SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 13, 1997 (June 17, 1997)
NEXTEL COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-19656 36-3939651
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
1505 Farm Credit Drive, Suite 100, McLean, Virginia 22102
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (703) 394-3000
(Former name or former address, if changed since last report)
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Item 5. Other Events.
Nextel Communications, Inc. ("Company") and The Bank of New York, as
Trustee have executed Supplemental Indentures to the various Indentures under
which the Company has various outstanding Notes in accordance with the terms
of a recent Consent Solicitation of the Company's Noteholders dated April 14,
1997, as supplemented. The five Supplemental Indentures, which effect certain
amendments and waivers to certain provisions of the respective Indentures to
which they relate, are filed as Exhibits 4.1 to 4.5, inclusive, hereto and are
hereby incorporated by reference. The Company has also issued a press release
dated June 16, 1997, regarding the completion of the Company's Consent
Solicitation and the execution of the Supplemental Indentures, which press
release is attached hereto as Exhibit 99.1 and is hereby incorporated by
reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(A) Financial Statements of Business Acquired.
Not applicable.
(B) Pro Forma Financial Information.
Not applicable.
(C) Exhibits
Exhibit No. Exhibit Description
4.1 Third Supplemental Indenture To The Indenture Dated
as of August 15, 1993 Between Nextel Communications,
Inc. and The Bank of New York, as Trustee, Relating
to $525,855,000 Aggregate Principal Amount at
Maturity of Senior Redeemable Discount Notes due
2003, dated as of June 13, 1997, between Nextel
Communications, Inc. and The Bank of New York, as
Trustee.
4.2 Third Supplemental Indenture To The Indenture Dated
as of February 15, 1994 Between Nextel
Communications, Inc. and The Bank of New York, as
Trustee, Relating to $1,126,435,000 Aggregate
Principal Amount at Maturity of Senior Redeemable
Discount Notes due 2004, dated as of June 13, 1997,
between Nextel Communications, Inc. and The Bank of
New York, as Trustee.
4.3 Fourth Supplemental Indenture To The Indenture Dated
as of April 25, 1994 Between Dial Call
Communications, Inc. and The Bank of New York, as
Trustee, Relating to $541,830,000 Aggregate
Principal Amount at Maturity of Senior Redeemable
Discount Notes due 2004, dated as of June 13, 1997,
between Nextel Communications, Inc. and The Bank of
New York, as Trustee.
4.4 Fifth Supplemental Indenture To The Indenture Dated
as of December 22, 1993 Between Dial Call
Communications, Inc. and The Bank of New York, as
Trustee, Relating to $115,165,000 Aggregate
Principal Amount at Maturity of Senior Redeemable
Discount Notes due 2005, dated as of June 13, 1997,
between Nextel Communications, Inc. and The Bank of
New York, as Trustee.
4.5 Third Supplemental Indenture To The Indenture Dated
as of January 13, 1994 Between CenCall
Communications Corp. and The Bank of New York, as
Trustee, Relating to $409,876,000 Aggregate
Principal Amount at Maturity of Senior Redeemable
Discount Notes due 2004, dated as of June 13, 1997,
between Nextel Communications, Inc. and The Bank of
New York, as Trustee.
99.1 Press Release dated June 16, 1997
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NEXTEL COMMUNICATIONS, INC.
Date: June 17, 1997 By: /s/Thomas J. Sidman
Thomas J. Sidman
Vice President and General Counsel
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Exhibit No. Exhibit Description
4.1 Third Supplemental Indenture To The Indenture Dated
as of August 15, 1993 Between Nextel Communications,
Inc. and The Bank of New York, as Trustee, Relating
to $525,855,000 Aggregate Principal Amount at
Maturity of Senior Redeemable Discount Notes due
2003, dated as of June 13, 1997, between Nextel
Communications, Inc. and The Bank of New York, as
Trustee.
4.2 Third Supplemental Indenture To The Indenture Dated
as of February 15, 1994 Between Nextel
Communications, Inc. and The Bank of New York, as
Trustee, Relating to $1,126,435,000 Aggregate
Principal Amount at Maturity of Senior Redeemable
Discount Notes due 2004, dated as of June 13, 1997,
between Nextel Communications, Inc. and The Bank of
New York, as Trustee.
4.3 Fourth Supplemental Indenture To The Indenture Dated
as of April 25, 1994 Between Dial Call
Communications, Inc. and The Bank of New York, as
Trustee, Relating to $541,830,000 Aggregate
Principal Amount at Maturity of Senior Redeemable
Discount Notes due 2004, dated as of June 13, 1997,
between Nextel Communications, Inc. and The Bank of
New York, as Trustee.
4.4 Fifth Supplemental Indenture To The Indenture Dated
as of December 22, 1993 Between Dial Call
Communications, Inc. and The Bank of New York, as
Trustee, Relating to $115,165,000 Aggregate
Principal Amount at Maturity of Senior Redeemable
Discount Notes due 2005, dated as of June 13, 1997,
between Nextel Communications, Inc. and The Bank of
New York, as Trustee.
4.5 Third Supplemental Indenture To The Indenture Dated
as of January 13, 1994 Between CenCall
Communications Corp. and The Bank of New York, as
Trustee, Relating to $409,876,000 Aggregate
Principal Amount at Maturity of Senior Redeemable
Discount Notes due 2004, dated as of June 13, 1997,
between Nextel Communications, Inc. and The Bank of
New York, as Trustee.
99.1 Press Release dated June 16, 1997
EXHIBIT 4.1
NEXTEL COMMUNICATIONS, INC.
and
THE BANK OF NEW YORK,
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of June 13, 1997
To
The Indenture Dated as of August 15, 1993
Between NEXTEL Communications, Inc. and
The Bank of New York, as Trustee, Relating to
$525,855,000 Aggregate Principal Amount at Maturity
of Senior Redeemable Discount Notes due 2003
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THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE (the "Supplemental Indenture")
is made as of the 13th day of June, 1997, between Nextel Communications, Inc.,
a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and The Bank of New York, a New York banking
corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee heretofore executed and
delivered an Indenture, dated as of August 15, 1993, as heretofore amended
(the "Indenture"); and
WHEREAS, pursuant to the Indenture, the Company issued and the
Trustee authenticated and delivered $525,855,000 aggregate principal
amount at maturity of the Company's Senior Redeemable Discount Notes due 2003
(the "Securities"); and
WHEREAS, the Company desires to make certain modifications to the
provisions of the Indenture and to transfer to an Unrestricted Subsidiary all
of the equity interest of Clearnet Communications, Inc. ("Clearnet") that is
held directly by the Company on the date hereof (the "Clearnet Transfer"); and
WHEREAS, Section 902 of the Indenture provides that with the
consent of the Holders of not less than a majority in principal amount at
Stated Maturity of the Securities at the time Outstanding (the "Requisite
Amendment Consents"), the Company, when authorized by a resolution of its Board
of Directors, and the Trustee may enter into an indenture or indentures
supplemental to the Indenture for the purpose of adding provisions to,
changing or eliminating certain provisions of the Indenture, subject to
certain exceptions specified in Section 902 of the Indenture; and
WHEREAS, the Company has obtained the Requisite Amendment Consents to
amend the Indenture in certain respects (the "Proposed Amendments"); and
WHEREAS, Section 1021 of the Indenture provides that with the consent
of Holders of at least a majority in principal amount at Stated Maturity of
Securities at the time Outstanding (the "Requisite Waiver Consents"), the
Company may omit to comply with certain provisions of the Indenture; and
WHEREAS, the Company has obtained the Requisite Waiver Consents to
waive compliance with certain provisions of the Indenture in connection with
the Clearnet Transfer (the "Proposed Waivers"); and
WHEREAS, this Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of the Company; and
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WHEREAS, the Company has delivered, or caused to be delivered, to
the Trustee, an Opinion of Counsel stating that this Supplemental Indenture
complies with the requirements of the Indenture;
NOW, THEREFORE, the Company hereby covenants and agrees with the
Trustee for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE 1
WAIVERS OF CERTAIN PROVISIONS OF INDENTURE
Section 1.01. Waiver of Compliance with Certain Provisions of the
Indenture in Connection With the Clearnet Transfer. Subject to Section 3.01
hereof, compliance by the Company with Section 1010 of the Indenture
(including clause (iv) of the first paragraph thereof), to the extent that
such Section would apply to limit the ability of the Company to transfer all of
the capital stock of Clearnet that is held directly by the Company on the
date hereof to McCaw International, Ltd. ("MIL"), a wholly owned Unrestricted
Subsidiary of the Company, or to any direct or indirect wholly owned subsidiary
of MIL that is designated by MIL as the intended recipient of such equity
interest in Clearnet, is hereby waived. As a result of such waiver, any such
transfer shall not be deemed a Restricted Payment under Section 1010 of the
Indenture.
ARTICLE 2
AMENDMENTS TO CERTAIN PROVISIONS OF INDENTURE
Section 2.01. Amendment of Certain Sections of the Indenture. Subject
to Section 3.01 hereof, the Indenture is hereby amended in the following
respects:
(a) The definition of "Credit Facility" contained in Section 101
of the Indenture is hereby amended to read in its entirety as follows:
"'Credit Facility' means any credit facility (whether a term
or revolving type) of the type customarily entered into with banks,
between the Company and/or any of its Restricted Subsidiaries, on
the one hand, and any banks or other lenders, on the other hand
(and any renewals, refundings, extensions or replacements of any such
credit facility), which credit facility is designated by the Company
as a "Credit Facility" for purposes of this Indenture, to the extent
that the aggregate principal balance of Debt that is Incurred and
outstanding under all Credit Facilities at any time does not exceed
$1,905,000,000."
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(b) The definition of "Incur" contained in Section 101 of the
Indenture is hereby amended to read in its entirety as follows:
"'Incur' means, with respect to any Debt or other obligation
of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume (pursuant to a merger, consolidation, acquisition
or other transaction), Guarantee or otherwise become liable in
respect of such Debt or other obligation or the recording, as
required pursuant to generally accepted accounting principles or
otherwise, of any such Debt or other obligation on the balance sheet
of such Person (and "Incurrence", "Incurred", "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing);
provided, however, that a change in generally accepted accounting
principles that results in an obligation of such Person that exists
at such time becoming Debt shall not be deemed an Incurrence of such
Debt; provided further, however, that the accretion of original issue
discount on Debt shall not be deemed to be an Incurrence of Debt.
Debt otherwise Incurred by a Person before it becomes a Subsidiary of
the Company shall be deemed to have been Incurred at the time it
becomes such a Subsidiary."
(c) The definition of "Investment" contained in Section 101 of the
Indenture is hereby amended to read in its entirety as follows:
"'Investment' by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution to (by
means of transfers of cash or other property to others or payments
for property or services for the account or use of others, or
otherwise), or purchase or acquisition of Capital Stock, bonds,
notes, debentures or other securities or evidence of Debt issued by,
any other Person; provided that a transaction will not be an
Investment to the extent it involves (i) an Asset Disposition,
(ii) the issuance or sale by the Company of its Capital Stock (other
than Disqualified Stock), including options, warrants or other
rights to acquire such Capital Stock (other than Disqualified Stock)
or (iii) a transfer, assignment or contribution by the Company of
shares of Capital Stock (or any options, warrants or rights to
acquire Capital Stock), or all or substantially all of the assets of,
any Unrestricted Subsidiary of the Company to another Unrestricted
Subsidiary of the Company."
(d) The definitions of "Motorola Agreements" and "Northern Telecom
Agreements" contained in Section 101 of the Indenture are hereby deleted,
and the phrase "a Motorola Agreement or a Northern Telecom Agreement"
contained in clause (ii) of the definition of "Permitted Lien" is hereby
deleted
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and replaced with the phrase "a Vendor Financing Agreement or any
Lien (including Liens on Capital Stock of any Restricted Subsidiary) to
the extent it secures Debt outstanding under a Credit Facility."
(e) The definition of "Nextel 2004 Indenture" contained in Section
101 of the Indenture is hereby amended to read in its entirety as follows:
"'Nextel 2004 Indenture' means the indenture, dated as of
February 15, 1994, as amended by the First, Second and Third
Supplemental Indentures, between the Company and The Bank of New
York, as trustee, relating to the Nextel 2004 Notes."
(f) The definition of "Permitted Debt" contained in Section 101 of
the Indenture is hereby amended to read in its entirety as follows:
"'Permitted Debt' means (i) any Debt Incurred under a Vendor
Financing Agreement; (ii) (A) any other Debt (including Guarantees
thereof) outstanding on February 15, 1994 (including Debt represented
by the Securities and the Nextel 2004 Notes), (B) any Debt (including
Guarantees thereof) of OneComm Corporation and its Subsidiaries
outstanding on July 28, 1995 (including the OneComm Notes), and (C)
any Debt (including Guarantees thereof) of Dial Page, Inc. and its
Subsidiaries outstanding on January 30, 1996 (including the Dial Call
Notes), and any accretions of original issue discount and accruals
of interest with respect to any Debt described in this clause (ii)
and with respect to any refinancings of such Debt; (iii) any Debt
(other than Debt described in clause (i) or (ii) above) that does
not, at any time outstanding, exceed $5.00 per POP, if the net
proceeds of such Debt are invested exclusively in the
telecommunications business (including related activities and
services) conducted by the Company and its Restricted Subsidiaries,
including related capital expenditure and working capital
requirements; (iv) any Debt outstanding under a Credit Facility; and
(v) renewals, refundings or extensions of any Debt referred to in
clause (ii) above or Incurred pursuant to the provisions of Section
1008, plus (A) the amount of any premium reasonably determined by
the Company as necessary to accomplish such renewal, refunding or
extension and (B) such other fees and expenses of the Company
reasonably incurred in connection with the renewal, refunding or
extension, provided that such renewal, refunding or extension shall
constitute Permitted Debt only (a) to the extent that it does not
result in an increase in the aggregate principal amount (or, if such
Debt provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the maturity
thereof, in
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an amount not greater than such lesser amount) of such
Debt (except as permitted by clause (A) or (B) above), (b) to the
extent such renewed, refunded or extended Debt does not require the
payment of all or a portion of the principal thereof (whether
pursuant to repurchase, redemption, repayment, defeasance,
retirement, sinking fund payment, payment at stated maturity or
otherwise) prior to the final stated maturity of the Debt being
renewed, refunded or extended and (c) if the Debt to be so renewed,
refunded or extended is Debt of the Company that is subordinate in
right of payment to the Securities, then the new Debt is
subordinated in right of payment to the Securities on subordination
terms no less favorable to the Holders of the Securities in their
capacities as such than the subordination terms (or other
arrangement) applicable to the Debt to be renewed, refunded or
extended; provided, however, that in no event shall the aggregate
amount of Debt that is Incurred and outstanding under clauses (i),
(iii) and (iv) at any time exceed $1,910,000,000; provided further,
however, that no Debt that is represented by unsecured notes
originally issued by the Company on or after June 1, 1997 and
ranking pari passu with the Securities ("New Notes") shall be
Incurred under clause (iii) above, unless the amount of Debt
represented by the issue of New Notes could have been Incurred, on or
after June 1, 1997, pursuant to the provisions of Section 1008."
