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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
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Date of Report (Date of earliest event reported): February 12, 1998 (February 11, 1998)
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NEXTEL COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-19656 36-3939651
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
1505 FARM CREDIT DRIVE, MCLEAN, VA 22102
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (703) 394-3000
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
Preferred Stock Offering. On February 11, 1998, Nextel Communications, Inc.
("Nextel" or the "Company") completed the sale of 750,000 shares of 11.125%
Series E Exchangeable Preferred Stock (the "Preferred Stock") with a
liquidation preference of $1,000 per share generating approximately $727.9
million in net proceeds. Dividends on the Preferred Stock accrue at an annual
rate of 11.125% of the liquidation preference, are cumulative from the date of
issuance and are payable quarterly in cash or, on or prior to February 15,
2003, at the sole option of Nextel, in additional shares of Preferred Stock.
The Preferred Stock is mandatorily redeemable on February 15, 2010 at the
liquidation preference plus accrued and unpaid dividends, and is redeemable in
whole or part, at the option of Nextel, at any time after December 15, 2005, at
a price equal to the liquidation preference plus accrued and unpaid dividends,
and, in certain circumstances, after February 15, 2003 at specified redemption
prices. Additionally, in certain circumstances, up to 35% of the outstanding
Preferred Stock may be redeemed on or prior to February 15, 2001 at the option
of Nextel, at 111.125% of the liquidation preference plus accrued and unpaid
dividends from the proceeds of one or more sales of Nextel's Class A Common
Stock, par value $.001, per share ("Nextel Common Stock") provided that such
redemption occurs within 180 days after the consummation of any such sale. The
Preferred Stock is exchangeable, in whole but not in part, at the option of
Nextel at any time after December 15, 2005, and in certain circumstances
sooner, into Nextel subordinated debentures.
The shares of the Preferred Stock were issued in a private placement
transaction, 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
Preferred Stock, Nextel has agreed to use its best effort to file with the
Commission and cause to become effective a registration statement with respect
to a registered offer to exchange the then outstanding Preferred Stock for an
equal number of shares of 11.125% Series E Exchangeable Preferred Stock that
have been registered pursuant to the Securities Act (the "Preferred Stock
Exchange Offer"). In the event that the Preferred Stock Exchange Offer is not
consummated prior to the specified dates, the dividend accrual rate applicable
to the Preferred Stock will increase by specified amounts until the Preferred
Stock Exchange Offer is consummated or certain other requirements are met.
Terms of the Preferred Stock are set forth in the Certificate of
Designation attached to this Current Report as Exhibit 4.1 which is
incorporated herein by reference, and the description of the terms of the
Preferred Stock included herein is qualified by reference to such Certificate
of Designation.
Senior Notes Offering. Concurrent with the sale of the Preferred Stock, Nextel
completed the sale of $1,627 million principal amount at maturity of Senior
Serial Redeemable Discount Notes due 2008 (the "Senior Notes"). The issue
price of the Senior Notes, which mature on February 15, 2008, was $614.71 per
$1,000 principal amount at maturity (generating approximately $975.9 million
in net proceeds) representing a yield to maturity of 9.95% computed on a
semi-annual bond equivalent basis from the date of issuance. Cash interest
will not accrue on the Senior Notes prior to February 15, 2003, and will be
payable on February 15 and August 15 of each year commencing August 15, 2003,
at a rate of 9.95% per annum. The Senior Notes are redeemable at the option of
Nextel, in whole or in part, at any time, on or after February 15, 2003, at
specified redemption prices plus accrued and unpaid interest. In addition, in
the event of one or more sales by Nextel prior to February 15, 2001 of at least
$125 million of its
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capital stock, Nextel may redeem up to a maximum of 35% of the aggregate
accreted value of the outstanding Senior Notes at a redemption price equal to
109.95% of such accreted value on the date of redemption; provided that such
redemption occurs within 180 days after the consummation of any such sale. The
Senior Notes are senior unsecured indebtedness of Nextel and rank pari passu in
right of payment with all unsubordinated, unsecured indebtedness of Nextel
(including Nextel's five outstanding issues of Senior Redeemable Discount Notes,
in effect prior to 1997 (the "Old Senior Notes"), and the notes issued in
October 1997 and September 1997 (the "1997 Senior Notes," and collectively with
the Old Senior Notes, the "Nextel Notes") and will be senior in right of payment
to all subordinated indebtedness of Nextel.
The Senior Notes were issued in a private placement transaction and have
not been registered with the Commission under 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 Senior 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 Senior Notes for Senior Notes of equal value that
have been registered pursuant to the Securities Act (the "Senior Notes Exchange
Offer"). In the event that the Senior Notes Exchange Offer is not consummated
prior to the specified dates, additional incremental interest on the accreted
value of the Senior Notes will accrue until the Senior Notes Exchange Offer is
consummated or certain other requirements are met.
Terms of the Senior Notes are set forth in the Indenture attached to this
Current Report as Exhibit 4.2 which is incorporated herein by reference, and
the description of the terms of the Senior Notes included herein is qualified
by reference to such Indenture.
