due and payable
immediately upon the occurrence of such Event of Default as specified in clause
(i) regardless of whether the Company so notifies the Trustee). The Holders of a
majority in aggregate principal amount of the then outstanding Notes by written
notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest or premium, if any, that has become due solely because of
the acceleration) have been cured or waived, provided that, in the event of a
declaration of acceleration of the Notes because an Event of Default has
occurred and is
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continuing as a result of the acceleration of any Indebtedness described in
clause (d) of Section 6.01 hereof, the declaration of acceleration of the Notes
shall be automatically annulled if the holders of any Indebtedness described in
clause (d) of Section 6.01 hereof have rescinded the declaration of acceleration
in respect of such Indebtedness within 30 days of the date of such declaration
and if (i) the annulment of the acceleration of the Notes would not conflict
with any judgment or decree of a court of competent jurisdiction and (ii) all
existing Events of Default, except non-payment of principal or interest on the
Notes that became due solely because of the acceleration of the Notes, have been
cured or waived.
SECTION 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may, only on
the terms and subject to the conditions set forth in the Collateral Agency
Agreement, pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of the Holders of
all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, the Notes
(including, without limitation, in connection with an offer to purchase)
(provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including, without limitation, any related payment default that resulted from
such acceleration). Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 6.05 CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred
on it. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that the Trustee determines may be unduly prejudicial
to the rights of other Holders of Notes or that may result in the incurrence of
liability by the Trustee.
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SECTION 6.06 LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 33-1/3% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal amount
of the then outstanding Notes do not give the Trustee a direction inconsistent
with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, and interest
on the Note, on or after the respective due dates expressed in the Note
(including, without limitation, in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Notes and
interest, if any, on overdue principal and, to the extent lawful, interest and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including, without limitation, the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including, without limitation, any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Notes), its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute any money or
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other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including, without limitation, payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to holders of Senior Indebtedness to the extent required by the
Collateral Agency Agreement and Article 10 hereof;
Third: to Holders of Notes for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including, without limitation,
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
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ARTICLE 7
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture but need
not verify the contents thereof.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02, 6.04 or 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c), (e) and (f) of this Section 7.01 and Section 7.02 hereof.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
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(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
(g) Except with respect to Section 4.01 hereof, the Trustee shall have no
duty to inquire as to the performance of the Company's covenants in Article 4
hereof. In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring pursuant
to Sections 6.01(a), 6.01(b) and 4.01 hereof or (ii) any Default or Event of
Default of which the Trustee shall have received written notification or
obtained actual knowledge.
(h) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the Trustee
may, in its discretion, make such further inquiry or investigation into such
facts or matters as it may see fit and if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company personally or by agent or attorney.
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(i) The Trustee shall not be required to give any bond or surety in respect
of the performance of its powers and duties hereunder.
(j) Delivery of reports, information and documents to the Trustee under
Section 4.03 hereof is for informational purposes only and the Trustee's receipt
of the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee may become the owner or pledgee of Notes and may otherwise deal
with the Company or any Affiliate of the Company with the same rights it would
have if it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the Commission for permission to continue as trustee or resign. Any Agent may do
the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 45 days after such Default or Event Default
becomes known to the Trustee. Except in the case of a Default or Event of
Default in payment of principal of, premium, if any, or interest on any Note,
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each March 1 beginning with the March 1 following the
Original Issuance Date, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA ss. 313(a) (but if no event described in TIA ss.
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA ss. 313(b).
The Trustee shall also transmit by mail all reports as required by TIA ss.
313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company and filed with the Commission and each stock
exchange on which the Notes are
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listed in accordance with TIA ss. 313(d). The Company shall promptly notify the
Trustee when the Notes are listed on any stock exchange.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Company shall pay the Trustee from time to time reasonable compensation
for its acceptance of this Indenture and services hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee and its agents, employees,
officers, directors and shareholders for, and hold the same harmless against,
any and all losses, liabilities or expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including, without limitation, the costs and expenses of enforcing
this Indenture against the Company (including, without limitation, this Section
7.07) and defending itself against any claim (whether asserted by the Company or
any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim with counsel reasonably satisfactory to the Trustee, and the Trustee shall
cooperate in the defense at the Company's expense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
resignation or removal of the Trustee and/or the satisfaction and discharge or
termination of this Indenture.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the resignation or removal
of the Trustee and/or the satisfaction and discharge or termination of this
Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(f) hereof occurs, the expenses and the
compensation for the services (including, without limitation, the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to the
extent applicable.
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SECTION 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who has been
a Holder of a Note for at least six months, fails to comply with Section 7.10
hereof, such Holder of a Note may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Notes. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
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SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss. 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes and each
Guarantor's obligations shall be deemed to have been discharged with respect to
its Guarantee Obligations on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging
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the same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive payments in
respect of the principal of, premium, if any, and interest, if any, on such
Notes when such payments are due from the trust referred to below,
(b) the Company's 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,
(c) the rights, powers, trusts, duties and immunities of the Trustee, and
the Company's obligations in connection therewith and
(d) the Legal Defeasance provisions of this Indenture.
SECTION 8.03 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Guarantor shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its respective obligations under the covenants contained in
Sections 4.06, 4.07, 4.08, 4.09, 4.11 and 4.12 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Company's exercise under Section
8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(c) through 6.01(e) hereof shall not constitute Events of Default.
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance,
(a) the Company 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
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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, and interest on the outstanding Notes on the
stated maturity or on the applicable redemption date, as the case may be, and
the Company must specify whether the Notes are being defeased to maturity or to
a particular redemption date;
(b) in the case of Legal Defeasance, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to
the Trustee confirming that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) since the Original
Issuance 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, subject to customary assumptions and exclusions, the Holders
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;
(c) in the case of Covenant Defeasance, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to
the Trustee confirming that, subject to customary assumptions and exclusions,
the Holders 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;
(d) no Default or Event of Default shall have occurred and be continuing 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);
(e) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) the Company must have delivered to the Trustee an Opinion of Counsel to
the effect that, subject to customary assumptions and exclusions, after the
123rd day following the deposit, the trust funds will not be subject to the
effect of Section 547 of the United States Bankruptcy Code or any analogous New
York State law provision or any other applicable federal or New York bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Notes over the other creditors of the Company with the
intent of defeating, hindering, delaying or defrauding creditors of the Company
or others; and
(h) the Company must deliver to the Trustee an Officers' Certificate and an
Opinion of Counsel (which opinion may be subject to customary assumptions and
exclusions), each
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stating that all conditions precedent provided for relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including, without limitation, the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including, without limitation, the
Company acting as Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06 REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after such principal,
and premium, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Note shall thereafter, as a secured creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustees thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
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SECTION 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States dollars
or non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, (i) the Company and any
Guarantor, if applicable, and (ii) the Trustee may amend or supplement this
Indenture, the Notes or the Guarantee Obligations without the consent of any
Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes or to alter the provisions of Article 2 hereof (including,
without limitation, the related definitions) in a manner that does not
materially adversely affect any Holder;
(c) to provide for the assumption of the Company's obligations to the
Holders of the Notes by a successor to the Company pursuant to Article 5 hereof;
(d) to 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
hereunder of any Holder of the Note;
(e) to comply with requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA; or
(f) to provide for Guarantees of the Notes and the execution of License
Holding Subsidiary Pledge Agreements in accordance with Section 4.13.
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or
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supplemental Indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend or supplement this Indenture (including, without limitation, Section
4.08 hereof) and the Notes may be amended or supplemented with the consent of
the Holders of at least 50% in principal amount of the Notes (including, without
limitation, Secondary Notes, if any) then outstanding voting as a single class
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes), and, subject to Sections
6.04 and 6.07 hereof, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, premium, if any,
or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of at least
50% in principal amount of the then outstanding Notes (including, without
limitation, Secondary Notes, if any) voting as a single class (including,
without limitation, consents obtained in connection with the purchase of, or
tender offer or exchange offer for, the Notes). Sections 2.08 and 2.09 hereof
shall determine which Notes are considered to be "outstanding" for purposes of
this Section 9.02.
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes (including, without
limitation, Secondary Notes, if any) then outstanding voting as a single class
may waive compliance in a particular instance by the Company with any provision
of this Indenture or the Notes. However, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver,
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(b) reduce the principal of or change the fixed maturity of any Note or
alter the provisions with respect to the redemption or repurchase of the Notes
(other than Section 4.07 hereof),
(c) reduce the rate of or extend the time for payment of interest on any
Note,
(d) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Notes (except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal amount
of the Notes and a waiver of the payment default that resulted from such
acceleration),
(e) make any Note payable in money other than that stated in the Notes,
(f) make any change in the provisions of this Indenture relating to waivers
of past Defaults,
(g) waive a redemption or repurchase payment with respect to any Note
(other than Section 4.07 hereof), or
(h) make any change in the foregoing amendment and waiver provisions.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or supplemental Indenture that complies with the TIA as then
in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement, waiver or other action permitted by this Indenture, which record
date shall be the date so fixed by the Company notwithstanding the provisions of
the TIA. If a record date is fixed, then notwithstanding the second sentence of
the immediately preceding paragraph, those Persons who were Holders at such
record date, and only those Persons (or their duly designed proxies), shall be
entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
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After an amendment, supplement or waiver becomes effective, it shall
bind every Holder of a Note, unless it makes a change described in any of
clauses (a) through (h) of Section 9.02 hereof, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Note who has consented to
it and every subsequent Holder of a Note or portion of a Note that evidences the
same debt as the consenting Holder's Note; provided that any such waiver shall
not impair or affect the right of any Holder to receive payment of principal and
premium of and interest on a Note, on or after the respective dates set for such
amounts to become due and payable expressed in such Note, or to bring suit for
the enforcement of any such payment on or after such respective dates.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
The Notes issued pursuant to this Indenture shall be legended by the
Company as either Series A Notes, Series B Notes or Series C Notes. On the
Effective Date, the Company shall specify the aggregate principal amount of
Notes that shall be included in each respective series of Notes. Any Secondary
Notes issued after the Effective Date shall be classified the same series as the
Notes receiving such Secondary Note. The Notes of each series shall be in
substantially the form set forth in Exhibit A hereto, or in such other form as
shall be established by or pursuant to a board resolution of the Company or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any exchange or as may, consistently
herewith, be determined by the officers executing such Notes, as evidenced by
their execution of the Notes. If the form of Notes of any series is established
by action taken pursuant to a board resolution, a copy of the appropriate record
of such action shall be certified by the Secretary or Assistant Secretary of the
Company and delivered to the Trustee at or prior to the authentication and
delivery of such Notes.