(g) The definition of "Vendor Financing Debt" contained in Section
101 of the Indenture is hereby amended to read in its entirety as follows:
"'Vendor Financing Debt' means any Debt owed to (i) a vendor
or supplier of any property or materials used by the Company or its
Restricted Subsidiaries in their telecommunications business, (ii)
any Affiliate of such a vendor or supplier, (iii) any assignee of
such a vendor, supplier or Affiliate of such a vendor or supplier, or
(iv) a bank or other financial institution that has financed or
refinanced the purchase of such property or materials from such a
vendor, supplier, Affiliate of such a vendor or supplier or assignee
of such a vendor or supplier; provided that the aggregate amount of
such Debt does not exceed the sum of (w) the purchase price of such
property or materials (including transportation, installation,
warranty and testing charges, as well as applicable taxes paid, in
respect of such property or materials), (x) the cost of design,
development, site acquisition and construction, (y) any interest or
other financing costs accruing or otherwise payable in respect of the
foregoing, and (z) the cost of any services provided by such vendor,
supplier or Affiliate of such vendor or supplier."
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(h) Section 101 of the Indenture is hereby amended to add the
following definitions at the appropriate places in such section:
"'Consolidated Interest Expense' of any Person means, for any
period, the aggregate interest expense and fees and other financing
costs in respect of Debt (including amortization of original issue
discount and non-cash interest payments and accruals), the interest
component in respect of Capital Lease Obligations and any deferred
payment obligations of such Person and its Subsidiaries, determined
on a consolidated basis in accordance with generally accepted
accounting principles and all commissions, discounts, other fees and
charges owed with respect to letters of credit and bankers'
acceptance financing and net costs (including amortizations of
discounts) associated with interest rate swap and similar agreements
and with foreign currency hedge, exchange and similar agreements and
the amount of dividends paid in respect of Disqualified Stock."
"'Directed Investment' by the Company or any of its Restricted
Subsidiaries means any Investment for which the cash or property used
for such Investment is received by the Company from the issuance and
sale (other than to a Restricted Subsidiary) on or after June 1,
1997 of shares of its Capital Stock (other than Disqualified Stock),
or any options, warrants or other rights to purchase such Capital
Stock (other than Disqualified Stock) designated by the Board of
Directors as a "Directed Investment" to be used for one or more
specified investments in the telecommunications business (including
related activities and services) and is so designated and used at any
time within 365 days after the receipt thereof; provided that the
aggregate amount of any such Directed Investments may not at any
time exceed fifty percent (50%) of the aggregate amount of such cash
or property received by the Company on or after June 1, 1997 from
any such issuance and sale or capital contribution; and provided,
further, that any proceeds from any such issuance or sale may not be
used for such an investment if such proceeds were, prior to being
designated for use as a Directed Investment, (x) used to make a
Restricted Payment or (y) used as the basis for the Incurrence of
Debt under clause (i) of Section 1008 unless and until the amount of
any such Debt (I) is treated as newly issued Debt and could be
Incurred in accordance with clause (ii) of Section 1008 or (II)
has been repaid or refinanced with the proceeds of Debt Incurred in
accordance with clause (ii)of Section 1008 or with the proceeds of
Permitted Debt or (III) has otherwise been repaid and, in the
circumstances described in clauses (I) and (II), the Company
delivers to the Trustee a certificate confirming that the
requirements of such clauses have been met."
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"'First Tranche Option' means the option, exercisable on or
before 6:00 p.m. local time in New York, New York on July 28, 1997
by Digital Radio, L.L.C., for the purchase of an aggregate of up to
15,000,000 shares of common stock of the Company (as such number may
be adjusted pursuant to the terms of the option) at an exercise price
of $15.50 per share (as such price may be adjusted pursuant to the
terms of the option), granted by the Company under the Option
Agreement (First Tranche) by and between Digital Radio, L.L.C. and
the Company, dated as of July 28, 1995."
"'Operating Cash Flow to Consolidated Interest Expense Ratio'
means, as at any date of determination, the ratio of (i) the
Operating Cash Flow of the Company for the most recently completed
fiscal quarter of the Company to (ii) the Consolidated Interest
Expense of the Company and its Restricted Subsidiaries for the most
recently completed fiscal quarter of the Company."
"'Replacement Option' means the option to purchase 25,000,000
shares of common stock of the Company, originally issued to an
affiliate of Craig O. McCaw, exercisable at any time through July 28,
1998, as described in the Company's Consent Solicitation Statement
dated April 14, 1997, as amended or supplemented through the date of
the Third Supplemental Indenture hereto."
"'Vendor Financing Agreement' means any agreement pursuant to
which the Company or any of its Restricted Subsidiaries incurs, or
may incur, Vendor Financing Debt (including any renewals,
refinancings, extensions or replacements of such Vendor Financing
Debt), to the extent that the aggregate principal balance of Vendor
Financing Debt that is Incurred and outstanding under all Vendor
Financing Agreements at any time does not exceed $850,000,000."
(i) All references to "Consolidated Debt to Annualized Operating Cash
Flow Ratio" contained in the definition of "Operating Cash Flow" in
Section 101 of the Indenture are hereby deleted and replaced with the term
"Operating Cash Flow to Consolidated Interest Expense Ratio."
(j) The first paragraph of Section 801 of the Indenture is hereby
amended by adding the following proviso at the end of such paragraph:
"provided, however, that the foregoing requirements shall not
apply to any transaction or series of transactions involving the
sale, assignment, conveyance, transfer, lease or other disposition of
the properties and assets substantially as an entirety by any
Wholly Owned Restricted Subsidiary to any other Wholly Owned
Restricted Subsidiary, or the merger or consolidation of
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any Wholly Owned Restricted Subsidiary with or into any other
Wholly Owned Restricted Subsidiary."
(k) The text of Section 1008 of the Indenture is hereby deleted and
amended to read in its entirety as follows:
"The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur any Debt (including Acquired Debt), other than
Permitted Debt, unless, (i) with respect to Debt Incurred on or prior
to December 31, 1999, the Debt so Incurred is in an aggregate amount
that does not exceed the multiples specified below of the aggregate
amount of net cash proceeds received by the Company during the
applicable time periods specified below from the issuance and sale
(other than to a Subsidiary) of shares of its Capital Stock (other
than Disqualified Stock), or any options, warrants or other rights to
purchase such Capital Stock (other than Disqualified Stock), other
than (x) proceeds received by the Company pursuant to (I) the
exercise of the First Tranche Option, (II) the sale (but not the
exercise) of the Replacement Option, or (III) the purchase of shares
of Capital Stock by holders of the Securities and the holders of each
other Issue of Notes (as defined in the Company's Consent
Solicitation Statement, dated April 14, 1997 and as amended or
supplemented through the date of the Third Supplemental Indenture
hereto) in exchange for the consent payment made to such holders as
consideration for such holders providing their consent to the
Proposed Amendments and the Proposed Waivers contained in the Third
Supplemental Indenture, (y) proceeds applied for use as a Directed
Investment (unless such designation has been revoked by the Board of
Directors and the Company either abandons its plans to make such
Investment or is able to make such Investment pursuant to Section
1010 (other than as a Directed Investment)) and (z) proceeds which
have been included in the computation of the amounts available for
Restricted Payments pursuant to Section 1009(c)(ii) of the Nextel
2004 Indenture, to the extent the inclusion thereof was necessary to
allow a subsequent Restricted Payment to be made; and (ii) with
respect to Debt Incurred on or after January 1, 2000, on the date of
such Incurrence, after giving effect to the Incurrence of such Debt
(or Acquired Debt) and the receipt and application of the net
proceeds thereof (and, if the net proceeds of such new Debt are used
to acquire a Person that becomes a Restricted Subsidiary or an
operating business of the Company or a Restricted Subsidiary, to all
terms of such acquisition) on a pro forma basis, the Operating Cash
Flow to Consolidated Interest Expense Ratio would equal or exceed
(x) 1.75 to 1 for the period from January 1, 2000 through June 30,
2000, (y) 2.0 to 1 for the period from July 1, 2000 through December
31, 2000, and (z) 2.25 to 1 for the period on and after January 1,
2001;
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provided, however, that for purposes of calculating the Debt
that may be Incurred under either of the foregoing clauses (i) or
(ii), the amount of any accretions of original issue discount and
accruals of interest (to the extent not overdue for payment) with
respect to any Debt so Incurred shall be excluded from the
determination of the amount of Debt that may be Incurred pursuant to
such calculations. The multiples of net cash proceeds applicable for
purposes of clause (i) shall be as follows for the following
specified time periods:
Multiple of
Period during which net cash proceeds are net cash
received proceeds
June 1, 1997 through March 31, 1998 2.25
April 1, 1998 through December 31, 1998 2.00
January 1, 1999 through December 31, 1999 1.75
(l) The first paragraph of Section 1010 of the Indenture is
hereby amended by deleting clause (b) in its entirety and replacing it with
the following:
"(b) after giving effect, on a pro forma basis, to such
Restricted Payment and the Incurrence of any Debt the net proceeds of
which are used to finance such Restricted Payment, then, in the case
of any Restricted Payment described in clause (i), (ii) or (iii)
above, the Consolidated Debt to Annualized Operating Cash Flow Ratio
would not have exceeded 5.0 to 1 and, in the case of any Restricted
Payment described in clause (iv) above, the Company would be
permitted under this Indenture to Incur at least $1 of additional
Debt, other than Permitted Debt; and"
(m) The first sentence of the second paragraph of Section 1010 of the
Indenture is hereby amended to read in its entirety as follows:
"The foregoing limitations in this Section 1010 do not limit
or restrict the making of any Permitted Distribution, Permitted
Investment or Directed Investment, and none of a Permitted
Distribution, Permitted Investment or Directed Investment shall be
counted as a Restricted Payment for purposes of clause (c) above."
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(n) The sixth paragraph of Section 1011 of the Indenture is hereby
amended to read in its entirety as follows:
"The Board of Directors, from time to time, may designate any
Person that is about to become a Subsidiary of the Company as an
Unrestricted Subsidiary, and may designate any newly-created
Subsidiary as an Unrestricted Subsidiary, if at the time such
Subsidiary is created it contains no assets (other than such de
minimis amount of assets then required by law for the formation of
corporations) and no Debt. Subsidiaries of the Company that are not
designated by the Board of Directors as Restricted or Unrestricted
Subsidiaries shall be deemed to be Restricted Subsidiaries.
Notwithstanding any provisions of this Section 1011, all Subsidiaries
of a Restricted Subsidiary shall be Restricted Subsidiaries and all
Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted
Subsidiaries. The Board of Directors shall not change the designation
of a Subsidiary of the Company more than twice in any period of five
years."
ARTICLE 3
SUNDRY PROVISIONS
Section 3.01. Effect of Supplemental Indenture. Upon the execution
and delivery of this Supplemental Indenture by the Company and the Trustee, the
Indenture shall be supplemented in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes,
and every Holder of Securities heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby; provided, however, that
Sections 1.01 and 2.01 hereof shall become operative upon the satisfaction (or
waiver by the Company) of all of the conditions (including, without limitation,
the General Conditions) described and defined in the Consent Solicitation
Statement, dated April 14, 1997 and as amended or supplemented through the date
hereof, that was provided to Holders of Securities in connection with the
Company's solicitation of consents by such Holders to the Proposed Waivers and
the Proposed Amendments.
Section 3.02. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 3.03. Indenture and Supplemental Indenture Construed Together.
This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
Section 3.04. Confirmation and Preservation of Indenture. The
Indenture as supplemented by this Supplemental Indenture is in all respects
confirmed and preserved.
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<PAGE>
Section 3.05. Conflict with Trust Indenture Act. If any provision
of this Supplemental Indenture limits, qualifies or conflicts with any
provision of the Trust Indenture Act that is required under such Act to be
part of and govern any provision of this Supplemental Indenture, the provision
of such Act shall control. If any provision of this Supplemental Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the provision of such Act shall be deemed to apply
to the Indenture as so modified or to be excluded by this Supplemental
Indenture, as the case may be.
Section 3.06. Separability Clause. In case any provision in this
Supplemental Indenture 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 3.07. Terms Defined in the Indenture. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 3.08. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 3.09. Benefits of Supplemental Indenture, etc. Nothing in this
Supplemental Indenture, the Indenture or the Securities, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of Securities, any benefit
of any legal or equitable right, remedy or claim under the Indenture, this
Supplemental Indenture or the Securities.
Section 3.10. Successors and Assigns. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 3.11. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness.
Section 3.12. Certain Duties and Responsibilities of the Trustee.
In entering into this Supplemental Indenture, the Trustee shall be entitled to
the benefit of every provision of the Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee, whether or
not elsewhere herein so provided.
Section 3.13. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflicts of law principles thereof.
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Section 3.14. Counterparts. This Supplemental Indenture may be
executed in counterparts, each of which, when so executed, shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date and year first
above written.
NEXTEL COMMUNICATIONS, INC.
By: /s/Thomas J. Sidman
Title: Vice President
Attest: /s/ Thomas D. Hickey
Title: Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Marie E. Trimboli
Title: Assistant Treasurer
Attest: /s/ Paul Schmazel
Title: Assistant Vice President
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EXHIBIT 4.2
NEXTEL COMMUNICATIONS, INC.
and
THE BANK OF NEW YORK,
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of June 13, 1997
To
The Indenture Dated as of February 15, 1994
Between NEXTEL Communications, Inc. and
The Bank of New York, as Trustee, Relating to
$1,126,435,000 Aggregate Principal Amount at Maturity
of Senior Redeemable Discount Notes due 2004
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<PAGE>
THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is
made as of the 13th day of June, 1997, between Nextel Communications, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and The Bank of New York, a New York banking corporation, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee heretofore executed and
delivered an Indenture, dated as of February 15, 1994, as heretofore amended
(the "Indenture"); and
WHEREAS, pursuant to the Indenture, the Company issued and the Trustee
authenticated and delivered $1,126,435,000 aggregate principal amount at
maturity of the Company's Senior Redeemable Discount Notes due 2004 (the
"Securities"); and
WHEREAS, the Company desires to make certain modifications to the
provisions of the Indenture and to transfer to an Unrestricted Subsidiary all
of the equity interest of Clearnet Communications, Inc. ("Clearnet") that is
held directly by the Company on the date hereof (the "Clearnet Transfer"); and
WHEREAS, Section 902 of the Indenture provides that with the consent
of the Holders of not less than a majority in principal amount at Stated
Maturity of the Securities at the time Outstanding (the "Requisite Amendment
Consents"), the Company, when authorized by a resolution of its Board of
Directors, and the Trustee may enter into an indenture or indentures
supplemental to the Indenture for the purpose of adding provisions to, changing
or eliminating certain provisions of the Indenture, subject to certain
exceptions specified in Section 902 of the Indenture; and
WHEREAS, the Company has obtained the Requisite Amendment Consents to
amend the Indenture in certain respects (the "Proposed Amendments"); and
WHEREAS, Section 1018 of the Indenture provides that with the consent
of Holders of at least a majority in principal amount at Stated Maturity of
Securities at the time Outstanding (the "Requisite Waiver Consents"), the
Company may omit to comply with certain provisions of the Indenture; and
WHEREAS, the Company has obtained the Requisite Waiver Consents to
waive compliance with certain provisions of the Indenture in connection with
the Clearnet Transfer (the "Proposed Waivers"); and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Company; and
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<PAGE>
WHEREAS, the Company has delivered, or caused to be delivered, to the
Trustee, an Opinion of Counsel stating that this Supplemental Indenture
complies with the requirements of the Indenture;
NOW, THEREFORE, the Company hereby covenants and agrees with the
Trustee for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE 1
WAIVERS OF CERTAIN PROVISIONS OF INDENTURE
Section 1.01. Waiver of Compliance with Certain Provisions of the
Indenture in Connection With the Clearnet Transfer. Subject to Section 3.01
hereof, compliance by the Company with Section 1009 of the Indenture
(including clause (iv) of the first paragraph thereof), to the extent that such
Section would apply to limit the ability of the Company to transfer all of the
capital stock of Clearnet that is held directly by the Company on the date
hereof to McCaw International, Ltd. ("MIL"), a wholly owned Unrestricted
Subsidiary of the Company, or to any direct or indirect wholly owned subsidiary
of MIL that is designated by MIL as the intended recipient of such equity
interest in Clearnet, is hereby waived. As a result of such waiver, any such
transfer shall not be deemed a Restricted Payment under Section 1009 of the
Indenture.
