<PAGE> 1
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): October 23, 1997
(October 9, 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)
<PAGE> 2
Item 5. Other Events.
Issuance of Senior Serial Redeemable Discount Notes due 2007
On October 22, 1997, Nextel Communications, Inc. ("Nextel") completed
the sale of $1,129.1 million principal amount at maturity of Senior
Serial Redeemable Discount Notes due 2007 (the "Notes"). The issue price of
the Notes, which mature on October 31, 2007, was $619.96 per $1,000
principal amount at maturity (generating approximately $700 million in
aggregate gross proceeds), representing a yield to maturity of 9.75%
computed on a semi-annual bond equivalent basis from the date of issuance.
Cash interest will not accrue on the Notes prior to October 31, 2002.
Commencing October 31, 2002, cash interest on the Notes will accrue and
thereafter will be payable on April 30 and October 31 of each year (commencing
April 30, 2003) at a rate of 9.75% per annum. The Notes are redeemable, at the
option of Nextel at any time, in whole or in part, on or after October 31,
2002, at specified redemption prices plus accrued and unpaid interest. In
addition, in the event of one or more sales by Nextel prior to October 31,
2000 of at least $125 million of its capital stock, a portion of the Notes not
to exceed a maximum of 33-1/3% of the aggregate accreted value of the
outstanding Notes may be redeemed at Nextel's option within 180 days after
such sale from the net cash proceeds thereof at 109.75% of such accreted value
to the date of redemption. The Notes are senior unsecured indebtedness of
Nextel and rank pari passu in right of payment with all
unsubordinated, unsecured indebtedness of Nextel, including indebtedness
evidenced by Nextel's six outstanding issues of Senior Redeemable
Discount Notes, and will be senior in right of payment to all subordinated
indebtedness of Nextel.
The Notes were issued in a private placement transaction and have not
been registered with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933 (the "Securities Act"), and may not be sold
absent registration or an applicable exemption from the registration
requirements. In connection with the issuance of the Notes, Nextel has
agreed to use its best efforts to file with the Commission and cause to become
effective a registration statement with respect to a registered offer to
exchange the then outstanding Notes for Notes of equal value that have
been registered pursuant to the Securities Act (the "Exchange Offer"). In
the event that the Exchange Offer is not consummated prior to specified dates,
additional incremental interest on the accreted value of the Notes will
accrue until the Exchange Offer is consummated or certain other
requirements are met.
Terms of the Notes are set forth in the Indenture attached hereto
as Exhibit 4.1, which is incorporated herein by reference, and the
description of the terms of the Notes included herein is qualified by
reference to such Indenture.
Net cash proceeds from the sale of the Notes of approximately $682
million will be used by Nextel for general corporate purposes, including the
refinancing of a portion of the Company's outstanding indebtedness.
In connection with the sale of the Notes, Nextel, Nextel Finance Company,
a wholly owned subsidiary of Nextel ("NFC"), and certain subsidiaries of
Nextel entered into certain amendments to the agreements relating to Nextel's
existing bank and vendor financing arrangements. These amendments are filed
as Exhibits 4.2, 4.3 and 4.4 hereto. The press release announcing the
transaction is filed as Exhibit 99.1 hereto.
Schedule 13D Filing
Nextel has received a copy of a Schedule 13D filed with the Commission
by Wendy P. McCaw pursuant to Section 13d-2(a) of the Securities and Exchange
Act of 1934, which reports certain transactions involving the Class A
Common Stock of Nextel that are provided for in a marital settlement agreement
between Mrs. McCaw and Craig O. McCaw. Nextel has been advised that the
transactions reported in the Schedule 13D implement the recently announced
agreement between Wendy P. McCaw and Craig O. McCaw relating to their marital
dissolution as such agreement relates to the equity interest in Nextel held by
Mr. McCaw and his affiliates. Based upon its review of the information
contained in the Schedule 13D, Nextel does not currently anticipate that the
implementation of the settlement agreement will have a material impact on the
equity interest of Mr. McCaw and his affiliates in Nextel, or result in any
material changes to the corporate governance of Nextel. Nextel does not
anticipate that the transactions reported in the Schedule 13D will require or
result in any material changes to the rights or obligations of Mr. McCaw and
his affiliates pursuant to the agreements relating to their existing and
potential investments in Nextel.
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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.
<TABLE>
<CAPTION>
Exhibit No. Exhibit Description
<S> <C>
4.1 Indenture, dated as of October 22, 1997, between Nextel
Communications, Inc. and Harris Trust and Savings Bank, as
Trustee, relating to Nextel's Senior Serial Redeemable
Discount Notes due 2007.
4.2 Amendment No. 5 to Credit Agreement, dated as of October 9,
1997, amending the Credit Agreement dated as of September 27,
1996 between Nextel Communications, Inc., Nextel Finance
Company and the other Restricted Companies, the Lenders party
thereto, Toronto Dominion (Texas), Inc., as Administrative
Agent and The Chase Manhattan Bank, as Collateral Agent.
4.3 Amendment No. 5 to Vendor Financing Agreement, dated as
of October 9, 1997, amending the Amended, Restated and
Consolidated Credit Agreement, dated as of September 27, 1996
between Nextel Communications, Inc., Nextel Finance Company
and the other Restricted Companies, Motorola, Inc. and NTFC
Capital Corporation.
4.4 Amendment No. 2 to Second Secured Vendor Financing Agreement
dated as of October 9, 1997, amending the Second Secured
Vendor Financing Agreement dated as of August 19, 1997 among
Nextel Communications, Inc., Nextel Finance Company and the
other Restricted Companies and the Vendor Lenders party
thereto.
99.1 Press Release, dated October 15, 1997.
</TABLE>
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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: October 23, 1997 By: /s/Thomas J. Sidman
Thomas J. Sidman
Vice President and General Counsel
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<TABLE>
<CAPTION>
Exhibit No. Exhibit Description
<S> <C>
4.1 Indenture, dated as of October 22, 1997, between Nextel
Communications, Inc. and Harris Trust and Savings Bank, as
Trustee, relating to Nextel's Senior Serial Redeemable
Discount Notes due 2007.
4.2 Amendment No. 5 to Credit Agreement, dated as of October 9,
1997, amending the Credit Agreement dated as of September 27,
1996 between Nextel Communications, Inc., Nextel Finance
Company and the other Restricted Companies, the Lenders party
thereto, Toronto Dominion (Texas), Inc., as Administrative
Agent and The Chase Manhattan Bank, as Collateral Agent.
4.3 Amendment No. 5 to Vendor Financing Agreement, dated as
of October 9, 1997, amending the Amended, Restated and
Consolidated Credit Agreement, dated as of September 27, 1996
between Nextel Communications, Inc., Nextel Finance Company
and the other Restricted Companies, Motorola, Inc. and NTFC
Capital Corporation.
4.4 Amendment No. 2 to Second Secured Vendor Financing Agreement
dated as of October 9, 1997, amending the Second Secured
Vendor Financing Agreement dated as of August 19, 1997 among
Nextel Communications, Inc., Nextel Finance Company and the
other Restricted Companies and the Vendor Lenders party
thereto.
99.1 Press Release, dated October 15, 1997.
</TABLE>
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Nextel Communications, Inc.
to
Harris Trust and Savings Bank
Trustee
----------------
Indenture
Dated as of October 22, 1997
----------------
9.75% Senior Serial Redeemable Discount Notes due 2007
October '97 Notes Indenture
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INDENTURE, dated as of October 22, 1997, between Nextel
Communications, Inc., a Delaware corporation (herein called the "Company"),
having its principal office at 1505 Farm Credit Dr., McLean, Virginia 22102 and
Harris Trust and Savings Bank, an Illinois banking corporation, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its
Senior Serial Redeemable Discount Notes due 2007 of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
October '97 Notes Indenture
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(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) whenever this Indenture requires that a particular ratio or
amount be calculated with respect to a specified period after giving
effect to certain transactions or events on a pro forma basis, such
calculation will be made as if the transactions or events occurred on the
first day of such period, unless otherwise specified herein, and all
accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with generally accepted accounting principles
(whether or not such is indicated herein), and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of such
computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or Section, as the case may
be, of this Indenture;
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(6) each reference herein to a rule or form of the Commission shall
mean such rule or form and any rule or form successor thereto, in each
case as amended from time to time.
Certain terms, used principally in Article Six, are defined in that
Article.
Whenever this Indenture requires that a particular ratio or amount be
calculated with respect to a specified period after giving effect to certain
transactions or events on a pro forma basis, such calculation shall be made as
if the transactions or events occurred on the first day of such period, unless
otherwise specified.
"Accreted Value" of any Outstanding Security as of or to any date of
determination means an amount equal to the
2 October '97 Notes Indenture
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sum of (i) the issue price of such Security as determined in accordance
with Section 1273 of the Code plus (ii) the aggregate of the portions of
the original issue discount (the excess of the amounts considered as part
of the "stated redemption price at maturity" of such Security within the
meaning of Section 1273(a)(2) of the Code or any successor provisions,
whether denominated as principal or interest, over the issue price of such
Security) that shall theretofore have accrued pursuant to Section 1272
of the Code (without regard to Section 1272(a)(7) of the Code) from the
date of issue of such Security (a) for each six-month or shorter period
ending April 30 or October 31 prior to the date of determination (each a
"Semi-Annual Accrual Date") and (b) for the shorter period, if any, from
the immediately preceding Semi-Annual Accrual Date to the date of
determination, plus (iii) accrued and unpaid interest to the date such
Accreted Value is paid (without duplication of any amount set forth in
(ii) above), minus all amounts theretofore paid in respect of such
Security, which amounts are considered as part of the "stated redemption
price at maturity" of such Security within the meaning of Section
1273(a)(2) of the Code or any successor provisions (whether such amounts
paid were denominated principal or interest).
"Acquired Debt" means Debt of a Person existing at the time such
Person becomes a Restricted Subsidiary or assumed by the Company or a
Restricted Subsidiary in connection with the acquisition of assets from
such Person.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such Person. "Affiliate" shall be deemed to include,
but only for purposes of Section 1011 and without limiting the application
of the preceding sentence for the purpose of such or any other Section,
any Person owning, directly or indirectly, (i) 10% or more of the
Company's outstanding Common Stock or (ii) securities having 10% or more
of the total voting power of the Company's Voting Stock. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct
3 October '97 Notes Indenture
<PAGE> 5
the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. No individual shall be deemed to be
controlled by or under common control with any specified Person solely by
virtue of his or her status as an employee or officer of such specified
Person or of any other Person controlled by or under common control with
such specified Person.
"Agent Members" has the meaning provided in Section 306(a).
"Annualized Operating Cash Flow" means, for any fiscal quarter, the
Operating Cash Flow for such fiscal quarter multiplied by four.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 hereof to act on behalf of the Trustee to
authenticate Securities.
"Average Life" means, at any date of determination with respect to
any Debt, the quotient obtained by dividing (i) the sum of the products of
(a) the number of years from such date of determination to the dates of
each successive scheduled principal payment of such Debt and (b) the
amount of such principal payment by (ii) the sum of all such principal
payments.
"Beneficial Owner" means a beneficial owner as defined in Rules 13d-3
and 13d-5 under the Exchange Act (or any successor rules), including the
provision of such Rules that a person shall be deemed to have beneficial
ownership of all securities that such person has a right to acquire within
60 days, provided that a person shall not be deemed a beneficial owner of,
or to own beneficially, any securities if such beneficial ownership (1)
arises solely as a result of a revocable proxy delivered in response to a
proxy or consent solicitation made pursuant to, and in accordance with,
the Exchange Act and the applicable rules and regulations thereunder and
(2) is not also then reportable on Schedule 13D (or any successor
schedule) under the Exchange Act.
4 October '97 Notes Indenture
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"Board of Directors" means (i) whenever used in Sections 1009 through
1015, inclusive, the board of directors of the Company and (ii) whenever
used elsewhere herein, either the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors (unless the context specifically
requires that such resolution be adopted by a majority of the
Disinterested Directors, in which case by a majority of such directors)
and to be in full force and effect on the date of such certification and
delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or obligated by law or
executive order to close.
"Capital Lease Obligations" of any Person means the obligations to
pay rent or other amounts under lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which
are required to be classified and accounted for as a capital lease or a
liability on the face of a balance sheet of such Person determined in
accordance with generally accepted accounting principles and the amount of
such obligations shall be the capitalized amount thereof in accordance
with generally accepted accounting principles and the stated maturity
thereof shall be the date of the last payment of rent or any other amount
due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of stock of, or
other ownership interests in, such Person.
"Change of Control" means the occurrence of any of the following
events:
5 October '97 Notes Indenture
<PAGE> 7
(a) any person (as such term is used in Sections 13(d) and
14(d) of the Exchange Act and the regulations thereunder) is or
becomes the Beneficial Owner, directly or indirectly, of more than
50% of the total Voting Stock or Total Common Equity of the Company;
provided that no Change of Control shall be deemed to occur pursuant
to this clause (a) (x) if the person is a corporation with
outstanding debt securities having a maturity at original issuance of
at least one year and if such debt securities are rated Investment
Grade by S&P or Moody's for a period of at least 90 consecutive days,
beginning on the date of such event (which period will be extended up
to 90 additional days for as long as the rating of such debt
securities is under publicly announced consideration for possible
downgrading by the applicable rating agency), or (y) if the person is
a corporation (1) that is not, and does not have any outstanding debt
securities that are, rated by S&P, Moody's or any other rating agency
of national standing at any time during a period of 90 consecutive
days beginning on the date of such event (which period will be
extended up to an additional 90 days for as long as any such rating
agency has publicly announced that such corporation or debt thereof
will be rated), unless after such date but during such period debt
securities of such corporation having a maturity at original issuance
of at least one year are rated Investment Grade by S&P or Moody's and
remain so rated for the remainder of the period referred to in clause
(x) above and (2) that, when determined as of the Trading Day
immediately before and the Trading Day immediately after the date of
such event, has Total Common Equity of at least $10 billion (provided
that, solely for the purpose of calculating Total Common Equity as of
such later Trading Day, the average Closing Price of the Common Stock
of such person shall be deemed to equal the Closing Price of such
Common Stock on such later Trading Day, subject to the last sentence
of the definition of "Total Common Equity"); or
(b) the Company consolidates with, or merges with or into,
another Person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any
Person, or any Person consolidates with, or merges with or into, the
6 October '97 Notes Indenture
<PAGE> 8
Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such
transaction where (i) the outstanding Voting Stock of the Company is
converted into or exchanged for (1) Voting Stock (other than
Redeemable Stock) of the surviving or transferee Person or (2) cash,
securities and other property in an amount which could be paid by the
Company as a Restricted Payment under this Indenture and (ii)
immediately after such transaction no person (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act and the regulations
thereunder) is the Beneficial Owner, directly or indirectly, of more
than 50% of the total Voting Stock or Total Common Equity of the
surviving or transferee Person; provided that no Change of Control
shall be deemed to occur pursuant to this clause (b), (x) if the
surviving or transferee Person or the person referred to in clause
(b)(ii) is a corporation with outstanding debt securities having a
maturity at original issuance of at least one year and if such debt
securities are rated Investment Grade by S&P or Moody's for a period
of at least 90 consecutive days, beginning on the date of such event
(which period will be extended up to 90 additional days for as long
as the rating of such debt securities is under publicly announced
consideration for possible downgrading by the applicable rating
agency), or (y) if the surviving or transferee Person or such other
person is a corporation (1) that is not, and does not have any
outstanding debt securities that are, rated by S&P, Moody's or any
other rating agency of national standing at any time during a period
of 90 consecutive days beginning on the date of such event (which
period will be extended up to an additional 90 days for as long as
any such rating agency has publicly announced that such corporation
or debt thereof will be rated), unless after such date but during
such period debt securities of such corporation having a maturity at
original issuance of at least one year are rated Investment Grade by
S&P or Moody's and remain so rated for the remainder of the period
referred to in clause (x) above and (2) that, when determined as of
the Trading Day immediately before and the Trading Day immediately
after the date of such event, has Total Common Equity of at least $10
billion
7 October '97 Notes Indenture
<PAGE> 9
(provided that, solely for the purpose of calculating Total Common
Equity as of such later Trading Day, the average Closing Price of the
Common Stock of such person shall be deemed to equal the Closing
Price of such Common Stock on such later Trading Day, subject to the
last sentence of the definition of "Total Common Equity"); or
(c) during any consecutive two-year period, individuals who at
the beginning of such period constituted the Board of Directors
(together with any directors who are members of the Board of
Directors on the date hereof and any new directors whose election by
such Board of Directors or whose nomination for election by the
stockholders of the Company was approved by a vote of 66 2/3% of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office.
Any event that would constitute a Change of Control pursuant to
clause (a) or (b) above (i) but for the proviso thereto shall not be
deemed to be a Change of Control until such time (if any) as the
conditions described in such proviso cease to have been met and (ii) if
and to the extent resulting from any restructuring transaction or any sale
or assignment of all or substantially all of the assets and liabilities of
the Company to, or merger or consolidation of the Company with, any Person
(any such transaction, a "Restructuring Transaction") effected at
substantially the same time as and in connection with any of the Permitted
Transactions described in clause (i) of the definition of the term
"Permitted Transactions" shall not constitute a Change of Control so long
as the Persons who, immediately prior to the closing of such Restructuring
Transaction and the particular Permitted Transaction being consummated at
substantially the same time and in connection therewith (the
"Restructuring Closing"), were the Beneficial Owners, directly or
indirectly, of more than 50% of the total Voting Stock and more than 50%
of the Total Common Equity of the Company would remain, immediately after
such Restructuring Closing (and after taking into account all issuances of
securities in such Restructuring Transaction and related
8 October '97 Notes Indenture
<PAGE> 10
Permitted Transaction), the Beneficial Owners, directly or indirectly, of
more than 50% of the total Voting Stock and more than 50% of the Total
Common Equity of the Company (or the surviving transferee Person, as the
case may be); provided that, immediately after any transaction or
combination of transactions described in this clause (ii), no person (as
such term is used in Sections 13(d) and 14(a) of the Exchange Act and the
regulations thereunder) is the ultimate Beneficial Owner of more than 50%
of the total Voting Stock or more than 50% of the Total Common Equity of
the Company (or the surviving transferee Person, as the case may be)
unless such person (as so defined) was the Beneficial Owner of more than
50% of the total Voting Stock and more than 50% of the Total Common Equity
of the Company immediately before such transaction or combination of
transactions.
"Closing Date" means the date on which the Securities are originally
issued hereunder.
"Closing Price" on any Trading Day with respect to the per share
price of any shares of Capital Stock means the last reported sale price
regular way or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in
either case on the New York Stock Exchange or, if such shares of Capital
Stock are not listed or admitted to trading on such exchange, on the
principal national securities exchange on which such shares are listed or
admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the Nasdaq Stock Market or, if such
shares are not listed or admitted to trading on any national securities
exchange or quoted on the Nasdaq Stock Market but the issuer is a Foreign
Issuer (as defined in Rule 3b-4(b) under the Exchange Act) and the
principal securities exchange on which such shares are listed or admitted
to trading is a Designated Offshore Securities Market (as defined in Rule
902(a) under the Securities Act), the average of the reported closing bid
and asked prices regular way on such principal exchange, or, if such
shares are not listed or admitted to trading on any national securities
exchange or quoted on the Nasdaq Stock Market and the issuer and principal
securities exchange do not meet such requirements, the average of the
closing bid and asked prices in the over-the-counter market as furnished
by any New York Stock
9 October '97 Notes Indenture
<PAGE> 11
Exchange member firm of national standing that is selected from time to
time by the Company for that purpose.
"Code" means the Internal Revenue Code, as amended from time to time,
and the rules and regulations thereunder.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of
any other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Adjusted Net Income" and "Consolidated Adjusted Net
Loss" mean, for any period, the net income or net loss, as the case may
be, of the Company and its Restricted Subsidiaries for such period, all as
determined on a Consolidated basis in accordance with generally accepted
accounting principles, adjusted, to the extent included in calculating
such net income or net loss, as the case may be, by excluding without
duplication (a) any after-tax gain or loss attributable to the sale,
conversion or other disposition of assets other than in the ordinary
course of business, (b) any after-tax gains resulting from the write-up of
assets and any loss resulting from the
10 October '97 Notes Indenture
<PAGE> 12
write-down of assets, (c) any after-tax gain or loss on the repurchase or
redemption of any securities (including in connection with the early
retirement or defeasance of any Debt), (d) any foreign exchange gain or
loss, (e) all payments in respect of dividends on shares of Preferred
Capital Stock of the Company, (f) any other extraordinary, non-recurring
or unusual items incurred by the Company or any of its Restricted
Subsidiaries, (g) the net income (or loss) of any Person acquired by the
Company or any Restricted Subsidiary in a pooling-of-interests transaction
for any period prior to the date of such transaction and (h) all income or
losses of Unrestricted Subsidiaries and Persons (other than Subsidiaries)
accounted for by the Company using the equity method of accounting except,
in the case of any such income, to the extent of dividends, interest or
other cash distributions received directly or indirectly from any such
Unrestricted Subsidiary or Person.