In the event that, on or as of the Original Issuance, the Commission has
not qualified the Indenture pursuant to the TIA, then the Notes shall be issued
pursuant to Section 4(2) of the Securities Act and Section 304(b)(1) of the TIA
(such Note being referred to in this Section 9.05 as the "Restricted Note").
Each Noteholder receiving a Restricted Note herein shall also receive an
"exchange right" issued under Section 1145(a)(1) of the Bankruptcy Code (the
"Exchange Right"), entitling each Holder of a Restricted Note to exchange, at
such holder's option for a period of 45 days after the Exchange Date (as defined
below) each Restricted Note it owns for such Class B 12% Senior Secured
Subordinated Notes Due 2009 which shall have then been qualified under the TIA
(the "Exchange Securities"). The Exchange Right shall become exercisable at such
time that the qualification of the Indenture becomes effective (the "Exchange
Date") and shall be subject to the terms and conditions of an exchange rights
agreement provided by the Company.
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Notwithstanding anything contained in this Indenture to the contrary,
each Restricted Note and each Exchange Security will vote together on all
matters as one class and none of such notes will have the right to vote or
consent as a class separate from one another on any matter.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental Indenture until its Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, in addition to the documents required by Section
13.04 hereof, an Officer's Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10
SUBORDINATION
SECTION 10.01 AGREEMENT TO SUBORDINATE AND PRIORITY.
The Company agrees, and each Holder by accepting a Note agrees, that the
Payment of Subordinated Note Obligations are subordinated in right of Payment,
to the extent and in the manner set forth in this Article 10, to the prior
Payment in full in cash or cash equivalents of all Senior Indebtedness, whether
outstanding on the Original Issuance Date or thereafter incurred and that the
subordination is for the benefit of the holders of Senior Indebtedness. The
provisions of this Article 10 shall constitute a continuing offer to all Persons
that, in reliance upon such provisions, become holders of, or continue to hold
Senior Indebtedness, and they or each of them may enforce the rights of holders
of Senior Indebtedness hereunder, subject to the terms and provisions hereof.
Each of the Trustee and each of the Holders agrees that, notwithstanding
any terms or rights in this Indenture or at equity or in law to the contrary,
the Trustee, for the benefit of the Holders, shall exercise no rights and
remedies against the Collateral except as expressly permitted in the Collateral
Agency Agreement.
SECTION 10.02 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any Distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities, (a) the holders of Senior Indebtedness will be entitled
to receive Payment in full in cash or cash equivalents of all Obligations due in
respect of such Senior Indebtedness (including, without limitation, interest
after the commencement of any such proceeding at the rate specified in the
applicable Senior Indebtedness) before the Holders of Notes will be entitled to
receive any Payment with respect to the Subordinated Note Obligations (except
that Holders of Notes may receive and retain Permitted Junior Securities and
Payments and other Distributions made from the trust described in Section 8.04
hereof), and (b) until all Obligations with respect to Senior Indebtedness are
paid in full in cash or cash equivalents, any Distribution
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to which the Holders of Notes would be entitled but for this Article 10 shall be
made to the holders of Senior Indebtedness (except that Holders of Notes may
receive and retain Permitted Junior Securities and Payments and other
Distributions made from the trust described Section 8.04 hereof) as their
interests appear; provided, however, that nothing in this Section 10.02 shall
prevent the issuance of Secondary Notes in lieu of a cash payment of any or all
interest due on any Interest Payment Date; provided, further, however, that
certain distributions of proceeds by the Company to Holders of Notes shall be
subject to the terms of the (x) Collateral Agency Agreement and (y) the
Intercreditor Agreement that is to be executed by the initial holders of the
Notes, the terms of which are substantially as set forth in hereto.
SECTION 10.03 DEFAULT ON ANY SENIOR INDEBTEDNESS.
The Company may not make any Payment or Distribution to the Trustee or
any Holder upon or in respect of the Subordinated Note Obligations (except in
Permitted Junior Securities or from the trust described in Section 8.04 hereof)
until all principal and other obligations with respect to Senior Indebtedness
have been paid in full in cash or cash equivalents, if
(a) a default in the Payment of the principal (including, without
limitation, reimbursement obligations in respect of letters of credit) of,
premium, if any, or interest on or commitment, letter of credit or
administrative fees relating to, any other Senior Indebtedness occurs and is
continuing beyond any applicable period of grace in the agreement, indenture or
other document governing such Senior Indebtedness, or
(b) any other default occurs and is continuing with respect to the Senior
Indebtedness that permits holders of the Senior Indebtedness as to which such
default relates to accelerate its maturity and the Trustee receives a notice of
such default (a "Payment Blockage Notice") from the Company or the holders of
any Senior Indebtedness (or their Representative);
provided, however, that nothing in this Section 10.03 shall prevent the issuance
of Secondary Notes in lieu of a cash payment of any or all interest due on any
Interest Payment Date.
Payments on the Notes may and shall be resumed (a) in the case of a payment
default, upon the date on which such default is cured or waived and (b) in case
of a nonpayment default, the earlier of the date on which such nonpayment
default is cured or waived or 179 days after the date on which the applicable
Payment Blockage Notice is received, unless the maturity of any Senior
Indebtedness has been accelerated. No new period of payment blockage may be
commenced unless and until 360 days have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice. No nonpayment default that existed or
was continuing on the date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice
unless such default shall have been waived or cured for a period of not less
than 90 days.
SECTION 10.04 ACCELERATION OF SECURITIES.
If Payment of the Notes is accelerated because of an Event of Default, the
Company shall promptly notify holders of Senior Indebtedness of the
acceleration.
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SECTION 10.05 WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any Payment of any
Subordinated Note Obligations at a time when the Trustee or such Holder, as
applicable, has actual knowledge that such Payment is prohibited by Section
10.02 or 10.03 hereof, such Payment shall be held by the Trustee or such Holder,
in trust for the benefit of, and shall be paid forthwith over and delivered,
upon written request, to, the holders of Senior Indebtedness as their interests
may appear or their Representative under the indenture or other agreement (if
any) pursuant to which Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the Payment of all
Obligations with respect to Senior Indebtedness remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms, after
giving effect to any concurrent Payment or Distribution to or for the holders of
Senior Indebtedness; provided, however, that nothing in this Section 10.05 shall
prevent the issuance of Secondary Notes in lieu of a cash payment of any or all
interest due on any Interest Payment Date.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 10, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness, and shall not be liable to any such
holders if the Trustee shall pay over or distribute to or on behalf of Holders
or the Company or any other Person money or assets to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article 10, except if
such Payment is made as a result of the willful misconduct or gross negligence
of the Trustee.
SECTION 10.06 NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a Payment of any Obligations with
respect to the Notes to violate this Article 10, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Indebtedness as
provided in this Article 10.
SECTION 10.07 SUBROGATION.
After all Senior Indebtedness is paid in full in cash or cash equivalents
and until the Notes are paid in full, Holders of Notes shall be subrogated
(equally and ratably with all other Indebtedness pari passu with the Notes) to
the rights of holders of Senior Indebtedness to receive Distributions applicable
to Senior Indebtedness to the extent that Distributions otherwise payable to the
Holders of Notes have been applied to the Payment of Senior Indebtedness. A
Distribution made under this Article 10 to holders of Senior Indebtedness that
otherwise would have been made to Holders of Notes is not, as between the
Company and Holders, a Payment by the Company on the Notes.
SECTION 10.08 RELATIVE RIGHTS.
This Article 10 defines the relative rights of Holders of Notes and holders
of Senior Indebtedness. Nothing in this Indenture shall:
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(1) impair, as between the Company and holders of notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders of Notes and creditors of
the Company other than their rights in relation to holders of Senior
Indebtedness; or
(3) prevent the Trustee or any Holder of Notes from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Indebtedness to receive
Distributions and Payments otherwise payable to Holders of Notes.
If the Company fails because of this Article 10 to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.
SECTION 10.09 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Indebtedness to enforce the subordination
of the Indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the Company or any Holder or by the failure of the Company or
any Holder to comply with this Indenture.
SECTION 10.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a Distribution is to be made or a notice given to holders of
Senior Indebtedness, the Distribution may be made and the notice given to their
Representative.
Upon any Payment or Distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders of Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any Distribution to the Trustee or to the Holders of Notes
for the purpose of ascertaining the Persons entitled to participate in such
Distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
10.
SECTION 10.11 RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any Payment or Distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make Payments
on the Notes, unless the Trustee shall have received at its Corporate Trust
Office at least five Business Days prior to the date of such payment written
notice of facts that would cause the Payment of any Obligations with respect to
the Notes to violate this Article 10. Only the Company or a Representative may
give the notice. Nothing in this Article 10 shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof.
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The Trustee may hold Senior Indebtedness with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights.
SECTION 10.12 AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Notes, by the Holder's acceptance thereof, authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as such Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.09 hereof at least 30 days before the expiration of the time to file
such claim, the Representative is hereby authorized to file an appropriate claim
for and on behalf of the Holders of the Notes.
SECTION 10.13 NO WAIVER OF SUBORDINATION PROVISIONS.
(a) No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act by any such holder.
(b) Without in any way limiting the generality of paragraph (a) of this
Section 10.13, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or any Holder, without
incurring responsibility to any Holder and without impairing or releasing the
subordination provided in this Article 10 or the obligations hereunder of the
Holders to the holders of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, any Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against either Company or any
other Person.
SECTION 10.14 AMENDMENTS.
The provisions of this Article 10 shall not be amended or modified without
the written consent of the holders of all Senior Indebtedness.
SECTION 10.15 TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article 10 shall apply to amounts due to the Trustee
pursuant to other sections of this Indenture.