ARTICLE 2
AMENDMENTS TO CERTAIN PROVISIONS OF INDENTURE
Section 2.01. Amendment of Certain Sections of the Indenture. Subject
to Section 3.01 hereof, the Indenture is hereby amended in the following
respects:
(a) The definition of "Credit Facility" contained in Section 101 of
the Indenture is hereby amended to read in its entirety as follows:
"'Credit Facility' means any credit facility (whether a term
or revolving type) of the type customarily entered into with banks,
between the Company and/or any of its Restricted Subsidiaries, on the
one hand, and any banks or other lenders, on the other hand (and any
renewals, refundings, extensions or replacements of any such credit
facility), which credit facility is designated by the Company as a
"Credit Facility" for purposes of this Indenture, to the extent that
the aggregate principal balance of Debt that is Incurred and
outstanding under all Credit Facilities at any time does not exceed
$1,905,000,000."
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(b) The definition of "Incur" contained in Section 101 of the
Indenture is hereby amended to read in its entirety as follows:
"'Incur' means, with respect to any Debt or other obligation
of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume (pursuant to a merger, consolidation, acquisition
or other transaction), Guarantee or otherwise become liable in
respect of such Debt or other obligation or the recording, as
required pursuant to generally accepted accounting principles or
otherwise, of any such Debt or other obligation on the balance sheet
of such Person (and "Incurrence", "Incurred", "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing);
provided, however, that a change in generally accepted accounting
principles that results in an obligation of such Person that exists
at such time becoming Debt shall not be deemed an Incurrence of such
Debt; provided further, however, that the accretion of original issue
discount on Debt shall not be deemed to be an Incurrence of Debt.
Debt otherwise Incurred by a Person before it becomes a Subsidiary
of the Company shall be deemed to have been Incurred at the time it
becomes such a Subsidiary."
(c) The definition of "Investment" contained in Section 101 of
the Indenture is hereby amended to read in its entirety as follows:
"'Investment' by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution to (by
means of transfers of cash or other property to others or payments
for property or services for the account or use of others, or
otherwise), or purchase or acquisition of Capital Stock, bonds,
notes, debentures or other securities or evidence of Debt issued by,
any other Person; provided that a transaction will not be an
Investment to the extent it involves (i) an Asset Disposition, (ii)
the issuance or sale by the Company of its Capital Stock (other than
Disqualified Stock), including options, warrants or other rights to
acquire such Capital Stock (other than Disqualified Stock) or (iii)
a transfer, assignment or contribution by the Company of shares of
Capital Stock (or any options, warrants or rights to acquire Capital
Stock), or all or substantially all of the assets of, any
Unrestricted Subsidiary of the Company to another Unrestricted
Subsidiary of the Company."
(d) The definitions of "Motorola Agreements" and "Northern Telecom
Agreements" contained in Section 101 of the Indenture are hereby deleted,
and the phrase "a Motorola Agreement or a Northern Telecom Agreement"
contained in clause (iii) of the definition of "Permitted Lien" is hereby
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<PAGE>
deleted and replaced with the phrase "a Vendor Financing Agreement."
(e) The definition of "Permitted Debt" contained in Section 101 of
the Indenture is hereby amended to read in its entirety as follows:
"'Permitted Debt' means (i) any Debt Incurred under a Vendor
Financing Agreement; (ii) (A) any other Debt (including Guarantees
thereof) outstanding on February 15, 1994 (including Debt represented
by the Securities and the Senior Redeemable Discount Notes due 2003
issued by NEXTEL Communications, Inc.), (B) any Debt (including
Guarantees thereof) of OneComm Corporation and its Subsidiaries
outstanding on July 28, 1995 (including the OneComm Notes), and (C)
any Debt (including Guarantees thereof) of Dial Page, Inc. and its
Subsidiaries outstanding on January 30, 1996 (including the Dial Call
Notes), and any accretions of original issue discount and accruals of
interest with respect to any Debt described in this clause (ii) and
with respect to any refinancings of such Debt; (iii) any Debt (other
than Debt described in clause (i) or (ii) above) that does not, at
any time outstanding, exceed $5.00 per POP, if the net proceeds of
such Debt are invested exclusively in the telecommunications
business (including related activities and services) conducted by the
Company and its Restricted Subsidiaries, including related capital
expenditure and working capital requirements; (iv) any Debt
outstanding under a Credit Facility; and (v) renewals, refundings or
extensions of any Debt referred to in clause (ii) above or Incurred
pursuant to the provisions of Section 1008, plus (A) the amount of
any premium reasonably determined by the Company as necessary to
accomplish such renewal, refunding or extension and (B) such other
fees and expenses of the Company reasonably incurred in connection
with the renewal, refunding or extension, provided that such renewal,
refunding or extension shall constitute Permitted Debt only (a) to
the extent that it does not result in an increase in the aggregate
principal amount (or, if such Debt provides for an amount less than
the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof, in an amount not greater
than such lesser amount) of such Debt (except as permitted by clause
(A) or (B) above), (b) to the extent such renewed, refunded or
extended Debt does not require the payment of all or a portion of the
principal thereof (whether pursuant to repurchase, redemption,
repayment, defeasance, retirement, sinking fund payment, payment at
stated maturity or otherwise) prior to the final stated maturity of
the Debt being renewed, refunded or extended and (c) if the Debt
to be so renewed, refunded or extended is Debt of the Company that is
subordinate in right of payment to the
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<PAGE>
Securities, then the new Debt is subordinated in right of payment to
the Securities on subordination terms no less favorable to the
Holders of the Securities in their capacities as such than the
subordination terms (or other arrangement) applicable to the Debt to
be renewed, refunded or extended; provided, however, that in no event
shall the aggregate amount of Debt that is Incurred and outstanding
under clauses (i), (iii) and (iv) at any time exceed $1,910,000,000;
provided further, however, that no Debt that is represented by
unsecured notes originally issued by the Company on or after June 1,
1997 and ranking pari passu with the Securities ("New Notes") shall
be Incurred under clause (iii) above, unless the amount of Debt
represented by the issue of New Notes could have been Incurred, on or
after June 1, 1997, pursuant to the provisions of Section 1008."
(f) The definition of "Vendor Financing Debt" contained in Section
101 of the Indenture is hereby amended to read in its entirety as follows:
"'Vendor Financing Debt' means any Debt owed to (i) a vendor
or supplier of any property or materials used by the Company or its
Restricted Subsidiaries in their telecommunications business, (ii)
any Affiliate of such a vendor or supplier, (iii) any assignee of
such a vendor, supplier or Affiliate of such a vendor or supplier, or
(iv) a bank or other financial institution that has financed or
refinanced the purchase of such property or materials from such a
vendor, supplier, Affiliate of such a vendor or supplier or assignee
of such a vendor or supplier; provided that the aggregate amount of
such Debt does not exceed the sum of (w) the purchase price of such
property or materials (including transportation, installation,
warranty and testing charges, as well as applicable taxes paid, in
respect of such property or materials), (x) the cost of design,
development, site acquisition and construction, (y) any interest or
other financing costs accruing or otherwise payable in respect of the
foregoing, and (z) the cost of any services provided by such vendor,
supplier or Affiliate of such vendor or supplier."
(g) Section 101 of the Indenture is hereby amended to add the
following definitions at the appropriate places in such section:
"'Consolidated Interest Expense' of any Person means, for any
period, the aggregate interest expense and fees and other financing
costs in respect of Debt (including amortization of original issue
discount and non-cash interest payments and accruals), the interest
component in respect of Capital Lease Obligations and any deferred
payment obligations of such Person and its Subsidiaries, determined
on a consolidated basis in
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<PAGE>
accordance with generally accepted accounting principles and all
commissions, discounts, other fees and charges owed with respect
to letters of credit and bankers' acceptance financing and net costs
(including amortizations of discounts) associated with interest rate
swap and similar agreements and with foreign currency hedge,
exchange and similar agreements and the amount of dividends paid in
respect of Disqualified Stock."
"'Directed Investment' by the Company or any of its Restricted
Subsidiaries means any Investment for which the cash or property used
for such Investment is received by the Company from the issuance and
sale (other than to a Restricted Subsidiary) on or after June 1,
1997 of shares of its Capital Stock (other than Disqualified Stock),
or any options, warrants or other rights to purchase such Capital
Stock (other than Disqualified Stock) designated by the Board of
Directors as a "Directed Investment" to be used for one or more
specified investments in the telecommunications business (including
related activities and services) and is so designated and used at any
time within 365 days after the receipt thereof; provided that the
aggregate amount of any such Directed Investments may not at any time
exceed fifty percent (50%) of the aggregate amount of such cash or
property received by the Company on or after June 1, 1997 from any
such issuance and sale or capital contribution; and provided,
further, that any proceeds from any such issuance or sale may not be
used for such an investment if such proceeds were, prior to being
designated for use as a Directed Investment, (x) used to make a
Restricted Payment or (y) used as the basis for the Incurrence of
Debt under clause (i) of Section 1008 unless and until the amount of
any such Debt (I) is treated as newly issued Debt and could be
Incurred in accordance with clause (ii) of Section 1008 or (II) has
been repaid or refinanced with the proceeds of Debt Incurred in
accordance with clause (ii) of Section 1008 or with the proceeds of
Permitted Debt or (III) has otherwise been repaid and, in the
circumstances described in clauses (I) and (II), the Company
delivers to the Trustee a certificate confirming that the
requirements of such clauses have been met."
"'First Tranche Option' means the option, exercisable on or
before 6:00 p.m. local time in New York, New York on July 28, 1997 by
Digital Radio, L.L.C., for the purchase of an aggregate of up to
15,000,000 shares of common stock of the Company (as such number may
be adjusted pursuant to the terms of the option) at an exercise price
of $15.50 per share (as such price may be adjusted pursuant to the
terms of the option), granted by the Company under the Option
Agreement (First Tranche) by and between Digital Radio, L.L.C. and
the Company, dated as of July 28, 1995."
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<PAGE>
"'Operating Cash Flow to Consolidated Interest Expense Ratio'
means, as at any date of determination, the ratio of (i) the
Operating Cash Flow of the Company for the most recently completed
fiscal quarter of the Company to (ii) the Consolidated Interest
Expense of the Company and its Restricted Subsidiaries for the most
recently completed fiscal quarter of the Company."
"'Replacement Option' means the option to purchase 25,000,000
shares of common stock of the Company, originally issued to an
affiliate of Craig O. McCaw, exercisable at any time through July
28, 1998, as described in the Company's Consent Solicitation
Statement dated April 14, 1997, as amended or supplemented through
the date of the Third Supplemental Indenture hereto."
"'Vendor Financing Agreement' means any agreement pursuant to
which the Company or any of its Restricted Subsidiaries incurs, or
may incur, Vendor Financing Debt (including any renewals,
refinancings, extensions or replacements of such Vendor Financing
Debt), to the extent that the aggregate principal balance of Vendor
Financing Debt that is Incurred and outstanding under all Vendor
Financing Agreements at any time does not exceed $850,000,000."
(h) All references to "Consolidated Debt to Annualized
Operating Cash Flow Ratio" contained in the definition of "Operating Cash
Flow" in Section 101 of the Indenture are hereby deleted and replaced
with the term "Operating Cash Flow to Consolidated Interest Expense Ratio."
(i) The first paragraph of Section 801 of the Indenture is hereby
amended by adding the following proviso at the end of such paragraph:
"provided, however, that the foregoing requirements shall not
apply to any transaction or series of transactions involving the
sale, assignment, conveyance, transfer, lease or other disposition of
the properties and assets substantially as an entirety by any Wholly
Owned Restricted Subsidiary to any other Wholly Owned Restricted
Subsidiary, or the merger or consolidation of any Wholly Owned
Restricted Subsidiary with or into any other Wholly Owned Restricted
Subsidiary."
(j) The text of Section 1008 of the Indenture is hereby deleted and
amended to read in its entirety as follows:
"The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur any Debt (including Acquired Debt), other than
Permitted Debt, unless, (i) with respect to Debt Incurred on or
prior to December 31, 1999, the Debt so Incurred is in an aggregate
amount that does not exceed the multiples
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<PAGE>
specified below of the aggregate amount of net cash proceeds received
by the Company during the applicable time periods specified below
from the issuance and sale (other than to a Subsidiary) of shares of
its Capital Stock (other than Disqualified Stock), or any options,
warrants or other rights to purchase such Capital Stock (other than
Disqualified Stock), other than (x) proceeds received by the
Company pursuant to (I) the exercise of the First Tranche Option,
(II) the sale (but not the exercise) of the Replacement Option, or
(III) the purchase of shares of Capital Stock by holders of the
Securities and the holders of each other Issue of Notes (as defined
in the Company's Consent Solicitation Statement, dated April 14, 1997
and as amended or supplemented through the date of the Third
Supplemental Indenture hereto) in exchange for the consent payment
made to such holders as consideration for such holders providing
their consent to the Proposed Amendments and the Proposed Waivers
contained in the Third Supplemental Indenture, (y) proceeds applied
for use as a Directed Investment (unless such designation has been
revoked by the Board of Directors and the Company either abandons its
plans to make such Investment or is able to make such Investment
pursuant to Section 1009 (other than as a Directed Investment)) and
(z) proceeds which have been included in the computation of the
amounts available for Restricted Payments pursuant to Section
1009(c)(ii) of this Indenture, to the extent the inclusion thereof
was necessary to allow a subsequent Restricted Payment to be made;
and (ii) with respect to Debt Incurred on or after January 1, 2000,
on the date of such Incurrence, after giving effect to the Incurrence
of such Debt (or Acquired Debt) and the receipt and application of
the net proceeds thereof (and, if the net proceeds of such new Debt
are used to acquire a Person that becomes a Restricted Subsidiary or
an operating business of the Company or a Restricted Subsidiary, to
all terms of such acquisition) on a pro forma basis, the Operating
Cash Flow to Consolidated Interest Expense Ratio would equal or
exceed (x) 1.75 to 1 for the period from January 1, 2000 through
June 30, 2000, (y) 2.0 to 1 for the period from July 1, 2000 through
December 31, 2000, and (z) 2.25 to 1 for the period on and after
January 1, 2001; provided, however, that for purposes of calculating
the Debt that may be Incurred under either of the foregoing clauses
(i) or (ii), the amount of any accretions of original issue discount
and accruals of interest (to the extent not overdue for payment) with
respect to any Debt so Incurred shall be excluded from the
determination of the amount of Debt that may be Incurred pursuant to
such calculations. The multiples of net cash proceeds applicable for
purposes of clause (i) shall be as follows for the following
specified time periods:
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<PAGE>
Multiple of
Period during which net cash net cash
proceeds are received proceeds
June 1, 1997 through March 31, 1998 2.25
April 1, 1998 through December 31, 1998 2.00
January 1, 1999 through December 31, 1999 1.75
(k) The first paragraph of Section 1009 of the Indenture is hereby
amended by deleting clause (b) in its entirety and replacing it with the
following:
"(b) after giving effect, on a pro forma basis, to such
Restricted Payment and the Incurrence of any Debt the net proceeds of
which are used to finance such Restricted Payment, then, in the case
of any Restricted Payment described in clause (i), (ii) or (iii)
above, the Consolidated Debt to Annualized Operating Cash Flow
Ratio would not have exceeded 5.0 to 1 and, in the case of any
Restricted Payment described in clause (iv) above, the Company would
be permitted under this Indenture to Incur at least $1 of additional
Debt, other than Permitted Debt; and"
(l) The first paragraph of Section 1009 of the Indenture is hereby
amended by deleting clause (c) in its entirety and replacing it with the
following:
"(c) after giving effect to such Restricted Payment on a pro
forma basis, the aggregate amount of all Restricted Payments made on
or after the date of this Indenture shall not exceed (1) 50% of the
Consolidated Net Income (or, in the case of a Consolidated Net Loss,
minus 100% of such deficit) of the Company for the period (taken as
one accounting period) from April 1, 1994 to the last day of the last
fiscal quarter preceding the date of the proposed Restricted Payment,
plus (2) the aggregate net proceeds, including the fair market value
of property other than cash (as determined by the Board of
Directors, whose good faith determination shall be conclusive and
evidenced by a Board Resolution), received by the Company from the
issuance and sale (other than to a Restricted Subsidiary) on or
after the date of this Indenture of shares of its Capital Stock
(other than Disqualified Stock), or any options, warrants or other
rights to purchase such Capital Stock (other than
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<PAGE>
Disqualified Stock), other than (x) (except for purposes of
determining whether an Investment under clause (iv) above is
permitted) shares of Capital Stock or options, warrants or other
rights to purchase Capital Stock (or shares issuable upon
exercise thereof) issued or sold in the PowerFone Merger,
Questar/AMI Share Exchanges, Motorola Business Acquisition and NTT
transactions described in the Prospectus under "Recent
Developments," and (y) shares of Capital Stock or options, warrants
or other rights to purchase Capital Stock (or shares issuable upon
exercise thereof), the proceeds of the issuance of which is used to
make a Directed Investment (unless such designation has been
revoked by the Board of Directors and the Company is able to make
such Investment pursuant to Section 1009 (other than as a
Directed Investment)), plus (3) the aggregate net proceeds,
including the fair market value of property other than cash (as
determined by the Board of Directors, whose good faith determination
shall be conclusive and evidenced by a Board Resolution), received by
the Company from the issuance or sale (other than to a Restricted
Subsidiary) on or after the date of this Indenture of any Capital
Stock of the Company (other than Disqualified Stock), or any options,
warrants or other rights to purchase such Capital Stock (other than
Disqualified Stock), upon the conversion of, or exchange for, Debt of
the Company or a Restricted Subsidiary."