"Consolidated Adjusted Net Income (Loss)" means, for any period, the
Company's Consolidated Adjusted Net Income or Consolidated Adjusted Net
Loss for such period, as applicable.
"Consolidated Debt to Annualized Operating Cash Flow Ratio" means, as
at any date of determination, the ratio of (i) the aggregate amount of
Debt of the Company and the Restricted Subsidiaries on a Consolidated
basis outstanding as at the date of determination to (ii) the Annualized
Operating Cash Flow of the Company for the most recently completed fiscal
quarter of the Company.
"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 Restricted 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
11 October '97 Notes Indenture
<PAGE> 13
similar agreements and the amount of dividends paid in respect of
Redeemable Stock.
"Consolidated Net Income" and "Consolidated Net Loss" mean, for any
period, the net income or net loss, as the case may be, of the Company and
its Restricted Subsidiaries for such period, all as determined on a
Consolidated basis in accordance with generally accepted accounting
principles, adjusted, to the extent included in calculating such net
income or net loss, as the case may be, by excluding without duplication
(a) any after-tax gain or loss attributable to the sale, conversion or
other disposition of assets other than in the ordinary course of business,
(b) any after-tax gains resulting from the write-up of assets and any loss
resulting from the write-down of assets, (c) any after-tax gain or loss on
the repurchase or redemption of any securities (including in connection
with the early retirement or defeasance of any Debt), (d) any foreign
exchange gain or loss, (e) all payments in respect of dividends on shares
of Preferred Capital Stock of the Company, (f) any other extraordinary,
non-recurring or unusual items incurred by the Company or any of its
Restricted Subsidiaries, (g) the net income (or loss) of any Person
acquired by the Company or any Restricted Subsidiary in a
pooling-of-interests transaction for any period prior to the date of such
transaction, (h) all income or losses of Unrestricted Subsidiaries and
Persons (other than Subsidiaries) accounted for by the Company using the
equity method of accounting except, in the case of any such income, to the
extent of dividends, interest or other cash distributions received
directly or indirectly from any such Unrestricted Subsidiary or Person and
(i) the net income (but not net loss) of any Restricted Subsidiary which
is subject to restrictions which prevent the payment of dividends or the
making of distributions to the Company but only to the extent of such
restrictions.
"Consolidated Net Income (Loss)" means, for any period, the Company's
Consolidated Net Income or Consolidated Net Loss for such period, as
applicable.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to
12 October '97 Notes Indenture
<PAGE> 14
Redeemable Stock of such Person; provided that, with respect to the
Company, no effect shall be given to adjustments following the Closing
Date to the accounting books and records of the Company in accordance with
Accounting Principles Board Opinions Nos. 16 and 17 (or successor opinions
thereto) or otherwise resulting from the acquisition of control of the
Company by another Person.
"Consolidation" means the consolidation of the accounts of each of
the Restricted Subsidiaries with those of the Company, if and to the
extent that the accounts of each such Restricted Subsidiary would normally
be consolidated with those of the Company in accordance with generally
accepted accounting principles; provided, however, that "Consolidation"
shall not include consolidation of the accounts of any Unrestricted
Subsidiary, but the interest of the Company or any Restricted Subsidiary
in any Unrestricted Subsidiary shall be accounted for as an investment.
The term "Consolidated" has a correlative meaning.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which address as of the Closing Date is located at 311 West
Monroe Street, 12th Floor, Chicago, Illinois 60606, Attention: Indenture
Trust Division.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1203.
"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, as applicable, and shall include all such
credit facilities in existence on the Closing Date whether or not so
designated, to the extent that the aggregate principal balance of Debt
13 October '97 Notes Indenture
<PAGE> 15
that is Incurred and outstanding under all Credit Facilities at any time
does not exceed $2.5 billion.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
Incurred in connection with the acquisition of property, assets or
businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person, (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business which are not overdue or which
are being contested in good faith), (v) every Capital Lease Obligation of
such Person, (vi) the maximum fixed redemption or repurchase price of
Redeemable Stock of such Person at the time of determination plus accrued
but unpaid dividends, (vii) every obligation of such Person under interest
rate swap or similar agreements or foreign currency hedge, exchange or
similar agreements of such Person, and (viii) every obligation of the type
referred to in clauses (i) through (vii) of another Person and all
dividends of another Person the payment of which, in either case, such
Person has Guaranteed or is responsible or liable, directly or indirectly,
as obligor, Guarantor or otherwise. The amount of Debt of any Person
issued with original issue discount is the face amount of such Debt less
the unamortized portion of the original issue discount of such Debt at the
time of its issuance as determined in conformity with generally accepted
accounting principles, and money borrowed at the time of the Incurrence of
any Debt in order to pre-fund the payment of interest on such Debt shall
be deemed not to be "Debt".
"Default" means an event that is, or after notice or passage of time,
or both, would be, an Event of Default.
"Default Amount" has the meaning specified in Section 502.
14 October '97 Notes Indenture
<PAGE> 16
"Defaulted Interest" has the meaning specified in Section 309.
"Defeasance" has the meaning specified in Section 1202.
"Depository" shall mean The Depository Trust Company, as nominees and
their respective successors.
"Digital Mobile" means a radio communications system that employs
digital technology with a multi-site configuration that will permit
frequency reuse as described in the Memorandum.
"Digital Mobile-SMR Operating Cash Flow" means, for any fiscal
quarter, (i) the net income or loss, as the case may be, of the Company
and its Restricted Subsidiaries from its Digital Mobile and Specialized
Mobile Radio businesses and related activities and services for such
fiscal quarter, plus (ii) depreciation and amortization charged with
respect thereto for such fiscal quarter, all as determined on a
Consolidated basis in accordance with generally accepted accounting
principles, adjusted, to the extent included in calculating such net
income or loss, by excluding (a) any after-tax gain or loss attributable
to the sale, conversion or other disposition of assets other than in the
ordinary course of business, (b) any gains resulting from the write-up of
assets and any loss resulting from the write-down of assets, (c) any gain
or loss on the repurchase or redemption of any securities (including in
connection with the early retirement or defeasance of any Debt), (d) any
foreign exchange gain or loss, (e) any other extraordinary, non-recurring
or unusual items and (f) all income or losses of Persons (other than
Subsidiaries) accounted for by the Company using the equity method of
accounting, except, in the case of any such income, to the extent of
dividends, interest or other cash distributions received directly or
indirectly from any such Person, plus (iii) all amounts deducted in
calculating net income or loss for such fiscal quarter in respect of
interest expense and other financing costs and all income taxes, whether
or not deferred, applicable to such fiscal quarter, all as determined on a
Consolidated basis in accordance with generally accepted accounting
principles.
15 October '97 Notes Indenture
<PAGE> 17
"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 the Exchangeable Preferred Stock or
Redeemable Stock), or any options, warrants or other rights to purchase
such Capital Stock (other than Redeemable 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 Section 1008 (other than under clause (i) thereof) or (II)
has been repaid or refinanced with the proceeds of Debt Incurred in
accordance with Section 1008 (other than under clause (i) thereof) 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.
"Disinterested Director" means, with respect to any proposed
transaction between the Company and an Affiliate thereof, a member of the
Board of Directors who is not an officer or employee of the Company, would
not be a party to, or have a financial interest in, such transaction and
is not an officer, director or employee of, and does not have a financial
interest in, such Affiliate. For purposes of this definition, no person
would be deemed not to be a Disinterested Director solely because such
person holds Capital Stock of the Company.
16 October '97 Notes Indenture
<PAGE> 18
"Event of Default" has the meaning specified in Section 501.
"Exchange Securities" means any security of the Company containing
terms identical to the Securities initially issued hereunder (except that
such Securities shall have been registered under the Securities Act) that
are issued and exchanged for the Securities pursuant to the Registration
Rights Agreement.
"Exchangeable Preferred Stock" means the 13% Series D Exchangeable
Redeemable Preferred Stock of the Company issued on July 21,1997 and any
shares of Preferred Capital Stock issued in exchange therefor or as
payment in kind dividends thereon.
"Exchange Act" refers to the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Exchange Debenture Indenture" means an indenture (having terms and
conditions substantially as summarized in that certain confidential
Offering Memorandum, dated July 16, 1997), prepared in connection with the
original issuance by the Company of shares of Exchangeable Preferred
Stock, pursuant to which certain exchange debentures may be issued by the
Company in exchange for outstanding shares of Exchangeable Preferred
Stock.
"Existing Indentures" means the indentures relating to the Existing
Senior Notes.
"Existing Senior Notes" means the Company's $525,855,000 principal
amount at maturity of 11 1/2% Senior Redeemable Discount Notes Due 2003,
$1,126,435,000 principal amount at maturity of 9 3/4% Senior Redeemable
Discount Notes Due 2004, $541,830,000 principal amount at maturity of
12 1/4% Senior Redeemable Discount Notes Due 2004, $111,165,000 principal
amount at maturity of 10 1/4% Senior Redeemable Discount Notes Due 2005,
$409,876,000 principal amount at maturity of 10 1/2% Senior Redeemable
Discount Notes Due 2004 and $840,000,000 principal amount at maturity of
10.65% Senior Redeemable Discount Notes due 2007.
17 October '97 Notes Indenture
<PAGE> 19
"Expiration Date" has the meaning specified in the definition of
Offer to Purchase.
"Fair Market Value" means, for purposes of clause (i) of Section
1008, the price that would be paid in an arm's-length transaction between
an informed and willing seller under no compulsion to sell and an informed
and willing buyer under no compulsion to buy, as determined in good faith
by the Board of Directors, whose determination shall be conclusive if
evidenced by a Board Resolution; provided that (x) the Fair Market Value
of any security registered under the Exchange Act shall be the average of
the closing prices, regular way, of such security for the 20 consecutive
trading days immediately preceding the sale of Capital Stock and (y) in
the event the aggregate Fair Market Value of any other property received
by the Company exceeds $10 million, the Fair Market Value of such property
shall be (i) so long as such a Fair Market Value determination of such
property is required to be made pursuant to the Certificate of Designation
for the Exchangeable Preferred Stock or pursuant to the terms of the
Exchange Debenture Indenture, the Fair Market Value as so determined,
which shall be set forth in an Officer's Certificate delivered to the
Trustee, and (ii) otherwise, such Fair Market Value shall be as determined
in good faith by the Board of Directors, including a majority of
Disinterested Directors who are then members of such Board of Directors,
which determination shall be conclusive if evidenced by a Board
Resolution.
"FCC" means the Federal Communications Commission.
"Global Securities" has the meaning provided in Section 201.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and
including any obligation of such Person, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or to
purchase (or to advance or supply funds for the purchase of) any security
for the payment of such Debt, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Debt of the
payment
18 October '97 Notes Indenture
<PAGE> 20
of such Debt, or (iii) to maintain working capital, equity capital or
other financial statement condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such Debt (and "Guaranteed",
"Guaranteeing" and "Guarantor" shall have meanings correlative to the
foregoing); provided, however, that the Guarantee by any Person shall not
include endorsements by such Person for collection or deposit, in either
case, in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"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" and
"Incurred", 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.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is
19 October '97 Notes Indenture
<PAGE> 21
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Securities.
"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 or the designation of a
Subsidiary as an Unrestricted Subsidiary; provided that a transaction will
not be an Investment to the extent it involves (i) the issuance or sale by
the Company of its Capital Stock (other than Redeemable Stock), including
options, warrants or other rights to acquire such Capital Stock (other
than Redeemable Stock) or (ii) 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.
"Investment Grade" means a rating of at least BBB-, in the case of
S&P, or Baa3, in the case of Moody's.
"Licenses" means SMR licenses granted by the FCC that entitle the
holder to use the radio channels covered thereby, subject to compliance
with FCC rules and regulations, in connection with its SMR business.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, lien, charge, easement, encumbrance, preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever on or with respect to such property or assets
(including any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Marketable Securities" means:
20 October '97 Notes Indenture
<PAGE> 22
(1) securities either issued directly or fully guaranteed or insured
by the government of the United States of America or any agency or
instrumentality thereof having maturities of not more than six months;
(2) time deposits and certificates of deposit, having maturities of
not more than six months from the date of deposit, of any domestic
commercial bank having capital and surplus in excess of $500 million and
having outstanding long-term debt rated A or better (or the equivalent
thereof) by S&P or Aaa or better (or the equivalent thereof) by Moody's;
and
(3) commercial paper rated A-1 or the equivalent thereof by S&P or
P-1 or the equivalent thereof by Moody's, and in each case maturing within
six months.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, offer to purchase or otherwise.
"Memorandum" means the offering memorandum dated October 15, 1997 in
connection with the offering of the Securities.
"Moody's" means Moody's Investors Service, Inc. or, if Moody's
Investors Service, Inc. shall cease rating debt securities having a
maturity at original issuance of at least one year and such ratings
business shall have been transferred to a successor Person, such successor
Person; provided, however, that if Moody's Investors Service, Inc. ceases
rating debt securities having a maturity at original issuance of at least
one year and its ratings business with respect thereto shall not have been
transferred to any successor Person, then "Moody's" shall mean any other
national recognized rating agency (other than S&P) that rates debt
securities having a maturity at original issuance of at least one year and
that shall have been designated by the Company by a written notice given
to the Trustee.
"Non-U.S. Person" means a person who is not a "U.S. Person" (as
defined in Regulation S).
21 October '97 Notes Indenture
<PAGE> 23
"Notice of Default" means a written notice of the kind specified in
Section 501(5).
"Offer" has the meaning specified in the definition of Offer to
Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his
address appearing in the Security Register on the date of the Offer
offering to purchase up to the principal amount of Securities specified in
such Offer at the purchase price specified in such Offer (as determined
pursuant to this Indenture). Unless otherwise required by applicable law,
the Offer shall specify an expiration date (the "Expiration Date") of the
Offer to Purchase which shall be, subject to any contrary requirements of
applicable law, not less than 30 days or more than 60 days after the date
of such Offer and a settlement date (the "Purchase Date") for purchase of
Securities within five Business Days after the Expiration Date. The
Company shall notify the Trustee at least 15 days (or such shorter period
as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be
mailed by the Company or, at the Company's request, by the Trustee, in the
name and at the expense of the Company. The Offer shall contain
information concerning the business of the Company and its Subsidiaries
which, at a minimum, shall include (i) the most recent annual and
quarterly financial statements and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" contained in the
documents required to be filed with the Trustee pursuant to this Indenture
(which requirements may be satisfied by delivery of such documents
together with the Offer), (ii) a description of material developments in
the Company's business subsequent to the date of the latest of such
financial statements referred to in clause (i) (including a description of
the events requiring the Company to make the Offer to Purchase), (iii) if
required under applicable law, pro forma financial information concerning,
among other things, the Offer to Purchase and the events requiring the
Company to make the Offer to Purchase and (iv) any other information
required by applicable law to be included therein. The Offer shall
contain all instructions and materials necessary to enable
22 October '97 Notes Indenture
<PAGE> 24
such Holders to tender their Securities pursuant to the Offer to Purchase.
The Offer shall also state:
(1) the section of this Indenture pursuant to which the Offer
to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount at Stated Maturity of the
Outstanding Securities offered to be purchased by the Company
pursuant to the Offer to Purchase (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each
$1,000 principal amount at Stated Maturity of Securities accepted for
payment (as specified pursuant to this Indenture) (the "Purchase
Price");
(5) the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of
Securities tendered must be tendered in an integral multiple of
$1,000 of principal amount at Stated Maturity;
(6) the place or places where the Securities are to be
surrendered for tender pursuant to the Offer to Purchase;
(7) that interest, if any, on any Securities not tendered or
tendered but not purchased by the Company pursuant to the Offer to
Purchase will continue to accrue;
(8) that on the Purchase Date the Purchase Price will become
due and payable upon each Security being accepted for payment
pursuant to the Offer to Purchase;
(9) that each Holder electing to tender Securities pursuant to
the Offer to Purchase will be required to surrender such Securities
at the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Securities being, if the
Company or the Trustee so requires, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the
Company and the
23 October '97 Notes Indenture
<PAGE> 25
Trustee duly executed by the Holder thereof or his attorney duly
authorized in writing);
(10) that Holders will be entitled to withdraw all or any
portion of the Securities tendered if the Company (or its Paying
Agent) receives, not later than the close of business on the
Expiration Date, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount at Stated Maturity of the
Securities the Holder tendered, the certificate number of the
Securities the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(11) that the Company shall purchase all such Securities duly
tendered and not withdrawn pursuant to the Offer to Purchase, unless
otherwise provided herein; and
(12) that in the case of any Holder whose Securities are
purchased only in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Securities
without service charge, new Securities of any authorized denomination
as requested by such Holder, in an aggregate principal amount at
Stated Maturity equal to and in exchange for the unpurchased portion
of the aggregate principal amount at Stated Maturity of the
Securities so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1017 shall be the
principal executive, financial or accounting officer of the Company.
"Offshore Global Securities" has the meaning provided in Section 201.
24 October '97 Notes Indenture
<PAGE> 26
"Offshore Physical Securities" has the meaning provided in Section
201.
"Operating Cash Flow" means, for any fiscal quarter, (i) the
Company's Consolidated Adjusted Net Income (Loss) plus depreciation and
amortization in respect thereof for such fiscal quarter, plus (ii) all
amounts deducted in calculating Consolidated Adjusted Net Income (Loss)
for such fiscal quarter in respect of interest expense and other financing
costs, including dividends paid in respect of Redeemable Stock, and all
income taxes, whether or not deferred, applicable to such income period,
all as determined on a Consolidated basis in accordance with generally
accepted accounting principles. For purposes of calculating Operating
Cash Flow for the fiscal quarter most recently completed prior to any date
on which an action is taken that requires a calculation of the Operating
Cash Flow to Consolidated Interest Expense Ratio or Consolidated Debt to
Annualized Operating Cash Flow Ratio, (1) any Person that is a Restricted
Subsidiary on such date (or would become a Restricted Subsidiary in
connection with the transaction that requires the determination of such
ratio) will be deemed to have been a Restricted Subsidiary at all times
during such fiscal quarter, (2) any Person that is not a Restricted
Subsidiary on such date (or would cease to be a Restricted Subsidiary in
connection with the transaction that requires the determination of such
ratio) will be deemed not to have been a Restricted Subsidiary at any time
during such fiscal quarter and (3) if the Company or any Restricted
Subsidiary shall have in any manner acquired (including through
commencement of activities constituting such operating business) or
disposed (including through termination or discontinuance of activities
constituting such operating business) of any operating business during or
subsequent to the most recently completed fiscal quarter, such calculation
will be made on a pro forma basis on the assumption that such acquisition
or disposition had been completed on the first day of such completed
fiscal quarter.
"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
25 October '97 Notes Indenture
<PAGE> 27
Restricted Subsidiaries for the most recently completed fiscal quarter of
the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section
308 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(iv) Securities as to which Defeasance has been effected
pursuant to Section 1202;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given, made
or taken any request, demand, authorization, direction, notice, consent,
waiver or other action hereunder as of any date, Securities owned by the
Company or any other obligor upon the Securities or any
26 October '97 Notes Indenture
<PAGE> 28
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"pari passu", when used with respect to the ranking of any Debt of
any Person in relation to other Debt of such Person, means that each such
Debt (a) either (i) is not subordinated in right of payment to any other
Debt of such Person or (ii) is subordinate in right of payment to the same
Debt of such Person as is the other and is so subordinate to the same
extent and (b) is not subordinate in right of payment to the other or to
any Debt of such Person as to which the other is not so subordinate.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Permitted Debt" means:
(i) any Debt (including Guarantees thereof) outstanding on the
Closing Date (including the Securities) and any accretion of original
issue discount and accrual of interest with respect to such Debt;
(ii) any Debt outstanding under a Credit Facility;
(iii) any Vendor Financing Debt or any other Debt Incurred to
finance the cost (including the cost of design, development,
construction, improvement, installation or integration) of equipment,
inventory or network assets acquired by the Company or any of its
Restricted Subsidiaries after the Closing Date;
27 October '97 Notes Indenture
<PAGE> 29
(iv) Debt (A) to the Company or (B) to any Restricted
Subsidiary; provided that any event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of such Debt (other than to the Company or
another Restricted Subsidiary) shall be deemed, in each case, to
constitute an Incurrence of such Debt not permitted by this clause
(iv);
(v) Debt (A) in respect of performance, surety or appeal bonds
provided in the ordinary course of business, (B) under foreign
currency hedge, interest rate swap or similar agreements; provided
that such agreements (a) are designed solely to protect the Company
or its Restricted Subsidiaries against fluctuations in foreign
currency exchange rates or interest rates and (b) do not increase the
Debt of the obligor outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or interest rates or
by reason of fees, indemnities and compensation payable thereunder;
and (C) arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, or from
Guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Company or any Restricted Subsidiary
pursuant to such agreements, in any case Incurred in connection with
the disposition of any business, assets or Restricted Subsidiary
(other than Guarantees of Debt Incurred by any Person acquiring all
or any portion of such business, assets or Restricted Subsidiary for
the purpose of financing such acquisition), in a principal amount not
to exceed the gross proceeds actually received by the Company or any
Restricted Subsidiary in connection with such disposition;
(vi) renewals, refundings or extensions of any Debt referred to
in clause (i) or (iii) above or Incurred pursuant to clause (ii) of
Section 1008 and any renewals, refundings or extensions thereof, 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,
28 October '97 Notes Indenture
<PAGE> 30
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), and (b) to the
extent such renewed, refunded or extended Debt does not have a
mandatory redemption date prior to the mandatory redemption date of
the Debt being renewed, refunded or extended or have an Average Life
shorter than the remaining Average Life of the Debt being renewed,
refunded or extended; and
(vii) Debt payable solely in, or mandatorily convertible into,
Capital Stock (other than Redeemable Stock) of the Company;
(viii) Debt (in addition to Debt permitted under clauses (i)
through (vii) above) in an aggregate principal amount outstanding at
any time not to exceed $450 million.
