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): September 22, 1997
(September 17, 1997)
NEXTEL COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-19656 36-3939651
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
1505 Farm Credit Drive, Suite 100, McLean, Virginia 22102
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (703) 394-3000
(Former name or former address, if changed since last report)
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Item 5. Other Events.
Issuance of Senior Redeemable Discount Notes due 2007
On September 17, 1997, Nextel Communications, Inc. ("Nextel") completed the
sale of $840 million principal amount at maturity of Senior Redeemable Discount
Notes due 2007 (the "Notes"). The issue price of the Notes, which mature on
September 15, 2007, was $595.57 per $1,000 principal amount at maturity
(generating approximately $500 million in aggregate gross proceeds),
representing a yield to maturity of 10.65% computed on a semi-annual bond
equivalent basis from the date of issuance. Cash interest will not accrue on the
Notes prior to September 15, 2002. Commencing September 15, 2002, cash interest
on the Notes will be payable on March 15 and September 15 of each year at a rate
of 10.65% per annum. The Notes are redeemable, at the option of Nextel at any
time, in whole or in part, on or after September 15, 2002, at specified
redemption prices plus accrued and unpaid interest. In addition, in the event of
one or more sales by Nextel prior to September 15, 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 110.65% 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 five 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 $486 million
will be used by Nextel to implement its previously disclosed business plan that
contemplates an accelerated and expanded deployment of its digital wireless
communications networks in its domestic markets during 1997 and 1998.
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 technical 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.
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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.
Exhibit No. Exhibit Description
4.1 Indenture, dated as of September 17, 1997, between Nextel
Communications, Inc. and Harris Trust and Savings Bank, as
Trustee, relating to Nextel's Senior Redeemable Discount
Notes due 2007.
4.2 Amendment No. 4 to Credit Agreement, dated as of September 10,
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. 4 to Vendor Financing Agreement, dated as
of September 10, 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. 1 to Second Secured Vendor Financing Agreement
dated as of September 10, 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.
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: September 22, 1997 By: /s/Thomas J. Sidman
Thomas J. Sidman
Vice President and General Counsel
<PAGE>
Exhibit No. Exhibit Description
4.1 Indenture, dated as of September 17, 1997, between Nextel
Communications, Inc. and Harris Trust and Savings Bank, as
Trustee, relating to Nextel's Senior Redeemable Discount
Notes due 2007.
4.2 Amendment No. 4 to Credit Agreement, dated as of September 10,
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. 4 to Vendor Financing Agreement, dated as
of September 10, 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. 1 to Second Secured Vendor Financing Agreement
dated as of September 10, 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.
EXHIBIT 4.1
Nextel Communications, Inc.
TO
Harris Trust and Savings Bank
Trustee
________________
Indenture
Dated as of September 17, 1997
________________
Senior Redeemable Discount Notes due 2007
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INDENTURE, dated as of September 17, 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
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;
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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
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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 March 15 or September 15 prior to the date of
determination (each a "Semi-Annual Accrual Date") prior to the date of
determination 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
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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.
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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:
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(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
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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
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(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
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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
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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
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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
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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
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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
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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.
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"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.
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"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.
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"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.
"Event of Default" has the meaning specified in Section 501.
"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.
"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
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$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 then are
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 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
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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 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
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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:
(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.
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"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 September 10, 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.
"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,
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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 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
aggregate principal amount at Stated Maturity of Securities accepted
for payment (as
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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 Trustee so requires, duly endorsed by, or accompanied by 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);
(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;
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(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 Transfer
Agent or 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.
"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
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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 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
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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 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
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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;
(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
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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, 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;
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(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 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
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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 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.
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"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 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, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, TD Securities (USA) Inc., Lehman
Brothers Inc., Morgan Stanley & Co. Incorporated and NationsBanc Capital
Markets, Inc.
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"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 March 1 or September 1 (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.
"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
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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.
"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 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
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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.
"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.
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"U.S. Government Obligation" has the meaning specified in Section
1204.
"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 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)
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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;
(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,
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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.
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
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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.