(m) The first sentence of the second paragraph of Section 1009 of
the Indenture is hereby amended to read in its entirety as follows:
"The foregoing limitations in this Section 1009 do not limit
or restrict the making of any Permitted Distribution, Permitted
Investment or Directed Investment, and none of a Permitted
Distribution, Permitted Investment or Directed Investment shall be
counted as a Restricted Payment for purposes of clause (c) above."
(n) The sixth paragraph of Section 1010 of the Indenture is hereby
amended to read in its entirety as follows:
"The Board of Directors, from time to time, may designate any
Person that is about to become a Subsidiary of the Company as an
Unrestricted Subsidiary, and may designate any newly-created
Subsidiary as an Unrestricted Subsidiary, if at the time such
Subsidiary is created it contains no assets (other than such de
minimis amount of assets then required by law for the formation of
corporations) and no Debt. Subsidiaries of the Company that are not
designated by the Board of Directors as Restricted or Unrestricted
Subsidiaries shall be deemed to be Restricted Subsidiaries.
Notwithstanding any provisions of this Section 1010, all
Subsidiaries of a
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<PAGE>
Restricted Subsidiary shall be Restricted Subsidiaries and all
Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted
Subsidiaries. The Board of Directors shall not change the designation
of a Subsidiary of the Company more than twice in any period of five
years."
ARTICLE 3
SUNDRY PROVISIONS
Section 3.01. Effect of Supplemental Indenture. Upon the execution and
delivery of this Supplemental Indenture by the Company and the Trustee, the
Indenture shall be supplemented in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes,
and every Holder of Securities heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby; provided, however,
that Sections 1.01 and 2.01 hereof shall become operative upon the
satisfaction (or waiver by the Company) of all of the conditions (including,
without limitation, the General Conditions) described and defined in the
Consent Solicitation Statement, dated April 14, 1997 and as amended or
supplemented through the date hereof, that was provided to Holders of
Securities in connection with the Company's solicitation of consents by
such Holders to the Proposed Waivers and the Proposed Amendments.
Section 3.02. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full
force and effect.
Section 3.03. Indenture and Supplemental Indenture Construed Together.
This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
Section 3.04. Confirmation and Preservation of Indenture. The
Indenture as supplemented by this Supplemental Indenture is in all respects
confirmed and preserved.
Section 3.05. Conflict with Trust Indenture Act. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with any provision
of the Trust Indenture Act that is required under such Act to be part of and
govern any provision of this Supplemental Indenture, the provision of such
Act shall control. If any provision of this Supplemental Indenture modifies
or excludes any provision of the Trust Indenture Act that may be so modified
or excluded, the provision of such Act shall be deemed to apply to the
Indenture as so modified or to be excluded by this Supplemental Indenture, as
the case may be.
Section 3.06. Separability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the
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<PAGE>
remaining provisions shall not in any way be affected or impaired thereby.
Section 3.07. Terms Defined in the Indenture. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 3.08. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 3.09. Benefits of Supplemental Indenture, etc. Nothing in this
Supplemental Indenture, the Indenture or the Securities, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of Securities, any benefit
of any legal or equitable right, remedy or claim under the Indenture, this
Supplemental Indenture or the Securities.
Section 3.10. Successors and Assigns. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 3.11. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness.
Section 3.12. Certain Duties and Responsibilities of the Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to
the benefit of every provision of the Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee, whether or
not elsewhere herein so provided.
Section 3.13. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New
York, without regard to the conflicts of law principles thereof.
Section 3.14. Counterparts. This Supplemental Indenture may be
executed in counterparts, each of which, when so executed, shall be deemed to
be an original, but all such counterparts shall together constitute
but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date and year first
above written.
NEXTEL COMMUNICATIONS, INC.
By: /s/Thomas J. Sidman
Title: Vice President
Attest: /s/ Thomas D. Hickey
Title: Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Marie E. Trimboli
Title: Assistant Treasurer
Attest: /s/ Paul Schmazel
Title: Assistant Vice President
ATMAIN02 Doc:189514_3 13 Nextel 2004
EXHIBIT 4.3
NEXTEL COMMUNICATIONS, INC.
and
THE BANK OF NEW YORK,
as Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of June 13, 1997
To
The Indenture Dated as of April 25, 1994
Between Dial Call Communications, Inc. and
The Bank of New York, as Trustee, Relating to
$541,830,000 Aggregate Principal Amount at Maturity
of Senior Redeemable Discount Notes due 2004
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<PAGE>
FOURTH SUPPLEMENTAL INDENTURE
THIS FOURTH SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is
made as of the 13th day of June, 1997, between Nextel Communications, Inc., a
corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and The Bank of New York, a New York banking
corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee heretofore executed and delivered
an Indenture, dated as of April 25, 1994, as heretofore amended (the
"Indenture"); and
WHEREAS, pursuant to the Indenture, the Company issued and the Trustee
authenticated and delivered $541,830,000 aggregate principal amount at maturity
of the Company's Senior Redeemable Discount Notes due 2004 (the "Securities");
and
WHEREAS, the Company has assumed all obligations of Dial Call
Communications, Inc. under the Indenture pursuant to Third Supplemental
Indenture, dated as of January 30, 1996, between the Company and the Trustee;
and
WHEREAS, the Company desires to make certain modifications to the
provisions of the Indenture and to transfer to an Unrestricted Subsidiary all
of the equity interest of Clearnet Communications, Inc. ("Clearnet") that is
held directly by the Company on the date hereof (the "Clearnet Transfer"); and
WHEREAS, Section 902 of the Indenture provides that with the consent
of the Holders of not less than 66 2/3% in principal amount at Stated Maturity
of the Securities at the time Outstanding (the "Requisite Amendment Consents"),
the Company, when authorized by a resolution of its Board of Directors, and the
Trustee may enter into an indenture or indentures supplemental to the Indenture
for the purpose of adding provisions to, changing or eliminating certain
provisions of the Indenture, subject to certain exceptions specified in Section
902 of the Indenture; and
WHEREAS, the Company has obtained the Requisite Amendment Consents to
amend the Indenture in certain respects (the "Proposed Amendments"); and
WHEREAS, Section 1020 of the Indenture provides that with the consent
of Holders of at least 66 2/3% in principal amount at Stated Maturity of the
Securities at the time Outstanding (the "Requisite Waiver Consents"), the
Company may omit to comply with certain provisions of the Indenture; and
WHEREAS, the Company has obtained the Requisite Waiver Consents to
waive compliance with certain provisions of the
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<PAGE>
Indenture in connection with the Clearnet Transfer (the "Proposed Waivers");
and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Company; and
WHEREAS, the Company has delivered, or caused to be delivered, to the
Trustee, an Opinion of Counsel stating that this Supplemental Indenture
complies with the requirements of the Indenture;
NOW, THEREFORE, the Company hereby covenants and agrees with the
Trustee for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE 1
WAIVERS OF CERTAIN PROVISIONS OF INDENTURE
Section 1.01. Waiver of Compliance with Certain Provisions of the
Indenture in Connection With the Clearnet Transfer. Subject to Section 3.01
hereof, compliance by the Company with Section 1009 of the Indenture
(including clause (iv) of the first paragraph thereof), to the extent that
such Section would apply to limit the ability of the Company to transfer all of
the capital stock of Clearnet that is held directly by the Company on the
date hereof to McCaw International, Ltd. ("MIL"), a wholly owned Unrestricted
Subsidiary of the Company, or to any direct or indirect wholly owned subsidiary
of MIL that is designated by MIL as the intended recipient of such equity
interest in Clearnet, is hereby waived. As a result of such waiver, any such
transfer shall not be deemed a Restricted Payment under Section 1009 of the
Indenture.
ARTICLE 2
AMENDMENTS TO CERTAIN PROVISIONS OF INDENTURE
Section 2.01. Amendment of Certain Sections of the Indenture. Subject
to Section 3.01 hereof, the Indenture is hereby amended in the following
respects:
(a) The definition of "Consolidated Interest Expense" contained in
Section 101 of the Indenture is hereby amended to read in its entirety as
follows:
"'Consolidated Interest Expense' of any Person means, for any
period, the aggregate interest expense and fees and other financing
costs in respect of Debt (including amortization of original issue
discount and non-cash interest payments and accruals), the interest
component in respect of Capital Lease Obligations and any deferred
payment obligations of such Person and its Subsidiaries, determined
on a consolidated basis in accordance with generally accepted
accounting principles and all commissions, discounts, other fees and
charges owed with respect to letters of credit and bankers'
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<PAGE>
acceptance financing and net costs associated with interest rate
swap and similar agreements and with foreign currency hedge,
exchange and similar agreements and the amount of dividends paid in
respect of Disqualified Stock."
(b) The definition of "Credit Facility" contained in Section 101 of
the Indenture is hereby amended to read in its entirety as follows:
"'Credit Facility' means any credit facility (whether a term
or revolving type) of the type customarily entered into with
banks, between the Company and/or any of its Restricted
Subsidiaries, on the one hand, and any banks or other lenders, on
the other hand (and any renewals, refundings, extensions or
replacements of any such credit facility), which credit facility is
designated by the Company as a "Credit Facility" for purposes of
this Indenture, to the extent that the aggregate principal balance
of Debt that is Incurred and outstanding under all Credit Facilities
at any time does not exceed $1,905,000,000."
(c) The definition of "Directed Investment" contained in Section 101
of the Indenture is hereby and amended to read in its entirety as follows:
"'Directed Investment' by the Company or any of its Restricted
Subsidiaries means any Investment for which the cash or property used
for such Investment is received by the Company from the issuance and
sale (other than to a Restricted Subsidiary) on or after June 1,
1997 of shares of its Capital Stock (other than Disqualified Stock),
or any options, warrants or other rights to purchase such Capital
Stock (other than Disqualified Stock) designated by the Board of
Directors as a "Directed Investment" to be used for one or more
specified investments in the telecommunications business (including
related activities and services) and is so designated and used at any
time within 365 days after the receipt thereof; provided that the
aggregate amount of any such Directed Investments may not at any
time exceed fifty percent (50%) of the aggregate amount of such cash
or property received by the Company on or after June 1, 1997 from
any such issuance and sale or capital contribution; and provided,
further, that any proceeds from any such issuance or sale may not be
used for such an investment if such proceeds were, prior to being
designated for use as a Directed Investment, (x) used to make a
Restricted Payment or (y) used as the basis for the Incurrence of
Debt under clause (i) of Section 1008 unless and until the amount of
any such Debt (I) is treated as newly issued Debt and could be
Incurred in accordance with clause (ii) of Section 1008 or (II) has
been repaid or refinanced with the proceeds of Debt
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<PAGE>
Incurred in accordance with clause (ii) of Section 1008 or with the
proceeds of Permitted Debt or (III) has otherwise been repaid and, in
the circumstances described in clauses (I) and (II), the Company
delivers to the Trustee a certificate confirming that the
requirements of such clauses have been met."
(d) The definition of "Incur" contained in Section 101 of the
Indenture is hereby amended to read in its entirety as follows:
"'Incur' means, with respect to any Debt or other obligation
of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume (pursuant to a merger, consolidation, acquisition
or other transaction), Guarantee or otherwise become liable in
respect of such Debt or other obligation or the recording, as
required pursuant to generally accepted accounting principles or
otherwise, of any such Debt or other obligation on the balance sheet
of such Person (and "Incurrence", "Incurred", "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing);
provided, however, that a change in generally accepted accounting
principles that results in an obligation of such Person that exists
at such time becoming Debt shall not be deemed an Incurrence of such
Debt; provided further, however, that the accretion of original
issue discount on Debt shall not be deemed to be an Incurrence of
Debt. Debt otherwise Incurred by a Person before it becomes a
Subsidiary of the Company shall be deemed to have been Incurred at
the time it becomes such a Subsidiary."
(e) The definition of "Investment" contained in Section 101 of the
Indenture is hereby amended to read in its entirety as follows:
"'Investment' by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution to (by
means of transfers of cash or other property to others or payments
for property or services for the account or use of others, or
otherwise), or purchase or acquisition of Capital Stock, bonds,
notes, debentures or other securities or evidence of Debt issued by,
any other Person; provided that a transaction will not be an
Investment to the extent it involves (i) an Asset Disposition, (ii)
the issuance or sale by the Company of its Capital Stock (other than
Disqualified Stock), including options, warrants or other rights to
acquire such Capital Stock (other than Disqualified Stock) or (iii)
a transfer, assignment or contribution by the Company of shares of
Capital Stock (or any options, warrants or rights to acquire Capital
Stock), or all or substantially all of the assets of, any
Unrestricted
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<PAGE>
Subsidiary of the Company to another Unrestricted Subsidiary of the
Company."
(f) The definitions of "Motorola Agreements" and "Northern
Telecom Agreements" contained in Section 101 of the Indenture are hereby
deleted, and the phrase "a Motorola Agreement or a Northern Telecom
Agreement" contained in clause (iii) of the definition of "Permitted Lien"
is hereby deleted and replaced with the phrase "a Vendor Financing
Agreement."