"Permitted Distribution" of a Person means (x) the exchange by such
Person of Capital Stock (other than Redeemable Stock) for outstanding
Capital Stock; (y) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Debt of the Company that is
subordinate in right of payment to the Securities, in exchange for
(including any such exchange pursuant to the exercise of a conversion
right or privilege in connection with which cash is paid in lieu of the
issuance of fractional shares or scrip), or out of the proceeds of a
substantially concurrent issue and sale (other than to a Restricted
Subsidiary) of, either (a) Capital Stock of the Company (other than
Redeemable Stock) or (b) Debt of the Company that is subordinate 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 that is
redeemed, repurchased, defeased or otherwise acquired or retired for
value, provided that, in the case of this clause (b), such new Debt does
not mature
29 October '97 Notes Indenture
<PAGE> 31
prior to the Stated Maturity or have a mandatory redemption date prior to
the mandatory redemption date of the Debt being redeemed, repurchased,
defeased or otherwise acquired or retired for value or have an Average
Life shorter than the remaining Average Life of the Debt being redeemed,
repurchased, defeased or otherwise acquired or retired for value; and (z)
dividend, penalty or other mandated payments, including mandatory
repurchases, on or in respect of any class or series of the Company's
Preferred Capital Stock that is authorized and designated on the Closing
Date.
"Permitted Investment" means any Investment in Marketable Securities.
"Permitted Transaction" means (i) any transaction pursuant to
agreements (whether or not definitive, and regardless of whether binding
or non-binding) existing on the Closing Date and described in or
incorporated by reference into the Memorandum and (ii) any transaction or
transactions with any vendor or vendors of property or materials used in
the telecommunications business (including related activities and
services) of the Company or any Restricted Subsidiary, provided (x) such
transactions are in the ordinary course of business and (y) such vendor
does not beneficially own more than 50% of the voting power of the Voting
Stock of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 308 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
"Preferred Capital Stock" as applied to the Capital Stock of any
Person, means Capital Stock of such Person of any class or classes
(however designated) that ranks prior, as to the payment of dividends or
as to the distribution of
30 October '97 Notes Indenture
<PAGE> 32
assets upon any voluntary or involuntary liquidation, dissolution or
winding up of such Person, to shares of Capital Stock of any other class
of such Person.
"Private Placement Legend" means the legend initially set forth on
the Securities in the form set forth in Section 205.
"Purchase Amount" has the meaning specified in the definition of
Offer to Purchase.
"Purchase Date" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Price" has the meaning specified in the definition of Offer
to Purchase.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Record Expiration Date" has the meaning specified in Section 104.
"Redeemable Stock" of any Person means any Capital Stock of such
Person that by its terms or otherwise is (i) required to be redeemed prior
to the Stated Maturity of the Securities, (ii) redeemable at the option of
the holder thereof at any time prior to the Stated Maturity of the
Securities or (iii) convertible into or exchangeable for Capital Stock
referred to in clause (i) or (ii) above or Debt having a scheduled
maturity prior to the Stated Maturity of the Securities; provided that any
Capital Stock that would not constitute Redeemable Stock but for
provisions thereof giving holders thereof the right to require such Person
to repurchase or redeem such Capital Stock upon the occurrence of a
"change of control" occurring prior to the Stated Maturity of the
Securities shall not constitute Redeemable Stock if the "change of
control" provisions applicable to such Capital Stock are no more favorable
to the holders of such Capital Stock than the provisions contained in
Section 1013 and such Capital Stock specifically provides that such Person
will not repurchase or redeem any such stock pursuant to such provision
prior to the Company's repurchase of such Securities as are required to be
repurchased pursuant to Section 1013; and further
31 October '97 Notes Indenture
<PAGE> 33
provided that the Exchangeable Preferred Stock of the Company shall not be
considered to constitute Redeemable Stock.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the Closing Date, between the Company, Morgan Stanley &
Co. Incorporated, Chase Securities Inc., J.P. Morgan Securities Inc., TD
Securities (USA) Inc., NationsBanc Montgomery Securities, Inc. and Credit
Suisse First Boston Corporation.
"Registration Statement" means the Registration Statement as defined
and described in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the April 15 or October 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Required Consent" means, except as otherwise expressly provided in
this Indenture with respect to matters requiring the consent of each
holder of Securities affected thereby: (i) the consent of holders of not
less than a majority in aggregate principal amount at Stated Maturity of
the Securities for any action to (x) direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any power conferred upon such Trustee, or (y) consent to or
waive, on behalf of the holders of all the Securities, any past default
and its consequences, and (ii) with respect to all other actions requiring
the consent of holders of the Securities, the consent of either (x) a
majority in aggregate principal amount at Stated Maturity of the
Securities or (y) a
32 October '97 Notes Indenture
<PAGE> 34
majority in aggregate principal amount at Stated Maturity of (I) the
Securities, (II) the September Notes, if the holders of the September
Notes are being requested to consent to such action with respect to the
terms of the September Notes or the September Indenture, and (III) any
other issue of unsubordinated, unsecured notes issued by the Company, if
such notes or the indenture pursuant to which such notes were issued both
(A) require the consent of the holders of such notes to such action and
(B) provide that the holders thereof will vote with the holders of the
Securities with respect to such action.
"Restricted Payments" has the meaning specified in Section 1009.
"Restricted Subsidiary" means any Subsidiary of the Company, whether
existing on the Closing Date or created subsequent thereto, designated
from time to time by the Board of Directors as (or otherwise deemed to be)
a "Restricted Subsidiary" in accordance with Section 1010.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services or, if Standard &
Poor's Ratings Services shall cease rating debt securities having a
maturity at original issuance of at least one year and such ratings
business shall have been transferred to a successor Person, such successor
Person; provided, however, that if Standard & Poor's Ratings Services
ceases rating debt securities having a maturity at original issuance of at
least one year and its ratings business with respect thereto shall not
have been transferred to any successor Person, then "S&P" shall mean any
other nationally recognized rating agency (other than Moody's) that rates
debt securities having a maturity at original issuance of at least one
year and that shall have been designated by the Company by a written
notice given to the Trustee.
"Securities" means securities designated in the first paragraph of
the RECITALS OF THE COMPANY that are authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term "Securities"
shall include the Securities issued on the Closing Date, any Exchange
Securities to be issued and exchanged for any
33 October '97 Notes Indenture
<PAGE> 35
Securities pursuant to the Registration Rights Agreement and any other
Securities issued after the Closing Date under this Indenture. For
purposes of this Indenture all Securities shall vote together as one
series of Securities under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"September Indenture" means the Indenture, dated September 17, 1997,
between the Company and Harris Trust and Savings Bank, Trustee, relating
to the September Notes.
"September Notes" means the Company's $840,000,000 principal amount
at maturity of 10.65% Senior Redeemable Discount Notes due 2007.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 309.
"Specialized Mobile Radio" or "SMR" means a mobile radio
communications system that is operated as described in the Memorandum.
"Stated Maturity" when used with respect to any Debt security or any
installment of interest thereon, means the date specified in such Debt
security as the fixed date on which the principal of such Debt security or
such installment of interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the outstanding Voting Stock of which is owned, directly or indirectly, by
such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (ii) any other Person
(other than a corporation) in which such Person, or one or more
34 October '97 Notes Indenture
<PAGE> 36
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority
ownership and power to direct the policies, management and affairs
thereof.
"Total Common Equity" of any Person means, as of any day of
determination (and as modified for purposes of the definition of "Change
of Control"), the product of (i) the aggregate number of outstanding
primary shares of Common Stock of such Person on such day (which shall not
include any options or warrants on, or securities convertible or
exchangeable into, shares of Common Stock of such Person) and (ii) the
average Closing Price of such Common Stock over the 20 consecutive Trading
Days immediately preceding such day. If no such Closing Price exists with
respect to shares of any such class, the value of such shares for purposes
of clause (ii) of the preceding sentence shall be determined by the Board
of Directors in good faith and evidenced by a Board Resolution.
"Total Market Value of Equity" of the Company means, as of any day of
determination, the sum of (1) the product of (i) the aggregate number of
outstanding primary shares of Common Stock of the Company on such day
(which shall not include any options or warrants on, or securities
convertible or exchangeable into, shares of Common Stock of the Company)
and (ii) the average Closing Price of such Common Stock over the 20
consecutive Trading Days immediately preceding such day, plus (2) the
liquidation value of any outstanding shares of Preferred Capital Stock of
the Company on such day. If no such Closing Price exists with respect to
shares of any such class, the value of such shares for purposes of clause
(ii) of the preceding sentence shall be determined by the Board of
Directors in good faith and evidenced by a Board Resolution.
"Trading Day" with respect to a securities exchange or automated
quotation system means a day on which such exchange or system is open for
a full day of trading.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean such successor Trustee.
35 October '97 Notes Indenture
<PAGE> 37
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Global Securities" has the meaning provided in Section 201.
"U.S. Government Obligation" has the meaning specified in Section
1204.
"U.S. Physical Securities" has the meaning provided in Section 201.
"Unrestricted Subsidiary" means Unrestricted Subsidiary Funding
Company and any other Subsidiary that is not a Restricted Subsidiary and
includes any Restricted Subsidiary that becomes an Unrestricted Subsidiary
in accordance with Section 1010.
"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.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not
36 October '97 Notes Indenture
<PAGE> 38
designated by a number or a word or words added before or after the title
"vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only
so long as no senior class of securities has such voting power by reason
of any contingency.
"Wholly Owned Restricted Subsidiary" of the Company means a
Restricted Subsidiary all of the outstanding Capital Stock of which (other
than directors' qualifying shares) shall at the time be owned by the
Company or by one or more Wholly Owned Restricted Subsidiaries or by the
Company and one or more Wholly Owned Restricted Subsidiaries.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
37 October '97 Notes Indenture
<PAGE> 39
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
38 October '97 Notes Indenture
<PAGE> 40
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
39 October '97 Notes Indenture
<PAGE> 41
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities, provided that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Record Expiration Date by
Holders of the requisite principal amount of Outstanding Securities on such
record date; and provided, further, that for the purpose of determining whether
Holders of the requisite principal amount of such Securities have taken such
action, no Security shall be deemed to have been Outstanding on such record
date unless it is also Outstanding on the date such action is to become
effective. Nothing in this paragraph shall prevent the Company from setting a
new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
nor shall anything in this paragraph be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Company, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Record Expiration Date to be given to the Trustee in writing and to each Holder
of Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2), (iv) any direction referred to in
Section 512 or (v) the Required Consent. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities on such record date, and
no other Holders, shall be entitled to join in such notice, declaration,
request or
40 October '97 Notes Indenture
<PAGE> 42
direction, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Record Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date; and provided,
further, that for the purpose of determining whether Holders of the requisite
principal amount of such Securities have taken such action, no Security shall
be deemed to have been Outstanding on such record date unless it is also
Outstanding on the date such action is to become effective. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action (whereupon the record date previously set shall
automatically and without any action by any Person be canceled and of no
effect), nor shall anything in this paragraph be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the matter(s) to be submitted
for potential action by Holders and the applicable Record Expiration Date to be
given to the Company in writing and to each Holder of Securities in the manner
set forth in Section 106.
With respect to any record date set pursuant to this Section, the
party hereto that sets such record date may designate any day as the "Record
Expiration Date" and from time to time may change the Record Expiration Date to
any earlier or later day, provided that no such change shall be effective
unless notice of the proposed new Record Expiration Date is given to the other
party hereto in writing, and to each Holder of Securities in the manner set
forth in Section 106, on or before the existing Record Expiration Date. If a
Record Expiration Date is not designated with respect to any record date set
pursuant to this Section, the party hereto that set such record date shall be
deemed to have initially designated the 180th day after such record date as the
Record Expiration Date with respect thereto, subject to its right to change the
Record Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Record Expiration Date shall be later than the 180th day after
the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of
41 October '97 Notes Indenture
<PAGE> 43
the principal amount of such Security or by one or more duly appointed agents
each of which may do so pursuant to such appointment with regard to all or any
part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
and mailed, first-class postage prepaid, to or with the Trustee at its
Corporate Trust Office, Attention: Indenture Trust Division, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice
to Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the
42 October '97 Notes Indenture
<PAGE> 44
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be part
of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities 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.
43 October '97 Notes Indenture
<PAGE> 45
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect (including with respect to the accrual of interest) as if
made on the Interest Payment Date, Redemption Date or Purchase Date, or at the
Stated Maturity.
SECTION 114. No Recourse Against Others.
No recourse for the payment of the principal of, premium, if any, or
interest on any of the Securities, or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company contained in this Indenture, or in any of the
Securities, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator or against any past, present or future
partner, shareholder, other equity holder, officer, director, employee or
controlling person, as such, of the Company or of any successor Person, either
directly or through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly
44 October '97 Notes Indenture
<PAGE> 46
waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Securities.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof.
Securities offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Securities in registered
form, substantially in the form set forth in Section 202 (the "U.S. Global
Securities"), deposited with the Trustee, as custodian for the Depository, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Global Securities may from
time to time be increased or decreased by adjustments made on the records of
the Trustee as custodian for the Depository or its nominee, as hereinafter
provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more permanent
Global Securities in registered form substantially in the form set forth in
Section 202 (the "Offshore Global Securities") deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the
Offshore Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depositary, as hereinafter provided.
45 October '97 Notes Indenture
<PAGE> 47
The Offshore Physical Securities and U.S. Physical Securities are
sometimes collectively herein referred to as the "Physical Securities." The
U.S. Global Securities and the Offshore Global Securities are sometimes
collectively herein referred to as the "Global Securities."
Securities offered and sold in reliance on Regulation D under the
Securities Act shall be issued in the form of permanent certificated Securities
in registered form in substantially the form set forth in Section 202 (the
"U.S. Physical Securities"). Securities issued pursuant to Section 307 in
exchange for interests in the Global Securities shall be in the form of
permanent certificated Securities in registered form substantially in the form
set forth in Section 202 (the "Offshore Physical Securities").
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or
may be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
Nextel Communications, Inc.
9.75% Senior Serial Redeemable Discount Notes due 2007
<TABLE>
<S> <C>
No. $
---------- --------
CUSIP NO.
--------
CINS NO.
--------
</TABLE>
Nextel Communications, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to __________________,
or registered assigns, the principal sum of _____________________ Dollars on
October 31, 2007 and to pay cash interest thereon from October 31, 2002 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually
46 October '97 Notes Indenture
<PAGE> 48
in arrears on April 30 and October 31 in each year, commencing April 30, 2003
at the rate of 9.75% per annum, until the principal hereof is paid or duly
provided for, provided that any principal and premium, and any such installment
of interest, which is overdue shall bear interest at the rate of 9.75% per
annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or duly
provided for, and such interest shall be payable on demand. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the April
15 or October 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
The principal of this Security shall not bear or accrue cash interest
until October 31, 2002, except in the case of a default in payment of principal
upon acceleration, redemption or repurchase and, in such case, the overdue
principal and any overdue premium shall bear interest at the rate of 9.75% per
annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or duly
provided for. Interest on any overdue principal or premium shall be payable on
demand. Any such interest on overdue principal or premium which is not paid on
demand shall bear interest at the rate of 9.75% per annum (to the extent that
the payment of such interest on interest shall be legally enforceable), from
the date of such demand until the amount so demanded is paid or duly provided
for, and such shall be payable on demand.
47 October '97 Notes Indenture
<PAGE> 49
If an exchange offer registered under the Securities Act is not
consummated on or before April 30, 1998 in accordance with the terms of the
Registration Rights Agreement, interest (in addition to the accrual of original
issue discount during the period ending October 31, 2002 and in addition to the
interest otherwise due on the Securities after such date) will accrue from
April 30, 1998, at an annual rate of 0.5% of Accreted Value on the preceding
Semiannual Accrual Date on the Securities (and if such exchange offer is not
consummated before July 31, 1998, an additional incremental interest amount
will accrue from July 31, 1998 at an annual rate of 0.5% of Accreted Value on
the preceding Semiannual Accrual Date) payable in cash semiannually, in
arrears, on each April 30 and October 31, commencing October 31, 1998, until
the earlier of the date upon which (i) the exchange offer is consummated, (ii)
a Shelf Registration Statement with respect to all Registrable Securities (as
defined in the Registration Rights Agreement) is declared effective, or (iii)
the Securities become fully tradeable without registration under the Securities
Act, provided that upon the request of any Holder of the Securities, the
Company will deliver to such Holder certificates evidencing such Holder's
Securities without the Private Placement Legend. The Holder of this Security
is entitled to the benefits of such Registration Rights Agreement.
Payment of the principal of (and premium, if any) and any interest on
this Security will be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
48 October '97 Notes Indenture
<PAGE> 50
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
NEXTEL COMMUNICATIONS, INC.
[Seal]
By:
----------------------
Title:
Attest:
- ------------------------------
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its Senior Serial Redeemable Discount Notes due 2007
(herein called the "Securities"), limited in aggregate principal amount at
Stated Maturity to $1,129,100,000, issued and to be issued under an Indenture,
dated as of October 22, 1997 (herein called the "Indenture", which term shall
have the meaning assigned to it in such instrument), between the Company and
Harris Trust and Savings Bank, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities may be redeemed at any time on or after October 31,
2002, at the Company's option, in whole or in part, upon not less than 30 nor
more than 60 days' prior written notice mailed by first class mail to each
holder's last address as it appears in the Security Register, at the Redemption
Prices (expressed as a percentage of the principal amount at maturity thereof)
set forth below, plus an amount in cash equal to all accrued and unpaid
interest, if any, to the Redemption Date, if
49 October '97 Notes Indenture
<PAGE> 51
redeemed during the 12-month period beginning October 31 of each
of the years set forth below.
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2002 104.8750%
2003 102.4375%
</TABLE>
On or after October 31, 2004, the Company may redeem the Securities
at a Redemption Price equal to 100% of the principal amount at maturity
thereof, together in the case of any such redemption with accrued interest, if
any, to the Redemption Date, but interest installments whose Stated Maturity is
on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
In addition to any redemption provided for in the immediately
preceding paragraphs, in the event of the sale by the Company after the Closing
Date and prior to October 31, 2000 of its Capital Stock (other than Redeemable
Stock) in a single transaction or series of transactions for an aggregate
purchase price equal to or exceeding $125 million, up to a maximum of 33 1/3%
of the aggregate Accreted Value of the Outstanding Securities will, within 180
days of such sale, at the option of the Company, upon not less than 30 nor more
than 60 days' notice by mail, be redeemable from the net proceeds thereof (but
only to the extent such proceeds consist of cash or readily marketable cash
equivalents received in respect of the Company's Capital Stock so sold, in each
case net of all commissions, discounts, fees, expenses and taxes incurred in
respect thereof) at a Redemption Price equal to 109.75% of the Accreted Value
of the Securities to be redeemed to the Redemption Date.
For purposes of this Security and the Indenture, Accreted Value of
any Outstanding Security as of or to any date of determination means an amount
equal to the sum of (i) the issue price of such Security as determined in
accordance with Section 1273 of the Code plus (ii) the aggregate of the
portions of the original issue discount (the excess of the amounts considered
as part of the "stated redemption price at maturity" of such Security within
the meaning of Section 1273(a)(2) of the Code or any successor provisions,
whether denominated as principal or interest, over the issue price of such
Security) that shall theretofore have accrued pursuant to Section 1272 of
50 October '97 Notes Indenture
<PAGE> 52
the Code (without regard to Section 1272(a)(7) of the Code) from the date of
issue of such Security (a) for each six-month or shorter period ending April 30
or October 31 prior to the date of determination and (b) for the shorter
period, if any, from the end of the immediately preceding six-month or shorter
period, as the case may be, to the date of determination, plus (iii) accrued
and unpaid interest to the date such Accreted Value is paid (without
duplication of any amount set forth in (ii) above), minus all amounts
theretofore paid in respect of such Security, which amounts are considered as
part of the "stated redemption price at maturity" of such Security within the
meaning of Section 1273(a)(2) of the Code or any successor provisions (whether
such amounts paid were denominated principal or interest).
The Securities do not have the benefit of any sinking fund
obligations.