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
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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) or (iv) any direction referred to in Section 512. 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 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,
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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 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
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(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 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
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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.
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.
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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.
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 (collectively, the
"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 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
"Physical Securities").
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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.
Senior Redeemable Discount Notes due 2007
No. __________ $________
CUSIP NO.________
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 September 15,
2007 and to pay interest thereon from September 15, 2002 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on March 15 and September 15 in each year, commencing
March 15, 2003 at the rate of 10.65% 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
10.65% 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
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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 March 1 or September 1 (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 interest until
September 15, 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 10.65% 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 10.65% 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.
If an exchange offer registered under the Securities Act is not consummated
on or before March 15, 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 September 15, 2002 and in addition to the
interest otherwise due on the Securities after such date) will accrue from March
15, 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 June 15, 1998, an additional incremental interest amount will
accrue from June 15, 1998 at an annual rate of 0.5% of Accreted Value on the
preceding
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Semiannual Accrual Date) payable in cash semiannually, in arrears, on each
March 15 and September 15, commencing March 15, 1998, until the earlier of the
date upon which (i) the exchange offer is consummated, (ii) a Shelf Registration
Statement with respect to all Registerable 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.
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<PAGE>
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 Redeemable Discount Notes due 2007 (herein
called the "Securities"), limited in aggregate principal amount at Stated
Maturity to $840,000,000, issued and to be issued under an Indenture, dated as
of September 17, 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 September 15, 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
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accrued and unpaid interest, if any, to the Redemption Date, if redeemed
during the 12-month period beginning September 15 of each of the years set forth
below.
Year Percentage
2002 105.325%
2003 102.663%
On or after September 15, 2004, the Company may redeem the Securities at a
Redemption Price equal to 100% of the principal amount 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 September 15, 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 110.65% 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)
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<PAGE>
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 March 15 or
September 15 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 September 15, 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 September 15,
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
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<PAGE>
overdue Default Amount, principal, premium or interest in respect 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 with the consent of the Holders of a
majority in aggregate principal amount at Stated Maturity of the Securities at
the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount at Stated
Maturity of the Securities at the time Outstanding, 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.
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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, for
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.)
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.
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<PAGE>
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, 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.
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.
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<PAGE>
[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 OFFSHORE PHYSICAL 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.
[ ] (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
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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.
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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.)
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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
SECTION 205. RESTRICTIVE LEGENDS. Unless and until a Security is exchanged fo
an Exchange Security or sold in connection with an effective Shelf
Registration Statement pursuant to the Registration Rights Agreement, the Global
Securities and each Physical Security shall bear the following legend on the
reverse thereof:
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), OR (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, (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) 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
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NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH 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. 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.
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<PAGE>
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 $840,000,000,
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 Redeemable
Discount Notes due 2007" of the Company. Their Stated Maturity shall be
September 15, 2007 and they shall bear interest at the rate of 10.65% per annum,
from September 15, 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 March 15 and September 15, commencing March 15, 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
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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
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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.
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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, Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the Global Security, respectively, if (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository for the Global
Security, 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 the entire Global Security to
beneficial owners pursuant to paragraph (b) of this Section, the 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 the Global Security, an equal aggregate principal amount of 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 restrictions applicable to the Physical Securities set forth
in Section 205.
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(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 to a QIB (excluding Non-U.S.
Persons):
(i) If the Security to be transferred consists of (x) Physical
Securities, 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 the 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 Physical Securities, upon
receipt by the Security Registrar of the
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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 Global Security in an amount equal to the principal amount at
maturity of the Physical Securities to be transferred, and the Trustee
shall cancel the Physical Securities so transferred.
(b) Transfers of Interests in Unlegended Offshore Physical Securities.
The following provisions shall apply with respect to any transfer of
interests in unlegended Offshore Physical Securities. The Security
Registrar shall register the transfer of any such Security without
requiring any additional certification.
(c) 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) Prior to October 28, 1997, the Security Registrar shall
register any proposed transfer of a Security to a Non-U.S. Person upon
receipt of a certificate substantially in the form of Exhibit A hereto
from the proposed transferor.