(g) The definition of "Nextel 2004 Indenture" contained in Section
101 of the Indenture is hereby amended to read in its entirety as follows:
"'Nextel 2004 Indenture' means the indenture, dated as of
February 15, 1994, as amended by the First, Second and Third
Supplemental Indentures, between the Company and The Bank of New
York, as trustee, relating to the Senior Redeemable Discount Notes
due 2004 issued by NEXTEL Communications, Inc."
(h) The definition of "Permitted Debt" contained in Section 101 of
the Indenture is hereby amended to read in its entirety as follows:
"'Permitted Debt' means (i) any Debt Incurred under a Vendor
Financing Agreement; (ii) (A) any other Debt (including Guarantees
thereof) outstanding on February 15, 1994 (including Debt represented
by the Nextel Notes), (B) any Debt (including Guarantees thereof)
of OneComm Corporation and its Subsidiaries outstanding on July 28,
1995 (including the OneComm Notes), and (C) any Debt (including
Guarantees thereof) of Dial Page, Inc. and its Subsidiaries
outstanding on January 30, 1996 (including the Securities and the
Dial Call 2005 Notes), and any accretions of original issue
discount and accruals of interest with respect to any Debt described
in this clause (ii) and with respect to any refinancings of such
Debt; (iii) any Debt (other than Debt described in clause (i) or
(ii) above) that does not, at any time outstanding, exceed $5.00 per
POP, if the net proceeds of such Debt are invested exclusively in
the telecommunications business (including related activities and
services) conducted by the Company and its Restricted Subsidiaries,
including related capital expenditure and working capital
requirements; (iv) any Debt outstanding under a Credit Facility;
and (v) renewals, refundings or extensions of any Debt referred to in
clause (ii) above or Incurred pursuant to the provisions of Section
1008, plus (A) the amount of any premium reasonably determined by the
Company as necessary to accomplish such renewal, refunding or
extension and (B) such other fees and expenses of the Company
reasonably incurred in connection with the
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<PAGE>
renewal, refunding or extension, provided that such renewal,
refunding or extension shall constitute Permitted Debt only (a) to
the extent that it does not result in an increase in the aggregate
principal amount (or, if such Debt provides for an amount less than
the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof, in an amount not greater
than such lesser amount) of such Debt (except as permitted by clause
(A) or (B) above), (b) to the extent such renewed, refunded or
extended Debt does not require the payment of all or a portion of the
principal thereof (whether pursuant to repurchase, redemption,
repayment, defeasance, retirement, sinking fund payment, payment at
stated maturity or otherwise) prior to the final stated maturity of
the Debt being renewed, refunded or extended and (c) if the Debt
to be so renewed, refunded or extended is Debt of the Company that is
subordinate in right of payment to the Securities, then the new Debt
is subordinated in right of payment to the Securities on
subordination terms no less favorable to the Holders of the
Securities in their capacities as such than the subordination
terms (or other arrangement) applicable to the Debt to be renewed,
refunded or extended; provided, however, that in no event shall the
aggregate amount of Debt that is Incurred and outstanding under
clauses (i), (iii) and (iv) at any time exceed $1,910,000,000;
provided further, however, that no Debt that is represented by
unsecured notes originally issued by the Company on or after June 1,
1997 and ranking pari passu with the Securities ("New Notes") shall
be Incurred under clause (iii) above, unless the amount of Debt
represented by the issue of New Notes could have been Incurred,
on or after June 1, 1997, pursuant to the provisions of Section
1008."
(i) Section 101 of the Indenture is hereby amended to add the
following definitions at the appropriate places in such section:
"'First Tranche Option' means the option, exercisable on or
before 6:00 p.m. local time in New York, New York on July 28,
1997 by Digital Radio, L.L.C., for the purchase of an aggregate of up
to 15,000,000 shares of common stock of the Company (as such number
may be adjusted pursuant to the terms of the option) at an exercise
price of $15.50 per share (as such price may be adjusted pursuant
to the terms of the option), granted by the Company under the Option
Agreement (First Tranche) by and between Digital Radio, L.L.C. and
the Company, dated as of July 28, 1995."
"'Operating Cash Flow to Consolidated Interest Expense Ratio'
means, as at any date of determination, the ratio of (i) the
Operating Cash Flow of the Company for the most recently completed
fiscal quarter of the
<PAGE>
Company to (ii) the Consolidated Interest Expense of the Company and
its Restricted Subsidiaries for the most recently completed fiscal
quarter of the Company."
"'Replacement Option' means the option to purchase 25,000,000
shares of common stock of the Company, originally issued to an
affiliate of Craig O. McCaw, exercisable at any time through July 28,
1998, as described in the Company's Consent Solicitation Statement
dated April 14, 1997, as amended or supplemented through the date of
the Fourth Supplemental Indenture hereto."
"'Vendor Financing Agreement' means any agreement pursuant to
which the Company or any of its Restricted Subsidiaries incurs, or
may incur, Vendor Financing Debt (including any renewals,
refinancings, extensions or replacements of such Vendor Financing
Debt), to the extent that the aggregate principal balance of Vendor
Financing Debt that is Incurred and outstanding under all Vendor
Financing Agreements at any time does not exceed $850,000,000."
"'Vendor Financing Debt' means any Debt owed to (i) a vendor
or supplier of any property or materials used by the Company or
its Restricted Subsidiaries in their telecommunications business,
(ii) any Affiliate of such a vendor or supplier, (iii) any assignee
of such a vendor, supplier or Affiliate of such a vendor or supplier,
or (iv) a bank or other financial institution that has financed or
refinanced the purchase of such property or materials from such a
vendor, supplier, Affiliate of such a vendor or supplier or assignee
of such a vendor or supplier; provided that the aggregate amount
of such Debt does not exceed the sum of (w) the purchase price of
such property or materials (including transportation, installation,
warranty and testing charges, as well as applicable taxes paid,
in respect of such property or materials), (x) the cost of design,
development, site acquisition and construction, (y) any interest or
other financing costs accruing or otherwise payable in respect of the
foregoing, and (z) the cost of any services provided by such vendor,
supplier or Affiliate of such vendor or supplier."
(j) All references to "Consolidated Debt to Annualized Operating Cash
Flow Ratio" contained in the definition of "Operating Cash Flow" in Section
101 of the Indenture are hereby deleted and replaced with the term
"Operating Cash Flow to Consolidated Interest Expense Ratio."
(k) The first paragraph of Section 801 of the Indenture is hereby
amended by adding the following proviso at the end of such paragraph:
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<PAGE>
"provided, however, that the foregoing requirements shall not
apply to any transaction or series of transactions involving the
sale, assignment, conveyance, transfer, lease or other disposition of
the properties and assets substantially as an entirety by any Wholly
Owned Restricted Subsidiary to any other Wholly Owned Restricted
Subsidiary, or the merger or consolidation of any Wholly Owned
Restricted Subsidiary with or into any other Wholly Owned Restricted
Subsidiary."
(l) The text of Section 1008 of the Indenture is hereby deleted and
amended to read in its entirety as follows:
"The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur any Debt (including Acquired Debt), other than
Permitted Debt, unless, (i) with respect to Debt Incurred on or
prior to December 31, 1999, the Debt so Incurred is in an aggregate
amount that does not exceed the multiples specified below of the
aggregate amount of net cash proceeds received by the Company during
the applicable time periods specified below from the issuance and
sale (other than to a Subsidiary) of shares of its Capital Stock
(other than Disqualified Stock), or any options, warrants or other
rights to purchase such Capital Stock (other than Disqualified
Stock), other than (x) proceeds received by the Company pursuant to
(I) the exercise of the First Tranche Option, (II) the sale (but not
the exercise) of the Replacement Option, or (III) the purchase of
shares of Capital Stock by holders of the Securities and the holders
of each other Issue of Notes (as defined in the Company's Consent
Solicitation Statement, dated April 14, 1997 and as amended or
supplemented through the date of the Fourth Supplemental Indenture
hereto) in exchange for the consent payment made to such holders as
consideration for such holders providing their consent to the
Proposed Amendments and the Proposed Waivers contained in the Third
Supplemental Indenture, (y) proceeds applied for use as a Directed
Investment (unless such designation has been revoked by the Board of
Directors and the Company either abandons its plans to make such
Investment or is able to make such Investment pursuant to Section
1009 (other than as a Directed Investment)) and (z) proceeds
which have been included in the computation of the amounts available
for Restricted Payments pursuant to Section 1009(c)(ii) of the Nextel
2004 Indenture, to the extent the inclusion thereof was necessary to
allow a subsequent Restricted Payment to be made; and (ii) with
respect to Debt Incurred on or after January 1, 2000, on the date of
such Incurrence, after giving effect to the Incurrence of such Debt
(or Acquired Debt) and the receipt and application of the net
proceeds thereof (and, if the net proceeds of such new Debt are used
to acquire a Person that becomes a Restricted Subsidiary or an
operating business of the
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<PAGE>
Company or a Restricted Subsidiary, to all terms of such acquisition)
on a pro forma basis, the Operating Cash Flow to Consolidated
Interest Expense Ratio would equal or exceed (x) 1.75 to 1 for the
period from January 1, 2000 through June 30, 2000, (y) 2.0 to 1
for the period from July 1, 2000 through December 31, 2000, and (z)
2.25 to 1 for the period on and after January 1, 2001; provided,
however, that for purposes of calculating the Debt that may be
Incurred under either of the foregoing clauses (i) or (ii), the
amount of any accretions of original issue discount and accruals of
interest (to the extent not overdue for payment) with respect to any
Debt so Incurred shall be excluded from the determination of the
amount of Debt that may be Incurred pursuant to such calculations.
The multiples of net cash proceeds applicable for purposes of
clause (i) shall be as follows for the following specified time
periods:
Multiple of
Period during which net cash net cash
prodeeds are received prodeeds
June 1, 1997 through March 31, 1998 2.25
April 1, 1998 through December 31, 1998 2.00
January 1, 1999 through December 31, 1999 1.75
(m) The first paragraph of Section 1010 of the Indenture is hereby
amended by deleting clause (b) in its entirety and replacing it with the
following:
"(b) after giving effect, on a pro forma basis, to such
Restricted Payment and the Incurrence of any Debt the net proceeds
of which are used to finance such Restricted Payment, then, in the
case of any Restricted Payment described in clause (i), (ii) or (iii)
above, the Consolidated Debt to Annualized Operating Cash Flow Ratio
would not have exceeded 5.0 to 1 and, in the case of any Restricted
Payment described in clause (iv) above, the Company would be
permitted under this Indenture to Incur at least $1 of additional
Debt, other than Permitted Debt; and"
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<PAGE>
(n) The sixth paragraph of Section 1010 of the Indenture is hereby
amended to read in its entirety as follows:
"The Board of Directors, from time to time, may designate any
Person that is about to become a Subsidiary of the Company as an
Unrestricted Subsidiary, and may designate any newly-created
Subsidiary as an Unrestricted Subsidiary, if at the time such
Subsidiary is created it contains no assets (other than such de
minimis amount of assets then required by law for the formation of
corporations) and no Debt. Subsidiaries of the Company that are not
designated by the Board of Directors as Restricted or Unrestricted
Subsidiaries shall be deemed to be Restricted Subsidiaries.
Notwithstanding any provisions of this Section 1010, all Subsidiaries
of a Restricted Subsidiary shall be Restricted Subsidiaries and all
Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted
Subsidiaries. The Board of Directors shall not change the designation
of a Subsidiary of the Company more than twice in any period of five
years."
ARTICLE 3
SUNDRY PROVISIONS
Section 3.01. Effect of Supplemental Indenture. Upon the execution and
delivery of this Supplemental Indenture by the Company and the Trustee, the
Indenture shall be supplemented in accordance herewith, and this Supplemental
Indenture shall form a part of the Indenture for all purposes, and every
Holder of Securities heretofore or hereafter authenticated and delivered under
the Indenture shall be bound thereby; provided, however, that Sections 1.01 and
2.01 hereof shall become operative upon the satisfaction (or waiver by the
Company) of all of the conditions (including, without limitation, the General
Conditions) described and defined in the Consent Solicitation Statement, dated
April 14, 1997 and as amended or supplemented through the date hereof, that was
provided to Holders of Securities in connection with the Company's
solicitation of consents by such Holders to the Proposed Waivers and the
Proposed Amendments.
Section 3.02. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 3.03. Indenture and Supplemental Indenture Construed Together.
This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
Section 3.04. Confirmation and Preservation of Indenture. The
Indenture as supplemented by this Supplemental Indenture is in all respects
confirmed and preserved.
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<PAGE>
Section 3.05. Conflict with Trust Indenture Act. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with any provision
of the Trust Indenture Act that is required under such Act to be part of and
govern any provision of this Supplemental Indenture, the provision of such
Act shall control. If any provision of this Supplemental Indenture modifies
or excludes any provision of the Trust Indenture Act that may be so modified
or excluded, the provision of such Act shall be deemed to apply to the
Indenture as so modified or to be excluded by this Supplemental Indenture,
as the case may be.
Section 3.06. Separability Clause. In case any provision in this
Supplemental Indenture 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 3.07. Terms Defined in the Indenture. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 3.08. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 3.09. Benefits of Supplemental Indenture, etc. Nothing in this
Supplemental Indenture, the Indenture or the Securities, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of Securities, any benefit
of any legal or equitable right, remedy or claim under the Indenture, this
Supplemental Indenture or the Securities.
Section 3.10. Successors and Assigns. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 3.11. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness.
Section 3.12. Certain Duties and Responsibilities of the Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee, whether or
not elsewhere herein so provided.
Section 3.13. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflicts of law principles thereof.
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Section 3.14. Counterparts. This Supplemental Indenture may be
executed in counterparts, each of which, when so executed, shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date and year first
above written.
NEXTEL COMMUNICATIONS, INC.