ARTICLE 11
COLLATERAL AND SECURITY
SECTION 11.01 CASH COLLATERAL ACCOUNT.
(a) There is hereby established by the Trustee for the benefit of the
Collateral Agent and the Holders a cash collateral account, subject to such
applicable laws and such applicable regulations of the Board of Governors of the
Federal Reserve System and of any other
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appropriate banking or governmental authority as may now or hereafter be in
effect (the "Cash Collateral Account"), in the name and under the sole dominion
and control of the Collateral Agent. The Company shall, except as provided in
Section 4.07(c) hereof, deposit from time to time into the Cash Collateral
Account all Net Proceeds of any Permitted License Holding Subsidiary Transaction
allocable to the Collateral. Any income received by the Collateral Agent with
respect to the balance from time to time standing to the credit of the Cash
Collateral Account, including any interest or capital gains on Permitted
Investment Accounts or Instruments, shall remain, or be deposited, in the Cash
Collateral Account. All such income, interest or capital gains which are
received by the Company shall be received in trust for the benefit of the
Collateral Agent and the Holders and shall be paid over to the Collateral Agent
as Collateral in the same form as received (with any necessary endorsement) to
be released or disposed of only as specified in subsection (b) below, and the
Company shall deposit any such interest and other payments that are in the form
of cash into the Cash Collateral Account. All right, title and interest in and
to the cash amounts on deposit from time to time in the Cash Collateral Account,
together with any Permitted Investment Accounts from time to time made pursuant
to this Section 11.01 and any Instruments deposited therein, shall vest in the
Collateral Agent, shall constitute part of the Collateral hereunder and shall
not constitute payment of the Secured Obligations until applied thereto as
provided in the applicable Security Document(s).
(b) The balance from time to time standing to the credit of the Cash
Collateral Account shall be distributed to the Company entitled thereto only as
permitted under Section 4.07 hereof or the Collateral Agency Agreement; provided
that the Collateral Agent shall not distribute to the Company or such other
Person any such funds upon the occurrence and continuation of a Default except
pursuant to the express terms of the Collateral Agency Agreement. If immediately
available cash on deposit in the Cash Collateral Account is not sufficient to
make any such permitted distribution, the Collateral Agent shall liquidate as
promptly as practicable Permitted Investment Accounts as required to obtain
sufficient cash to make such distribution and, notwithstanding any other
provision of Sections 4.07 and 6.01 hereof or this Section 11.01 or any other
Security Document, such distribution shall not be made until such liquidation
has taken place.
(c) Amounts on deposit in the Cash Collateral Account shall be invested and
reinvested from time to time in such Permitted Investment Accounts as are
described in clauses (a), (b), (c) and (d) of the definition of such term, as
the Company shall instruct the Collateral Agent in writing, provided, however,
that if a Default shall have occurred and be continuing, the Collateral Agent
shall have the exclusive right to make investment decisions with respect to
amounts on deposit in the Cash Collateral Account. Such Permitted Investment
Accounts shall be held in the name and be under the sole dominion and control of
the Collateral Agent, subject to the right of the Trustee under Article 6 hereof
and the Security Documents. In order to provide the Collateral Agent, for the
benefit of the Holders, with a perfected security interest therein, each such
Permitted Investment Account, or, in the case of the Permitted Investment
Accounts described in clause (d) of the definition of that term, each security
which is the subject of a repurchase obligation, shall be either:
(i) evidenced by negotiable certificates or instruments, or if
non-negotiable then issued in the name of the Collateral Agent, which (i)
are delivered (together with any appropriate instruments of transfer) to,
and held by, the Collateral Agent or an agent thereof (which shall not be
the Company or any of its Affiliates) in the State of [_______]
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or (ii) held by or on behalf of DTC ("Clearing Corporation") and credited
to a securities account of the Collateral Agent maintained with such
Clearing Corporation; or
(ii) maintained in book-entry form on the records of a Federal Reserve
Bank and registered in the name of the Collateral Agent, as depositary, in
a book-entry securities account maintained with respect to such Permitted
Investment with the Federal Reserve Bank in the Federal Reserve District in
which the Corporate Trust Office is located.
SECTION 11.02 INSTRUMENTS.
(a) The Company and, if applicable, any License Holding Subsidiary will
within the time period specified in Section 4.07(c) hereof, deliver and pledge
to the Collateral Agent or its nominee each Instrument acquired by it or any of
its License Holding Subsidiaries at any time as part of the noncash
consideration for any Permitted License Holding Subsidiary Transaction,
appropriately endorsed to the Collateral Agent, provided that the Collateral
Agent may, upon request of the Company, make appropriate arrangements for making
any Instrument pledged by the Company available to it for purposes of
presentation, collection or renewal (any such arrangement to be effected, to the
extent deemed appropriate to the Collateral Agent, against trust receipt or like
document); subject, however, to the Lien on such Instruments and the proceeds
thereof. All Instruments required under this subsection (a) to be delivered to
the Collateral Agent shall be so delivered by the Company pursuant hereto
endorsed in suitable form for transfer by endorsement and delivery by the
Collateral Agent, and accompanied by any required transfer tax stamps, all in
form and substance reasonably satisfactory to the Collateral Agent.
(b) Except as otherwise provided in this subsection (b), the Company shall
continue to enforce, at its own expense, any and all obligations of any Persons
to it arising out of Instruments received as noncash consideration and shall
continue to collect, at its own expense, all amounts due, if any, or to become
due, that arise out of such Instruments; provided, however, that the Collateral
Agent shall have the right at any time, and from time to time, upon the
occurrence and during the continuance of a Default, to direct the obligors to
the Company under such Instruments to make payment of all amounts or other
property due or to become due to the Company thereunder directly to the
Collateral Agent and, at the expense of the Company, to enforce such
Instruments, and to adjust, settle or compromise the amount or payment thereof,
if any, in the same manner and to the same extent as the Company might have
done. Upon the occurrence and during the continuance of a Default, all property
received by the Company in respect of such Instruments shall be received in
trust for the benefit of the Collateral Agent hereunder, shall be segregated
from other property of the Company and shall be forthwith delivered to the
Collateral Agent in the same form as so received (with any necessary endorsement
or assignment) to be held as Collateral and either (i) released or disposed of
according to Section 11.01 hereof , so long as no Default shall be continuing,
or (ii) if any Event of Default shall have occurred and the Notes have been
accelerated, applied as provided by Section 6.02 hereof.
(c) Upon the occurrence and during the continuance of a Default, the
Company will promptly notify (and hereby authorizes the Trustee and the
Collateral Agent so to notify) each account debtor in respect of any Instrument
received as noncash consideration that such Collateral has been assigned to the
Collateral Agent hereunder, and that any payments due or to
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become due in respect of such Collateral are to be made directly to the
Collateral Agent or its designee.
SECTION 11.03 PLEDGED SUBSIDIARY SHARES.
(a) The Company will, and as applicable, will cause its Restricted
Subsidiaries to, immediately deliver and pledge to the Collateral Agent
certificates acquired by it at any time representing License Holding Subsidiary
Shares. All certificates representing License Holding Subsidiary Shares listed
on Schedule ___ hereto or otherwise delivered to the Collateral Agent by the
Company pursuant hereto shall be accompanied by undated, duly executed stock
powers in blank, and accompanied by any required transfer tax stamps, all in
form and substance reasonably satisfactory to the Collateral Agent but subject
to the terms and conditions of the License Holding License Holding Subsidiary
Pledge Agreements.
(b) The Company will promptly give to the Collateral Agent copies of any
notices or other communications received by it with respect to License Holding
Subsidiary Shares registered in the name of the Company or any Subsidiary of the
Company and the Collateral Agent will promptly give to the Company copies of any
notices and communications received by the Collateral Agent with respect to
License Holding Subsidiary Shares registered in the name of the Collateral Agent
or its nominee.
(c) Any and all dividends paid or delivered on the License Holding
Subsidiary Shares shall be immediately delivered and pledged to the Collateral
Agent pursuant to subsection (a) of this Section 11.03.
(d) Unless and until (i) an Event of Default shall have occurred and be
continuing and (ii) written notice thereof shall have been given by the Trustee
to the Company, the Company shall have the right, from time to time, to vote and
give consents, ratifications and waivers with respect to the License Holding
Subsidiary Shares solely to the extent provided in the License Holding
Subsidiary Pledge Agreements. If an Event of Default shall have occurred, the
Collateral Agent shall have the right during the continuation of such Event of
Default, solely to the extent permitted by law and as provided in the License
Holding License Holding Subsidiary Pledge Agreements, and the Company shall take
all such action as may be necessary or appropriate to give effect to such right,
to vote and to give consents, ratifications or waivers and take any other action
with respect to any or all of the License Holding Subsidiary Shares with the
same force and effect as if the Collateral Agent were the sole and absolute
owner thereof, including without limitation, causing the registration thereof in
the name of the Collateral Agent. For purposes of subsection (a) of this Section
11.03, if the License Holding Subsidiary Shares being pledged are the Capital
Stock of a Subsidiary organized under the laws of a jurisdiction other than the
United States, a State thereof or the District of Columbia, the Company shall
(or shall cause, as applicable, its Subsidiary to) execute and deliver to the
Collateral Agent a License Holding Subsidiary Pledge Agreement with respect
thereto, which shall be substantially in the form of Exhibit __ hereto, with
such changes therein (which shall be reasonably satisfactory to the Collateral
Agent), as are required by the law of the jurisdiction in which such subsidiary
is organized in order to grant a security interest in such Capital Stock
comparable to that provided for in Exhibit ____ hereto, as evidenced by an
Opinion of Counsel (which shall also address the validity of such agreement and
the creation, perfection and enforceability of such security interest).
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SECTION 11.04 GENERAL AUTHORITY.