(ii) On and after October 28, 1997, the Security Registrar shall
register any proposed transfer to any Non-U.S. Person if the Security
to be transferred is a Physical Security or an interest in the Global
Security, upon receipt of a certificate substantially in the form of
Exhibit A from the proposed transferor.
(iii) If the proposed transferor is an Agent Member holding a
beneficial interest in the Global Security upon receipt by the
Security Registrar of (x) the documents, if any, required by paragraph
(ii) and (y) instructions in accordance with the Depository's and the
Security Registrar's procedures, the Security Registrar shall reflect
in the Security Register the date and a decrease in the principal
amount at maturity of the Global Security in an amount equal to the
principal amount at maturity 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 Offshore Physical
Securities of like tenor and amount.
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(d) 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 paragraphs (a)(i)(x) or (d)(ii) of this
Section 307 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.
(e) 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 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.
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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.
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.
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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 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
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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.
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
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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 NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" 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.
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
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(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 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.
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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 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
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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 in whose performance or whose breach is elsewhere in this Section
specifically dealt with), 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
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
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(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 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
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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 September 15, 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 September 15, 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.
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),
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(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.
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
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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 it, 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.
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
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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.
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.
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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
(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
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(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 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.
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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.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount at Stated Maturity of the
Outstanding Securities 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.
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SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount at Stated
Maturity of the Outstanding Securities 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 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
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(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.
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,
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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 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
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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 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.
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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.
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.
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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.
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
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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,
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
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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 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.
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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).
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
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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.
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
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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
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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 March 1 and
September 1, commencing March 1, 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.
(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
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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.
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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
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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 deliveries
required by 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.
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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
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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.
With the consent of the Holders of not less than a majority in principal
amount at Stated Maturity of the Outstanding Securities, by Act of said Holders
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
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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.
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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,
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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
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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
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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.
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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
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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 McCaw
International Ltd. and (y) McCaw International Ltd. 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
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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
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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.
Transactions with Affiliates.ith 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
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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
September 15, 2002 or 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to any Purchase Date on and after September 15, 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
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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.
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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.
(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.
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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.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. RIGHT OF REDEMPTION.
The Securities may be redeemed at any time on or after September 15, 2002,
at the Company's option, in whole or in part, upon not less that 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 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 September 15
of each of the years set forth below.
Year Percentage
2002 105.325%
2003 102.663%
On or after September 15, 2004, the Company may redeem the Securities at a
Redemption Price equal to 100% of the principal amount 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 September 15, 2000 of
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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 110.65% 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
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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, 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 number, 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 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 September 15, 2002,
interest thereon will cease to accrue on and after said Redemption
Date and (ii) that, in the case of a Redemption Date prior to
September 15, 2002, the Accreted Value thereof will not increase after
said Redemption Date,
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(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 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
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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 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.
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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 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.
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<PAGE>
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 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,
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<PAGE>
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 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
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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).
(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.
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<PAGE>
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 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.
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<PAGE>
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.
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<PAGE>
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:/s/Thomas J. Sidman
Thomas J. Sidman
Title: Vice President
Attest:
/s/Gary D. Begeman
Gary D. Begeman, Assistant Secretary
HARRIS TRUST AND SAVINGS BANK, Trustee
By:/s/Robert D. Fultz
Robert D. Fultz
Title: Vice President
Attest:
/s/Dan Donovan
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<PAGE>
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")
10.65% Senior Discount Notes due 2007 (the "Notes")
Dear Sirs:
In connection with our proposed sale of U.S.$__________ aggregate principal
amount at stated 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, as amended, 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
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<PAGE>
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the 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
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EXHIBIT 4.2
[Execution Copy]
AMENDMENT NO. 4 TO CREDIT AGREEMENT
AMENDMENT NO. 4 TO CREDIT AGREEMENT dated as of September 10, 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 to clarify the application of
certain terms thereof. Accordingly, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this Amendment No. 4
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,
clause (iii) of Section 7.01(d) of the Credit Agreement shall be amended to read
in its entirety as follows:
"(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)".