In the event of redemption, or purchase pursuant to an Offer to
Purchase, of this Security in part only, a new Security or Securities for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the Default Amount of the Securities, in the manner
and with the effect provided in the Indenture. Prior to October 31, 2002, the
Default Amount in respect of this Security as of any particular date shall
equal the Accreted Value of this Security as of such date. On and after
October 31, 2002, the Default Amount in respect of this Security as of any
particular date shall equal 100% of the principal amount payable in respect of
this Security at the Stated Maturity hereof. Upon payment of (i) the Default
Amount so declared due and payable and any overdue installment of interest in
respect of this Security, (ii) any overdue principal or premium payable on
redemption or repurchase of this Security and (iii) as provided on the face
hereof, any interest on any overdue Default Amount, principal, premium or
interest in respect
51 October '97 Notes Indenture
<PAGE> 53
of this Security (to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of the
payment of the principal of and any premium and interest on this Security shall
terminate.
The Indenture provides that, subject to certain conditions, if a
Change of Control occurs, the Company shall be required to make an Offer to
Purchase for all of the Securities.
Unless the context otherwise requires, references herein to the
principal amount of any Security mean, as of any day, (i) with respect to any
portion thereof required hereunder to be redeemed or repurchased on any
redemption or repurchase date on or prior to such day, the amount due and
payable in respect of such portion upon such redemption or repurchase date
(excluding premium and interest), (ii) with respect to any portion thereof not
required to be so redeemed or repurchased, but which has been declared due and
payable prior to the Stated Maturity thereof as provided in the Indenture, the
Default Amount in respect of such portion as of such day and (iii) with respect
to any portion thereof not required so to be redeemed or repurchased and not so
declared due and payable, such portion of the principal amount of such Security
payable at Stated Maturity thereof.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee after having received the Required
Consent (defined as follows). The Indenture also contains provisions
permitting those Persons giving the Required Consent, on behalf of the Holders
of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
As used herein, "Required Consent" means, except as otherwise
expressly provided in the Indenture with respect to matters requiring the
consent of each holder of Securities
52 October '97 Notes Indenture
<PAGE> 54
affected thereby: (i) the consent of holders of not less than a majority in
aggregate principal amount at Stated Maturity of the Securities for any action
to (x) direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any power conferred upon such
Trustee, or (y) consent to or waive, on behalf of the holders of all the
Securities, any past default and its consequences, and (ii) with respect to all
other actions requiring the consent of holders of the Securities, the consent
of either (x) a majority in aggregate principal amount at Stated Maturity of
the Securities or (y) a majority in aggregate principal amount at Stated
Maturity of (I) the Securities, (II) the September Notes, if the holders of the
September Notes are being requested to consent to such action with respect to
the terms of the September Notes or the September Indenture, and (III) any
other issue of unsubordinated, unsecured notes issued by the Company, if such
notes or the indenture pursuant to which such notes were issued both (A)
require the consent of the holders of such notes to such action and (B) provide
that the holders thereof will vote with the holders of the Securities with
respect to such action.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities, the Holders of not less than 25% in principal amount at
Stated Maturity of the Securities at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity and
the Trustee shall not have received from the Holders of a majority in principal
amount at Stated Maturity of Securities at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, within 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to certain suits described in the
Indenture, including any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein (or, in the case
of redemption, on or after the Redemption Date or, in the case of any purchase
of this Security required to be made pursuant to an Offer to Purchase, on or
after the Purchase Date.)
53 October '97 Notes Indenture
<PAGE> 55
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, the
Securities are exchangeable for a like aggregate principal amount of Securities
of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
54 October '97 Notes Indenture
<PAGE> 56
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- ----------------------------------------------------------------
Please print or typewrite name and address including zip code of
assignee
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________________ attorney to transfer said Security on
the books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES
AND UNLEGENDED OFFSHORE PHYSICAL AND GLOBAL SECURITIES]
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date the Shelf Registration Statement
with respect to resales of the Securities is declared effective or (ii) the end
of the period referred to in Rule 144(k) under the Securities Act, the
undersigned confirms that without utilizing any general solicitation or general
advertising that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act of 1933, as
amended, provided by Rule 144A thereunder.
55 October '97 Notes Indenture
<PAGE> 57
[ ] (b) this Security is being transferred other than in accordance
with (a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Security and the
Indenture.
If none of the foregoing boxes is checked, the Trustee shall not be obligated
to register this Security in the name of any Person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 307 of the Indenture shall have been satisfied.
Date:
--------------------- ----------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of the within-mentioned instrument in every
particular, without alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Date:
--------------------- ---------------------------------
NOTICE: To be executed by an
executive officer.
56 October '97 Notes Indenture
<PAGE> 58
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Company pursuant to Section 1013 of the Indenture, check the box:
[ ]
If you want to elect to have only a part of the principal amount at
Stated Maturity of this Security purchased by the Company pursuant to Section
1013 of the Indenture, state the portion of such amount: $_________
Dated: Your Signature:
--------------------
(Sign exactly as name appears
on the other side of this Security)
Signature Guarantee:
--------------------------------------
(Signature must be guaranteed by a financial institution that is a member of
the Securities Transfer Agent Medallion Program ("STAMP"), the Stock Exchange
Medallion Program ("SEMP"), the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP") or such other signature guarantee program as may be
determined by the Security Registrar in addition to, or in substitution for,
STAMP, SEMP or MSP, all in accordance with the Securities Exchange Act of 1934,
as amended.)
SECTION 204. Form of Trustee's Certificate of Authentication.
Dated:
This is one of the Securities referred to in the within-mentioned
Indenture.
Harris Trust and Savings Bank,
as Trustee
By
-----------------------
Authorized Signatory
57 October '97 Notes Indenture
<PAGE> 59
SECTION 205. Restrictive Legends. Unless and until a Security is exchanged
for an Exchange Security or sold in connection with an effective Shelf
Registration Statement pursuant to the Registration Rights Agreement, (i) each
U.S. Global Security and each U.S. Physical Security shall bear the legend set
forth below on the reverse thereof and (ii) each Offshore Physical Security and
each Offshore Global Security shall bear the legend set forth below on the
reverse thereof, until at least the 41st day after the Closing Date and receipt
by the Company and the Trustee of a certificate substantially in the form of
Exhibit A hereto:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR"), (2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT
(A) TO NEXTEL COMMUNICATIONS, INC. OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT AT MATURITY OF
SECURITIES OF LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO NEXTEL
COMMUNICATIONS, INC. THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT, OR (F) AFTER REGISTRATION OR PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH
58 October '97 Notes Indenture
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ANY TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND NEXTEL COMMUNICATIONS,
INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Security, whether or not an Exchange Security, shall also
bear the following legend on the reverse thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO., OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 307 OF THE INDENTURE.
59 October '97 Notes Indenture
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ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount at Stated Maturity of Securities which
may be authenticated and delivered under this Indenture is limited to
$1,129,100,000, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities pursuant to Section 304, 305, 308, 906 or 1108 or in connection with
an Offer to Purchase pursuant to Section 1013.
The Securities shall be known and designated as the "Senior Serial
Redeemable Discount Notes due 2007" of the Company. Their Stated Maturity
shall be October 31, 2007 and they shall bear cash interest at the rate of
9.75% per annum, from October 31, 2002 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, as the case may be,
payable semi-annually on April 30 and October 31, commencing April 30, 2003
until the principal thereof is paid or made available for payment.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; provided, however,
that at the option of the Company payment of interest, may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Company may be required to make an Offer to Purchase the
Securities as provided in Section 1013.
The Securities shall be redeemable as provided in Article Two and
Article Eleven.
The Securities shall be subject to Defeasance and/or Covenant
Defeasance as provided in Article Twelve.
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SECTION 302. Denominations.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 principal amount and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
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SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of authorized denominations and of a like tenor. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall
62 October '97 Notes Indenture
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execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount and tenor.
No such transfer shall be effected until, and such transferee shall succeed to
the rights of a Holder only upon, final acceptance and registration of the
transfer by the Security Registrar in the Security Register. Prior to the
registration of any transfer by a Holder as provided herein, the Company, the
Trustee and any agent of the Company shall treat the person in whose name the
Security is registered as the owner thereof for all purposes whether or not the
Security shall be overdue, and neither the Company, the Trustee, nor any such
agent shall be affected by notice to the contrary. Furthermore, any Holder of
a Global Security shall, by acceptance of such Global Security, agree that
transfers of beneficial interests in such Global Security may be effected only
through a book entry system maintained by the Holder of such Global Security
(or its agent) and that ownership of a beneficial interest in the Security
shall be required to be reflected in a book entry.
At the option of the Holder, Securities may be exchanged for other
Securities (including an exchange of securities for Exchange Securities) of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at such office or agency
provided, that no exchange of Securities for Exchange Securities shall occur
until a Registration Statement shall have been declared effective by the
Commission and that Securities that are exchanged for Exchange Securities
pursuant to such Registration Statement shall be canceled by the Trustee.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied
63 October '97 Notes Indenture
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by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1108 or in accordance with any Offer
to Purchase pursuant to Section 1013, and in any such case not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 1104 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
SECTION 306. Book-Entry Provisions for Global Security.
(a) The Global Security initially shall (i) be registered in the name
of the Depository for such Global Security or the nominee of such Depository;
(ii) be delivered to the Trustee as custodian for such Depository; and (iii)
bear legends as set forth in Section 205.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Security.
64 October '97 Notes Indenture
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(b) Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depository, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depository and the provisions of Section 307. In addition, U.S.
Physical Securities and Offshore Physical Securities shall be transferred to
all beneficial owners in exchange for their beneficial interests in the U.S.
Global Securities or Offshore Global Securities, respectively, if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for the U.S. Global Securities or Offshore Global Securities, as the
case may be, and a successor depository is not appointed by the Company within
90 days of such notice, (ii) an Event of Default has occurred and is continuing
and the Security Registrar has received a request therefor from the Depository
or (iii) in accordance with the rules and procedures of the Depository and the
provisions of Section 307.
(c) In connection with any transfer of a portion of the beneficial
interests in the Global Security to beneficial owners pursuant to paragraph (b)
of this Section, the Security Registrar shall reflect on the Security Register
the date and a decrease in the principal amount of the Global Security in an
amount equal to the principal amount of the beneficial interest in the Global
Security to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Physical Securities of like tenor
and amount.
(d) In connection with the transfer of an entire U.S. Global Security
or Offshore Global Security to beneficial owners pursuant to paragraph (b) of
this Section, such U.S. Global Security or Offshore Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
such U.S. Global Security or Offshore Global Security, as the case may be, an
equal aggregate principal amount of U.S. Physical Securities or Offshore
Physical Securities of authorized denominations.
(e) Any Physical Security delivered in exchange for an interest in
the Global Security pursuant to paragraph (b), (c) or (d) of this Section
shall, except as otherwise provided by paragraph (d) of Section 307 bear the
legend regarding transfer
65 October '97 Notes Indenture
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restrictions applicable to the Physical Securities set forth in
Section 205.
(f) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 307. Special Transfer Provisions.
Unless and until a Security is exchanged for an Exchange Security or
sold in connection with an effective Shelf Registration Statement pursuant to
the Registration Rights Agreement, the following provisions shall apply:
(a) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Physical Security or
an interest in the Global Security prior to the removal of the Private
Placement Legend to a QIB (excluding Non-U.S. Persons):
(i) If the Security to be transferred consists of (x) (A) U.S.
Physical Securities or (B) an interest in an Offshore Global Security
prior to the removal of the Private Placement Legend, the Security
Registrar shall register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on the form of
security stating, or has otherwise advised the Company and the Security
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A, to a transferee who has signed the certification
provided for on the form of Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that it is purchasing the
Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
QIB within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as it has requested pursuant to
Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing representations in
order to claim the exemption from registration provided by Rule 144A or
(y) an interest in a
66 October '97 Notes Indenture
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U.S. Global Security, the transfer of such interest may be effected only
through the book entry system maintained by the Depository.
(ii) If the proposed transferee is an Agent Member, and the Security
to be transferred consists of U.S. Physical Securities, upon receipt by
the Security Registrar of the documents referred to in clause (i) and
instructions given in accordance with the Depository's and the Security
Registrar's procedures, the Security Registrar shall reflect in the
Security Register the date and an increase in the principal amount at
maturity of the U.S. Global Security in an amount equal to the principal
amount at maturity of the U.S. Physical Securities to be transferred, and
the Trustee shall cancel the U.S. Physical Securities so transferred.
(b) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Security to any Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons):
(i) The Security Registrar shall register the transfer of any
Security, whether or not such Security bears the Private Placement Legend,
if (x) the requested transfer is after the time period referred to in Rule
144(k) under the Securities Act as in effect with respect to such transfer
or (y) the proposed transferee has delivered to the Security Registrar (A)
a certificate substantially in the form of Exhibit B hereto and (B) if the
aggregate principal amount of the Notes being transferred is less than
$250,000 at the time of such transfer, an Opinion of Counsel acceptable to
the Company that such transfer is in compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Security Registrar of (x) the documents, if any, required by the preceding
paragraph (i), and (y) instructions given in accordance with the
Depositary's and the Security Registrar's procedures, the Security
Registrar shall reflect on its books and records the date and a decrease
in the principal amount of the U.S. Global Security in an amount equal to
the principal amount of the beneficial interest in the U.S. Global
Security to be
67 October '97 Notes Indenture
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transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Securities of like
tenor and amount.
(c) Transfers of Interests in the Offshore Global Securities or
Offshore Physical Securities. The following provisions shall apply with
respect to any transfer of interests in the Offshore Global Securities or
Offshore Physical Securities:
(i) prior to removal of the Private Placement Legend from an
Offshore Global Security or Offshore Physical Security pursuant to Section
205, the Security Registrar shall refuse to register such transfer unless
such transfer complies with Section 307(a) or Section 307(d), as the case
may be; and
(ii) after such removal, the Security Registrar shall register the
transfer of any such Security without requiring any additional
certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of a Security to a Non-U.S.
Person:
(i) The Security Registrar shall register any proposed transfer to
any Non-U.S. Person if the Security to be transferred is a U.S. Physical
Security or an interest in a U.S. Global Security only upon receipt of a
certificate substantially in the form of Exhibit C hereto from the
proposed transferor.
(ii) (A) If the proposed Transferor is an Agent Member holding a
beneficial interest in a U.S. Global Security, upon receipt by the
Security Registrar of (x) the documents required by paragraph (i) and (y)
instructions in accordance with the Depositary's and the Security
Registrar's procedures, the Security Registrar shall reflect on its books
and records the date and a decrease in the principal amount of such U.S.
Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred, and
(B) if the proposed transferee is an Agent Member, upon receipt by the
Security Registrar of instructions given in accordance with the
Depositary's and the Security Registrar's procedures, the
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Security Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Offshore Global Security in an
amount equal to the principal amount of the U.S. Physical Securities or
the U.S. Global Security, as the case may be, to be transferred, and the
Trustee shall cancel the Physical Security, if any, so transferred or
decrease the amount of the U.S. Global Security.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Security Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of securities
bearing the Private Placement Legend, the Security Registrar shall deliver only
Securities that bear the Private Placement Legend unless either (i) the
circumstances contemplated by Section 205 exist or (ii) there is delivered to
the Trustee an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act.
(f) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture. The Security Registrar shall not register a
transfer of any Security unless such transfer complies with the restrictions on
transfer of such Security set forth in the Private Placement Legend and in this
Indenture. In connection with any transfer of Securities, each Holder agrees
by its acceptance of the Securities to furnish the Trustee or the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Trustee shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other
information.
The Trustee shall retain copies of all letters, notices and other
written communications received pursuant to Section 306
69 October '97 Notes Indenture
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or this Section 307. The Company shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Trustee.
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 309. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the
71 October '97 Notes Indenture
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Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each Holder
in the manner specified in Section 106, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 310. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 309) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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SECTION 311. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any Offer to Purchase pursuant to
Section 1013 shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order; provided, however,
that the Trustee shall not be required to destroy canceled Securities.
SECTION 312. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 313. CUSIP, CINS and ISIN Numbers.
The Company in issuing the Securities may use "CUSIP," "CINS" and
"ISIN" numbers (if then generally in use), and, if so, the Trustee shall use
the "CUSIP," "CINS" and "ISIN" numbers in notices of redemption or repurchase
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption or repurchase
and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption or repurchase shall not be
affected by any defect in or omission of such numbers.
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ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 308 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for
74 October '97 Notes Indenture
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principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be
75 October '97 Notes Indenture
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effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(2) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of
30 days; or
(3) default, on the applicable Purchase Date, in the purchase of
Securities required to be purchased by the Company pursuant to an Offer to
Purchase as to which an Offer has been mailed to Holders or failure to
make an Offer to Purchase as required hereunder; or
(4) default in the performance, or breach, of Section 801; or
(5) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default whose performance or whose breach is elsewhere in this
Section specifically dealt with) or in the Securities, and continuance of
such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
at Stated Maturity of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(6) a default or defaults under any bond(s), debenture(s), note(s)
or other evidence(s) of Debt for money borrowed by the Company or any
Restricted Subsidiary (or under any mortgage(s), indenture(s) or
instrument(s) under which there may be issued or by which there may be
secured or evidenced any Debt for money borrowed by the Company or any
Restricted Subsidiary) having, individually or in the aggregate, a
principal or similar amount outstanding of at least $25,000,000, whether
such Debt now exists or shall hereafter be created, which default or
defaults shall constitute a failure to pay any portion of the principal or
76 October '97 Notes Indenture
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similar amount of such Debt when due and payable after the expiration of
any applicable grace period with respect thereto or shall have resulted in
such Debt becoming or being declared due and payable; or
(7) a final judgment or final judgments for the payment of money are
entered against the Company or any Restricted Subsidiary in an aggregate
amount in excess of $25,000,000 by a court or courts of competent
jurisdiction, which judgments remain undischarged or unbonded for a period
(during which execution shall not be effectively stayed) of 60 days after
the right to appeal all such judgments has expired; or
(8) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any Restricted
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any Restricted Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or any Restricted Subsidiary or of any substantial part of the
property of the Company or any Restricted Subsidiary, or ordering the
winding up or liquidation of the affairs of the Company or any Restricted
Subsidiary, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(9) the commencement by the Company or any Restricted Subsidiary of
a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company or any Restricted Subsidiary to the entry of a
decree or order for relief in respect of the Company or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law
77 October '97 Notes Indenture
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or to the commencement of any bankruptcy or insolvency case or proceeding
against the Company or any Restricted Subsidiary, or the filing by the
Company or any Restricted Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by the Company or any Restricted Subsidiary to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Restricted Subsidiary or of any
substantial part of the property of the Company or any Restricted
Subsidiary, or the making by the Company or any Restricted Subsidiary of
an assignment for the benefit of creditors, or the admission by the
Company or any Restricted Subsidiary in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action
by the Company or any Restricted Subsidiary in furtherance of any such
action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(8) or (9)) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount at Stated
Maturity of the Outstanding Securities may declare the Default Amount of all
the Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such Default Amount and any accrued interest shall become immediately due and
payable. If an Event of Default specified in Section 501(8) or (9) occurs, the
Default Amount of and any accrued interest on the Securities then Outstanding
shall ipso facto become immediately due and payable without any declaration or
other Act on the part of the Trustee or any Holder.
Prior to October 31, 2002, the "Default Amount" in respect of any
particular Security as of any particular date shall equal the Accreted Value of
the Security as of such date. On and after October 31, 2002, the Default
Amount in respect of any particular Security as of any particular date shall
equal 100% of the principal amount payable in respect of the Security at the
Stated Maturity thereof.
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<PAGE> 80
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount at Stated Maturity of the Outstanding Securities,
by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities (without duplication
of any amount thereof paid or deposited pursuant to Clause (B) or (C)
below),
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration (including any Securities required to have been
purchased on the Purchase Date pursuant to an Offer to Purchase made
by the Company) and, to the extent that payment of such interest is
lawful, interest thereon at the rate provided by the Securities
(without duplication of any amount thereof paid or deposited pursuant
to Clause (A) above or Clause (C) below),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the Securities
(without duplication of any amount thereof paid or deposited pursuant
to Clause (A) or (B) above), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
79 October '97 Notes Indenture
<PAGE> 81
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Unless the context otherwise requires, references in this Indenture
to the principal amount of any Security mean, as of any day, (i) with respect
to any portion thereof required thereunder to be redeemed or repurchased on any
redemption or repurchase date on or prior to such day, the amount due and
payable in respect of such portion upon such redemption or repurchase date
(excluding premium and interest), (ii) with respect to any portion thereof not
required to be so redeemed or repurchased, but which has been declared due and
payable prior to the Stated Maturity thereof, the Default Amount in respect of
such portion as of such day and (iii) with respect to any portion thereof not
required so to be redeemed or repurchased and not so declared due and payable,
such portion of the principal amount of such Security payable at Stated
Maturity thereof.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof or, with respect to any
Security required to have been purchased pursuant to an Offer to Purchase
made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest,
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate provided by the Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
80 October '97 Notes Indenture
<PAGE> 82
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
81 October '97 Notes Indenture
<PAGE> 83
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
82 October '97 Notes Indenture
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(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount at Stated
Maturity of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount at Stated Maturity of the Outstanding
Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 309) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or in the case of an Offer to Purchase made by the Company and required to
be accepted as to such Security, on the Purchase Date) and to institute suit
for the enforcement of any such
83 October '97 Notes Indenture
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payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 308, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
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SECTION 512. Control by Holders.