Each of the Company and the Trustee hereby irrevocably appoints the
Collateral Agent its true and lawful attorney (as provided in the License
Holding License Holding Subsidiary Pledge Agreements), with full power of
substitution, in the name of the Company, the Trustee, the Holders or otherwise,
for the sole use and benefit of the Trustee and the Holders, but at the
Company's expense, to the extent permitted by law to exercise, at any time and
from time to time while an Event of Default has occurred and is continuing, all
or any of the following powers with respect to all or any of the Collateral:
(i) to demand, sue for, collect, receive and give acquittance for any
and all monies due or to become due thereon or by virtue thereof;
(ii) to settle, compromise, compound, prosecute or defend any action
or proceeding with respect thereto;
(iii) if the Notes have been declared, or have become, due and payable
and such declaration and its consequences have not been rescinded and
annulled, to sell, transfer, assign or otherwise deal in or with the same
or the proceeds or avails thereof, as fully and effectually as if the
Collateral Agent were the absolute owner thereof; and
(iv) to extend the time of payment of any or all thereof and to make
any allowance and other adjustments with reference thereto;
provided that the Collateral Agent shall give the Company not less than ten
days' prior written notice of the time and place of any sale or other intended
disposition of any of the Collateral. The Company agrees that such notice
constitutes "reasonable notification" within the meaning of Section 9-504(3) of
the Uniform Commercial Code.
SECTION 11.05 LIMITATION ON DUTY OF TRUSTEE IN RESPECT OF COLLATERAL;
INDEMNIFICATION.
(a) Beyond the exercise of reasonable care in the custody thereof, the
Collateral Agent shall have no duty as to any Collateral in its possession or
control or in the possession or control of any agent or bailee or any income
thereon or as to the preservation of rights against prior parties or any other
rights pertaining thereto. The Collateral Agent shall be deemed to have
exercised reasonable care in the custody of the Collateral in its possession if
the Collateral is accorded treatment substantially equal to that which it
accords its own property, and shall not be liable or responsible for any loss or
diminution in the value of any of the Collateral, by reason of the act or
omission of any carrier, forwarding agency, or other agent or bailee selected by
the Collateral Agent in good faith.
(b) The Collateral Agent shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity, perfection,
priority or enforceability of the Liens in any of the Collateral, whether
impaired by operation of law or by reason of any action or omission to act on
its part hereunder. The Collateral Agent shall have no duty to ascertain or
inquire as to the performance or observance of any of the terms of this
Indenture by the Company.
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(c) In the event that the Company fails to comply with the provisions of
this Indenture such that the value of any Collateral or the validity,
perfection, rank or value of any Lien is thereby diminished or potentially
diminished or put at risk, the Collateral Agent may, but shall not be required
to, effect such compliance on behalf of the Company, and the Company shall
reimburse the Collateral Agent for the costs thereof on demand. All expenses of
protecting, storing, insuring, handling and shipping the Collateral, any and all
excise, property, sales and use taxes imposed by any state, federal or local
authority on any of the Collateral, or expenses in respect of (i) the sale or
other disposition thereof, (ii) the administration or enforcement of this
Indenture, (iii) the exercise by the Collateral Agent of any of the rights
conferred upon it hereunder, including, without limitation, the preservation of
the validity, perfection, rank or value of any Lien or (iv) any Default or Event
of Default, shall be borne and paid by the Company; and if the Company fails to
promptly pay any portion of such expenses when due, the Collateral Agent may, at
its option, but shall not be required to, pay the same and charge the Company's
account therefor, and the Company agrees to reimburse the Collateral Agent
therefor on demand. All sums so paid or incurred by the Collateral Agent for any
of the foregoing and any and all other sums for which the Company may become
liable hereunder and all costs and expenses (including attorneys' fees, legal
expenses and court costs) reasonably incurred by the Collateral Agent in
enforcing or protecting the Liens or any of its rights or remedies under this
Indenture, shall, together with interest thereon until paid at 12% per annum, be
additional Secured Obligations hereunder.
SECTION 11.06 SECURITY DOCUMENTS; PRIORITY.
Each Holder, by its acceptance of a Note, (i) consents and agrees to all of
the terms and conditions of the Security Documents and authorizes and directs
the Trustee and the Collateral Agent to enter into each of the Security
Documents and to perform its respective obligations and exercise its respective
rights thereunder in accordance therewith; provided, however, that if any
provision of the Security Documents limits, qualifies, or conflicts with the
duties imposed by the provisions of the TIA, the TIA controls, and (ii)
acknowledges that, as more fully set forth in the Collateral Agency Agreement
and the License Holding Subsidiary Pledge Agreement, the rights of the Holders
in and to the Collateral shall be subordinate to the rights of the creditors
under any Senior Indebtedness existing from time to time hereafter to the
Collateral.
SECTION 11.07 CERTIFICATES OF THE COMPANY.
The Company will furnish to the Trustee and the Collateral Agent prior to
each proposed release of Collateral pursuant to this Indenture or any other
Security Document, (i) all documents required by Section 314(d) of the TIA, if
any, (ii) an Officers' Certificate requesting a release of Collateral and
describing the property to be so released and (iii) an Opinion of Counsel to the
effect that such accompanying documents constitute all documents required by
Section 314(d) of the TIA.
SECTION 11.08 MISCELLANEOUS.
(a) The Liens are granted as security only and not a transfer of title and
shall not subject the Collateral Agent, Trustee or any Holder to, or transfer or
in any way affect or modify, any obligation or liability of the Company or any
Subsidiary of the Company with respect to any of the Collateral or any
transaction in connection therewith.
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(b) The Company will not effect any Permitted License Holding Subsidiary
Transaction with respect to any Collateral except as permitted under Section
4.07 of this Indenture.
(c) The Trustee and the Collateral Agent shall take, or cause to be taken,
any action reasonably requested by the Company to release any and all Liens in
connection with a Permitted License Holding Subsidiary Transaction in accordance
with the terms and conditions of the Security Documents.
(d) The Company will, promptly upon request, provide to the Trustee all
information and evidence it may reasonably request concerning the Collateral and
any other information the Trustee may reasonably request to enable the Trustee
to enforce the provisions of this Indenture.
(e) The Company shall comply, in all material respects, with all acts,
rules, regulations, orders, decrees and directions of any court or governmental
instrumentality applicable to the Collateral.
(f) The Company will deliver to the Collateral Agent a copy of each
material demand, notice or document received by it relating in any way to the
Collateral if failure to so deliver might adversely affect the Collateral
Agent's ability to safeguard the Lien on such Collateral.
ARTICLE 12
NOTE GUARANTEES
SECTION 12.01 GUARANTEE.
Subject to this Article 12, the Guarantors hereby unconditionally guarantee
to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee (a) the full and punctual payment of principal of and interest on the
then outstanding Notes when due (taking into account all applicable grace
periods provided hereunder), whether at maturity, by acceleration, by redemption
or otherwise, and all other amounts payable by the Company under this Indenture
and the Notes, and (b) the full and punctual performance of all other
obligations of the Company under this Indenture and the Notes (all the foregoing
described in (a) and (b) being hereafter collectively called the "Guarantee
Obligations"). The Guarantors further agree that the Guarantee Obligations may
be extended or renewed, in whole or in part, without notice or further assent
from each of the Guarantors, and that the Guarantors will remain bound under
this Article 12 notwithstanding any extension or renewal of any Guarantee
Obligation.
Each Guarantor further agrees that the Guarantee herein constitutes a
guarantee of payment, performance and compliance when due (and not a guarantee
of collection) and waives any right to require that any resort be had by any
Holder, the Trustee or the Collateral Agent to any security held for payment of
the Guarantee Obligations.
The Guarantors waive presentation to, demand of payment from and protect to
the Company of any of the Guarantee Obligations and also waive notice of any
default under the Obligations not provided for herein. The obligations of the
Guarantors hereunder, subject to Article 8 hereof, shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall
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not be subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guarantee Obligations or otherwise.
Without limiting the generality of the foregoing, except as provided in
Article 8 hereof, the obligations of the Guarantors hereunder shall not be
discharged or impaired or otherwise affected by (a) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other person under this Indenture and the Notes; (b)
any extension or renewal of any thereof; (c) any rescission, waiver, amendment
or modification of any of the terms or provisions of this Indenture and the
Notes (except as to the Guarantees or this Article 12); (d) the release of any
security held by any Holder, the Trustee or the Collateral Agent for the
Guarantee Obligations or any of them; (e) the failure of any Holder or Trustee
to exercise any right or remedy against any other guarantor of the Guarantee
Obligations; (f) any change in the ownership of the Guarantors; (g) any default,
failure of delay, willful or otherwise, in the performance of the Guarantee
Obligations; or (h) by any other act or thing or omission or delay to do any
other act or thing which may or might in any manner or to any extent vary the
risk of the Guarantors or would otherwise operate as a discharge of the
Guarantors as a matter of law or equity.
The Guarantors further agree that if at any time payment, or any part
thereof, of principal of or interest on any Guarantee Obligation is rescinded or
must otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company and or the Restricted Subsidiaries or otherwise,
its Guarantees herein as to each such amount shall continue to be effective or
be reinstated, as the case may be.
In furtherance of the foregoing and not in limitation of any other right
which any Holder or the Trustee has at law or in equity against the Guarantors
by virtue hereof, upon the failure of the Company and or the Restricted
Subsidiaries to pay the principal of or interest on any Guarantee Obligation
when and as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform or comply with any other Guarantee
Obligation (in each case taking into account all applicable grace periods
provided hereunder), the Guarantors hereby promise to and will, upon receipt of
written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to
the Holders or the Trustee such amount not so paid.
Notwithstanding any provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment of monies to or by the Trustee, or the taking of any other
action by the Trustee, until three Business Days after a trust officer of the
Trustee shall have actually received written notice thereof from the Company,
the Guarantors, any Holder of the Notes, any Paying Agent or any bank.
The Guarantors agree that they shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Guarantee Obligations
guaranteed hereby. The Guarantors further agree that, as between the Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand, (a) the
maturity of the Guarantee Obligations guaranteed hereby may be accelerated as
provided in Article 6 hereof for the purposes of the Guarantors' Guarantees
herein, and (b) in the event of any declaration of acceleration of such
Guarantee Obligations as provided in Article 6 hereof and if the Guarantee
Obligations thereby become due and payable, such Guarantee Obligations shall
forthwith become due and payable by the Guarantors for the purpose of this
Section 12.01.
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SECTION 12.02 NO WAIVER, ETC.
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article 12 shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege. The
rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or
benefits which either may have under this Article 12 at law, in equity, by
statute or otherwise.