Section 3. CONDITIONS PRECEDENT. The amendment set forth in Section 2
hereof, shall become effective, as of the date hereof, upon the execution and
delivery of this Amendment No. 4 to Credit Agreement by NCI, the Restricted
Companies and the Required Lenders.
For purposes hereof, the Lenders authorized to execute and deliver this
Amendment No. 4 shall be the Lenders party to the Credit Agreement on the date
of this
Amendment No. 4 to Credit Agreement
BII\87915
<PAGE>
-2-
Amendment No. 4 (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. 4 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. 4,
and none of the other parties to the Credit Agreement shall have any
responsibility to so inform any such Person of this Amendment No. 4).
Section 4. MISCELLANEOUS. Except as herein provided, the Credit Agreement
shall remain unchanged and in full force and effect. This Amendment No. 4 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. 4 to Credit Agreement by
signing any such counterpart. This Amendment No. 4 to Credit Agreement shall be
governed by, and construed in accordance with, the law of the State of New York.
Amendment No. 4 to Credit Agreement
<PAGE>
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 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. 4 to Credit Agreement
<PAGE>
-4-
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. 4 to Credit Agreement
<PAGE>
-5-
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. 4 to Credit Agreement
<PAGE>
-6-
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/Brian W. Caroll By /s/Jennifer Fydney
Name: Brian W. Caroll Name: Jennifer Fydney
Title: Title: Vice President
THE TORONTO-DOMINION BANK ABN AMRO BANK N.V.,
NEW YORK BRANCH
By /s/Warren Finlay By /s/Frances O.R. Logan
Name: Warren Finlay Name: Frances O.R. Logan
Title: Manager Credit Title: Froup Vice President
By /s/Laura G. Fazio
Name: Laura G. Fazio
Title: Group Vice President & Director
AMARA-2 FINANCE LTD. BANK OF AMERICA NT & SA
By /s/Andrew Ian Wignall By /s/Francis J. Griffin
Name: Andrew Ian Wignall Name: Francis J. Griffin
Title: Director Title: Attorney-In-Fact
Amendment No. 4 to Credit Agreement
<PAGE>
-7-
BANK OF MONTREAL THE BANK OF NOVA SCOTIA
By /s/W.T. Calder By /s/J.R. Trimble
Name: W.T. Calder Name: J.R. Trimble
Title:Director Title: Authorized Signatory
BANK OF TOKYO-MITSUBISHI BANKBOSTON, N.A.
TRUST COMPANY
By By
Name: Name:
Title: Title:
BANKERS TRUST COMPANY BANQUE PARIBAS (NEW YORK)
By /s/Rosemary F. Dunne By /s/Salo Aizenberg
Name: Rosemary F. Dunne Name: Salo Aizenberg
Title: Vice President Title: Vice President
By
Name:
Title:
BEAR STEARNS INVESTMENT CAPTIVA FINANCE LTD.
PRODUCTS INC.
By /s/Carey Hofing By /s/John H. Cullinane
Name: Name: John H. Cullinane
Title: Title: Director
Amendment No. 4 to Credit Agreement
<PAGE>
-8-
CAPTIVA II FINANCE LTD. CARILLON HOLDING, INC.
By /s/John H. Cullinane By
Name: John H. Cullinane Name:
Title: Vice President Title:
CERES FINANCE LTD. CHANG HWA COMMERCIAL BANK, LTD.,
NEW YORK BRANCH
By /s/John H. Cullinane By /s/Wan-Tu Yen
Name: John H. Cullinane Name: Wan-Tu Yen
Title: Vice President Title: VP & General Manager
CIBC INC. CITIBANK, N.A.
By By
Name: Name:
Title: Title:
CITY NATIONAL BANK COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By /s/David Burdge By /s/G. Rod McWalters
Name: David Burdge Name: G. Rod McWalters
Title: Senior Vice President Title: Vice President
By /s/Jurgen Mahler
Name: Jurgen Mahler
Title: Assistant Vice President
Amendment No. 4 to Credit Agreement
<PAGE>
-9-
COOPERATIEVE CENTRALE CORESTATES BANK, N.A.