By giving the Required Consent, those Persons giving the Required
Consent shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
By giving the Required Consent, those Persons giving the Required
Consent may, on behalf of the Holders of all the Securities, waive any past
default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to an Offer to Purchase which has been made by the
Company), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to
85 October '97 Notes Indenture
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pay the costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided, that neither this Section nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act. Notwithstanding the foregoing, no provision of
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
86 October '97 Notes Indenture
<PAGE> 88
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any Default hereunder as
and to the extent provided by the Trust Indenture Act; provided, however, that
in the case of any Default of the character specified in Section 501(5), no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have
87 October '97 Notes Indenture
<PAGE> 89
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled (subject to reasonable confidentiality
arrangements as may be proposed by the Company) to examine the books,
records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may
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otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense incurred without
negligence or bad faith on its part, including taxes (other than taxes
based upon, measured by or determined by the revenue or income of the
Trustee), arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
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<PAGE> 91
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing to it pursuant to
this Section 607, except with respect to funds held in trust for the benefit of
the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(8) or Section 501(9), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive any termination of this
Indenture.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in Chicago, Illinois or the Borough of Manhattan, The City of New
York. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
90 October '97 Notes Indenture
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
in accordance with the applicable requirements of Section 611 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount at Stated Maturity of the Outstanding
Securities, delivered to the Trustee and to the Company. If an instrument of
acceptance by a successor Trustee in accordance with the applicable
requirements of Section 611 shall not have been delivered to the Trustee within
30 days after the giving of such notice of removal, the Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
91 October '97 Notes Indenture
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then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount at Stated Maturity of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 611,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders and accepted appointment in accordance with the
applicable requirements of Section 611, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring
92 October '97 Notes Indenture
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Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
93 October '97 Notes Indenture
<PAGE> 95
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or partial purchase or pursuant to Section 308, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
94 October '97 Notes Indenture
<PAGE> 96
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
Dated:
Harris Trust and Savings Bank,
as Trustee
By ,
---------------------------
As Authenticating Agent
By
---------------------------
Authorized Signatory
95 October '97 Notes Indenture
<PAGE> 97
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each April 15 and
October 15, commencing April 15, 2003, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders as of
such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
96 October '97 Notes Indenture
<PAGE> 98
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to the names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after January 15 of each year commencing January
15, 1998, the Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when the Securities are listed on any
stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. The Trustee's receipt of such reports, information and documents
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein.
97 October '97 Notes Indenture
<PAGE> 99
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc. Only on Certain
Terms.
The Company (x) shall not, in any transaction or series of related
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to, any Person, and (y) shall not permit any of its Restricted
Subsidiaries to enter into any such transaction or series of transactions if
such transaction or series of transactions, in the aggregate, would result in a
sale, assignment, conveyance, transfer, lease or other disposition of the
properties and assets of the Company and its Restricted Subsidiaries, taken as
a whole, substantially as an entirety to any Person, unless, in each case (x)
or (y), at the time and after giving effect thereto
(i) either: (A) if the transaction or series of transactions is a
consolidation of the Company with or a merger of the Company with or into
any other Person, the Company shall be the surviving Person of such merger
or consolidation, or (B) the Person formed by any consolidation with or
merger with or into the Company, or to which the properties and assets of
the Company or the Company and its Restricted Subsidiaries, taken as a
whole, as the case may be, substantially as an entirety are sold,
assigned, conveyed, leased or otherwise transferred (any such surviving
Person or transferee Person referred to in this clause (B) being the
"Surviving Entity"), shall be a corporation, partnership or trust
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume by a
supplemental indenture executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the
Securities and this Indenture and, in each case, this Indenture, as so
supplemented, shall remain in full force and effect, and
(ii) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including any
Debt Incurred or anticipated to be Incurred in connection with or in
respect of such
98 October '97 Notes Indenture
<PAGE> 100
transaction or series of transactions), no Default or Event of Default
shall have occurred and be continuing, and
(iii) the Consolidated Net Worth of the Company or the Surviving
Entity, as the case may be, shall be equal to or greater than that of the
Company immediately prior to such transaction or series of transactions;
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
by any Restricted Subsidiary to any other Restricted Subsidiary, or the merger
or consolidation of any Restricted Subsidiary with or into any other Restricted
Subsidiary.
In connection with any consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition contemplated by the foregoing
provisions, the Company shall deliver, or cause to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate stating that such consolidation, merger, sale,
assignment, conveyance, transfer, lease or other disposition and the
supplemental indenture in respect thereof (required under clause (i)(B) of the
preceding paragraph) comply with the requirements of this Indenture and an
Opinion of Counsel that the conditions of this Article 8 have been complied
with. Each such Officers' Certificate shall set forth the manner of
determination of the Consolidated Net Worth in accordance with clause (iii) of
the preceding paragraph.
For all purposes of this Indenture and the Securities (including the
provisions described in the two immediately preceding paragraphs and Section
1008 and Section 1010), Subsidiaries of any Surviving Entity will, upon such
transaction or series of transactions, become Restricted Subsidiaries or
Unrestricted Subsidiaries as provided pursuant to Section 1010 and all Debt of
the Surviving Entity and its Subsidiaries that was not Debt of the Company and
its Subsidiaries immediately prior to such transaction or series of
transactions shall be deemed to have been Incurred upon such transaction or
series of transactions.
99 October '97 Notes Indenture
<PAGE> 101
SECTION 802. Successor Substituted.
Upon any transaction or series of transactions that are of the type
described in clause (x) or (y) of, and are effected in accordance with, Section
801, the Surviving Entity shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such Surviving Entity had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(4) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action pursuant to
this Clause (5) shall not adversely affect the
100 October '97 Notes Indenture
<PAGE> 102
interests of the Holders in any material respect (as determined in good
faith by the Board of Directors).
SECTION 902. Supplemental Indentures with Consent of Holders.
After receipt of the Required Consent, given by Act of those Persons
giving the Required Consent delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable thereon, or
reduce the Default Amount that would be due and payable on acceleration of
the Maturity thereof pursuant to Section 502, or change the place of
payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of any Security required to be purchased
pursuant to an Offer to Purchase, on or after the applicable Purchase
Date), or
(2) reduce the percentage in principal amount at Stated Maturity of
the Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1018, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the
101 October '97 Notes Indenture
<PAGE> 103
consent of the Holder of each Outstanding Security affected thereby, or
(4) modify any provisions of this Indenture relating to the
calculation of Accreted Value, or
(5) following the mailing of an Offer with respect to an Offer to
Purchase pursuant to Section 1013, modify the provisions of this Indenture
with respect to such Offer to Purchase in a manner adverse to such Holder.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
102 October '97 Notes Indenture
<PAGE> 104
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee,
103 October '97 Notes Indenture
<PAGE> 105
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. In the event any such notice
or demands are so made or served on the Trustee, the Trustee will promptly
forward copies thereof to the Company.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will: (i) comply with the provisions of the Trust Indenture
Act applicable
104 October '97 Notes Indenture
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to it as Paying Agent and (ii) during the continuance of any default by the
Company (or any other obligor upon the Securities) in the making of any payment
in respect of the Securities, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent as
such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and material franchises; provided, however, that
the Company
105 October '97 Notes Indenture
<PAGE> 107
shall not be required to preserve any such right or franchise if the Board of
Directors in good faith shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all material properties used or useful in the
conduct of its business or the business of any Restricted Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such material properties
if such discontinuance is, as determined by the Board of Directors in good
faith, desirable in the conduct of its business or the business of any
Restricted Subsidiary and not disadvantageous in any material respect to the
Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Restricted Subsidiaries or upon the income, profits or property of the Company
or any of its Restricted Subsidiaries, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any of its Restricted Subsidiaries; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
106 October '97 Notes Indenture
<PAGE> 108
SECTION 1007. Maintenance of Insurance.
The Company shall, and shall cause its Restricted Subsidiaries to,
keep at all times all of their properties which are of an insurable nature
insured against loss or damage with insurers believed by the Company to be
responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in
accordance with good business practice. The Company shall, and shall cause its
Restricted Subsidiaries to, use the proceeds from any such insurance policy to
repair, replace or otherwise restore all material properties to which such
proceeds relate, provided, however, that the Company shall not be required to
repair, replace or otherwise restore any such material property if the Board of
Directors in good faith determines that such inaction is desirable in the
conduct of the business of the Company or any Restricted Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1008. Limitation on Consolidated Debt.
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 under this clause (i), the Debt so Incurred and
outstanding is in an aggregate principal amount that does not exceed 2.25
times, with respect to Capital Stock sales after June 1, 1997 and on or prior
to March 31, 1998, or 2.00 times, with respect to Capital Stock sales after
March 31, 1998, the aggregate amount of net cash proceeds (or 80% of the Fair
Market Value of property other than cash) received by the Company after June 1,
1997 from the issuance and sale (other than to a Restricted Subsidiary) of
shares of its Capital Stock (other than Redeemable Stock), or any options,
warrants or other rights to purchase such Capital Stock (other than Redeemable
Stock), other than (x) 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 (y) proceeds which have been included in the computation of the amounts
available for Restricted Payments pursuant to clause (c)(2) of Section 1009, to
the extent the inclusion thereof was necessary to allow a subsequent Restricted
Payment to be made, or (ii) on the date of such
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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 1.75 to 1.
SECTION 1009. Limitation on Restricted Payments.
The Company shall not, directly or indirectly:
(i) declare or pay any dividend on, or make any distribution to the
holders of, any shares of its Capital Stock (other than dividends or
distributions payable solely in its Capital Stock (other than Redeemable
Stock) or in options, warrants or other rights to purchase any such
Capital Stock (other than Redeemable Stock));
(ii) purchase, redeem or otherwise acquire or retire for value, or
permit any Restricted Subsidiary to, directly or indirectly, purchase,
redeem or otherwise acquire or retire for value (other than value
consisting solely of Capital Stock of the Company that is not Redeemable
Stock or options, warrants or other rights to acquire such Capital Stock
that is not Redeemable Stock), any Capital Stock of the Company (including
options, warrants or other rights to acquire such Capital Stock);
(iii) redeem, repurchase, defease or otherwise acquire or retire for
value, or permit any Restricted Subsidiary to, directly or indirectly,
redeem, repurchase, defease or otherwise acquire or retire for value
(other than value consisting solely of Capital Stock of the Company that
is not Redeemable Stock or options, warrants or other rights to acquire
such Capital Stock that is not Redeemable Stock), prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund payment, any Debt
that is subordinate (whether pursuant to its terms or by operation of law)
in right of payment to the Securities; or
(iv) make, or permit any Restricted Subsidiary, directly or
indirectly, to make, any Investment (other than
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any Permitted Investment) in any Person (other than in a Restricted
Subsidiary or a Person that becomes a Restricted Subsidiary as a result of
such Investment);
(each of the foregoing actions set forth in clauses (i) through (iv), other
than any such action that is a Permitted Investment or a Permitted
Distribution, being referred to as a "Restricted Payment") unless, at the time
of such Restricted Payment, and after giving effect thereto:
(a) no Default or Event of Default shall have occurred and be
continuing;
(b) except with respect to Investments, 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, the
Consolidated Debt to Annualized Operating Cash Flow Ratio would not have
exceeded 7.0 to 1; and
(c) after giving effect to such Restricted Payment on a pro forma
basis, the aggregate amount of all Restricted Payments made on or after
February 15, 1994 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 February 15, 1994
of shares of its Capital Stock (other than Redeemable Stock), or any
options, warrants or other rights to purchase such Capital Stock
(other than Redeemable 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
109 October '97 Notes Indenture
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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 as defined and
described in the Company's prospectus, dated February 9, 1994,
relating to the Company's Senior Redeemable Discount Notes due 2004
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 (A) 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
this Section 1009 (other than as a Directed Investment)) or (B) to
Incur 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 the Section 1008 (other than under
clause (i) thereof) or (II) has been repaid or refinanced with the
proceeds of Debt Incurred in accordance with Section 1008 (other than
under clause (i) thereof) or (III) has otherwise been repaid), 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) after February 15, 1994 of
any Capital Stock of the Company (other than Redeemable Stock), or
any options, warrants or other rights to purchase such Capital Stock
(other than Redeemable Stock), upon the conversion of, or exchange
for, Debt of the Company or a Restricted Subsidiary.
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. In addition, the foregoing limitations do not prevent the
Company from (I) paying a dividend on Capital Stock of the Company within 60
days after the declaration thereof if, on the
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date when the dividend was declared, the Company could have paid such dividend
in accordance with the provisions of this Indenture, (II) repurchasing Capital
Stock of the Company (including options, warrants or other rights to acquire
such Capital Stock) from employees or former employees of the Company or any
Subsidiary thereof for consideration not to exceed $500,000 in the aggregate in
any fiscal year (with repurchases pursuant to this clause (II) not being
counted as Restricted Payments for purposes of clause (c) above) or (III) the
repurchase, redemption or other acquisition for value of Capital Stock of the
Company to the extent necessary to prevent the loss or secure the renewal or
reinstatement of any license or franchise held by the Company or any of its
Subsidiaries from any governmental agency; or (IV) Investments in Unrestricted
Subsidiary Funding Company so long as (x) such Investments are invested in
Nextel International, Inc. and (y) Nextel International, Inc. is a Subsidiary
of the Company.
Notwithstanding the foregoing limitations in this Section 1009, the
Company will be permitted to make any Investment in a Person that is not
(either before or after giving effect thereto) a Subsidiary of the Company,
provided that, immediately after giving effect thereto, the amount equal to (a)
the aggregate amount of all Investments made pursuant to this paragraph minus
(b) all cash received by the Company or any Restricted Subsidiary from the
sale, transfer or other disposition to a Person that is not a Subsidiary of the
Company of any such Investment (or portion thereof) included in such aggregate
amount (with the amount of cash to be counted for this purpose not to exceed
the amount of such Investment (or portion thereof) so included), shall not
exceed the greater of (i) $250 million and (ii) 2% of the Total Market Value of
Equity of the Company as of such time. For purposes of determining the
aggregate amount of Investments referred to in clause (a), the amount of any
Investment shall be deemed to equal the cash portion thereof plus the fair
market value of any non-cash portion thereof (to the extent such portion
constitutes an Investment) at the time such Investment is made, as determined
by the Board of Directors (whose good faith determination shall be conclusive
and evidenced by a Board Resolution).
Notwithstanding the foregoing, no Investment in a Person that immediately
thereafter would be a Restricted Subsidiary will be a Restricted Payment. In
addition, if any Person in which an Investment is made, which Investment
constitutes a Restricted
111 October '97 Notes Indenture
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Payment when made, thereafter becomes a Restricted Subsidiary, all such
Investments previously made in such Person shall no longer be counted as
Restricted Payments for purposes of calculating the aggregate amount of
Restricted Payments pursuant to clause (c) of the third preceding paragraph or
the aggregate amount of Investments pursuant to clause (a) of the immediately
preceding paragraph, in each case to the extent such Investments would
otherwise be so counted.
For purposes of clause (c)(3) above, the net proceeds received by the
Company from the issuance or sale of its Capital Stock either upon the
conversion of, or exchange for, Debt of the Company or any Restricted
Subsidiary shall be deemed to be an amount equal to (a) the sum of (i) the
principal amount or accreted value (whichever is less) of such Debt on the date
of such conversion or exchange and (ii) the additional cash consideration, if
any, received by the Company upon such conversion or exchange, less any payment
on account of fractional shares, minus (b) all expenses incurred in connection
with such issuance or sale. In addition, for purposes of clause (c)(3) above,
the net proceeds received by the Company from the issuance or sale of its
Capital Stock upon the exercise of any options or warrants of the Company or
any Restricted Subsidiary shall be deemed to be an amount equal to (a) the
additional cash consideration, if any, received by the Company upon such
exercise, minus (b) all expenses incurred in connection with such issuance or
sale.
For purposes of this Section 1009, if a particular Restricted Payment
involves a non-cash payment, including a distribution of assets, then such
Restricted Payment shall be deemed to be an amount equal to the cash portion of
such Restricted Payment, if any, plus an amount equal to the fair market value
of the non-cash portion of such Restricted Payment, as determined by the Board
of Directors (whose good faith determination shall be conclusive and evidenced
by a Board Resolution).
SECTION 1010. Restricted Subsidiaries.
The Company shall not designate any Restricted Subsidiary as an
Unrestricted Subsidiary, and shall not itself, and shall not permit any
Restricted Subsidiary to, sell, convey, transfer or otherwise dispose of any
assets, other than in the ordinary
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course of business, to any Unrestricted Subsidiary or any Person that becomes
an Unrestricted Subsidiary as part of such transaction, unless, after giving
effect to any such action, the assets (not including any assets so sold,
conveyed, transferred or otherwise disposed of, other than in the ordinary
course of business, to any Unrestricted Subsidiary or any Person that becomes
an Unrestricted Subsidiary as part of such transaction) and business of the
Company and its remaining Restricted Subsidiaries generated at least 90% of
Digital Mobile-SMR Operating Cash Flow in the fiscal quarter of the Company
most recently completed prior to the date of such action.
The Board of Directors may designate any existing Unrestricted Subsidiary
or any Person that is about to become a Subsidiary of the Company as a
Restricted Subsidiary if, after giving effect to such action (and, if such
designation is made in connection with the acquisition of a Person or an
operating business that is about to become a Subsidiary of the Company, after
giving effect to all terms of such acquisition) on a pro forma basis, on the
date of such action, the Debt, if any, of such Unrestricted Subsidiary or
Person outstanding immediately prior to such designation would have been
permitted to be Incurred (and shall be deemed to have been Incurred) for all
purposes of this Indenture.
Subject to the second preceding paragraph and compliance with Section
1009, the Board of Directors may designate any Restricted Subsidiary as an
Unrestricted Subsidiary.
The designation by the Board of Directors of a Restricted Subsidiary as an
Unrestricted Subsidiary shall, for all purposes of Section 1009 (including
clause (b) thereof), be deemed to be a Restricted Payment of an amount equal to
the fair market value of the Company's ownership interest in such Subsidiary
(including, without duplication, such indirect ownership interest in all
Subsidiaries of such Subsidiary), as determined by the Board of Directors in
good faith and evidenced by a Board Resolution.
Notwithstanding the foregoing provisions of this Section 1010, the Board
of Directors may not designate a Subsidiary of the Company to be an
Unrestricted Subsidiary if, after such designation, (a) the Company or any of
its other Restricted Subsidiaries (i) provides credit support for, or a
Guarantee of, any Debt of such Subsidiary (including any undertaking, agreement
or instrument evidencing such Debt) or
113 October '97 Notes Indenture
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(ii) is directly or indirectly liable for any Debt of such Subsidiary, (b) a
default with respect to any Debt of such Subsidiary (including any right which
the holders thereof may have to take enforcement action against such
Subsidiary) would permit (upon notice, lapse of time or both) any holder of any
other Debt of the Company or any Restricted Subsidiary to declare a default on
such other Debt or cause the payment thereof to be accelerated or payable prior
to its final scheduled maturity or (c) such Subsidiary owns any Capital Stock
of, or owns or holds any Lien on any property of, any Restricted Subsidiary
which is not a Subsidiary of the Subsidiary to be so designated.
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 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.
SECTION 1011. Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into any transaction (including the purchase,
sale, lease or exchange of any property or the rendering of any service) or
series of related transactions with any Affiliate of the Company on terms that
are less favorable to the Company or such Restricted Subsidiary, as the case
may be, than those which might be obtained at the time of such transaction from
a Person that is not such an Affiliate; provided, however, that this Section
1011 shall not limit, or be applicable to, (i) any transaction between
Unrestricted Subsidiaries not involving the Company or any Restricted
Subsidiary, (ii) any transaction between the Company and any Restricted
Subsidiary or between Restricted Subsidiaries or (iii) any Permitted
Transactions. In addition, any transaction or series of related transactions,
other than Permitted
114 October '97 Notes Indenture
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Transactions, between the Company or any Restricted Subsidiary and any
Affiliate of the Company (other than a Restricted Subsidiary) involving an
aggregate consideration of $5 million or more must be approved in good faith by
a majority of the Company's Disinterested Directors (of which there must be at
least one) and evidenced by a Board Resolution. For purposes of this Section
1011, any transaction or series of related transactions between the Company or
any Restricted Subsidiary and an Affiliate of the Company that is approved by a
majority of the Disinterested Directors (of which there must be at least one)
and evidenced by a Board Resolution shall be deemed to be on terms as favorable
as those that might be obtained at the time of such transaction (or series of
transactions) from a Person that is not such an Affiliate and thus shall be
permitted under this Section 1011.
SECTION 1012. [Intentionally Omitted]
SECTION 1013. Change of Control.