SECTION 12.03 SUBORDINATION OF NOTE GUARANTEES.
Each Guarantor agrees, and each Holder by accepting a Note agrees, that the
Guarantee Obligations of any Guarantor pursuant to this Article 12 shall be
junior and subordinated to the rights of any Senior Indebtedness of such
Guarantor existing from time to time hereafter in the Collateral on the same
basis as the Notes are junior and subordinated to the rights of any Senior
Indebtedness as provided in Articles 10 and 11 hereof and in the Collateral
Agency Agreement. For the purposes of the foregoing sentence, the Trustee and
the Holders shall have the right to receive and/or retain payments by any such
Guarantor only at such times as they may receive and/or retain payments in
respect of the Notes pursuant to this Indenture.
SECTION 12.04 EXECUTION AND DELIVERY OF NOTE GUARANTEES.
To evidence the Guarantee Obligations set forth in Section 12.01 hereof,
each Guarantor hereby agrees that this Indenture shall be executed on its behalf
by the president or one of its vice presidents.
If an officer whose signature is on this Indenture no longer holds that
office at the time the Trustee authenticates the Notes, the Guarantee
Obligations shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee Obligations set forth
in this Indenture on behalf of the Guarantor.
SECTION 12.05 RELEASES FOLLOWING SALE FOR ASSETS.
In the event a Guarantor sells or otherwise disposes of all of its License
Holding Subsidiary Shares by way of merger, consolidation or otherwise, then
such Guarantor in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of its License Holding Subsidiary Shares
shall be released and relieved of any obligations under the Guarantee
Obligations; provided that the Net Proceeds of such sale or other disposition
are applied in accordance with the applicable provisions of this Indenture,
including, without limitation, Section 4.07 hereof. Upon delivery by the Company
to the Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in accordance
with the applicable provisions of this Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the release of the Guarantor
from its obligations under the Guarantee Obligations.
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SECTION 12.06 NO PERSONAL LIABILITY OF PARTNERS, STOCKHOLDERS, OFFICERS OR
DIRECTORS.
No direct or indirect stockholder, partner, employee, officer or director,
as such, past, present or future of any Guarantor or any successor entity shall
have any personal liability in respect of the obligations of any Guarantor or
any successor entity under this Agreement by reason of his or its status as such
stockholder, partner, employee, officer or director.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA ss. 318(c), the imposed duties shall control.
SECTION 13.02 NOTICES.
Any notice or communication by the Company, the Guarantors, the Collateral
Agent or the Trustee to the others is duly given if in writing and delivered in
Person or mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the others' address.
If to the Company or to the Guarantors:
NextWave Telecom Inc.
3 Skyline Drive
Hawthorne, New York 10532
Telecopier No.: (914) 345-1141
Attention: Frank A. Cassou, Esq.
With a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Telecopier No.: (212) 310-8007
Attention: Michael F. Walsh, Esq.
If to the Trustee:
Norwest Bank Minnesota, National Association
N9303-120
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Telecopier No.: (612) 667-9825
Attention: Corporate Trust Administration
If to the Collateral Agent:
Norwest Bank Minnesota, National Association
N9303-120
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Telecopier No.: (612) 667-9825
Attention: Corporate Trust Administration
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The Company, the Guarantors, the Collateral Agent or the Trustee, by notice
to the others may designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 13.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
SECTION 13.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 13.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
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(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 13.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
SECTION 13.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has read
such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied.
SECTION 13.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 13.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No member, director, officer, employee, incorporator or stockholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Notes or this Indenture 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.
SECTION 13.08 GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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SECTION 13.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.10 SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 13.11 SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.12 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 13.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
NEXTWAVE TELECOM INC., as Issuer
By: ________________________________________________
Name: ___________________________________________
Title: __________________________________________
NEXTWAVE PERSONAL COMMUNICATIONS INC., as Guarantor
By: ________________________________________________
Name: ___________________________________________
Title:___________________________________________
NEXTWAVE POWER PARTNERS INC., as
Guarantor
By: ________________________________________________
Name: ___________________________________________
Title:___________________________________________
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By: ________________________________________________
Name: ___________________________________________
Title: __________________________________________
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NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Collateral Agent
By: ________________________________________________
Name: __________________________________________
Title: _________________________________________
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EXHIBIT A
(Face of Global or Definitive Note)
================================================================================
[Insert any legend as required by Federal or
state securities laws or as otherwise provided in the Indenture.]
CUSIP ____________
12% Senior Secured Subordinated Notes due 2009
No. _____ $___________
NEXTWAVE TELECOM INC.
promises to pay to _______________, or registered assigns, the principal sum of
___________ Dollars on _____________, 2009.
Interest Payment Dates: __________ and __________
Record Dates: __________ and __________
[Insert the Global Note Legend, if applicable, pursuant to Section 2.06(f) of
the Indenture.]
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Dated:
NEXTWAVE TELECOM INC.
By: _________________________________
Name: ___________________________
Title: __________________________
This is one of the Notes referred to in the within-mentioned Indenture:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By: ___________________________
Name: _____________________
Title:_____________________
================================================================================
A-F-1
<PAGE>
(Back of Note)
12% Senior Secured Subordinated Notes due 2009
Capitalized terms used herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
1. Security Interest. The Notes are secured by the Collateral subject to
the Lien of the Security Documents and subject to the terms and the conditions
of the Collateral Agency Agreement.
2. Interest. NextWave Telecom Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at 12% per annum
from __________, 1999 until maturity. The Company will pay interest
semi-annually on __________ and __________ of each year, or if any such day is
not a Business Day, on the next succeeding Business Day (each, an "Interest
Payment Date"). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; and provided, further,
that the first Interest Payment Date shall be _____________. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. If the Company
defaults in a payment of interest on the Notes then outstanding, it shall pay
interest on such overdue amount at the rate of 15% per annum, which shall accrue
from the date on which such payment became due and owing to the date on which
payment of such overdue amount has been provided for or has been made. If on the
Maturity Date the Company defaults in a payment of principal on the Notes then
outstanding, it shall pay default interest on such overdue amount at the rate of
15% per annum, which shall accrue from the date on which such payment became due
and owing to the date on which payment of such overdue amount has been provided
for or has been made.
On each Interest Payment Date, the Company shall, in lieu of a payment in
cash, execute and deliver to the Trustee for authentication, together with an
Authentication Order given not less than 15 nor more than 45 days prior to such
Interest Payment Date for the authentication and delivery thereof, additional
Notes ("Secondary Notes") in an aggregate principal amount equal to such
interest due and payable on the Notes on such Interest Payment Date in
accordance with Section 2.01(b) of the Indenture. The Trustee, in accordance
with such Authentication Order, shall so authenticate and deliver to the Holders
of record on such record date such Secondary Notes requested in such
Authentication Order (such duly executed and authenticated Secondary Notes being
of the same series as the Notes), and the due issuance of such Secondary Notes
shall constitute full payment of such interest; provided, however, the Company
may, at its option, duly authorize the payment in cash of all or a portion of
any interest due on any such Interest Payment Date, in lieu of a payment in
Secondary Notes, by giving notice to the Holders and the Trustee not less than
15 nor more than 45 days prior to the record date for such Interest Payment
Date; provided further, however, that in lieu of the issuance of any Secondary
Note the principal amount of which (x) would be less than $1,000 or (y) would
exceed the largest integral multiple of $1,000 which is less than or equal to
such principal amount (in each case, a "Fractional Secondary Note"), the Company
shall, in the case of clause (y), issue a Secondary Note with a principal amount
equal to such largest integral multiple and shall, in the case of clauses (x)
and (y), in its sole discretion, either (1) on behalf of and for the accounts of
all Holders of Notes who would be entitled to Fractional Secondary Notes,
aggregate all such Fractional Secondary Notes and, on or before the tenth
Business Day following the applicable Interest Payment Date, sell such
aggregated Fractional Secondary Notes and, within six Business Days of such
sale, pay each such Holder its proportionate share of the net proceeds of such
sale, or (2) pay (on the Interest Payment Date) each such Holder, with respect
to any Fractional Secondary Note that such Holder would otherwise be entitled to
receive, an amount in cash equal to the average closing price per $1,000
principal amount of Notes for the ten trading days preceding the Business Day
immediately preceding the applicable Interest Payment Date multiplied by a
fraction, the numerator of
A-R-1
<PAGE>
which is the principal amount of such Fractional Secondary Note otherwise
issuable to such Holder and the denominator of which is $1,000. Each issuance of
Secondary Notes in lieu of the payment of all or any portion of interest in cash
on the Notes shall be made pro rata with respect to the outstanding Notes.
3. Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the __________ or __________ next preceding the Interest
Payment Date, even if such Notes are cancelled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium, if any, and interest at the office of the Paying Agent and
Registrar. Holders of Notes must surrender their Notes to the Paying Agent to
collect principal payments, and the Company may pay principal and interest, if
any, by check and may mail checks to a Holder's registered address; provided
that all payments with respect to Global Notes will be paid by wire transfer of
immediately available funds to the account of the Depositary. Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
4. Paying Agent and Registrar. Initially, _____________________, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
5. Indenture. The Company issued the Notes under an Indenture dated as of
________, 1999 ("Indenture"), between the Company and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code ss.ss. 77aaa-77bbbb). The Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Notes are obligations of the Company limited in aggregate principal amount to
$225,000,000 plus the aggregate principal amount of any Secondary Notes issued
pursuant to Section 2.02 of the Indenture.
6. Optional Redemption.
(a) The Company may redeem the Notes, in whole or in part, at any time at
the option of the Company, upon not less than 30 nor more than 60 days' notice,
in cash at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period (or, with
respect to years (i) 1999, such shorter period beginning on the Original
Issuance Date, and (ii) 2009, such shorter period ending on the Maturity Date)
beginning on April 1 of the years indicated below:
Year Percentage
---- ----------
1999............................................... 100.000%
2000............................................... 100.000%
2001............................................... 102.000%
2002............................................... 103.000%
2003............................................... 104.000%
2004............................................... 105.000%
2005............................................... 104.000%
2006............................................... 103.000%
2007............................................... 102.000%
2008............................................... 101.000%
2009............................................... 100.000%
A-R-2
<PAGE>
(b) Any redemption pursuant to this subparagraph 6 shall be made pursuant
to the provisions of Section 3.01 through 3.06 of the Indenture.