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By /s/Alan E. McLintock By /s/Lynae S. Young
Name: Alan E. McLintock Name: Lynae S. Young
Title: Vice President Title: Vice President
By /s/W. Pieter C. Kodde
Name: W. Pieter C. Kodde
Title: Vice President
CREDIT SUISSE FIRST BOSTON CYPRESS TREE INVESTMENT
MANAGEMENT COMPANY, INC.
As Attorney-in-Fact and on behalf
By /s/Todd C. Morgan 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 /s/Anne McCarthy By
Name: Anne McCarthy Name:
Title: Authorized Signatory Title:
FC CBO LD. FIRST UNION NATIONAL BANK
By By
Name: Name:
Title: Title:
Amendment No. 4 to Credit Agreement
<PAGE>
-10-
FLEET NATIONAL BANK FUJI BANK, LTD.
By /s/Alexander G. Ivanov By /s/Teiji Teramoto
Name: Alexander Ivanov Name: Teiji Teramoto
Title:Vice President Title: Vice President & Manager
GOLDMAN SACHS CREDIT INDOSUEZ CAPITAL FUNDING II, LTD.
PARTNERS L.P. By: Indosuez Capital as Portfolio Advisor
By /s/John Urban By /s/Francoise Berthelot
Name: John Urban Name: Francoise Berthelot
Title: Authorized Signatory Title: Vice President
INDOSUEZ CAPITAL FUNDING III, LTD. INDUSTRIAL BANK OF JAPAN, LIMITED
By: Indosuez Capital as Portfolio
Advisor
By /s/Francoise Berthelot By /s/Jeffrey Cole
Name: Francoise Berthelot Name: Jeffrey Cole
Title: Vice President Title: Senior Vice President
ING BARING (U.S.) CAPITAL KEY CORPORATE CAPITAL INC.
CORPORATION
By /s/John M. Chiappe By /s/Tim Willard
Name: John M. Chiappe Name: Tim Willard
Title: Vice President Title: Corporate Banking Officer
KOREA FIRST BANK, LOS ANGELES KZH HOLDING CORPORATION III
AGENCY
By /s/Chang Hee Nam By
Name: Mr. Chang Hee Nam Name:
Title: Agent & General Manager Title:
Amendment No. 4 to Credit Agreement
<PAGE>
-11-
LEHMAN COMMERCIAL PAPER, INC. LTCB TRUST COMPANY
By /s/Michele Swanson By /s/John J. Sullivan
Name: Michele Swanson Name: John J. Sullivan
Title: Authorized Signatory Title: Executive vice President
MEESPIERSON CAPITAL CORP. MERITA BANK LTD
By /s/Fredrik J. Vroese By
Name: Fredrik J. Vrose Name:
Title: Vice President Title:
By /s/John O'Connor By
Name: John O'Connor Name:
Title: Senior Vice President Title:
MERRILL LYNCH DEBT STRATEGIES MERRILL LYNCH PRIME RATE
PORTFOLIO PORTFOLIO
By Merrill Lynch Asset Management, By Merrill Lynch Asset Management,
L.P., as Investment Advisor L.P., as Investment Advisor
By /s/Anne McCarthy By /s/Anne McCarthy
Name: Anne McCarthy Name: Anne McCarthy
Title:Authorized Signatory Title: Authorized Signatory
MERRILL LYNCH SENIOR FLOATING THE MITSUBISHI TRUST AND BANKING
RATE FUND, INC. CORPORATION
By /s/Anne McCarthy By /s/Beatrice Kossodo
Name: Anne McCarthy Name: Beatrice Kossodo
Title:Authorized Signatory Title: Vice President
Amendment No. 4 to Credit Agreement
<PAGE>
-12-
ML CBO IV (CAYMAN) LTD. OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (A unit of The Chase
By Protective Asset Management, Manhattan Bank)
L.L.C as Collateral Manager
By /s/James Dondero By /s/Andrew D. Gordon
Name: James Dondero, CFA, CPA Name: Andrew D. Gordon
Title:President - Protective Title: Managing Director
Asset Management Company
PAMCO CAYMAN LTD. PNC BANK, NATIONAL ASSOCIATION
By Protective Asset Management,
L.L.C. as Collateral Manager
By /s/James Dondero By /s/Steven J. McGehrin
Name: James Dondero, CFA, CPA Name: Steven J. McGehrin
Title:President -- Protective Title: Vice President
Asset Management Company
ROYAL BANK OF CANADA SENIOR HIGH INCOME PORTFOLIO, INC.