Upon the occurrence of a Change of Control, the Company shall be required
to make an Offer to Purchase Outstanding Securities at a purchase price in cash
equal to 101% of the Accreted Value thereof on any Purchase Date prior to
October 31, 2002 or 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to any Purchase Date on and after October 31, 2002.
The Offer to Purchase must be made within 30 days following a Change of
Control, must remain open for at least 30 and not more than 60 days and must
comply with the requirements of Rule 14e-1 under the Exchange Act and any other
applicable securities laws and regulations.
SECTION 1014. [Intentionally Omitted]
SECTION 1015. Activities of the Company and Restricted
Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary to,
engage in any business other than the telecommunications business and related
activities and services, including such businesses, activities and services as
the Company
115 October '97 Notes Indenture
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and the Restricted Subsidiaries are engaged in on the Closing Date.
SECTION 1016. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, the Company shall file with
the Commission the annual reports, quarterly reports and other documents which
the Company would have been required to file with the Commission pursuant to
such Section 13(a) or 15(d) or any successor provision thereto if the Company
were subject thereto, such documents to be filed with the Commission on or
prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required to file them. The Company shall also in any
event (a) within 15 days of each Required Filing Date (i) transmit by mail to
all Holders, as their names and addresses appear in the Security Register,
without cost to such Holders, and (ii) file with the Trustee copies of the
annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act or any successor provisions thereto if the Company
were subject thereto and (b) if filing such documents by the Company with the
Commission is not permitted under the Exchange Act, promptly upon written
request supply copies of such documents to any prospective Holder. The
Trustee's receipt of such reports, information and documents shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein.
SECTION 1017. Statement by Officers as to Default; Compliance
Certificates.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder), and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
116 October '97 Notes Indenture
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(b) The Company shall deliver to the Trustee, as soon as possible
and in any event within 10 days after the Company becomes aware of the
occurrence of a Default or an Event of Default, an Officers' Certificate
setting forth the details of such Default or Event of Default, and the action
which the Company proposes to take with respect thereto.
SECTION 1018. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 801, provided pursuant to Section
901(2) and set forth in Sections 1004 to 1016, inclusive, if before the time
for such compliance the Holders of at least a majority in principal amount at
Stated Maturity of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect; provided, however, with respect to an Offer to
Purchase as to which an Offer has been mailed, no such waiver may be made or
shall be effective against any Holder tendering Securities pursuant to such
Offer, and the Company may not omit to comply with the terms of such Offer as
to such Holder.
SECTION 1019. Company to Supply Information Concerning
Original Issue Discount.
The Company shall provide to the Trustee on a timely basis such
information as the Trustee requires to enable the Trustee to prepare and file
any form required to be submitted by the Company with the Internal Revenue
Service and the Holders of the Securities relating to original issue discount,
including without limitation, Form 1099-OID or any successor form.
117 October '97 Notes Indenture
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
The Securities may be redeemed at any time on or after October 31,
2002, at the Company's option, in whole or in part, upon not less than 30 or
more than 60 days' prior written notice mailed by first class mail to each
Holder's last address as it appears in the Security Register, at the redemption
prices (expressed as a percentage of the principal amount at maturity thereof)
set forth below, plus an amount in cash equal to all accrued and unpaid
interest to the Redemption Date, if redeemed during the 12-month period
beginning October 31 of each of the years set forth below.
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2002 104.8750%
2003 102.4375%
</TABLE>
On or after October 31, 2004, the Company may redeem the Securities
at a Redemption Price equal to 100% of the principal amount at maturity
thereof, together in the case of any such redemption with accrued interest, if
any, to the Redemption Date, but interest installments whose Stated Maturity is
on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates for the payment of such interest
installments.
In addition to any redemption provided for in the immediately
preceding paragraphs, in the event of the sale by the Company after the Closing
Date and prior to October 31, 2000 of its Capital Stock (other than Redeemable
Stock) in a single transaction or series of transactions for an aggregate
purchase price equal to or exceeding $125 million, up to a maximum of 33 1/3%
of the aggregate Accreted Value of the Outstanding Securities will, within 180
days of such sale, at the option of the Company, upon not less than 30 nor more
than 60 days' notice by mail, be redeemable from the net proceeds thereof (but
only to the extent such proceeds consist of cash or readily marketable cash
equivalents received in respect of the Company's Capital Stock so sold, in each
case net of all commissions, discounts, fees, expenses and taxes incurred in
respect thereof) at a
118 October '97 Notes Indenture
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Redemption Price equal to 9.75% of the Accreted Value of the Securities to be
redeemed to the Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company, as permitted
by this Indenture and the provisions of the Securities, shall be made in
accordance with such provisions and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company pursuant to Section 1101, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
In the case of any partial redemption, selection of the Securities
for redemption will be made by the Trustee in compliance with the requirements
of the principal national securities exchange, if any, on which the Securities
are listed or, if the Securities are not listed on a national securities
exchange, on a pro rata basis, by lot or by such other method as the Trustee in
its sole discretion shall deem to be fair and appropriate; provided that no
Security of $1,000 in principal amount or less shall be redeemed in part.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture and of the Securities, unless the
context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part,
119 October '97 Notes Indenture
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to the portion of the principal amount of such Securities which has been or is
to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state (including CUSIP, CINS and ISIN
numbers, if any):
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed, including CUSIP,
CINS and ISIN numbers,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and (i) that, in the
case of a Redemption Date on or after October 31, 2002, cash interest
thereon will cease to accrue on and after said Redemption Date and (ii)
that, in the case of a Redemption Date prior to October 31, 2002, the
Accreted Value thereof will not increase after said Redemption Date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) if the redemption is being made pursuant to the provisions of the
Securities set forth in the third paragraph of Section 203, a brief
description of the nature and amount of Capital Stock sold by the Company,
the aggregate purchase price thereof and the net cash proceeds therefrom
available for such redemption, the date or dates on which such sale was
completed and the percentage of the
120 October '97 Notes Indenture
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aggregate Accreted Value of Outstanding Securities being redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any applicable accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and any applicable
accrued interest) such Securities shall not bear interest and the Accreted
Value of such Securities shall thereupon and thereafter conclusively be deemed
to be their Accreted Value determined on and as of such Redemption Date. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with any applicable accrued and unpaid interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 309.
If any Security called for redemption in accordance with the election
of the Company made pursuant to Section 1101 shall not be so paid upon
surrender thereof for redemption, the
121 October '97 Notes Indenture
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principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate provided by the Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount at Stated Maturity
equal to and in exchange for the unredeemed portion of the principal amount at
Stated Maturity of the Security so surrendered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have Section
1202 or Section 1203 applied to the Outstanding Securities (as a whole and not
in part) upon compliance with the conditions set forth below in this Article.
Any such election shall be evidenced by a Board Resolution.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of its option to have this Section
applied to the Outstanding Securities (as a whole and not in part), the Company
shall be deemed to have been discharged from its obligations with respect to
such Securities as provided in this Section on and after the date the
conditions set forth in Section 1204 are satisfied (hereinafter called
Defeasance ), and thereafter such Securities shall not be subject to redemption
pursuant thereto. For this purpose, such Defeasance means that
122 October '97 Notes Indenture
<PAGE> 124
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1204 and as more fully set forth in such Section, payments in respect
of the principal of and any premium and interest on such Securities when
payments are due, (2) the Company's obligations with respect to such Securities
under Sections 304, 305, 308, 1002 and 1003, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article. Subject
to compliance with this Article, the Company may exercise its option to have
this Section applied to the Outstanding Securities (as a whole and not in part)
notwithstanding the prior exercise of its option to have Section 1203 applied
to such Securities.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise of its option to have this Section
applied to the Outstanding Securities (as a whole and not in part), (1) the
Company shall be released from its obligations under Section 801(iii), Sections
1005 through 1016, inclusive, and any covenant provided pursuant to Section
901(2) and (2) the occurrence of any event specified in Section 501(4) (with
respect to Section 801(iii)), Section 501(5) (with respect to any of Sections
1005 through 1016, inclusive, and any such covenants provided pursuant to
Section 901(2)), Section 501(6) or Section 501(7) shall be deemed not to be or
result in an Event of Default, in each case with respect to such Securities as
provided in this Section on and after the date the conditions set forth in
Section 1204 are satisfied (hereinafter called Covenant Defeasance ). For
this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Sections 501(4) and 501(5)),
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein
123 October '97 Notes Indenture
<PAGE> 125
or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any
installment of interest on such Securities on the respective Stated
Maturities thereof, in accordance with the terms of this Indenture and
such Securities. As used herein, U.S. Government Obligation means (x)
any security which is (i) a direct obligation of the United States of
America for the payment of which the full faith and credit of the United
States of America is pledged or (ii) an obligation of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which,
in either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified in Clause (x)
above and held by such bank
124 October '97 Notes Indenture
<PAGE> 126
for the account of the holder of such depository receipt, or with respect
to any specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by
such depository receipt.
(2) In the event of an election to have Section 1202 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (B)
since the Closing Date there has been a change in the applicable Federal
income tax law, in either case (A) or (B) to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be the
case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1203 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such
deposit and Covenant Defeasance were not to occur.
(4) No Default with respect to the Outstanding Securities shall have
occurred and be continuing at the time of such deposit or, with regard to
any such event specified in Sections 501(8) and (9), at any time on or
prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 90th
day).
125 October '97 Notes Indenture
<PAGE> 127
(5) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning
of such Act).
(6) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1205. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 1206, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 1204 in respect
of the Outstanding Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than
126 October '97 Notes Indenture
<PAGE> 128
any such tax, fee or other charge which by law is for the account of the
Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1204
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to the Outstanding Securities.
SECTION 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1202 or 1203 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 1205 with respect to such
Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any
such Security following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
--------------------
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
127 October '97 Notes Indenture
<PAGE> 129
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.
By:
-------------------------------------
Title:
----------------------------------
Attest:
- --------------------------
HARRIS TRUST AND SAVINGS BANK, Trustee
By:
-------------------------------------
Title:
----------------------------------
Attest:
- ---------------------------
128 October '97 Notes Indenture
<PAGE> 130
EXHIBIT A
Form of Certificate to Be
Delivered in Connection with
Transfers Pursuant to Regulation S
_______________, _____
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, Illinois 60606
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
Re: Nextel Communications, Inc. (the "Company")
9.75% Senior Serial Redeemable Discount Notes
Due 2007 (the "Notes")
Dear Sirs:
This letter relates to U.S. $__________ principal amount of Notes
represented by a Note (the "Legended Note") which bears a legend outlining
restrictions upon transfer of such Legended Note. Pursuant to Section 2.02 of
the Indenture dated as of September 30, 1997 (the "Indenture") relating to the
Notes, we hereby certify that we are (or we will hold such securities on behalf
of) a person outside the United States to whom the Notes could be transferred
in accordance with Rule 904 of Regulation S promulgated under the U.S.
Securities Act of 1933, as amended. Accordingly, you are hereby requested to
exchange the legended certificate for an unlegended certificate representing an
identical principal amount of Notes, all in the manner provided for in the
Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters
129 October '97 Notes Indenture
<PAGE> 131
covered hereby. Terms used in this certificate have the meanings
set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
--------------------------------
Authorized Signature
130 October '97 Notes Indenture
<PAGE> 132
EXHIBIT B
Form of Certificate to Be Delivered
in Connection with Transfers to
Non-QIB Institutional Accredited Investors
_________ ___, _____
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, Illinois 60606
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
Re: Nextel Communications, Inc. (the "Company")
9.75% Senior Serial Redeemable Discount Notes
due 2007 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of U.S.$__________ aggregate
principal amount at stated maturity of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture dated
as of October 22, 1997 (the "Indenture"), relating to the Notes, and we agree
to be bound by, and not to resell, pledge or otherwise transfer the Notes
except in compliance with, such restrictions and conditions and the Securities
Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should offer or sell any Notes, we will do so only (A) to
the Company or any subsidiary thereof, (B) in accordance with Rule 144A under
the Securities Act to a "qualified institutional buyer" (as defined therein),
(C) to an institutional "accredited
131 October '97 Notes Indenture
<PAGE> 133
investor" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter, (D) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act, (E)
pursuant to an effective registration statement under the Securities Act, or
(F) outside the United States in accordance with Rule 904 of Regulation S under
the Securities Act, and we further agree to provide to any person purchasing
any of the Notes from us a notice advising such purchaser that resales of the
Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will
be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Notes purchased by us will bear a legend to the
foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes purchased by us for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
--------------------------------
Authorized Signature
132 October '97 Notes Indenture
<PAGE> 134
EXHIBIT C
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
_______________, _____
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, Illinois 60606
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
Re: Nextel Communications, Inc. (the "Company")
9 3/4 Senior Redeemable Discount Notes
due 2007 (the "Notes")
Dear Sirs:
In connection with our proposed sale of U.S. $__________ aggregate
principal amount at maturity of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933 and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
133 October '97 Notes Indenture
<PAGE> 135
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------------
Authorized Signature
134 October '97 Notes Indenture
<PAGE> 1
EXHIBIT 4.2
[Execution copy]
AMENDMENT NO. 5 TO CREDIT AGREEMENT
AMENDMENT NO. 5 TO CREDIT AGREEMENT dated as of October 9,
1997 between NEXTEL COMMUNICATIONS, INC. ("NCI"); NEXTEL FINANCE COMPANY (the
"Borrower") and the other Restricted Companies listed on the signature pages
hereto under the caption "RESTRICTED COMPANIES" (individually, a "Restricted
Company" and, collectively, the "Restricted Companies"); and the Lenders listed
on the signature pages hereto under the caption "LENDERS" (individually, a
"Lender" and, collectively, the "Lenders").
NCI, the Restricted Companies, the Lenders, Toronto Dominion
(Texas) Inc., as Administrative Agent, and The Chase Manhattan Bank, as
Collateral Agent, are parties to a Credit Agreement dated as of September 27,
1996 (as modified and supplemented and in effect from time to time, the "Credit
Agreement") and wish to amend the Credit Agreement in certain respects.
Accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 5 to Credit Agreement, terms defined in the Credit Agreement are
used herein as defined therein.
Section 2. Amendment. Subject to the satisfaction of the
condition precedent specified in Section 3 below, but effective as of the date
hereof, the Credit Agreement shall be amended as follows:
3.01 References Generally. References in the Credit
Agreement (including references to the Credit Agreement as amended hereby) to
"this Agreement" (and indirect references such as "hereunder", "hereby",
"herein" and "hereof") shall be deemed to be references to the Credit Agreement
as amended hereby.
3.02 Definitions. A new definition of "Amendment No. 5
Effective Date" shall be inserted into Section 1.01 of the Credit Agreement,
and the definitions of "Contributed Capital" and "Public Note Indentures" in
Section 1.01 of the Credit Agreement shall be amended to read in their entirety
as follows:
"Amendment No. 5 Effective Date" means the date on which the
amendments provided for in Amendment No. 5 hereto shall have become
effective.
"Contributed Capital" means, as at any time, the net
aggregate amount of equity capital received in the form of cash after
the Effective Date by the Restricted
Amendment No. 5 to Credit Agreement
<PAGE> 2
- 2 -
Companies in respect of shares of common stock to the extent such
amount does not exceed the aggregate proceeds of Qualifying Debt or
Equity Issuances by NCI after the Effective Date.
"Public Note Indentures" means (a) the Indenture dated as of
August 15, 1993 between NCI and The Bank of New York, as Trustee, (b)
the Indenture dated as of December 22, 1993 between NCI (as successor
to Dial Call Communications, Inc.) and The Bank of New York, as
Trustee, (c) the Indenture dated as of January 13, 1994 between NCI
(as successor to CenCall Communications Corp.) and The Bank of New
York, as Trustee, (d) the Indenture dated as of February 15, 1994
between NCI and The Bank of New York, as Trustee and (e) the Indenture
dated as of April 24, 1994 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee. In
addition, effective on the Amendment No. 5 Effective Date, the term
"Public Note Indentures" shall include the Indenture dated as of
September 17, 1997 between NCI and Harris Trust and Savings Bank, as
Trustee.
3.03 Use of Proceeds. Paragraph (a) of Section 6.09 of the
Credit Agreement is hereby amended by adding a new sentence at the end thereof
to read as follows:
"In addition, the proceeds of Revolving Credit Loans may be
used to make Restricted Payments permitted under Section 7.05(e)."
3.04 Indebtedness. Paragraphs (c) and (d) of Section 7.01
of the Credit Agreement are hereby amended to read in their entirety as
follows:
"(c) Indebtedness of the Credit Parties existing on the
Amendment No. 5 Effective Date and set forth in Schedule 7.01 and,
(i) in the case of the Public Notes,
extensions, renewals and refinancings thereof, so long as (x)
any such extension, renewal and refinancing does not increase
the outstanding stated principal amount of the Public Notes
being extended, renewed or refinanced, (y) the maturity date
of such extension, renewal or refinancing is later than the
maturity date of the Public Notes being extended, renewed or
refinanced and (z) the terms and conditions of such
extension, renewal or refinancing (other than in respect of
interest, which shall not be restricted), are no less
favorable to NCI, the Restricted Companies, the Lenders, the
Vendors and the Agents than the terms and conditions of the
January 1994 Indenture and the Public Notes issued
thereunder;
(ii) in the case of any such Indebtedness of
the Restricted Companies, extensions, renewals and
refinancings thereof, so long as (w) such
Amendment No. 5 to Credit Agreement
<PAGE> 3
- 3 -
extension, renewal and refinancing does not increase the
outstanding principal amount of the Indebtedness being
extended, renewed or refinanced, (x) the Average Life to
Maturity of the Indebtedness so extended, renewed or
refinanced shall not be shorter than the Average Life to
Maturity of the Indebtedness being extended, renewed or
refinanced, (y) at the time of such extension, renewal or
refinancing, and after giving effect thereto, no Default
shall have occurred and be continuing and (z) the terms and
conditions of such Indebtedness as so extended, renewed or
refinanced (other than in respect of interest, which shall
not be restricted) are no less favorable to the Restricted
Companies, the Lenders, the Vendors and the Agents than the
terms and conditions of this Agreement and the other Loan
Documents;
(d) additional Indebtedness incurred by NCI after the date
of Amendment No. 5 hereto (i.e. October 9, 1997), provided that (i)
the sum of (x) the aggregate principal amount of any such Indebtedness
issued at par plus (y) the net proceeds (after underwriting or
placement agent fees or commissions) of any such Indebtedness issued
at less than par, shall not exceed $1,000,000,000, (ii) no scheduled
payments, prepayments, redemptions or sinking fund or like payments in
respect of such Indebtedness shall be required prior to September 30,
2003, (iii) such Indebtedness shall provide that interest payable in
respect thereof shall be capitalized prior to the fifth anniversary of
the date of incurrence of such Indebtedness (it being understood that,
if interest shall be capitalized only through a date within fifteen
days prior to such fifth anniversary, such Indebtedness shall
nevertheless be deemed to comply with the foregoing requirement) and
(iv) the terms and conditions of such Indebtedness (other than in
respect of interest, which shall not be restricted) are no less
favorable to NCI, the Restricted Companies, the Lenders, the Vendors
and the Agents than the terms and conditions of the January 1994
Indenture and the Public Notes issued thereunder;"
3.05 Restricted Payments. Section 7.05 of the Credit
Agreement shall be amended by (A) deleting the word "and" at the end of
subclause (v) of clause (c) thereof, (B) inserting "; and" in lieu of the
period at the end of clause (d) thereof and (C) inserting the following new
clause (e) at the end thereof to read as follows:
"(e) so long as at the time thereof, and after giving effect
thereto, no Default shall have occurred and be continuing, the
Borrower may make Restricted Payments to NCI to the extent necessary
to enable NCI to refinance or repurchase (directly or indirectly) any
of the Public Notes (it being understood that the amount of such
Restricted Payment may include any redemption or tender premium
required to be paid by NCI in connection with such refinancing or
repurchase), provided that the aggregate amount of all such Restricted
Payments shall not exceed the amount of
Amendment No. 5 to Credit Agreement
<PAGE> 4
- 4 -
additional equity capital contributed by NCI to the Borrower in cash
after the Amendment No. 5 Effective Date)."
3.06 Schedule 7.01. Schedule 7.01 of the Credit Agreement
is hereby amended to read in its entirety as set forth in Schedule 7.01 hereto.
Section 3. Conditions Precedent. The amendments set forth
in Section 2 hereof, shall become effective, as of the date hereof, upon the
execution and delivery of this Amendment No. 5 by NCI, the Restricted Companies
and the Required Lenders.
For purposes hereof, the Lenders authorized to execute and
deliver this Amendment No. 5 shall be the Lenders party to the Credit Agreement
on the date of this Amendment No. 5 (as indicated on the Register at the close
of business in New York City on such date), regardless of whether any one or
more of such Lenders shall, by reason of an assignment of Loans or Commitments
permitted under Section 10.04 of the Credit Agreement, continue to be a party
to the Credit Agreement on the date the conditions specified in the preceding
paragraph are satisfied (and each Lender party to the Credit Agreement on the
date of this Amendment No. 5 undertakes to inform any Person that takes an
assignment of all or any portion of such Lender's Commitments or Loans of this
Amendment No. 5, and none of the other parties to the Credit Agreement shall
have any responsibility to so inform any such Person of this Amendment No. 5).