7. Notice of Redemption. Notice of redemption will be mailed by first class
mail at least 30 days but not more than 60 days before the redemption date to
each Holder of Notes to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
8. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding Notes
and any existing Default or compliance with any provision of the Indenture or
the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes. Without the consent of any
Holder of a Note, the Indenture or the Notes may be amended or supplemented to
cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes
in addition to or in place of certificated Notes in a manner that does not
materially adversely affect any Holder, to provide for the assumption of the
Company's obligations to Holders of the Notes by a successor to the Company in
case of a merger or consolidation, to 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 under the Indenture of any such Holder, to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act, or to provide
for guarantees of the Notes.
11. Defaults and Remedies. Each of the following constitutes an "Event of
Default": (a) default for 30 days in the payment when due of interest on the
Notes (whether or not prohibited by Article 10 of the Indenture); (b) default in
payment when due of the principal of or premium, if any, on the Notes (whether
or not prohibited by Article 10 of the Indenture); (c) failure by the Company
for 60 days after notice from the Trustee or the Holders of at least 33-1/3% in
principal amount of the Notes then outstanding to comply with any of its other
agreements in the Indenture or the Notes; (d) default under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such Indebtedness or
guarantee now exists, or is created after the Original Issuance Date, which
default results in the acceleration of such Indebtedness prior to its stated
final maturity and the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness the maturity of which has
been so accelerated, aggregates $50.0 million or more; (e) failure by the
Company or any of its Restricted Subsidiaries to pay final judgments aggregating
in excess of $50.0 million (net of any amounts with respect to which a reputable
and creditworthy insurance company has acknowledged liability in writing), which
judgments are not paid, discharged or stayed for a period of 60 days; and (f)
certain events of bankruptcy or insolvency as described in the Indenture.
A-R-3
<PAGE>
If any Event of Default (other than certain events of bankruptcy or
insolvency) occurs and is continuing, the Holders of at least 25% in principal
amount of the then outstanding Notes may, only on the terms and subject to the
conditions set forth in the Collateral Agency Agreement, direct the Trustee to
declare all the Notes to be due and payable immediately. Upon any such
declaration, the Notes shall become due and payable immediately, provided, that
so long as any Senior Indebtedness shall be outstanding, such acceleration shall
not be effective until five Business Days after receipt by the Company and the
lender under any Senior Indebtedness of written notice of such acceleration.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes shall be due
and payable immediately without further action or notice. The Holders of a
majority in aggregate principal amount of the then outstanding Notes by written
notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest or premium, if any, that has become due solely because of
the acceleration) have been cured or waived. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture, and
the Company is required upon becoming aware of any Default or Event of Default
to deliver to the Trustee a statement specifying such Default or Event of
Default.
12. Subordination. The payment of Subordinated Note Obligations will be
subordinated in right of payment, as set forth in the Indenture, to the prior
payment in full in cash or cash equivalents of all Senior Indebtedness, whether
outstanding on the Original Issuance Date or thereafter incurred. The Company
agrees, and each Holder by accepting a Note agrees, that the payment of
principal of, premium and interest, if any, on the Notes is subordinated in
right of payment, to the extent and in the manner provided in the Indenture, to
the prior payment in full in cash or cash equivalents of all Senior Indebtedness
(whether outstanding on the date hereof or thereafter created, incurred, assumed
or guaranteed), and that the subordination is for the benefit of the holders of
Senior Indebtedness.
13. Defeasance. The Indenture contains provisions for defeasance at any
time of (i) the entire indebtedness of the Notes or (ii) certain restrictive
covenants and Events of Default with respect to the Notes, in each case upon
compliance with certain conditions set forth therein.
14. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
15. No Recourse Against Others. No member, director, officer, employee or
incorporator of the Company, as such, shall have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
16. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
17. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
A-R-4
<PAGE>
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
NEXTWAVE TELECOM INC.
3 Skyline Drive
Hawthorne, New York 10532
Telecopier No.: (914) 345-1141
Attention: Frank A. Cassou, Esq.
A-R-5
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
Date: Your Signature:________________________________
(Sign exactly as your name appears on the Note)
Tax Identification No: ________________________
Signature Guarantee.
A-R-6
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or a Definitive Note for an interest in this Global Note, have been
made:
<TABLE>
<CAPTION>
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Global Note following authorized officer
Principal Amount Principal Amount of such decrease (or of Trustee or Note
Date of Exchange of this Global Note this Global Note increase) Custodian
---------------- ---------------------- ------------------- ------------------------ -------------------
<S> <C> <C> <C> <C>
</TABLE>
A-R-7
<PAGE>
EXHIBIT B
================================================================================
A-R-8
<PAGE>
CROSS-REFERENCE TABLE*
----------------------
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
310 (a)(1)................................................................7.10
(a)(2) ...............................................................7.10
(a)(3)................................................................N.A.
(a)(4)................................................................N.A.
(a)(5)................................................................7.10
(b)...................................................................7.10
(c)...................................................................N.A.
311 (a)...................................................................7.11
(b)...................................................................7.11
(c)...................................................................N.A.
312 (a)...................................................................2.05
(b)..................................................................13.03
(c)..................................................................13.03
313 (a)...................................................................7.06
(b)...................................................................7.06
(b)(1)................................................................N.A.
(b)(2)..........................................................7.06; 7.07
(c)..................................................................13.02
(d)...................................................................7.06
314 (a)............................................................4.03; 13.05
(b)...................................................................N.A.
(c)(1)...............................................................13.04
(c)(2)...............................................................13.04
(c)(3)................................................................N.A.
(d)...................................................................N.A.
(e)..................................................................11.05
(f)...................................................................N.A.
315 (a)...................................................................7.01
(b)...................................................................7.05
(c)...................................................................7.01
(d)...................................................................7.01
(e)...................................................................6.11
316 (a)(last sentence)....................................................2.09
(a)(1)(A).............................................................6.05
(a)(1)(B).............................................................6.04
(a)(2)................................................................N.A.
(b)...................................................................6.07
(c)...................................................................2.12
317 (a)(1)................................................................6.08
(a)(2)................................................................6.09
(b)...................................................................2.04
318 (a)..................................................................13.01
(b)...................................................................N.A.
(c)..................................................................13.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - -x
In re: : Chapter 11
NEXTWAVE PERSONAL : Case No. 98 B 21529 (ASH)
COMMUNICATIONS INC., et al.,
-- -- : (Jointly Administered)
Debtors.
- - - - - - - - - - - - - - - - - - - - - - - -x
NEXTWAVE CLASS [INSERT CLASS] BALLOT FOR ACCEPTING
OR REJECTING FIRST AMENDED PLAN OF REORGANIZATION
-------------------------------------------------
NextWave Personal Communications Inc., NextWave Partners Inc., NextWave
Power Partners Inc., NextWave Wireless Inc. and NextWave Telecom Inc.
(collectively, the "Debtors"), have filed their First Amended Plan of
Reorganization (the "Plan") dated July 27, 1999. The Bankruptcy Court has
approved the Disclosure Statement with respect to the Plan (the "Disclosure
Statement"), which provides information to assist you in deciding how to vote
your Ballot. If you have not received a copy of the Disclosure Statement you may
obtain a copy from Andrews & Kurth L.L.P., 1717 Main Street, Suite 3700, Dallas,
Texas 75201, Attn: Deborah L. Schrier-Rape, Esq., (214) 659-4400. COURT APPROVAL
OF THE DISCLOSURE STATEMENT DOES NOT INDICATE COURT APPROVAL OF THE PLAN.
The creditors of the Debtors are afforded the opportunity to vote on
the Plan, which may be confirmed by the Court and thereby made binding on you if
it is accepted by the holders of two-thirds in amount and more than one-half in
number of claims in each class and that actually vote on the Plan and the
holders of two-thirds in amount of equity security interests in each class that
actually vote on the Plan. In the event the requisite acceptances are not
obtained, the Court may nevertheless confirm the Plan if the Court finds that
the Plan accords fair and equitable treatment to the class or classes rejecting
it and otherwise satisfies the requirements of Section 1129(b) of the Bankruptcy
Code.
YOU SHOULD REVIEW THE DISCLOSURE STATEMENT AND THE PLAN BEFORE YOU
VOTE. YOU MAY WISH TO SEEK LEGAL ADVICE CONCERNING THE PLAN AND YOUR
CLASSIFICATION AND TREATMENT THEREUNDER. YOUR CLAIM IS CLASSIFIED IN CLASS 1F
UNDER THE PLAN. IF YOU HOLD CLAIMS OR EQUITY INTERESTS IN MORE THAN ONE CLASS,
YOU WILL RECEIVE AND SHOULD COMPLETE A BALLOT FOR EACH CLASS IN WHICH YOU ARE
ENTITLED TO VOTE.
IF YOUR BALLOT IS NOT RECEIVED BY ANDREWS & KURTH L.L.P., 1717 MAIN
STREET, SUITE 3700, DALLAS, TEXAS 75201, ATTN: DEBORAH L. SCHRIER-RAPE, ESQ., ON
OR BEFORE 5:00 P.M., EST, ON AUGUST 27, 1999, YOUR VOTE WILL NOT BE COUNTED AS
EITHER AN ACCEPTANCE OR A REJECTION OF THE PLAN. ALTHOUGH YOU MAY INITIALLY
TRANSMIT YOUR BALLOT TO ANDREWS & KURTH L.L.P. VIA FACSIMILE AT (214) 659-4401,
PLEASE MAIL THE ORIGINAL
<PAGE>
BALLOT TO ANDREWS & KURTH L.L.P. IMMEDIATELY THEREAFTER. DO NOT
DISCARD THE ORIGINAL BALLOT.
IF THE PLAN IS CONFIRMED BY THE BANKRUPTCY COURT IT WILL BE BINDING ON
YOU WHETHER OR NOT YOU VOTE.
ACCEPTANCE OR REJECTION OF JOINT PLAN
-------------------------------------
Please note that you must vote all of the Claim (as defined herein)
held by you to accept or reject the Plan. For purposes of tabulating the votes,
you shall be deemed to have voted the full amount of your Claim in your vote.