By: /s/Thomas J. Sidma
Title: Vice President
Attest: /s/ Thomas D. Hickey
Title: Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Marie E. Trimboli
Title: Assistant Treasurer
Attest: /s/ Paul Schmazel
Title: Assistant Vice President
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EXHIBIT 4.4
NEXTEL COMMUNICATIONS, INC.
and
THE BANK OF NEW YORK,
as Trustee
FIFTH SUPPLEMENTAL INDENTURE
Dated as of June 13, 1997
To
The Indenture Dated as of December 22, 1993
Between Dial Call Communications, Inc. and
The Bank of New York, as Trustee, Relating to
$115,165,000 Aggregate Principal Amount at Maturity
of Senior Redeemable Discount Notes due 2005
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<PAGE>
FIFTH SUPPLEMENTAL INDENTURE
THIS FIFTH SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is
made as of the 13th day of June, 1997, between Nextel Communications, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and The Bank of New York, a New York banking corporation, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee heretofore executed and
delivered an Indenture, dated as of December 22, 1993, as heretofore amended
(the "Indenture"); and
WHEREAS, pursuant to the Indenture, the Company issued and the
Trustee authenticated and delivered $115,165,000 aggregate principal amount at
maturity of the Company's Senior Redeemable Discount Notes due 2005 (the
"Securities"); and
WHEREAS, the Company has assumed all obligations of Dial Call
Communications, Inc. under the Indenture pursuant to the Fourth Supplemental
Indenture, dated as of January 30, 1996, between the Company and the Trustee;
and
WHEREAS, the Company desires to make certain modifications to the
provisions of the Indenture and to transfer to an Unrestricted Subsidiary all
of the equity interest of Clearnet Communications, Inc. ("Clearnet") that is
held directly by the Company on the date hereof (the "Clearnet Transfer"); and
WHEREAS, Section 902 of the Indenture provides that with the consent
of the Holders of not less than a majority in principal amount at Stated
Maturity of the Securities at the time Outstanding (the "Requisite Amendment
Consents"), the Company, when authorized by a resolution of its Board of
Directors, and the Trustee may enter into an indenture or indentures
supplemental to the Indenture for the purpose of adding provisions to,
changing or eliminating certain provisions of the Indenture, subject to
certain exceptions specified in Section 902 of the Indenture; and
WHEREAS, the Company has obtained the Requisite Amendment Consents to
amend the Indenture in certain respects (the "Proposed Amendments"); and
WHEREAS, Section 1021 of the Indenture provides that with the consent
of Holders of at least a majority in principal amount at Stated Maturity of the
Securities at the time Outstanding (the "Requisite Waiver Consents"), the
Company may omit to comply with certain provisions of the Indenture; and
WHEREAS, the Company has obtained the Requisite Waiver Consents
to waive compliance with certain provisions of the
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<PAGE>
Indenture in connection with the Clearnet Transfer (the "Proposed Waivers");
and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Company; and
WHEREAS, the Company has delivered, or caused to be delivered, to the
Trustee, an Opinion of Counsel stating that this Supplemental Indenture
complies with the requirements of the Indenture;
NOW, THEREFORE, the Company hereby covenants and agrees with the
Trustee for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE 1
WAIVERS OF CERTAIN PROVISIONS OF INDENTURE
Section 1.01. Waiver of Compliance with Certain Provisions of the
Indenture in Connection With the Clearnet Transfer. Subject to Section 3.01
hereof, compliance by the Company with Section 1010 of the Indenture
(including clause (iv) of the first paragraph thereof), to the extent that such
Section would apply to limit the ability of the Company to transfer all of the
capital stock of Clearnet that is held directly by the Company on the date
hereof to McCaw International, Ltd. ("MIL"), a wholly owned Unrestricted
Subsidiary of the Company, or to any direct or indirect wholly owned subsidiary
of MIL that is designated by MIL as the intended recipient of such equity
interest in Clearnet, is hereby waived. As a result of such waiver, any such
transfer shall not be deemed a Restricted Payment under Section 1010 of the
Indenture.
ARTICLE 2
AMENDMENTS TO CERTAIN PROVISIONS OF INDENTURE
Section 2.01. Amendment of Certain Sections of the Indenture. Subject
to Section 3.01 hereof, the Indenture is hereby amended in the following
respects:
(a) The definition of "Consolidated Interest Expense" contained in
Section 101 of the Indenture is hereby amended to read in its entirety as
follows:
"'Consolidated Interest Expense' of any Person means, for any
period, the aggregate interest expense and fees and other financing
costs in respect of Debt(including amortization of original issue
discount and non-cash interest payments and accruals), the interest
component in respect of Capital Lease Obligations and any deferred
payment obligations of such Person and its Subsidiaries, determined
on a consolidated basis in accordance with generally accepted
accounting principles and all commissions, discounts, other fees and
charges owed with respect to letters of credit and bankers'
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<PAGE>
acceptance financing and net costs associated with interest rate
swap and similar agreements and with foreign currency hedge, exchange
and similar agreements and the amount of dividends paid in respect of
Disqualified Stock."
(b) The definition of "Credit Facility" contained in Section 101 of
the Indenture is hereby amended to read in its entirety as follows:
"'Credit Facility' means any credit facility (whether a term
or revolving type) of the type customarily entered into with banks,
between the Company and/or any of its Restricted Subsidiaries, on the
one hand, and any banks or other lenders, on the other hand (and any
renewals, refundings, extensions or replacements of any such credit
facility), which credit facility is designated by the Company as a
"Credit Facility" for purposes of this Indenture, to the extent that
the aggregate principal balance of Debt that is Incurred and
outstanding under all Credit Facilities at any time does not exceed
$1,905,000,000."
(c) The definition of "Directed Investment" contained in Section 101
of the Indenture is hereby amended to read in its entirety as follows:
"'Directed Investment' by the Company or any of its Restricted
Subsidiaries means any Investment for which the cash or property
used for such Investment is received by the Company from the issuance
and sale (other than to a Restricted Subsidiary) on or after June 1,
1997 of shares of its Capital Stock (other than Disqualified Stock),
or any options, warrants or other rights to purchase such Capital
Stock (other than Disqualified Stock) designated by the Board of
Directors as a "Directed Investment" to be used for one or more
specified investments in the telecommunications business (including
related activities and services) and is so designated and used at any
time within 365 days after the receipt thereof; provided that the
aggregate amount of Directed Investments may not at any time exceed
fifty percent (50%) of the aggregate amount of such cash or property
received by the Company on or after June 1, 1997 from any such
issuance and sale or capital contribution; and provided, further,
that any proceeds from any such issuance or sale may not be used for
such an investment if such proceeds were, prior to being designated
for use as a Directed Investment, (x) used to make a Restricted
Payment or (y) used as the basis for the Incurrence of Debt under
clause (i) of Section 1008 unless and until the amount of any such
Debt (I) is treated as newly issued Debt and could be Incurred in
accordance with clause (ii) of Section 1008 or (II) has been repaid
or refinanced with the proceeds of Debt Incurred in
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<PAGE>
accordance with clause (ii) of Section 1008 or with the proceeds
of Permitted Debt or (III) has otherwise been repaid and, in the
circumstances described in clauses (I) and (II), the Company
delivers to the Trustee a certificate confirming that the
requirements of such clauses have been met."
(d) The definition of "Incur" contained in Section 101 of the
Indenture is hereby amended to read in its entirety as follows:
"'Incur' means, with respect to any Debt or other obligation
of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume (pursuant to a merger, consolidation, acquisition
or other transaction), Guarantee or otherwise become liable in
respect of such Debt or other obligation or the recording, as
required pursuant to generally accepted accounting principles or
otherwise, of any such Debt or other obligation on the balance sheet
of such Person (and "Incurrence", "Incurred", "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing);
provided, however, that a change in generally accepted accounting
principles that results in an obligation of such Person that exists
at such time becoming Debt shall not be deemed an Incurrence of such
Debt; provided further, however, that the accretion of original issue
discount on Debt shall not be deemed to be an Incurrence of Debt.
Debt otherwise Incurred by a Person before it becomes a Subsidiary
of the Company shall be deemed to have been Incurred at the time it
becomes such a Subsidiary."
(e) The definition of "Investment" contained in Section 101 of the
Indenture is hereby amended to read in its entirety as follows:
"'Investment' by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution to (by
means of transfers of cash or other property to others or payments
for property or services for the account or use of others, or
otherwise), or purchase or acquisition of Capital Stock, bonds,
notes, debentures or other securities or evidence of Debt issued by,
any other Person; provided that a transaction will not be an
Investment to the extent it involves (i) an Asset Disposition,
(ii) the issuance or sale by the Company of its Capital Stock (other
than Disqualified Stock), including options, warrants or other rights
to acquire such Capital Stock (other than Disqualified Stock) or
(iii) a transfer, assignment or contribution by the Company of
shares of Capital Stock (or any options, warrants or rights to
acquire Capital Stock), or all or substantially all of the assets
of, any Unrestricted
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<PAGE>
Subsidiary of the Company to another Unrestricted Subsidiary of the
Company."
(f) The definitions of "Motorola Agreements" and "Northern Telecom
Agreements" contained in Section 101 of the Indenture are hereby deleted,
and the phrase "a Motorola Agreement or a Northern Telecom Agreement"
contained in clause (iii) of the definition of "Permitted Lien" is hereby
deleted and replaced with the phrase "a Vendor Financing Agreement."
(g) The definition of "Nextel 2004 Indenture" contained in Section
101 of the Indenture is hereby amended to read in its entirety as follows:
"'Nextel 2004 Indenture' means the indenture, dated as of
February 15, 1994, as amended by the First, Second and Third
Supplemental Indentures, between the Company and The Bank of New
York, as trustee, relating to the Senior Redeemable Discount Notes
due 2004 issued by NEXTEL Communications, Inc."
(h) The definition of "Permitted Debt" contained in Section 101 of
the Indenture is hereby amended to read in its entirety as follows:
"'Permitted Debt' means (i) any Debt Incurred under a Vendor
Financing Agreement; (ii) (A) any other Debt (including Guarantees
thereof) outstanding on February 15, 1994 (including Debt represented
by the Nextel Notes, (B) any Debt (including Guarantees thereof) of
OneComm Corporation and its Subsidiaries outstanding on July 28, 1995
(including the OneComm Notes), and (C) any Debt (including Guarantees
thereof) of Dial Page, Inc. and its Subsidiaries outstanding on
January 30, 1996 (including the Securities and the Dial Call 2004
Notes), and any accretions of original issue discount and
accruals of interest with respect to any Debt described in this
clause (ii) and with respect to any refinancings of such Debt; (iii)
any Debt (other than Debt described in clause (i) or (ii) above) that
does not, at any time outstanding, exceed $5.00 per POP, if the net
proceeds of such Debt are invested exclusively in the
telecommunications business (including related activities and
services) conducted by the Company and its Restricted Subsidiaries,
including related capital expenditure and working capital
requirements; (iv) any Debt outstanding under a Credit Facility; and
(v) renewals, refundings or extensions of any Debt referred to in
clause (ii) above or Incurred pursuant to the provisions of Section
1008, plus (A) the amount of any premium reasonably determined by
the Company as necessary to accomplish such renewal, refunding or
extension and (B) such other fees and expenses of the Company
reasonably incurred in connection with the renewal, refunding or
extension, provided that such renewal, refunding or extension shall
constitute
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<PAGE>
Permitted Debt only (a) to the extent that it does not result in an
increase in the aggregate principal amount (or, if such Debt provides
for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof,
in an amount not greater than such lesser amount) of such Debt
(except as permitted by clause (A) or (B) above), (b) to the extent
such renewed, refunded or extended Debt does not require the payment
of all or a portion of the principal thereof (whether pursuant to
repurchase, redemption, repayment, defeasance, retirement, sinking
fund payment, payment at stated maturity or otherwise) prior to the
final stated maturity of the Debt being renewed, refunded or extended
and (c) if the Debt to be so renewed, refunded or extended is Debt of
the Company that is subordinate in right of payment to the
Securities, then the new Debt is subordinated in right of payment to
the Securities on subordination terms no less favorable to the
Holders of the Securities in their capacities as such than the
subordination terms (or other arrangement) applicable to the Debt
to be renewed, refunded or extended; provided, however, that in no
event shall the aggregate amount of Debt that is Incurred and
outstanding under clauses (i), (iii) and (iv) at any time exceed
$1,910,000,000; provided further, however, that no Debt that is
represented by unsecured notes originally issued by the Company on or
after June 1, 1997 and ranking pari passu with the Securities ("New
Notes") shall be Incurred under clause (iii) above, unless the
amount of Debt represented by the issue of New Notes could have
been Incurred, on or after June 1, 1997, pursuant to the provisions
of Section 1008."
(i) Section 101 of the Indenture is hereby amended to add the
following definitions at the appropriate places in such section:
"'First Tranche Option' means the option, exercisable on or
before 6:00 p.m. local time in New York, New York on July 28, 1997
by Digital Radio, L.L.C., for the purchase of an aggregate of up to
15,000,000 shares of common stock of the Company (as such number may
be adjusted pursuant to the terms of the option) at an exercise
price of $15.50 per share (as such price may be adjusted pursuant
to the terms of the option), granted by the Company under the
Option Agreement (First Tranche) by and between Digital Radio, L.L.C.
and the Company, dated as of July 28, 1995."
"'Operating Cash Flow to Consolidated Interest Expense Ratio'
means, as at any date of determination, the ratio of (i) the
Operating Cash Flow of the Company for the most recently completed
fiscal quarter of the Company to (ii) the Consolidated Interest
Expense of the
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<PAGE>
Company and its Restricted Subsidiaries for the most recently
completed fiscal quarter of the Company."
"'Replacement Option' means the option to purchase 25,000,000
shares of common stock of the Company, originally issued to an
affiliate of Craig O. McCaw, exercisable at any time through July
28, 1998, as described in the Company's Consent Solicitation
Statement dated April 14, 1997, as amended or supplemented through
the date of the Fifth Supplemental Indenture hereto."
"'Vendor Financing Agreement' means any agreement pursuant to
which the Company or any of its Restricted Subsidiaries incurs, or
may incur, Vendor Financing Debt (including any renewals,
refinancings, extensions or replacements of such Vendor Financing
Debt), to the extent that the aggregate principal balance of Vendor
Financing Debt that is Incurred and outstanding under all Vendor
Financing Agreements at any time does not exceed $850,000,000."
"'Vendor Financing Debt' means any Debt owed to (i) a vendor
or supplier of any property or materials used by the Company or its
Restricted Subsidiaries in their telecommunications business, (ii)
any Affiliate of such a vendor or supplier, (iii) any assignee of
such a vendor, supplier or Affiliate of such a vendor or supplier, or
(iv) a bank or other financial institution that has financed or
refinanced the purchase of such property or materials from such a
vendor, supplier, Affiliate of such a vendor or supplier or assignee
of such a vendor or supplier; provided that the aggregate amount of
such Debt does not exceed the sum of (w) the purchase price of such
property or materials (including transportation, installation,
warranty and testing charges, as well as applicable taxes paid,
in respect of such property or materials), (x) the cost of design,
development, site acquisition and construction, (y) any interest or
other financing costs accruing or otherwise payable in respect of the
foregoing, and (z) the cost of any services provided by such vendor,
supplier or Affiliate of such vendor or supplier."
(j) All references to "Consolidated Debt to Annualized Operating Cash
Flow Ratio" contained in the definition of "Operating Cash Flow" in Section
101 of the Indenture are hereby deleted and replaced with the term
"Operating Cash Flow to Consolidated Interest Expense Ratio."
(k) The first paragraph of Section 801 of the Indenture is hereby
amended by adding the following proviso at the end of such paragraph:
"provided, however, that the foregoing requirements shall not
apply to any transaction or series of transactions
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<PAGE>
involving the sale, assignment, conveyance, transfer, lease or
other disposition of the properties and assets substantially as an
entirety by any Wholly Owned Restricted Subsidiary to any other
Wholly Owned Restricted Subsidiary, or the merger or consolidation
of any Wholly Owned Restricted Subsidiary with or into any other
Wholly Owned Restricted Subsidiary."