Section 4. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 5 to Credit Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
amendatory instrument and any of the parties hereto may execute this Amendment
No. 5 to Credit Agreement by signing any such counterpart. This Amendment No.
5 to Credit Agreement shall be governed by, and construed in accordance with,
the law of the State of New York.
Amendment No. 5 to Credit Agreement
<PAGE> 5
- 5 -
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 5 to Credit Agreement to be duly executed and delivered as of the
day and year first above written.
NEXTEL COMMUNICATIONS, INC.
By /s/ THOMAS J. SIDMAN
------------------------------
Name: THOMAS J. SIDMAN
Title: VICE PRESIDENT
RESTRICTED COMPANIES
NEXTEL FINANCE COMPANY (successor to
Fleet Call Corporation),
By /s/ THOMAS J. SIDMAN
------------------------------
Name: THOMAS J. SIDMAN
Title: VICE PRESIDENT
ADVANCED MOBILECOMM OF
NORTH CAROLINA, INC.
AIRLINK COMMUNICATIONS, INC.
(successor to TRS, Inc.)
AMERICAN MOBILE SYSTEMS,
INCORPORATED (successor to Saber
Communications, Inc.)
DIAL CALL, INC.
DIAL DISTANCE, INC.
FC NEW YORK, INC. (successor to Metrocom
Trunked Radio Communication Systems, Inc.
FCI 900, INC.
FLEET CALL OF TEXAS, INC. (successor to
FM Tower Company, Metrolink
Communications Corporation and National
Tower Trunking Systems, Inc.)
Amendment No. 5 to Credit Agreement
<PAGE> 6
- 6 -
NEXTEL COMMUNICATIONS OF THE
MID-ATLANTIC, INC. (successor to Dispatch
Communications of Maryland, Inc., Dispatch
Communications of Minnesota, Inc., Dispatch
Communications of New England, Inc.,
Dispatch Communications of Pennsylvania,Inc.)
NEXTEL LICENSE HOLDINGS 1, INC.
NEXTEL LICENSE HOLDINGS 2, INC.
(successor to Comqor, Inc.)
NEXTEL LICENSE HOLDINGS 3, INC.
(successor to Dial Call Arkansas, Inc.,
Custom Radio/Johnson Communications, Inc.,
Dial Call Florida, Inc., Dial Call
Kentucky, Inc., Dial Call Louisiana, Inc.,
Dial Call Texas, Inc., Dial Call
Virginia, Inc., Dial Call West Virginia, Inc.
and U.S. Digital, Inc.)
NEXTEL LICENSE HOLDINGS 4, INC.
NEXTEL OF TEXAS, INC. (successor to Fort
Worth Communications, Inc.)
NEXTEL WEST CORP.
(successor to Airwave Communications Corp.
(Seattle), C-Call Corporation, Dispatch
Communications of Arizona, Inc., ESMR Sub,
Inc., Fleet Call of Utah, Inc., Fleet Call
West, Inc., Mijac Enterprises, Inc., Mobile
Radio of Illinois, Inc., Motorola SF, Inc.,
Nextel Hawaii Acquisition Corp.,
Nextel Utah Acquisition Corp., Nextel
Western Acquisition Corp., OneComm
Corporation, N.A., Powerfone
Holdings, Inc., Powerfone, Inc.,
Smart SMR of Illinois, Inc., Shoreland
Communications, Inc. and Spectrum Resources
of the Midwest, Inc.)
SAFETY NET, INC.
SMART SMR, INC.
Amendment No. 5 to Credit Agreement
<PAGE> 7
- 7 -
SMART SMR OF CALIFORNIA, INC.
SMART SMR OF NEW YORK, INC.
By /s/ THOMAS J. SIDMAN
----------------------
Name: THOMAS J. SIDMAN
Title: VICE PRESIDENT
FORT WORTH TRUNKED RADIO
LIMITED PARTNERSHIP
By Nextel of Texas,Inc.,
a General Partner
By /s/ THOMAS J. SIDMAN
----------------------
Name: THOMAS J. SIDMAN
Title: VICE PRESIDENT
Amendment No. 5 to Credit Agreement
<PAGE> 8
- 8 -
LENDERS
BARCLAYS BANK, PLC THE CHASE MANHATTAN BANK
By /s/ JAMES K. DOWNEY By /s/ TRACEY A. NAVIN
---------------------- -------------------------
Name: James K. Downey Name: Tracey A. Navin
Title: Associate Director Title: Vice President
MORGAN GUARANTY TRUST COMPANY NATIONSBANK OF TEXAS, N.A.
OF NEW YORK
By /s/ MARIA D. KRATIOS By /s/ JENNIFER FYDNEY
---------------------- -------------------------
Name: Maria D. Kratios Name: Jennifer Fydney
Title: Vice President Title: Vice President
THE TORONTO-DOMINION BANK ABN AMRO BANK N.V.,
NEW YORK BRANCH
By /s/ SOPHIA D. S???BI By /s/ WILLIAM S. BENNETT
---------------------- -------------------------
Name: Sophia D. S???bi Name: William S. Bennett
Title: Mgr. Syndications & Title: Vice President
Credit Admin
By /s/ JOHN W. SMITH
-------------------------
Name: John W. Smith
Title: Vice President
AMARA-2 FINANCE LTD. BANK OF AMERICA NT & SA
By /s/ ANDREW IAN WIGNALL By /s/ JONATHAN M. KITEL
----------------------- -------------------------
Name: Andrew Ian Wignall Name: Jonathan M. Kitel
Title: Director Title: Attorney-in-Fact
Amendment No. 5 to Credit Agreement
<PAGE> 9
- 9 -
BANK OF MONTREAL, CHICAGO BRANCH THE BANK OF NOVA SCOTIA
By /s/ TOM CALDER By /s/ VINCENT J. FITZGERALD, JR.
------------------------- -------------------------------
Name: Tom Calder Name: Vincent J. Fitzgerald, Jr.
Title: Director Title: Authorized Signatory
BANK OF TOKYO-MITSUBISHI BANKBOSTON, N.A.
TRUST COMPANY f.k.a. First National Bank of Boston
By /s/ GLENN B. ECKERT By
------------------------- ----------------------------
Name: Glenn B. Eckert Name:
Title: Vice President Title:
BANKERS TRUST COMPANY BANQUE PARIBAS (NEW YORK)
By /s/ ROSEMARY F. DUNNE By
------------------------- ----------------------------
Name: Rosemary F. Dunne Name:
Title: Vice President Title:
By
----------------------------
Name:
Title:
CAPTIVA FINANCE LTD. CAPTIVA II FINANCE LTD.
By /s/ JOHN H. CULLIMANE By /s/ JOHN H. CULLIMANE
------------------------- ----------------------------
Name: John H. Cullimane Name: John H. Cullimane
Title: Director Title: Director
Amendment No. 5 to Credit Agreement
<PAGE> 10
- 10 -
CARILLON HOLDING, INC. CERES FINANCE LTD.
By By /s/ JOHN H. CULLIMANE
------------------------- -------------------------
Name: Name: JOHN H. CULLIMANE
Title: Title: DIRECTOR
CHANG HWA COMMERCIAL BANK, CIBC INC.
LTD., NEW YORK BRANCH
By /s/ WAN-TU YEN By /s/ DEBORAH STREK
------------------------- -------------------------
Name: WAN-TU YEN Name: BEBORAH STREK
Title: VP & GENERAL MANAGER Title: MANAGING DIRECTOR
CIBC WOOD GUNDY
SECURITIES CORP.
ACTING AS AGENT
CITIBANK, N.A. CITY NATIONAL BANK
By /s/ MARGORIE HARRIS By
--------------------------- -------------------------
Name: MARGORIE RUBIN HARRIS Name:
Title: ATTORNEY-IN-FACT Title:
COMMERZBANK CONTINENTAL ASSURANCE COMPANY
AKTIENGESELLSCHAFT,
NEW YORK BRANCH By Protective Asset Management
Company as Attorney-in-Fact
By /s/ G. ROD MCWALTERS By /s/ JAMES DONDERO
------------------------- -------------------------
Name: G. ROD MCWALTERS Name: JAMES DONDERO,
Title: VICE PRESIDENT CFA, CPA
Title: PRESIDENT -
PROTECTIVE ASSET
MANAGEMENT COMPANY
By /s/ ANDREW R. CAMPBELL
-------------------------
Name: ANDREW R. CAMPBELL
Title: ASSISTANT TREASURER
By
-------------------------
Name:
Title:
Amendment No. 5 to Credit Agreement
<PAGE> 11
- 11 -
COOPERATIEVE CENTRALE CORESTATES BANK, N.A.
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By By
---------------------------- ------------------------------
Name: Name:
Title: Title:
By CYPRESS TREE INVESTMENT
---------------------------- PARTNERS I LTD.
Name: By Cypress Tree Investment Management
Title: Company, Inc. as Portfolio Manager
By: /s/ JOHN W. FRASER
------------------------------
Name: JOHN W. FRASER
Title: MANAGING DIRECTOR
CREDIT SUISSE FIRST BOSTON CYPRESS TREE INVESTMENT
MANAGEMENT COMPANY, INC.
By /s/ TODD C. MORGAN As Attorney-in-Fact and on behalf
---------------------------- of First Allmerica Financial
Name: TODD C. MORGAN Life Insurance Company, Inc.
Title: VICE PRESIDENT
By /s/ JUDITH E. SMITH By /s/ JOHN W. FRASER
---------------------------- ------------------------------
Name: JUDITH E. SMITH Name: JOHN W. FRASER
Title: DIRECTOR Title: MANAGING DIRECTOR
DEBT STRATEGIES FUND, INC. DLJ CAPITAL FUNDING, INC.
By By
---------------------------- ------------------------------
Name: Name:
Title: Title:
FC CBO LTD. FIRST UNION NATIONAL BANK
By By /s/ ROBERT E. HEASLY
---------------------------- ------------------------------
Name: Name: ROBERT E. HEASLY
Title: Title: SENIOR VICE PRESIDENT
Amendment No. 5 to Credit Agreement
<PAGE> 12
- 12 -
FLEET NATIONAL BANK FUJI BANK, LTD.
By By
-------------------------- ---------------------------
Name: Name:
Title: Title:
GOLDMAN SACHS CREDIT INDOSUEZ CAPITAL FUNDING II, LTD.
PARTNERS L.P. By: Indosuez Capital as Portfolio
Advisor
By /s/ ROBERT J. OSHEA By
-------------------------- ---------------------------
Name: ROBERT J. OSHEA Name:
Title: AUTHORIZED SIGNATORY Title:
INDOSUEZ CAPITAL FUNDING III, LTD. INDUSTRIAL BANK OF JAPAN, LIMITED
By: Indosuez Capital as Portfolio
Advisor
By By /s/ JEFFREY COLE
-------------------------- ---------------------------
Name: Name: JEFFEREY COLE
Title: Title: SENIOR VICE PRESIDENT
ING BARING (U.S.) CAPITAL KEY CORPORATE CAPITAL INC.
CORPORATION
By /s/ JOAN M. CHIAPPE By /s/ TIM WILLARD
-------------------------- ---------------------------
Name: JOAN M. CHIAPPE Name: TIM WILLARD
Title: VICE PRESIDENT Title: CORPORATE BANKING
OFFICER
KOREA FIRST BANK, LOS ANGELES KZH HOLDING CORPORATION II
AGENCY
By /s/ CHANG HEE NAM By
-------------------------- ---------------------------
Name: MR. CHANG HEE NAM Name:
Title: AGENT & GENERAL MANAGER Title:
Amendment No. 5 to Credit Agreement
<PAGE> 13
- 13 -
KZH HOLDING CORPORATION III LEHMAN COMMERCIAL PAPER, INC.
By /s/ VIRGINIA R. CONWAY By /s/ MICHELE SWANSON
------------------------------ ------------------------------
Name: VIRGINIA R. CONWAY Name: MICHELE SWANSON
Title: AUTHORIZED AGENT Title: AUTHORIZED SIGNATORY
LTCB TRUST COMPANY MEESPIERSON CAPITAL CORP.
By By /s/ CLAUDIA J. CHIFOS
-------------------------- ------------------------------
Name: Name: CLAUDIA J. CHIFOS
Title: Title: Vice President
By /s/ JOHN T. CONNORS
------------------------------
Name: John T. Connors
Title: Executive Vice President
MERITA BANK LTD MERRILL LYNCH DEBT STRATEGIES
PORTFOLIO
By Merrill Lynch Asset Management,
L.P., as Investment Advisor
By
------------------------- By /s/ LYNN C. BARANSKI
Name: --------------------------------
Title: Name: LYNN CALLICOTT BARANSKI
Title: AUTHORIZED SIGNATORY
By
-------------------------
Name:
Title:
Amendment No. 5 to Credit Agreement
<PAGE> 14
- 14 -
MERRILL LYNCH PRIME RATE MERRILL LYNCH SENIOR FLOATING
PORTFOLIO RATE FUND, INC.
By Merrill Lynch Asset Management,
L.P., as Investment Advisor
By /s/ LYNN C. BARANSKI By /s/ LYNN C. BARANSKI
--------------------------- --------------------------
Name: LYNN CALLICOTT BARANSKI Name:LYNN CALLICOTT BARANSKI
Title: AUTHORIZED SIGNATORY Title: AUTHORIZED SIGNATORY
THE MITSUBISHI TRUST AND BANKING ML CBO IV (CAYMAN) LTD.
CORPORATION
By Protective Asset Management,
L.L.C. as Collateral Manager
By By /s/ JOHN DONDERO
--------------------------- --------------------------
Name: Name: John Dondero, CFA, CPA
Title: Title: President-
Protective Asset
Management Company
OCTAGON CREDIT INVESTORS LOAN PAMCO CAYMAN LTD.
PORTFOLIO (A unit of The Chase
Manhattan Bank) By Protective Asset Management,
L.L.C. as Collateral Manager
By /s/ ANDREW D. GORDON By /s/ JOHN DONDERO
--------------------------- --------------------------
Name: ANDREW D. GORDON Name:John Dondero, CFA, CPA
Title: MANAGING DIRECTOR Title: President-
Protective Asset
Management Company
PILGRIM AMERICA PRIME RATE TRUST PNC BANK, NATIONAL ASSOCIATION
By /s/ THOMAS C. HUNT By /s/ STEVEN J. MCGEHRIN
--------------------------- --------------------------
Name: THOMAS C. HUNT Name: STEVEN J. MCGEHRIN
Title: ASSISTANT PORTFOLIO MANAGER Title: VICE PRESIDENT
Amendment No. 5 to Credit Agreement
<PAGE> 15
- 15 -
PRIME INCOME TRUST ROYAL BANK OF CANADA
By
----------------------------- By
Name: -------------------------
Title: Name:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC. STRATA FUNDING LTD.
By /s/ LYNN C. BARANSKI By /s/ JOHN H. CULLIMANE
----------------------------- -------------------------
Name: LYNN CALLICOTT BARANSKI Name: JOHN H. CULLIMANE
Title: AUTHORIZED SIGNATORY Title: DIRECTOR
THE SUMITOMO BANK, LIMITED THE SUMITOMO TRUST & BANKING
NEW YORK BRANCH COMPANY LTD., NEW YORK BRANCH
By /s/ SURESH S. TATA By
----------------------------- -------------------------
Name: SURESH S. TATA Name:
Title:SENIOR VICE PRESIDENT Title:
-------------------------
Name:
Title:
U.S. BANK OF WASHINGTON, N.A. VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By /s/ GARY EGBERT By /s/ JEFFREY W. MAILLET
----------------------------- -------------------------
Name: GARY EGBERT Name: JEFFREY W. MAILLET
Title: VP Title:Senior Vice
President & Director
Amendment No. 5 to Credit Agreement
<PAGE> 16
- 16 -
VAN KAMPEN CLO I, LIMITED
BY: VAN KAMPEN AMERICAN
CAPITAL MANAGEMENT INC.,
AS COLLATERAL MANAGER
By /s/ JEFFREY W. MAILLET
------------------------------------
Name: JEFFREY W. MAILLET
Title: Senior Vice President & Director
Amendment No. 5 to Credit Agreement
<PAGE> 17
Schedule 7.01
[Existing Indebtedness]
No Indebtedness other than (i) Indebtedness evidenced by the Public Notes and
(ii) other Indebtedness not exceeding $5,000,000 outstanding in the aggregate.
Schedule 7.01
<PAGE> 1
EXHIBIT 4.3
[Execution Copy]
AMENDMENT NO. 5 TO VENDOR FINANCING AGREEMENT
AMENDMENT NO. 5 TO VENDOR FINANCING AGREEMENT dated as of
October 9, 1997, between NEXTEL COMMUNICATIONS, INC. ("NCI"); NEXTEL FINANCE
COMPANY (the "Borrower") and the other Restricted Companies listed on the
signature pages hereto under the caption "RESTRICTED COMPANIES" (individually,
a "Restricted Company" and, collectively, the "Restricted Companies");
MOTOROLA, INC. ("Motorola"); and NTFC Capital Corporation ("NTFC Capital" and,
together with Motorola, the "Vendors").
NCI, the Restricted Companies and the Vendors are parties to
an Amended, Restated and Consolidated Credit Agreement dated as of September
27, 1996 (as modified and supplemented and in effect from time to time, the
"Vendor Financing Agreement"), and wish to amend the Vendor Financing Agreement
in certain respects. Accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 5 to Vendor Financing Agreement, terms defined in the Vendor
Financing Agreement are used herein as defined therein.
Section 2. Amendment. Subject to the satisfaction of the
condition precedent specified in Section 3 below, but effective as of the date
hereof, the Vendor Financing Agreement shall be amended as follows:
3.01 References Generally. References in the Vendor
Financing Agreement (including references to the Vendor Financing Agreement as
amended hereby) to "this Agreement" (and indirect references such as
"hereunder", "hereby", "herein" and "hereof") shall be deemed to be references
to the Vendor Financing Agreement as amended hereby.
3.02 Definitions. A new definition of "Amendment No. 5
Effective Date" shall be inserted into Section 1.01 of the Vendor Financing
Agreement, and the definitions of "Contributed Capital" and "Public Note
Indentures" in Section 1.01 of the Vendor Financing Agreement shall be amended
to read in their entirety as follows:
"Amendment No. 5 Effective Date" means the date on which the
amendments provided for in Amendment No. 5 hereto shall have become
effective.
"Contributed Capital" means, as at any time, the net
aggregate amount of equity capital received in the form of cash after
the Effective Date by the Restricted
Amendment No. 5 to Vendor Financing Agreement
<PAGE> 2
- 2 -
Companies in respect of shares of common stock to the extent such
amount does not exceed the aggregate proceeds of Qualifying Debt or
Equity Issuances by NCI after the Effective Date.
"Public Note Indentures" means (a) the Indenture dated as of
August 15, 1993 between NCI and The Bank of New York, as Trustee, (b)
the Indenture dated as of December 22, 1993 between NCI (as successor
to Dial Call Communications, Inc.) and The Bank of New York, as
Trustee, (c) the Indenture dated as of January 13, 1994 between NCI
(as successor to CenCall Communications Corp.) and The Bank of New
York, as Trustee, (d) the Indenture dated as of February 15, 1994
between NCI and The Bank of New York, as Trustee and (e) the Indenture
dated as of April 24, 1994 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee. In
addition, effective on the Amendment No. 5 Effective Date, the term
"Public Note Indentures" shall include the Indenture dated as of
September 17, 1997 between NCI and Harris Trust and Savings Bank, as
Trustee.
3.03 Intentionally Left Blank. This Section 3.03 has been
intentionally left blank.