You may not split your vote and, accordingly, a vote to partially accept or
partially reject the Plan will not be counted:
1. AMOUNT OF CLAIM AND VOTE. The undersigned (the "Claimant"), the
holder of a Class 1F Claim in the unpaid amount of $____________________, or
such lesser or greater amount as may be reflected in the schedules of assets and
liabilities or other records available to the Debtors (the "Claim"). Such
calculation is for voting purposes only and may or may not reflect the actual
amount of you claim for distribution purposes. (check one box only)
|_| ACCEPTS THE PLAN |_| REJECTS THE PLAN
ALTERNATIVELY, Claimant elects to have its claim treated in Class ____
as an Administrative Convenience Claim as such term is defined in the Plan. By
making such election, Claimant agrees that all claims of Claimant against all of
the Debtors, in the aggregate, shall not exceed $20,000. Please note that your
claim will automatically be treated in Class __ as an Administrative Convenience
Claim of your total claim is $20,000 or less. If Claimant holds a claim against
more than one Debtor, Claimant must make this election on all of their ballots
in order for the election to be valid. In addition, Claimant must vote to accept
the Plan in order to make this Administrative Convenience Class election. (check
one box only)
|_| ELECTS TO BE INCLUDED |_| DECLINES TO BE
IN THE ADMINISTRATIVE INCLUDED IN THE
CONVENIENCE CLASS ADMINISTRATIVE
CONVENIENCE CLASS
CONVERSION RIGHTS - Certain holders of Allowed Claims have a
contractual right to convert such Claim into shares of Existing NTI Series B
Common Stock. If you hold such a conversion right, you may convert all or any
portion of such Claim prior to August 27, 1999, at 5:00 p.m., EST, to be
effective on the Effective Date, in accordance with the terms and provisions of
the documents underlying such Claim, as modified by the procedures specified in
the Plan and Disclosure Statement; provided, however, that such conversion
rights shall be limited by the Debtors, in their sole discretion, to the extent
necessary to avoid any violation of any FCC rule, regulation or requirement in
effect at the time of such conversion. Confirmation of the Plan is a "liquidity
event", as that term is defined in the Debtors' outstanding securities and
instruments, thereby triggering, inter alia, conversion or vesting. For purposes
of treatment under the Plan, the portion of an
2
<PAGE>
Allowed Claim that is converted into shares of Existing NTI Series B Common
Stock shall cease to be an Allowed Claim and shall receive the treatment
accorded to Class 1L. Any portion of an Allowed Claim subject to conversion but
not so converted shall continue to be an Allowed Claim in the appropriate Class
for the amount not converted and receive the treatment accorded to the holders
of Allowed Claims in such Class. (check one box only)
[ ] ELECTS TO CONVERT CLAIM INTO [ ] DOES NOT ELECT TO CONVERT
SHARES OF EXISTING SERIES B STOCK CLAIM INTO SHARES OF
(CHECK WHETHER CONVERTING ALL EXISTING SERIES B STOCK
OR PORTION OF CLAIM)
____ ALL CLAIM INTO SHARES OF
EXISTING SERIES B STOCK
____ PORTION OF CLAIM INTO SHARES
OF EXISTING SERIES B STOCK (IF
ELECTING PORTION, INSERT
AMOUNT OF CLAIM TO BE
CONVERTED -- _________________)
2. CERTIFICATIONS.
By signing this Ballot, the undersigned Claimant certifies that it has
not submitted any other Ballots for its Claim or that, if any other Ballots have
been submitted, such earlier Ballots are hereby revoked.
By signing this Ballot, the undersigned Claimant certifies that it has
been provided with a copy of the Disclosure Statement relating to the Plan and
all related tabulation materials.
By signing this Ballot, the undersigned Claimant certifies that it
understands that if this Ballot is validly executed and returned without
indicating an acceptance or rejection of the Plan, IT WILL NOT BE COUNTED.
By signing this Ballot, the undersigned Claimant certifies that it is
the holder of the Claim set forth above and has full power and authority to vote
to accept or reject the Plan. To the extent the undersigned is voting on behalf
of the actual holder of the Claim, the undersigned certifies that it has the
requisite authority to do so and will submit evidence of same upon request. The
undersigned Claimant also acknowledges that this tabulation is subject to all
the terms and conditions set forth in the Disclosure Statement relating to the
Plan.
3
<PAGE>
YOU ARE URGED TO VOTE ON THE PLAN.
Name of Creditor:
----------------------------------------------------
(Print or Type)
By:
-------------------------------------------------
(Signature of Creditor or Authorized Agent)
Print Name
of Signatory:
---------------------------------------
Title:
----------------------------------------------
(If Appropriate)
Street Address:
-------------------------------------
----------------------------------------------------
City, State and Zip Code
Telephone Number: ( )
-----------------------------------
----------------------------------------------------
Social Security or Federal Tax I.D. No. (Optional)
YOUR VOTE MUST BE RECEIVED BY 5:00 P.M. EASTERN STANDARD TIME, ON AUGUST 27,
1999, OR YOUR VOTE WILL NOT BE COUNTED.
Deborah L. Schrier-Rape Hearing Date:
Texas State Bar No. 00785635 September 8, 1999
Kevin D. McCullough 11:30 a.m.
Texas State Bar No. 00788005
ANDREWS & KURTH L.L.P.
1717 Main Street, Suite 3700
Dallas, Texas 75201
Telephone: (214) 659-4400
Facsimile: (214) 659-4401
COUNSEL FOR THE DEBTORS
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - -x
In re:
: Chapter 11
NEXTWAVE PERSONAL : Case No. 98 B 21529 (ASH)
COMMUNICATIONS INC., et al.,
-- --
: (Jointly Administered)
Debtors.
- - - - - - - - - - - - - - - - - - - - - - - -x
NOTICE OF CONFIRMATION HEARING AND DEADLINES
--------------------------------------------
PLEASE TAKE NOTICE that on July 27, 1999, the Bankruptcy Court approved
the Disclosure Statement (the "Disclosure Statement") filed by NextWave Personal
Communications Inc., NextWave Partners Inc., NextWave Power Partners Inc.,
NextWave Wireless Inc. and NextWave Telecom Inc., the above-captioned debtors
and debtors-in-possession (collectively, the "Debtors"), as containing adequate
information under Section 1125 of the Bankruptcy Code.
PLEASE TAKE FURTHER NOTICE that a hearing (the "Confirmation Hearing")
will be held commencing on SEPTEMBER 8, 1999, AT 11:30 A.M., EASTERN STANDARD
TIME, before the Honorable Adlai S. Hardin, Jr., United States Courthouse, 300
Quarropas Street, Room 520, White Plains, New York 10601, to consider the
Debtor's First Amended Joint Plan of Reorganization (the "Plan") dated July 27,
1999.
<PAGE>
PLEASE TAKE FURTHER NOTICE that Ballots accepting or rejecting the Plan
must be properly completed, executed, marked and received by the Tabulation
Agent on or before 5:00 P.M. EASTERN STANDARD TIME, ON AUGUST 27, 1999. Any
Ballots received after such time will not be counted.
PLEASE TAKE FURTHER NOTICE that objections, if any, to confirmation of
the Plan must (i) be in writing; (ii) specify the basis and nature of the
objection; (iii) set forth the name and address of the objector and the nature
and amount of any claim or equity interest held or asserted against the Debtors'
estates; (iv) conform to the Local Bankruptcy Rules for the Southern District of
New York, including General Order No. 97-421 of the Bankruptcy Court dated June
26, 1997, regarding Electronic Means for Filing, Signing and Verification of
Documents, the Administrative Procedures for Electronically Filed Cases attached
as an exhibit thereto, and all requirements therein applicable to the electronic
filing of pleadings in the above-captioned Chapter 11 cases; (v) be filed with
the Clerk of the Bankruptcy Court; and (vi) be served upon the parties listed
below, together with proof of service thereof, such that they are received no
later than 5:00 P.M. EASTERN STANDARD TIME ON AUGUST 25, 1999:
Deborah L. Schrier-Rape, Esq.
Andrews & Kurth L.L.P.
1717 Main Street, Suite 3700
Dallas, Texas 75201
Frank A. Cassou, Esq.
NextWave Telecom Inc.
3 Skyline Drive, Third Floor
Hawthorne, New York 10532
David M. Friedman, Esq.
Kasowitz, Benson, Torres & Friedman, L.L.P.
1301 Avenue of the Americas
New York, New York 10019
2
<PAGE>
Special Procedures
Internal Revenue Service
Attn: Sid Brown
P.O. Box 2899
Church Street Station
New York, New York 10008
Office of the United States Trustee
Attn: Patricia Schrage, Esq.
33 Whitehall Street, 21st Floor
New York, New York 10004
Securities and Exchange Commission
NE Regional Office - Bankruptcy Unit
7 World Trade Center, Suite 1300
New York, NY 10048
Securities and Exchange Commission
Bankruptcy Unit
450 5th Street, N.W.
Washington, DC 20549
PLEASE TAKE FURTHER NOTICE that responses to any objections must be
filed with the Bankruptcy Court and served on the objecting party no later than
5:00 P.M. EASTERN STANDARD TIME, ON SEPTEMBER 3, 1999.
PLEASE TAKE FURTHER NOTICE that any objections that do not conform to
the above requirements or that are not timely filed and served will be
disregarded and deemed waived.
PLEASE TAKE FURTHER NOTICE that at the Confirmation Hearing the
Bankruptcy Court may also conduct a hearing to value the security for any claim
held by a secured creditor, in accordance with Section 506 of the Bankruptcy
Code.
3
<PAGE>
PLEASE TAKE FURTHER NOTICE that the Confirmation Hearing may be
adjourned from time to time without any further notice except by announcement
made in open court.
Dated: Dallas, Texas
July 27, 1999
Respectfully submitted,
ANDREWS & KURTH L.L.P.