By /s/John P. Page By /s/Anne McCarthy
Name: John P. Page Name: Anne McCarthy
Title:Senior Manager Title: Authorized Signatory
STRATA FUNDING LTD. THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By /s/John H. Cullinane By /s/Suresh S. Tata
Name: John H. Cullinane Name: Suresh S. Tata
Title:Director Title: Senior Vice President
Amendment No. 4 to Credit Agreement
<PAGE>
-13-
THE SUMITOMO TRUST & BANKING U.S. BANK OF WASHINGTON, N.A.
COMPANY LTD., NEW YORK BRANCH
By By /s/Gary Egbert
Name: Name: Gary Egbert
Title: Title: Vice President
By
Name:
Title:
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By /s/Jeffrey W. Maillet
Name: Jeffrey W. Maillet
Title: Senior Vice President --
Portfolio Manager
Amendment No. 4 to Credit Agreement
EXHIBIT 4.3
[Execution Copy]
AMENDMENT NO. 4 TO VENDOR FINANCING AGREEMENT
AMENDMENT NO. 4 TO VENDOR FINANCING AGREEMENT dated as of September 10,
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 to clarify the application of certain terms thereof. Accordingly, the
parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this Amendment No.
4, 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,
clause (iii) of Section 7.01(d) of the Vendor Financing Agreement shall be
amended to read in its entirety as follows:
"(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)".
Section 3. CONDITIONS PRECEDENT. The amendment set forth in Section 2
hereof, shall become effective, as of the date hereof, upon the execution and
delivery of this Amendment No. 4 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. 4 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. 4 by signing any such counterpart. This
Amendment No. 4 shall be governed by, and construed in accordance with, the law
of the State of New York.
Amendment No. 4 to Vendor Financing Agreement
BII\87931
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 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. 4 to Vendor Financing Agreement
<PAGE>
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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. 4 to Vendor Financing Agreement
<PAGE>
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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
Amendment No. 4 to Vendor Financing Agreement
<PAGE>
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MOTOROLA, INC.
By /s/Gary B. Tatje
Name: Gary B. Tatje
Title: Director, Wroldwide Customer
Financing and Treasury
NTFC CAPITAL CORPORATION
By /s/Jerry E. Vaughn
Name: Jerry E. Vaughn
Title: Senior Vice President
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. 4.
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: Vice President
Amendment No. 4 to Vendor Financing Agreement
EXHIBIT 4.4
[Execution Copy]
AMENDMENT NO. 1 TO SECOND SECURED VENDOR FINANCING AGREEMENT
AMENDMENT NO. 1 TO SECOND SECURED VENDOR FINANCING AGREEMENT dated as of
September 10, 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 to clarify the application of certain
terms thereof. Accordingly, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this Amendment No.
1, 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,
clause (iii) of Section 7.01(d) of the Second Secured Vendor Financing Agreement
shall be amended to read in its entirety as follows:
"(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)".
Section 3. CONDITIONS PRECEDENT. The amendment set forth in Section 2
hereof, shall become effective, as of the date hereof, upon the execution and
delivery of this Amendment No. 1 by NCI, the Restricted Companies and the
Required Vendor Lenders.
Amendment No. 1 to Second Secured Vendor Financing Agreement
BII\87934
<PAGE>
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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. 1 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. 1 by signing any such
counterpart. This Amendment No. 1 shall be governed by, and construed in
accordance with, the law of the State of New York.
Amendment No. 1 to Second Secured Vendor Financing Agreement
<PAGE>
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 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. 1 to Second Secured Vendor Financing Agreement
<PAGE>
-4-
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. 1 to Second Secured Vendor Financing Agreement
<PAGE>
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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 Customer
Financing and Treasury