3.04 Indebtedness. Paragraphs (c) and (d) of Section 7.01
of the Vendor Financing Agreement are hereby amended to read in their entirety
as follows:
"(c) Indebtedness of the Credit Parties existing on the
Amendment No. 5 Effective Date and set forth in Schedule 7.01 and,
(i) in the case of the Public Notes,
extensions, renewals and refinancings thereof, so long as (x)
any such extension, renewal and refinancing does not increase
the outstanding stated principal amount of the Public Notes
being extended, renewed or refinanced, (y) the maturity date
of such extension, renewal or refinancing is later than the
maturity date of the Public Notes being extended, renewed or
refinanced and (z) the terms and conditions of such
extension, renewal or refinancing (other than in respect of
interest, which shall not be restricted), are no less
favorable to NCI, the Restricted Companies, the Vendors, the
Lenders, and the Agents than the terms and conditions of the
January 1994 Indenture and the Public Notes issued
thereunder;
(ii) in the case of any such Indebtedness of
the Restricted Companies, extensions, renewals and
refinancings thereof, so long as (w) such extension, renewal
and refinancing does not increase the outstanding principal
amount of the Indebtedness being extended, renewed or
refinanced, (x) the Average Life to Maturity of the
Indebtedness so extended, renewed or
Amendment No. 5 to Vendor Financing Agreement
<PAGE> 3
- 3 -
refinanced shall not be shorter than the Average Life to
Maturity of the Indebtedness being extended, renewed or
refinanced, (y) at the time of such extension, renewal or
refinancing, and after giving effect thereto, no Default
shall have occurred and be continuing and (z) the terms and
conditions of such Indebtedness as so extended, renewed or
refinanced (other than in respect of interest, which shall
not be restricted) are no less favorable to the Restricted
Companies, the Vendors, the Lenders and the Agents than the
terms and conditions of this Agreement and the other Loan
Documents;
(d) additional Indebtedness incurred by NCI after the date
of Amendment No. 5 hereto (i.e. October 9, 1997), provided that (i)
the sum of (x) the aggregate principal amount of any such Indebtedness
issued at par plus (y) the net proceeds (after underwriting or
placement agent fees or commissions) of any such Indebtedness issued
at less than par, shall not exceed $1,000,000,000, (ii) no scheduled
payments, prepayments, redemptions or sinking fund or like payments in
respect of such Indebtedness shall be required prior to September 30,
2003, (iii) such Indebtedness shall provide that interest payable in
respect thereof shall be capitalized prior to the fifth anniversary of
the date of incurrence of such Indebtedness (it being understood that,
if interest shall be capitalized only through a date within fifteen
days prior to such fifth anniversary, such Indebtedness shall
nevertheless be deemed to comply with the foregoing requirement) and
(iv) the terms and conditions of such Indebtedness (other than in
respect of interest, which shall not be restricted) are no less
favorable to NCI, the Restricted Companies, the Vendors, the Lenders
and the Agents than the terms and conditions of the January 1994
Indenture and the Public Notes issued thereunder;"
3.05 Restricted Payments. Section 7.05 of the Vendor
Financing Agreement shall be amended by (A) deleting the word "and" at the end
of subclause (v) of clause (c) thereof, (B) inserting "; and" in lieu of the
period at the end of clause (d) thereof and (C) inserting the following new
clause (e) at the end thereof to read as follows:
"(e) so long as at the time thereof, and after giving effect
thereto, no Default shall have occurred and be continuing, the
Borrower may make Restricted Payments to NCI to the extent necessary
to enable NCI to refinance or repurchase (directly or indirectly) any
of the Public Notes (it being understood that the amount of such
Restricted Payment may include any redemption or tender premium
required to be paid by NCI in connection with such refinancing or
repurchase), provided that the aggregate amount of all such Restricted
Payments shall not exceed the amount of additional equity capital
contributed by NCI to the Borrower in cash after the Amendment No. 5
Effective Date)."
Amendment No. 5 to Vendor Financing Agreement
<PAGE> 4
- 4 -
3.06 Schedule 7.01. Schedule 7.01 of the Vendor Financing
Agreement is hereby amended to read in its entirety as set forth in Schedule
7.01 hereto.
Section 3. Conditions Precedent. The amendments set forth
in Section 2 hereof, shall become effective, as of the date hereof, upon the
execution and delivery of this Amendment No. 5 by NCI, the Restricted Companies
and the Required Vendors.
Section 4. Miscellaneous. Except as herein provided, the
Vendor Financing Agreement shall remain unchanged and in full force and effect.
This Amendment No. 5 to Vendor Financing Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same amendatory instrument and any of the parties hereto may execute this
Amendment No. 5 to Vendor Financing Agreement by signing any such counterpart.
This Amendment No. 5 to Vendor Financing Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
Amendment No. 5 to Vendor Financing Agreement
<PAGE> 5
- 5 -
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 5 to Vendor Financing Agreement to be duly executed and delivered
as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.
By /s/ THOMAS J. SIDMAN
----------------------------
Name: THOMAS J. SIDMAN
Title: VICE PRESIDENT
RESTRICTED COMPANIES
NEXTEL FINANCE COMPANY (successor to
Fleet Call Corporation),
By /s/ THOMAS J. SIDMAN
----------------------------
Name: THOMAS J. SIDMAN
Title: VICE PRESIDENT
ADVANCED MOBILECOMM OF
NORTH CAROLINA, INC.
AIRLINK COMMUNICATIONS, INC.
(successor to TRS, Inc.)
AMERICAN MOBILE SYSTEMS,
INCORPORATED (successor to Saber
Communications, Inc.)
DIAL CALL, INC.
DIAL DISTANCE, INC.
FC NEW YORK, INC. (successor to Metrocom
Trunked Radio Communication Systems, Inc.)
FCI 900, INC.
FLEET CALL OF TEXAS, INC. (successor to
FM Tower Company, Metrolink
Communications Corporation and National
Tower Trunking Systems, Inc.)
Amendment No. 5 to Vendor Financing Agreement
<PAGE> 6
- 6 -
NEXTEL COMMUNICATIONS OF THE
MID-ATLANTIC, INC. (successor to Dispatch
Communications of Maryland, Inc., Dispatch
Communications of Minnesota, Inc., Dispatch
Communications of New England, Inc.,
Dispatch Communications of Pennsylvania,Inc.)
NEXTEL LICENSE HOLDINGS 1, INC.
NEXTEL LICENSE HOLDINGS 2, INC.
(successor to Comqor, Inc.)
NEXTEL LICENSE HOLDINGS 3, INC.
(successor to Dial Call Arkansas, Inc.,
Custom Radio/Johnson Communications, Inc.,
Dial Call Florida, Inc., Dial Call
Kentucky, Inc., Dial Call Louisiana, Inc.,
Dial Call Texas, Inc., Dial Call
Virginia, Inc., Dial Call West Virginia, Inc.
and U.S. Digital, Inc.)
NEXTEL LICENSE HOLDINGS 4, INC.
NEXTEL OF TEXAS, INC. (successor to Fort
Worth Communications, Inc.)
NEXTEL WEST CORP.
(successor to Airwave Communications Corp.
(Seattle), C-Call Corporation, Dispatch
Communications of Arizona, Inc., ESMR Sub,
Inc., Fleet Call of Utah, Inc., Fleet Call
West, Inc., Mijac Enterprises, Inc., Mobile
Radio of Illinois, Inc., Motorola SF, Inc.,
Nextel Hawaii Acquisition Corp.,
Nextel Utah Acquisition Corp., Nextel
Western Acquisition Corp., OneComm
Corporation, N.A., Powerfone
Holdings, Inc., Powerfone, Inc.,
Smart SMR of Illinois, Inc., Shoreland
Communications, Inc. and Spectrum Resources
of the Midwest, Inc.)
SAFETY NET, INC.
SMART SMR, INC.
Amendment No. 5 to Vendor Financing Agreement
<PAGE> 7
- 7 -
SMART SMR OF CALIFORNIA, INC.
SMART SMR OF NEW YORK, INC.
By /s/ THOMAS J. SIDMAN
-----------------------------
Name: THOMAS J. SIDMAN
Title: VICE PRESIDENT
FORT WORTH TRUNKED RADIO
LIMITED PARTNERSHIP
By Nextel of Texas,Inc.,
a General Partner
By /s/ THOMAS J. SIDMAN
-----------------------------
Name: THOMAS J. SIDMAN
Title: VICE PRESIDENT
Amendment No. 5 to Vendor Financing Agreement
<PAGE> 8
- 8 -
MOTOROLA, INC.
By /s/ GARY B. TATJE
------------------------------
Name: GARY B. TATJE
Title: DIRECTOR, WORLDWIDE
FINANCING
NTFC CAPITAL CORPORATION
By
-------------------------------
Name:
Title:
The undersigned, as assignee of certain of the Loans made by
Motorola under the above-referenced Vendor Financing Agreement, hereby consents
to the execution and delivery of the foregoing Amendment No. 5.
LEHMAN COMMERCIAL PAPER, INC.
By /s/ MICHELE SWANSON
------------------------------
Name: MICHELE SWANSON
Title: AUTHORIZED SIGNATORY
LEHMAN SYNDICATED LOANS INC.
By /s/ DENNIS J. DEE
-------------------------------
Name: DENNIS J. DEE
Title: AUTHORIZED SIGNATORY
Amendment No. 5 to Vendor Financing Agreement
<PAGE> 9
Schedule 7.01
[Existing Indebtedness]
No Indebtedness other than (i) Indebtedness evidenced by the Public Notes and
(ii) other Indebtedness not exceeding $5,000,000 outstanding in the aggregate.
Schedule 7.01
<PAGE> 1
EXHIBIT 4.4
[Execution Copy]
AMENDMENT NO. 2 TO SECOND SECURED VENDOR FINANCING AGREEMENT
AMENDMENT NO. 2 TO SECOND SECURED VENDOR FINANCING AGREEMENT
dated as of October 9, 1997, between NEXTEL COMMUNICATIONS, INC. ("NCI");
NEXTEL FINANCE COMPANY (the "Borrower") and the other Restricted Companies
listed on the signature pages hereto under the caption "RESTRICTED COMPANIES"
(individually, a "Restricted Company" and, collectively, the "Restricted
Companies"); and the VENDOR LENDERS listed on the signature pages hereto under
the caption "VENDOR LENDERS" (individually, a "Vendor Lender" and,
collectively, the "Vendor Lenders").
NCI, the Restricted Companies and the Vendor Lenders are
parties to a Second Secured Vendor Financing Agreement dated as of August 19,
1997 (as modified and supplemented and in effect from time to time, the "Second
Secured Vendor Financing Agreement"), and wish to amend the Second Secured
Vendor Financing Agreement in certain respects. Accordingly, the parties
hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 2 to Second Secured Vendor Financing Agreement, terms defined in
the Second Secured Vendor Financing Agreement are used herein as defined
therein.
Section 2. Amendment. Subject to the satisfaction of the
condition precedent specified in Section 3 below, but effective as of the date
hereof, the Second Secured Vendor Financing Agreement shall be amended as
follows:
3.01 References Generally. References in the Second Secured
Vendor Financing Agreement (including references to the Second Secured Vendor
Financing Agreement as amended hereby) to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein" and "hereof") shall be
deemed to be references to the Second Secured Vendor Financing Agreement as
amended hereby.
3.02 Definitions. A new definition of "Amendment No. 2
Effective Date" shall be inserted into Section 1.01 of the Second Secured
Vendor Financing Agreement, and the definitions of "Contributed Capital" and
"Public Note Indentures" in Section 1.01 of the Second Secured Vendor Financing
Agreement shall be amended to read in their entirety as follows:
"Amendment No. 2 Effective Date" means the date on which the
amendments provided for in Amendment No. 2 hereto shall have become
effective.
Amendment No. 2 to Second Secured Vendor Financing Agreement
<PAGE> 2
- 2 -
"Contributed Capital" means, as at any time, the net
aggregate amount of equity capital received in the form of cash after
September 30, 1996 by the Restricted Companies in respect of shares of
common stock to the extent such amount does not exceed the aggregate
proceeds of Qualifying Debt or Equity Issuances by NCI after the
Effective Date.
"Public Note Indentures" means (a) the Indenture dated as of
August 15, 1993 between NCI and The Bank of New York, as Trustee, (b)
the Indenture dated as of December 22, 1993 between NCI (as successor
to Dial Call Communications, Inc.) and The Bank of New York, as
Trustee, (c) the Indenture dated as of January 13, 1994 between NCI
(as successor to CenCall Communications Corp.) and The Bank of New
York, as Trustee, (d) the Indenture dated as of February 15, 1994
between NCI and The Bank of New York, as Trustee and (e) the Indenture
dated as of April 24, 1994 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee. In
addition, effective on the Amendment No. 2 Effective Date, the term
"Public Note Indentures" shall include the Indenture dated as of
September 17, 1997 between NCI and Harris Trust and Savings Bank, as
Trustee.
3.03 Intentionally Left Blank. This Section 3.03 has been
intentionally left blank.
3.04 Indebtedness. Paragraphs (c) and (d) of Section 7.01
of the Second Secured Vendor Financing Agreement are hereby amended to read in
their entirety as follows:
"(c) Indebtedness of the Credit Parties existing on the
Amendment No. 2 Effective Date and set forth in Schedule 7.01 to the
Vendor Financing Agreement and,
(i) in the case of the Public Notes,
extensions, renewals and refinancings thereof, so long as (x)
any such extension, renewal and refinancing does not increase
the outstanding stated principal amount of the Public Notes
being extended, renewed or refinanced, (y) the maturity date
of such extension, renewal or refinancing is later than the
maturity date of the Public Notes being extended, renewed or
refinanced and (z) the terms and conditions of such
extension, renewal or refinancing (other than in respect of
interest, which shall not be restricted), are no less
favorable to NCI, the Restricted Companies, the Vendor
Lenders, the Vendors, the Lenders and the Agents than the
terms and conditions of the January 1994 Indenture and the
Public Notes issued thereunder;
Amendment No. 2 to Second Secured Vendor Financing Agreement
<PAGE> 3
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(ii) in the case of any such Indebtedness of
the Restricted Companies, extensions, renewals and
refinancings thereof, so long as (w) such extension, renewal
and refinancing does not increase the outstanding principal
amount of the Indebtedness being extended, renewed or
refinanced, (x) the Average Life to Maturity of the
Indebtedness so extended, renewed or refinanced shall not be
shorter than the Average Life to Maturity of the Indebtedness
being extended, renewed or refinanced, (y) at the time of
such extension, renewal or refinancing, and after giving
effect thereto, no Default shall have occurred and be
continuing and (z) the terms and conditions of such
Indebtedness as so extended, renewed or refinanced (other
than in respect of interest, which shall not be restricted)
are no less favorable to the Restricted Companies, the Vendor
Lenders, the Vendors, the Lenders and the Agents than the
terms and conditions of this Agreement and the other Second
Secured Loan Documents;
(d) additional Indebtedness incurred by NCI after the date
of Amendment No. 2 hereto (i.e. October 9, 1997), provided that (i)
the sum of (x) the aggregate principal amount of any such Indebtedness
issued at par plus (y) the net proceeds (after underwriting or
placement agent fees or commissions) of any such Indebtedness issued
at less than par, shall not exceed $1,000,000,000, (ii) no scheduled
payments, prepayments, redemptions or sinking fund or like payments in
respect of such Indebtedness shall be required prior to September 30,
2003, (iii) such Indebtedness shall provide that interest payable in
respect thereof shall be capitalized prior to the fifth anniversary of
the date of incurrence of such Indebtedness (it being understood that,
if interest shall be capitalized only through a date within fifteen
days prior to such fifth anniversary, such Indebtedness shall
nevertheless be deemed to comply with the foregoing requirement) and
(iv) the terms and conditions of such Indebtedness (other than in
respect of interest, which shall not be restricted) are no less
favorable to NCI, the Restricted Companies, the Vendor Lenders, the
Vendors, the Lenders and the Agents than the terms and conditions of
the January 1994 Indenture and the Public Notes issued thereunder;"
3.05 Restricted Payments. Section 7.05 of the Second
Secured Vendor Financing Agreement shall be amended by (A) deleting the word
"and" at the end of subclause (v) of clause (c) thereof, (B) inserting "; and"
in lieu of the period at the end of clause (d) thereof and (C) inserting the
following new clause (e) at the end thereof to read as follows:
"(e) so long as at the time thereof, and after giving effect
thereto, no Default shall have occurred and be continuing, the
Borrower may make Restricted Payments to NCI to the extent necessary
to enable NCI to refinance or repurchase (directly or indirectly) any
of the Public Notes (it being understood that the amount of such
Amendment No. 2 to Second Secured Vendor Financing Agreement
<PAGE> 4
- 4 -
Restricted Payment may include any redemption or tender premium
required to be paid by NCI in connection with such refinancing or
repurchase), provided that the aggregate amount of all such Restricted
Payments shall not exceed the amount of additional equity capital
contributed by NCI to the Borrower in cash after the Amendment No. 2
Effective Date)."
Section 3. Conditions Precedent. The amendments set forth
in Section 2 hereof, shall become effective, as of the date hereof, upon the
execution and delivery of this Amendment No. 2 by NCI, the Restricted Companies
and the Required Vendor Lenders.
Section 4. Miscellaneous. Except as herein provided, the
Second Secured Vendor Financing Agreement shall remain unchanged and in full
force and effect. This Amendment No. 2 to Second Secured Vendor Financing
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same amendatory instrument and any of the
parties hereto may execute this Amendment No. 2 to Second Secured Vendor
Financing Agreement by signing any such counterpart. This Amendment No. 2 to
Second Secured Vendor Financing Agreement shall be governed by, and construed
in accordance with, the law of the State of New York.
Amendment No. 2 to Second Secured Vendor Financing Agreement
<PAGE> 5
- 5 -
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to Second Secured Vendor Financing Agreement to be duly
executed and delivered as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.
By /s/ THOMAS J. SIDMAN
-------------------------------
Name: THOMAS J. SIDMAN
Title: VICE PRESIDENT
RESTRICTED COMPANIES
NEXTEL FINANCE COMPANY (successor to
Fleet Call Corporation),
By /s/ THOMAS J. SIDMAN
-------------------------------
Name: Thomas J. Sidman
Title: VICE PRESIDENT
ADVANCED MOBILECOMM OF
NORTH CAROLINA, INC.
AIRLINK COMMUNICATIONS, INC.
(successor to TRS, Inc.)
AMERICAN MOBILE SYSTEMS,
INCORPORATED (successor to Saber
Communications, Inc.)
DIAL CALL, INC.
DIAL DISTANCE, INC.
FC NEW YORK, INC. (successor to Metrocom
Trunked Radio Communication Systems, Inc.)
FCI 900, INC.
FLEET CALL OF TEXAS, INC. (successor to
FM Tower Company, Metrolink
Communications Corporation and National
Tower Trunking Systems, Inc.)
Amendment No. 2 to Second Secured Vendor Financing Agreement
<PAGE> 6
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NEXTEL COMMUNICATIONS OF THE
MID-ATLANTIC, INC. (successor to Dispatch
Communications of Maryland, Inc., Dispatch
Communications of Minnesota, Inc., Dispatch
Communications of New England, Inc.,
Dispatch Communications of Pennsylvania,Inc.)
NEXTEL LICENSE HOLDINGS 1, INC.
NEXTEL LICENSE HOLDINGS 2, INC.
(successor to Comqor, Inc.)
NEXTEL LICENSE HOLDINGS 3, INC.
(successor to Dial Call Arkansas, Inc.,
Custom Radio/Johnson Communications, Inc.,
Dial Call Florida, Inc., Dial Call
Kentucky, Inc., Dial Call Louisiana, Inc.,
Dial Call Texas, Inc., Dial Call
Virginia, Inc., Dial Call West Virginia, Inc.
and U.S. Digital, Inc.)
NEXTEL LICENSE HOLDINGS 4, INC.
NEXTEL OF TEXAS, INC. (successor to Fort
Worth Communications, Inc.)
NEXTEL WEST CORP.
(successor to Airwave Communications Corp.
(Seattle), C-Call Corporation, Dispatch
Communications of Arizona, Inc., ESMR Sub,
Inc., Fleet Call of Utah, Inc., Fleet Call
West, Inc., Mijac Enterprises, Inc., Mobile
Radio of Illinois, Inc., Motorola SF, Inc.,
Nextel Hawaii Acquisition Corp.,
Nextel Utah Acquisition Corp., Nextel
Western Acquisition Corp., OneComm
Corporation, N.A., Powerfone
Holdings, Inc., Powerfone, Inc.,
Smart SMR of Illinois, Inc., Shoreland
Communications, Inc. and Spectrum Resources
of the Midwest, Inc.)
SAFETY NET, INC.
SMART SMR, INC.
Amendment No. 2 to Second Secured Vendor Financing Agreement
<PAGE> 7
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SMART SMR OF CALIFORNIA, INC.
SMART SMR OF NEW YORK, INC.
By /s/ THOMAS J. SIDMAN
----------------------------
Name: THOMAS J. SIDMAN
Title: VICE PRESIDENT
FORT WORTH TRUNKED RADIO
LIMITED PARTNERSHIP
By Nextel of Texas,Inc.,
a General Partner
By /s/ THOMAS J. SIDMAN
--------------------------
Name: THOMAS J. SIDMAN
Title: VICE PRESIDENT
VENDOR LENDERS
MOTOROLA, INC.
By /s/ GARY B. TATJE
--------------------------
Name: GARY B. TATJE
Title: DIRECTOR, WORLDWIDE
FINANCING
Amendment No. 2 to Second Secured Vendor Financing Agreement
<PAGE> 1
EXHIBIT 99.1
Nextel Successfully Completes $700 Million Notes Private Placement
McLEAN, Va., October 15, 1997 -- Nextel Communications, Inc. (NASDAQ:
NXTL) today announced that it has set the terms of a private placement of
9 3/4% Senior Serial Redeemable Discount Notes due 2007 generating gross
proceeds of $700 million. Net proceeds of the offering are intended to be
used for general corporate purposes, including the refinancing of a
portion of the company's outstanding indebtedness.
The 9 3/4% Senior Serial Redeemable Notes have not been registered
under the Securities Act of 1933, as amended, and may not be offered or sold
in the United States absent an effective registration statement or an
applicable exemption from the registration requirements of such Act. This
press release shall not constitute an offer to sell or the solicitation of an
offer to buy the 9 3/4% Senior Serial Redeemable Discount Notes.
# # #