By:
--------------------------------
Deborah L. Schrier-Rape
Texas State Bar No. 00785635
Kevin D. McCullough
Texas State Bar No. 00788005
1717 Main Street, Suite 3700
Dallas, Texas 75201
Telephone: (214) 659-4400
Facsimile: (214) 659-4401
COUNSEL FOR THE DEBTORS
Deborah L. Schrier-Rape Hearing Date:
Texas State Bar No. 00785635 [TO BE DETERMINED]
Kevin D. McCullough
Texas State Bar No. 00788005
ANDREWS & KURTH L.L.P.
1717 Main Street, Suite 3700
Dallas, Texas 75201
Telephone: (214) 659-4400
Facsimile: (214) 659-4401
COUNSEL FOR THE DEBTORS
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - -x
In re: : Chapter 11
NEXTWAVE PERSONAL : Case No. 98 B 21529 (ASH)
COMMUNICATIONS INC., et al.,
-- -- : (Jointly Administered)
Debtors.
- - - - - - - - - - - - - - - - - - - - - - - -x
NOTICE OF CONTINUED CONFIRMATION HEARING
----------------------------------------
PLEASE TAKE NOTICE that on July 27, 1999, the Bankruptcy Court approved
the Disclosure Statement (the "Disclosure Statement") filed by NextWave Personal
Communications Inc., NextWave Partners Inc., NextWave Power Partners Inc.,
NextWave Wireless Inc. and NextWave Telecom Inc., the above-captioned debtors
and debtors-in-possession (collectively, the "Debtors"), as containing adequate
information under Section 1125 of the Bankruptcy Code.
PLEASE TAKE FURTHER NOTICE that the hearing (the "Confirmation
Hearing") before the Honorable Adlai S. Hardin, Jr., United States Courthouse,
300 Quarropas Street, Room 520, White Plains, New York 10601, to consider the
Debtor's First Amended Joint Plan of Reorganization (the "Plan") dated July 27,
1999, has been continued from September 8, 1999, to a later date. Such continued
hearing is tentatively set for September 28, 1999, at 2:30 p.m., however formal
notice of the actual date will be provided when same is available to the Office
of the United
<PAGE>
States Trustee, counsel for the Committee, Cellexis, the FCC, and all parties
who have filed a notice of appearance and request for service of pleadings in
these Chapter 11 cases. In addition, announcement will be made in open court on
September 8, 1999, of the adjourned hearing and all parties present at that time
will be provided an opportunity to present Debtors with a request to be notified
of the rescheduled confirmation hearing.
PLEASE TAKE FURTHER NOTICE that the deadlines set forth in the July 27,
1999 Notice of Confirmation Hearing and Deadlines remain applicable and have not
been modified.
PLEASE TAKE FURTHER NOTICE that at the Confirmation Hearing the
Bankruptcy Court may also conduct a hearing to value the security for any claim
held by a secured creditor, in accordance with Section 506 of the Bankruptcy
Code.
PLEASE TAKE FURTHER NOTICE that the Confirmation Hearing may be
adjourned from time to time without any further notice except by announcement
made in open court.
Dated: Dallas, Texas
September 3, 1999
Respectfully submitted,
ANDREWS & KURTH L.L.P.
By:
---------------------------------
Deborah L. Schrier-Rape
Texas State Bar No. 00785635
Kevin D. McCullough
Texas State Bar No. 00788005
1717 Main Street, Suite 3700
Dallas, Texas 75201
Telephone: (214) 659-4400
Facsimile: (214) 659-4401
COUNSEL FOR THE DEBTORS
2
CROSS-REFERENCE TABLE*
----------------------
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
310 (a)(1).............................................................7.10
(a)(2) ............................................................7.10
(a)(3).............................................................N.A.
(a)(4).............................................................N.A.
(a)(5).............................................................7.10
(b)................................................................7.10
(c)................................................................N.A.
311 (a)................................................................7.11
(b)................................................................7.11
(c)................................................................N.A.
312 (a)................................................................2.05
(b)...............................................................13.03
(c)...............................................................13.03
313 (a)................................................................7.06
(b)................................................................7.06
(b)(1).............................................................N.A.
(b)(2).......................................................7.06; 7.07
(c)...............................................................13.02
(d)................................................................7.06
314 (a).........................................................4.03; 13.05
(b)................................................................N.A.
(c)(1)............................................................13.04
(c)(2)............................................................13.04
(c)(3).............................................................N.A.
(d)...............................................................11.07
(e)...............................................................13.05
(f)................................................................N.A.
315 (a)................................................................7.01
(b)................................................................7.05
(c)................................................................7.01
(d)................................................................7.01
(e)................................................................6.11
316 (a)(last sentence).................................................2.09
(a)(1)(A)..........................................................6.05
(a)(1)(B)..........................................................6.04
(a)(2).............................................................N.A.
(b)................................................................6.07
(c)................................................................2.12
317 (a)(1).............................................................6.08
(a)(2).............................................................6.09
(b)................................................................2.04
318 (a)...............................................................13.01
(b)................................................................N.A.
(c)...............................................................13.01
N.A. means not applicable.
$
-------------
NEXTWAVE TELECOM INC.
12% SENIOR SECURED SUBORDINATED NOTES DUE 2009
EXCHANGE RIGHTS AGREEMENT
-------------------------
This EXCHANGE RIGHTS AGREEMENT, dated as of ________ ___,
1999 (this "Agreement"), is by and among NextWave Telecom Inc., a Delaware
corporation (the "Issuer"), Norwest Bank Minnesota, National Association, as
Trustee (the "Trustee") under the Indenture referred to below for the holders of
the notes issued thereunder ("Holders"), and each of the Holders named on the
signature pages hereto.
WHEREAS, the Issuer has issued to the Trustee, upon the
terms set forth in the Indenture of even date herewith (the "Indenture") among
the Issuer, the Guarantors named therein (the "Guarantors") and the Trustee,
$__________ aggregate principal amount of the Issuer's 12% Senior Secured
Subordinated Notes due 2009 (the "Initial Securities") to be guaranteed by the
Guarantors; and
WHEREAS, the Issuer has filed a Form T-3 for Applications
for Qualification of Indentures under the Trust Indenture Act of 1939 (as
amended, the "Form T-3") with the Securities and Exchange Commission (the
"Commission"); and
WHEREAS, the Issuer has agreed that, upon the Form T-3
becoming effective, it will promptly commence the exchange (the "Exchange") of
Initial Securities for debt securities having a like aggregate principal amount
and otherwise identical in all material respects to the Initial Securities (the
"Exchange Securities"; and, together with the Initial Securities, the
"Securities");
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and affirmed, the
Issuer, the Trustee and the Holders hereby agree as follows:
1. Exchange. Following the declaration of the effectiveness
of the Form T-3, the Issuer shall promptly commence the Exchange, it being the
objective of such Exchange to enable each Holder electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not at
any time an affiliate of the Issuer within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), acquires the Exchange Securities in the
ordinary course of such Holder's business and has no arrangements with any
person to participate in the distribution of the Exchange Securities and is not
prohibited by any law or policy of the Commission from
<PAGE>
participating in the Exchange) to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of the several
states of the United States..
As soon as practicable after the Form T-3 shall have become
effective, the Issuer shall:
(x) accept for exchange all the Initial Securities validly
tendered and not withdrawn pursuant to the Exchange Offer;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly
to each Holder, Exchange Securities, equal in principal amount to the
Initial Securities of such Holder so accepted for exchange.
The Indenture provides that all the Securities will vote
and consent together on all matters as one class and that none of the Securities
will have the right to vote or consent as a class separate from one another on
any matter.
Interest on each Exchange Security issued pursuant to the
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Initial Securities surrendered in exchange therefor or, if no
interest has been paid on the Initial Securities, from the date of original
issue of the Initial Securities.
Each Holder participating in the Exchange Offer shall be
required to represent to the Issuer that at the time of the consummation of the
Exchange Offer (i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405
of the Securities Act, of the Issuer or if it is an affiliate, such Holder will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, and (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities.
2. Procedures.
(a) The Issuer shall give written notice to the Holders
when the Form T-3 has been declared effective.
(b) The Issuer shall cooperate with each Holder to
facilitate the timely preparation and delivery of certificates representing the
Securities to be issued pursuant to the Exchange free of any restrictive legends
(other than legends relating to the Intercreditor Agreement that is summarized
in Exhibit B to the Indenture).
2
<PAGE>
(c) Not later than 10 business days after the effective
date of the Form T-3, the Issuer will provide the Trustee with printed
certificates for the Exchange Securities.
(d) Upon exchange of Initial Securities for Exchange
Securities, the Issuer shall mark, or caused to be marked, on the Initial
Securities so exchanged that such Initial Securities are being canceled in
exchange for the Exchange Securities. In no event shall the Initial Securities
be marked as paid or otherwise satisfied.
3. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the Issuer
and the written consent of the Holders of a majority in principal amount of the
Securities affected by such amendment, modification, supplement, waiver or
consents.
(b) Notices. All notices and other communications provided
for or permitted under this Agreement shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which guarantees
overnight delivery:
(1) if to a Holder, at the most current address given
by such Holder to the Issuer.
(2) if to the Issuer, at its address as follows:
NextWave Telecom Inc.
3 Skyline Drive
Hawthorne, New York 10532
Attention: Frank A. Cassou, Esq.
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153-0119
Attention: Michael F. Walsh, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Issuer has not, as of
the date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement
3
<PAGE>
with respect to its securities that is inconsistent with the rights granted to
the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding
upon the Issuer and its successors and assigns.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall continue one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
(h) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall be affected or impaired thereby.
(i) Securities Held by the Issuer. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Issuer or its affiliates (other
than subsequent Holders if such subsequent Holders are deemed to be affiliates
solely by reason of their holdings of such Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(j) Submission to Jurisdiction. By the execution and
delivery of this Agreement, the Issuer submits to the nonexclusive jurisdiction
of the federal and state courts in the Borough of Manhattan in The City of New
York in such suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Exchange Rights Agreement to be duly executed and delivered as of the date first
above written.
NEXTWAVE TELECOM INC.
By:
---------------------------------------------
Name:
Title
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:
---------------------------------------------
Name:
Title
5
<PAGE>
The foregoing Exchange Rights Agreement
is hereby confirmed and accepted as of
the date first above written.
- ------------------------------
- ------------------------------
By:
---------------------------
Name:
Title
6