(l) The text of Section 1008 of the Indenture is hereby deleted and
amended to read in its entirety as follows:
"The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur any Debt (including Acquired Debt), other than
Permitted Debt, unless, (i) with respect to Debt Incurred on or
prior to December 31, 1999, the Debt so Incurred is in an aggregate
amount that does not exceed the multiples specified below of the
aggregate amount of net cash proceeds received by the Company during
the applicable time periods specified below from the issuance
and sale (other than to a Subsidiary) of shares of its Capital Stock
(other than Disqualified Stock), or any options, warrants or other
rights to purchase such Capital Stock (other than Disqualified
Stock), other than (x) proceeds received by the Company pursuant
to (I) the exercise of the First Tranche Option, (II) the sale (but
not the exercise) of the Replacement Option, or (III) the purchase of
shares of Capital Stock by holders of the Securities and the
holders of each other Issue of Notes (as defined in the
Company's Consent Solicitation Statement, dated April 14, 1997 and
as amended or supplemented through the date of the Fifth
Supplemental Indenture hereto) in exchange for the consent payment
made to such holders as consideration for such holders providing
their consent to the Proposed Amendments and the Proposed Waivers
contained in the Third Supplemental Indenture, (y) proceeds applied
for use as a Directed Investment (unless such designation has been
revoked by the Board of Directors and the Company either abandons
its plans to make such Investment or is able to make such
Investment pursuant to Section 1010 (other than as a Directed
Investment)) and (z) proceeds which have been included in the
computation of the amounts available for Restricted Payments
pursuant to Section 1009(c)(ii) of the Nextel 2004 Indenture, to
the extent the inclusion thereof was necessary to allow a
subsequent Restricted Payment to be made; and (ii) with respect
to Debt Incurred on or after January 1, 2000, on the date of such
Incurrence, after giving effect to the Incurrence of such Debt (or
Acquired Debt) and the receipt and application of the net proceeds
thereof (and, if the net proceeds of such new Debt are used to
acquire a Person that becomes a Restricted Subsidiary or an
operating business of the Company or a Restricted Subsidiary, to
all terms of such acquisition) on a pro forma basis, the Operating
Cash
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<PAGE>
Flow to Consolidated Interest Expense Ratio would equal or exceed
(x) 1.75 to 1 for the period from January 1, 2000 through June 30,
2000, (y) 2.0 to 1 for the period from July 1, 2000 through December
31, 2000, and (z) 2.25 to 1 for the period on and after January 1,
2001; provided, however, that for purposes of calculating the Debt
that may be Incurred under either of the foregoing clauses (i) or
(ii), the amount of any accretions of original issue discount and
accruals of interest (to the extent not overdue for payment) with
respect to any Debt so Incurred shall be excluded from the
determination of the amount of Debt that may be Incurred pursuant to
such calculations. The multiples of net cash proceeds applicable for
purposes of clause (i) shall be as follows for the following
specified time periods:
Multiple of
Period during which net cash net cash
proceeds are received proceeds
June 1, 1997 through March 31, 1998 2.25
April 1, 1998 through December 31, 1998 2.00
January 1, 1999 through December 31, 1999 1.75
(m)The first paragraph of Section 1010 of the Indenture is hereby
amended by deleting clause (b) in its entirety and replacing it with the
following:
"(b) after giving effect, on a pro forma basis, to such
Restricted Payment and the Incurrence of any Debt the net proceeds
of which are used to finance such Restricted Payment, then, in
the case of any Restricted Payment described in clause (i), (ii) or
(iii) above, the Consolidated Debt to Annualized Operating Cash
Flow Ratio would not have exceeded 5.0 to 1 and, in the case of
any Restricted Payment described in clause (iv) above, the Company
would be permitted under this Indenture to Incur at least $1 of
additional Debt, other than Permitted Debt; and"
(n) The sixth paragraph of Section 1011 of the Indenture is hereby
amended to read in its entirety as follows:
"The Board of Directors, from time to time, may designate any
Person that is about to become a Subsidiary of the Company as an
Unrestricted Subsidiary, and may
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<PAGE>
designate any newly-created Subsidiary as an Unrestricted
Subsidiary, if at the time such Subsidiary is created
it contains no assets (other than such de minimis amount
of assets then required by law for the formation of
corporations) and no Debt. Subsidiaries of the Company that are not
designated by the Board of Directors as Restricted or Unrestricted
Subsidiaries shall be deemed to be Restricted Subsidiaries.
Notwithstanding any provisions of this Section 1011, all
Subsidiaries of a Restricted Subsidiary shall be Restricted
Subsidiaries and all Subsidiaries of an Unrestricted Subsidiary shall
be Unrestricted Subsidiaries. The Board of Directors shall
not change the designation of a Subsidiary of the Company more than
twice in any period of five years."
ARTICLE 3
SUNDRY PROVISIONS
Section 3.01. Effect of Supplemental Indenture. Upon the execution
and delivery of this Supplemental Indenture by the Company and the Trustee,
the Indenture shall be supplemented in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes,
and every Holder of Securities heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby; provided, however,
that Sections 1.01 and 2.01 hereof shall become operative upon the
satisfaction (or waiver by the Company) of all of the conditions (including,
without limitation, the General Conditions) described and defined in the
Consent Solicitation Statement, dated April 14, 1997 and as amended or
supplemented through the date hereof, that was provided to Holders of
Securities in connection with the Company's solicitation of consents by
such Holders to the Proposed Waivers and the Proposed Amendments.
Section 3.02. Indenture Remains in Full Force and Effect.
Except as supplemented hereby, all provisions in the Indenture shall remain in
full force and effect.
Section 3.03. Indenture and Supplemental Indenture Construed
Together. This Supplemental Indenture is an indenture supplemental to and
in implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
Section 3.04. Confirmation and Preservation of Indenture. The
Indenture as supplemented by this Supplemental Indenture is in all respects
confirmed and preserved.
Section 3.05. Conflict with Trust Indenture Act. If any
provision of this Supplemental Indenture limits, qualifies or conflicts
with any provision of the Trust Indenture Act that is required under such Act
to be part of and govern any provision of this Supplemental Indenture, the
provision of such Act shall control. If any provision of this Supplemental
Indenture modifies
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<PAGE>
or excludes any provision of the Trust Indenture Act that may be so modified
or excluded, the provision of such Act shall be deemed to apply to the
Indenture as so modified or to be excluded by this Supplemental Indenture,
as the case may be.
Section 3.06. Separability Clause. In case any provision in this
Supplemental Indenture 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 3.07. Terms Defined in the Indenture. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 3.08. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 3.09. Benefits of Supplemental Indenture, etc. Nothing in
this Supplemental Indenture, the Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto and
thereto and their successors hereunder and thereunder and the Holders of
Securities, any benefit of any legal or equitable right, remedy or claim under
the Indenture, this Supplemental Indenture or the Securities.
Section 3.10. Successors and Assigns. All covenants and agreements
in this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 3.11. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness.
Section 3.12. Certain Duties and Responsibilities of the Trustee.
In entering into this Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee,
whether or not elsewhere herein so provided.
Section 3.13. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New
York, without regard to the conflicts of law principles thereof.
Section 3.14. Counterparts. This Supplemental Indenture may be
executed in counterparts, each of which, when so executed, shall be deemed
to be an original, but all such counterparts shall together constitute but
one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date and year first
above written.
NEXTEL COMMUNICATIONS, INC.
By: /s/Thomas J. Sidman
Title: Vice President
Attest: /s/ Thomas D. Hickey
Title: Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Marie E. Trimboli
Title: Assistant Treasurer
Attest: /s/ Paul Schmazel
Title: Assistant Vice President
ATMAIN02 Doc:189535_3 12 Dial Call 2005
EXHIBIT 4.5
NEXTEL COMMUNICATIONS, INC.
and
THE BANK OF NEW YORK,
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of June 13, 1997
To
The Indenture Dated as of January 13, 1994
Between CenCall Communications Corp. and
The Bank of New York, as Trustee, Relating to
$409,876,000 Aggregate Principal Amount at Maturity
of Senior Redeemable Discount Notes due 2004
<PAGE>
THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is
made as of the 13th day of June, 1997, between Nextel Communications, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and The Bank of New York, a New York banking corporation, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee heretofore executed and delivered
an Indenture, dated as of January 13, 1994, as heretofore amended (the
"Indenture"); and
WHEREAS, pursuant to the Indenture, the Company issued and the Trustee
authenticated and delivered $409,876,000 aggregate principal amount at maturity
of the Company's Senior Redeemable Discount Notes due 2004 (the "Securities");
and
WHEREAS, the Company has assumed all obligations of CenCall
Communications Corp. under the Indenture pursuant to the Second Supplemental
Indenture, dated as of July 28, 1995, between the Company and the Trustee; and
WHEREAS, the Company desires to make certain modifications to the
provisions of the Indenture and to transfer to an Unrestricted Subsidiary all
of the equity interest of Clearnet Communications, Inc. ("Clearnet") that is
held directly by the Company on the date hereof (the "Clearnet Transfer"); and
WHEREAS, Section 9.2 of the Indenture provides that with the consent
of the Holders of not less than a majority in principal amount at Stated
Maturity of the Securities at the time Outstanding (the "Requisite
Amendment Consents"), the Company, when authorized by a resolution of its
Board of Directors, and the Trustee may enter into an indenture or indentures
supplemental to the Indenture for the purpose of adding provisions to,
changing or eliminating certain provisions of the Indenture, subject to
certain exceptions specified in Section 9.2 of the Indenture; and
WHEREAS, the Company has obtained the Requisite Amendment Consents to
amend the Indenture in certain respects (the "Proposed Amendments"); and
WHEREAS, Section 10.18 of the Indenture provides that with the consent
of Holders of at least a majority in principal amount at Stated Maturity of
Securities at the time Outstanding (the "Requisite Waiver Consents"), the
Company may omit to comply with certain provisions of the Indenture; and
WHEREAS, the Company has obtained the Requisite Waiver Consents to
waive compliance with certain provisions of the
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<PAGE>
Indenture in connection with the Clearnet Transfer (the "Proposed Waivers");
and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Company; and
WHEREAS, the Company has delivered, or caused to be delivered, to the
Trustee, an Opinion of Counsel stating that this Supplemental Indenture
complies with the requirements of the Indenture;
NOW, THEREFORE, the Company hereby covenants and agrees with the
Trustee for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE 1
WAIVERS OF CERTAIN PROVISIONS OF INDENTURE
Section 1.01. Waiver of Compliance with Certain Provisions of the
Indenture in Connection With the Clearnet Transfer. Subject to Section 3.01
hereof, compliance by the Company with Section 10.9 of the Indenture (including
clause (iv) of the first paragraph thereof), to the extent that such Section
would apply to limit the ability of the Company to transfer all of the capital
stock of Clearnet that is held directly by the Company on the date hereof to
McCaw International, Ltd. ("MIL"), a wholly owned Unrestricted Subsidiary of
the Company, or to any direct or indirect wholly owned subsidiary of MIL that
is designated by MIL as the intended recipient of such equity interest in
Clearnet, is hereby waived. As a result of such waiver, any such transfer
shall not be deemed a Restricted Payment under Section 10.9 of the Indenture.
ARTICLE 2
AMENDMENTS TO CERTAIN PROVISIONS OF INDENTURE
Section 2.01. Amendment of Certain Sections of the Indenture.
Subject to Section 3.01 hereof, the Indenture is hereby amended in the
following respects:
(a) The definition of "Credit Facility" contained in Section 1.1 of
the Indenture is hereby amended to read in its entirety as follows:
"'Credit Facility' means any credit facility (whether a term
or revolving type) of the type customarily entered into with banks,
between the Company and/or any of its Restricted Subsidiaries, on the
one hand, and any banks or other lenders, on the other hand (and any
renewals, refundings, extensions or replacements of any such credit
facility), which credit facility is designated by the Company as a
"Credit Facility" for purposes of this Indenture, to the extent that
the aggregate principal balance of Debt that is Incurred and
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<PAGE>
outstanding under all Credit Facilities at any time does not exceed
$1,905,000,000."
(b) The definition of "Incur" contained in Section 1.1 of the
Indenture is hereby amended to read in its entirety as follows:
"'Incur' means, with respect to any Debt or other obligation
of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume (pursuant to a merger, consolidation, acquisition
or other transaction), Guarantee or otherwise become liable in
respect of such Debt or other obligation or the recording, as
required pursuant to generally accepted accounting principles or
otherwise, of any such Debt or other obligation on the balance sheet
of such Person (and "Incurrence", "Incurred", "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing);
provided, however, that a change in generally accepted accounting
principles that results in an obligation of such Person that exists
at such time becoming Debt shall not be deemed an Incurrence of such
Debt; provided further, however, that the accretion of original
issue discount on Debt shall not be deemed to be an Incurrence of
Debt. Debt otherwise Incurred by a Person before it becomes a
Subsidiary of the Company shall be deemed to have been Incurred at
the time it becomes such a Subsidiary."
(c) The definition of "Investment" contained in Section 1.1 of
the Indenture is hereby amended to read in its entirety as follows:
"'Investment' by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution to (by
means of transfers of cash or other property to others or payments
for property or services for the account or use of others, or
otherwise), or purchase or acquisition of Capital Stock, bonds,
notes, debentures or other securities or evidence of Debt issued
by, any other Person; provided that a transaction will not be an
Investment to the extent it involves (i) an Asset Disposition, (ii)
the issuance or sale by the Company of its Capital Stock (other than
Disqualified Stock), including options, warrants or other rights
to acquire such Capital Stock (other than Disqualified Stock) or
(iii) a transfer, assignment or contribution by the Company of shares
of Capital Stock (or any options, warrants or rights to acquire
Capital Stock), or all or substantially all of the assets of, any
Unrestricted Subsidiary of the Company to another Unrestricted
Subsidiary of the Company."
(d) The definitions of "Motorola Agreements" and "Northern Telecom
Agreements" contained in Section 1.1 of the
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<PAGE>
Indenture are hereby deleted, and the phrase "a Motorola Agreement
or a Northern Telecom Agreement" contained in clause (ii) of the
definition of "Permitted Lien" is hereby deleted and replaced
with the phrase "a Vendor Financing Agreement or any Lien
(including Liens on Capital Stock of any Restricted Subsidiary)
to the extent it secures Debt outstanding under a Credit Facility."
(e) The definition of "Nextel 2004 Indenture" contained in Section
1.1 of the Indenture is hereby amended to read in its entirety as follows:
"'Nextel 2004 Indenture' means the indenture, dated as of
February 15, 1994, as amended by the First, Second and Third
Supplemental Indentures, between the Company and The Bank of New
York, as trustee, relating to the Senior Redeemable Discount Notes
due 2004 issued by NEXTEL Communications, Inc."
(f) The definition of "Permitted Debt" contained in Section 1.1 of
the Indenture is hereby amended to read in its entirety as follows:
"'Permitted Debt' means (i) any Debt Incurred under a Vendor
Financing Agreement; (ii) (A) any other Debt (including Guarantees
thereof) outstanding on February 15, 1994 (including Debt represented
by the Nextel Notes), (B) any Debt (including Guarantees thereof) of
OneComm Corporation and its Subsidiaries outstanding on July 28, 1995
including the Securities), and (C) any Debt (including Guarantees
thereof) of Dial Page, Inc. and its Subsidiaries outstanding on
January 30, 1996 (including the Dial Call Notes), and any accretions
of original issue discount and accruals of interest with respect to
any Debt described in this clause (ii) and with respect to any
refinancings of such Debt; (iii) any Debt (other than Debt described
in clause (i) or (ii) above) that does not, at any time outstanding,
exceed $5.00 per POP, if the net proceeds of such Debt are
invested exclusively in the telecommunications business (including
related activities and services) conducted by the Company and
its Restricted Subsidiaries, including related capital expenditure
and working capital requirements; (iv) any Debt outstanding under a
Credit Facility; and (v) renewals, refundings or extensions of any
Debt referred to in clause (ii) above or Incurred pursuant to
the provisions of Section 1008, plus (A) the amount of any premium
reasonably determined by the Company as necessary to accomplish such
renewal, refunding or extension and (B) such other fees and expenses
of the Company reasonably incurred in connection with the renewal,
refunding or extension, provided that such renewal, refunding or
extension shall constitute Permitted Debt only (a) to the extent that
it does not result in an increase in the aggregate principal amount
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<PAGE>
(or, if such Debt provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof, in an amount not greater than
such lesser amount) of such Debt (except as permitted by clause (A)
or (B) above), (b) to the extent such renewed, refunded or extended
Debt does not require the payment of all or a portion of the
principal thereof (whether pursuant to repurchase, redemption,
repayment, defeasance, retirement, sinking fund payment, payment at
stated maturity or otherwise) prior to the final stated maturity of
the Debt being renewed, refunded or extended and (c) if the Debt to
be so renewed, refunded or extended is Debt of the Company that is
subordinate in right of payment to the Securities, then the new Debt
is subordinated in right of payment to the Securities on
subordination terms no less favorable to the Holders of the
Securities in their capacities as such than the subordination terms
(or other arrangement) applicable to the Debtto be renewed, refunded
or extended; provided, however, that in no event shall the
aggregate amount of Debt that is Incurred and outstanding under
clauses (i), (iii) and (iv) at any time exceed $1,910,000,000;
provided further, however, that no Debt that is represented by
unsecured notes originally issued by the Company on or after June 1,
1997 and ranking pari passu with the Securities ("New Notes") shall
be Incurred under clause (iii) above, unless the amount of Debt
represented by the issue of New Notes could have been Incurred,
on or after June 1, 1997, pursuant to the provisions of Section 10.8."
(g) Section 1.1 of the Indenture is hereby amended to add the
following definitions at the appropriate places in such section:
"'Consolidated Interest Expense' of any Person means, for any
period, the aggregate interest expense and fees and other financing
costs in respect of Debt (including amortization of original issue
discount and non-cash interest payments and accruals), the interest
component in respect of Capital Lease Obligations and any deferred
payment obligations of such Person and its Subsidiaries, determined
on a consolidated basis in accordance with generally accepted
accounting principles and all commissions, discounts, other fees and
charges owed with respect to letters of credit and bankers'
acceptance financing and net costs (including amortizations of
discounts) associated with interest rate swap and similar agreements
and with foreign currency hedge, exchange and similar agreements and
the amount of dividends paid in respect of Disqualified Stock."
"'Directed Investment' by the Company or any of its Restricted
Subsidiaries means any Investment for which the cash or property used
for such Investment is received
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<PAGE>
by the Company from the issuance and sale (other than
to a Restricted Subsidiary) on or after June 1, 1997 of
shares of its Capital Stock (other than Disqualified Stock),
or any options, warrants or other rights to purchase such Capital
Stock (other than Disqualified Stock) designated by the Board of
Directors as a "Directed Investment" to be used for one or more
specified investments in the telecommunications business (including
related activities and services) and is so designated and used at any
time within 365 days after the receipt thereof; provided that the
aggregate amount of any such Directed Investments may not at any
time exceed fifty percent (50%) of the aggregate amount of such cash
or property received by the Company on or after June 1, 1997 from
any such issuance and sale or capital contribution; and provided,
further, that any proceeds from any such issuance or sale may not be
used for such an investment if such proceeds were, prior to being
designated for use as a Directed Investment, (x) used to make a
Restricted Payment or (y) used as the basis for the Incurrence of
Debt under clause (i) of Section 10.8 unless and until the amount of
any such Debt (I) is treated as newly issued Debt and could be
Incurred in accordance with clause (ii) of Section 10.8 or (II)
has been repaid or refinanced with the proceeds of Debt Incurred in
accordance with clause (ii) of Section 10.8 or with the proceeds of
Permitted Debt or (III) has otherwise been repaid and, in the
circumstances described in clauses (I) and (II), the Company delivers
to the Trustee a certificate confirming that the requirements of such
clauses have been met."
"'First Tranche Option' means the option, exercisable on or
before 6:00 p.m. local time in New York, New York on July 28, 1997 by
Digital Radio, L.L.C., for the purchase of an aggregate of up to
15,000,000 shares of common stock of the Company (as such number may
be adjusted pursuant to the terms of the option) at an exercise price
of $15.50 per share (as such price may be adjusted pursuant to the
terms of the option), granted by the Company under the Option
Agreement (First Tranche) by and between Digital Radio, L.L.C. and
the Company, dated as of July 28, 1995."
"'Operating Cash Flow to Consolidated Interest Expense Ratio'
means, as at any date of determination, the ratio of (i) the
Operating Cash Flow of the Company for the most recently completed
fiscal quarter of the Company to (ii) the Consolidated Interest
Expense of the Company and its Restricted Subsidiaries for the most
recently completed fiscal quarter of the Company."
"'Replacement Option' means the option to purchase 25,000,000
shares of common stock of the Company, originally issued to an
affiliate of Craig O. McCaw,
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<PAGE>
exercisable at any time through July 28, 1998, as described in the
Company's Consent Solicitation Statement dated April 14, 1997, as
amended or supplemented through the date of the Third Supplemental
Indenture hereto."
"'Vendor Financing Agreement' means any agreement pursuant to
which the Company or any of its Restricted Subsidiaries incurs, or
may incur, Vendor Financing Debt (including any renewals,
refinancings, extensions or replacements of such Vendor Financing
Debt), to the extent that the aggregate principal balance of Vendor
Financing Debt that is Incurred and outstanding under all Vendor
Financing Agreements at any time does not exceed $850,000,000."
"'Vendor Financing Debt' means any Debt owed to (i) a vendor
or supplier of any property or materials used by the Company or
its Restricted Subsidiaries in their telecommunications business,
(ii) any Affiliate of such a vendor or supplier, (iii) any assignee
of such a vendor, supplier or Affiliate of such a vendor or supplier,
or (iv) a bank or other financial institution that has financed or
refinanced the purchase of such property or materials from such a
vendor, supplier, Affiliate of such a vendor or supplier or assignee
of such a vendor or supplier; provided that the aggregate amount of
such Debt does not exceed the sum of (w) the purchase price of
such property or materials (including transportation, installation,
warranty and testing charges, as well as applicable taxes paid, in
respect of such property or materials), (x) the cost of design,
development, site acquisition and construction, (y) any interest or
other financing costs accruing or otherwise payable in respect
of the foregoing, and (z) the cost of any services provided by such
vendor, supplier or Affiliate of such vendor or supplier."
(h) All references to "Consolidated Debt to Annualized Operating
Cash Flow Ratio" contained in the definition of "Operating Cash Flow" in
Section 1.1 of the Indenture are hereby deleted and replaced with the term
"Operating Cash Flow to Consolidated Interest Expense Ratio."
(i) The first paragraph of Section 8.1 of the Indenture is hereby
amended by adding the following proviso at the end of such paragraph:
"provided, however, that the foregoing requirements shall not
apply to any transaction or series of transactions involving the
sale, assignment, conveyance, transfer, lease or other disposition of
the properties and assets substantially as an entirety by any Wholly
Owned Restricted Subsidiary to any other Wholly Owned Restricted
Subsidiary, or the merger or consolidation of
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<PAGE>
any Wholly Owned Restricted Subsidiary with or into any other Wholly
Owned Restricted Subsidiary."
(j) The text of Section 10.8 of the Indenture is hereby deleted and
amended to read in its entirety as follows:
"The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur any Debt (including Acquired Debt), other than
Permitted Debt, unless, (i) with respect to Debt Incurred on or prior
to December 31, 1999, the Debt so Incurred is in an aggregate amount
that does not exceed the multiples specified below of the aggregate
amount of net cash proceeds received by the Company during the
applicable time periods specified below from the issuance and sale
(other than to a Subsidiary) of shares of its Capital Stock (other
than Disqualified Stock), or any options, warrants or other rights to
purchase such Capital Stock (other than Disqualified Stock), other
than (x) proceeds received by the Company pursuant to (I) the
exercise of the First Tranche Option, (II) the sale (but not the
exercise) of the Replacement Option, or (III) the purchase of shares
of Capital Stock by holders of the Securities and the holders of each
other Issue of Notes (as defined in the Company's Consent
Solicitation Statement, dated April 14, 1997 and as amended or
supplemented through the date of the Third Supplemental Indenture
hereto) in exchange for the consent payment made to such holders as
consideration for such holders providing their consent to the
Proposed Amendments and the Proposed Waivers contained in the Third
Supplemental Indenture, (y) proceeds applied for use as a Directed
Investment (unless such designation has been revoked by the Board of
Directors and the Company either abandons its plans to make such
Investment or is able to make such Investment pursuant to Section
10.9 (other than as a Directed Investment)) and (z) proceeds which
have been included in the computation of the amounts available for
Restricted Payments pursuant to Section 1009(c)(ii) of the Nextel
2004 Indenture, to the extent the inclusion thereof was necessary to
allow a subsequent Restricted Payment to be made; and (ii) with
respect to Debt Incurred on or after January 1, 2000, on the date of
such Incurrence, after giving effect to the Incurrence of such Debt
(or Acquired Debt) and the receipt and application of the net
proceeds thereof (and, if the net proceeds of such new Debt are used
to acquire a Person that becomes a Restricted Subsidiary or an
operating business of the Company or a Restricted Subsidiary, to
all terms of such acquisition) on a pro forma basis, the Operating
Cash Flow to Consolidated Interest Expense Ratio would equal or
exceed (x) 1.75 to 1 for the period from January 1, 2000 through
June 30, 2000, (y) 2.0 to 1 for the period from July 1, 2000 through
December 31, 2000, and (z) 2.25 to 1 for the period on and after
January 1, 2001;
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<PAGE>
provided, however, that for purposes of calculating the Debt that may
be Incurred under either of the foregoing clauses (i) or (ii), the
amount of any accretions of original issue discount and accruals of
interest (to the extent not overdue for payment) with respect to
any Debt so Incurred shall be excluded from the determination of the
amount of Debt that may be Incurred pursuant to such calculations.
The multiples of net cash proceeds applicable for purposes of
clause (i) shall be as follows for the following specified time
periods:
Multiple of
Period during which net cash net cash
proceeds are received proceeds
June 1, 1997 through March 31, 1998 2.25
April 1, 1998 through December 31, 1998 2.00
January 1, 1999 through December 31, 1999 1.75
(k) The first paragraph of Section 10.9 of the Indenture is hereby
amended by deleting clause (b) in its entirety and replacing it with the
following:
"(b) after giving effect, on a pro forma basis, to such
Restricted Payment and the Incurrence of any Debt the net proceeds
of which are used to finance such Restricted Payment, then, in the
case of any Restricted Payment described in clause (i), (ii) or (iii)
above, the Consolidated Debt to Annualized Operating Cash Flow Ratio
would not have exceeded 5.0 to 1 and, in the case of any Restricted
Payment described in clause (iv) above, the Company would be
permitted under this Indenture to Incur at least $1 of additional
Debt, other than Permitted Debt; and"
(l) The first sentence of the second paragraph of Section 10.9 of
the Indenture is hereby amended to read in its entirety as follows:
"The foregoing limitations in this Section 10.9 do not limit
or restrict the making of any Permitted Distribution, Permitted
Investment or Directed Investment, and none of a Permitted
Distribution, Permitted Investment or Directed Investment shall be
counted as a Restricted Payment for purposes of clause (c) above."
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<PAGE>
(m) The sixth paragraph of Section 10.10 of the Indenture is hereby
amended to read in its entirety as follows:
"The Board of Directors, from time to time, may designate any
Person that is about to become a Subsidiary of the Company as an
Unrestricted Subsidiary, and may designate any newly-created
Subsidiary as an Unrestricted Subsidiary, if at the time such
Subsidiary is created it contains no assets (other than such de
minimis amount of assets then required by law for the formation of
corporations) and no Debt. Subsidiaries of the Company that are not
designated by the Board of Directors as Restricted or Unrestricted
Subsidiaries shall be deemed to be Restricted Subsidiaries.
Notwithstanding any provisions of this Section 10.10, all
Subsidiaries of a Restricted Subsidiary shall be Restricted
Subsidiaries and all Subsidiaries of an Unrestricted Subsidiary shall
be Unrestricted Subsidiaries. The Board of Directors shall not change
the designation of a Subsidiary of the Company more than twice in any
period of five years."
ARTICLE 3
SUNDRY PROVISIONS
Section 3.01. Effect of Supplemental Indenture. Upon the execution
and delivery of this Supplemental Indenture by the Company and the Trustee,
the Indenture shall be supplemented in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes,
and every Holder of Securities heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby; provided, however,
that Sections 1.01 and 2.01 hereof shall become operative upon the
satisfaction (or waiver by the Company) of all of the conditions (including,
without limitation, the General Conditions) described and defined in the
Consent Solicitation Statement, dated April 14, 1997 and as amended or
supplemented through the date hereof, that was provided to Holders of
Securities in connection with the Company's solicitation of consents by
such Holders to the Proposed Waivers and the Proposed Amendments.
Section 3.02. Indenture Remains in Full Force and Effect.
Except as supplemented hereby, all provisions in the Indenture shall remain
in full force and effect.
Section 3.03. Indenture and Supplemental Indenture Construed
Together. This Supplemental Indenture is an indenture supplemental to and
in implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
Section 3.04. Confirmation and Preservation of Indenture. The
Indenture as supplemented by this Supplemental Indenture is in all respects
confirmed and preserved.
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<PAGE>
Section 3.05. Conflict with Trust Indenture Act. If any
provision of this Supplemental Indenture limits, qualifies or conflicts with
any provision of the Trust Indenture Act that is required under such Act to
be part of and govern any provision of this Supplemental Indenture, the
provision of such Act shall control. If any provision of this Supplemental
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the provision of such Act shall be deemed
to apply to the Indenture as so modified or to be excluded by this Supplemental
Indenture, as the case may be.
Section 3.06. Separability Clause. In case any provision in this
Supplemental Indenture 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 3.07. Terms Defined in the Indenture. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 3.08. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 3.09. Benefits of Supplemental Indenture, etc. Nothing in
this Supplemental Indenture, the Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto and
thereto and their successors hereunder and thereunder and the Holders of
Securities, any benefit of any legal or equitable right, remedy or claim under
the Indenture, this Supplemental Indenture or the Securities.
Section 3.10. Successors and Assigns. All covenants and agreements
in this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 3.11. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness.
Section 3.12. Certain Duties and Responsibilities of the Trustee.
In entering into this Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee,
whether or not elsewhere herein so provided.
Section 3.13. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New
York, without regard to the conflicts of law principles thereof.
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<PAGE>
Section 3.14. Counterparts. This Supplemental Indenture may be
executed in counterparts, each of which, when so executed, shall be deemed
to be an original, but all such counterparts shall together constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date and year first
above written.
NEXTEL COMMUNICATIONS, INC.
By: /s/Thomas J. Sidman
Title: Vice President
Attest: /s/ Thomas D. Hickey
Title: Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Marie E. Trimboli
Title: Assistant Treasurer
Attest: /s/ Paul Schmazel
Title: Assistant Vice President
ATMAIN02 Doc:189538_3 12 OneComm
EXHIBIT 99.1
[LOGO] Nextel Communications, Inc.
1505 Farm Credit Drive
For Immediate Release McLean, VA 22102
703 394-3000
Contacts:
Investor Relations:
Paul Blalock (703) 394-3500
Media:
Ben Banta (703) 394-3573
Nextel Announces Bondholder Consent Completed
McLEAN, VA, June 16, 1997 -- Nextel Communications, Inc., (NASDAQ: NXTL)
announced that it has successfully completed its bondholder consent
solicitation under the terms and conditions previously announced as forming
the basis for the understanding recently reached between Nextel and a group of
its key bondholders. The amendments to certain terms of Nextel's public
indentures approved in the bondholder consent process will provide Nextel with
greater flexibility in financing future growth and the implementation of a more
aggressive Digital Mobile system deployment plan. Additionally, Nextel's
receipt of such bondholder consents satisfies an important condition to the
receipt of new equity commitments from the McCaw Family.
Nextel Communications, based in McLean, VA, is the nation's leading provider of
fully integrated wireless communications and has built the largest guaranteed
all-digital wireless network in the United States. To learn more about Nextel
and our services, visit our website at http://www.nextel.com.
# # #