Update to February 2, 1998 Current Report. Nextel filed a Current Report on
Form 8-K with the Commission on February 2, 1998, (the "February 2 Report"),
which assumed that Nextel would receive $1,300 million in gross proceeds from
the offering of the Preferred Stock and Senior Notes. The actual amount of
gross proceeds received from the sale of such securities was $1,750 million, an
increase of $450 million. Accordingly, the following table restates the table
and footnotes, following the second paragraph set forth under the caption
"Financing Plan; Proposed Preferred Stock and Senior Notes Offerings; Use of
Proceeds" in the February 2 Report, in its entirety. (Capitalized terms used
herein but not defined herein shall have the meanings ascribed to them in the
February 2 Report).
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SOURCES USES
(in millions) (in millions)
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Gross proceeds from the Repayment of 11.5% Senior
offerings of the Preferred Stock Redeemable Discount Notes
and the Senior Notes................... $1,750 due 2003............................. $ 319(3)
Bank Credit Facility.................... 756(1) Repayment of 12.25% Senior
Additional Bank Borrowings.............. 0(1) Redeemable Discount
New Option Proceeds..................... 420(2) Notes due 2004....................... 327(3)
Available cash, cash equivalents Digital system capital
and marketable securities in expenditures......................... 1,335
restricted companies at Non-system capital expenditures,
December 31, 1997...................... 44 operating losses, fees, expenses
------ and other corporate purposes......... 989
Total: $2,970 -------
Total: $ 2,970
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(1) Gives effect to an assumed repayment of borrowings under the Company's
Vendor Credit Facility and to the assumed repurchase or redemption of the
Targeted Notes. The amount remaining available for borrowing under the Bank
Credit Facility, assuming implementation of the Additional Bank Borrowings,
would total approximately $1,070.5 million. Until the Targeted Notes have been
purchased, redeemed or otherwise refinanced, a portion of such borrowing
availability may not be accessible. See, "Certain Financing Risks Associated
With The 1998 Plan" below.
(2) Represents $420.0 million in proceeds (the "New Option Proceeds") from the
assumed exercise of an option for cash to purchase at any time through July 28,
1998, shares of Common Stock at prices ranging from $16.00 to $18.00 per share
(the "New Option") held by an affiliate of Craig O. McCaw.
(3) Accreted value at December 31, 1997 after giving effect to open market
repurchases in 1997.
The receipt of the additional proceeds of the sale of the Preferred Stock
and the higher indebtedness levels resulting from the increase in gross
proceeds received from the sale of the Senior Notes also affect the
availability of financing under the terms of the Old Indentures described in
the February 2 Report. The following paragraph revises and restates the
disclosure in the fourth paragraph under the heading "Certain Financing Risks
Associated With The 1998 Plan" in the February 2 Report in its entirety to
reflect the receipt of the additional proceeds from the sale of the Preferred
Stock. (Capitalized terms used herein but not defined herein shall have the
meanings ascribed to them in the February 2 Report).
The availability of all of the above-described existing and contemplated
additional financing is subject to Nextel's satisfying certain requirements
under the Old Indentures, which require Nextel to issue new equity for cash as
a condition to obtaining access to all amounts not constituting "permitted
debt" (as such term is defined in the Old Indentures) under the Bank Credit
Facility (including any modifications thereto to implement the additional bank
borrowings), the Vendor Credit Facility and the Second Vendor Financing
Agreement. The Company's (i) receipt of approximately $727.9 million in net
proceeds from the offering of the Preferred Stock, (ii) the receipt in July
1997 of approximately $482.0 million in proceeds from the offering of the 13%
Series D Exchangeable Preferred Stock (the "Series D Preferred Stock
Proceeds"), and (iii) the net proceeds received from issuances of qualifying
equity, including from the exercise of certain options and warrants, after June
1, 1997 (the "Exercise Proceeds") would enable the Company, pursuant to the
debt incurrence formulas set forth in the Old Indentures, to incur
approximately $2.7 billion in indebtedness (classified as incurrence debt).
Such incurrence debt, combined with additional amounts constituting "permitted
debt" under such Old Indentures, represents a combined amount of approximately
$4.6 billion in debt that the Company may incur in compliance with the Old
Indentures in addition to the outstanding debt evidenced by the Old Senior
Notes (and any other outstanding debt incurred to refinance any of such Old
Senior Notes). As of December 31, 1997, approximately $920.0 million in debt
constituting incurrence debt had been incurred by the Company. Based solely on
the additional debt incurrence capacity associated with the Company's receipt
of net proceeds from the offering of the Preferred Stock, Series D Preferred
Stock Proceeds, and the Exercise Proceeds, and assuming that the modifications
to the Bank Credit Facility relating to the Additional Bank Borrowings are
implemented, the issuance of the Senior Notes will have the effect of
restricting the Company's ability to access, on approximately a dollar for
dollar basis (to the extent the Company receives gross proceeds from the
issuance of Senior Notes in excess of approximately $725.0 million), the amount
of the Additional Bank Borrowings that would be available until either (i) the
proceeds from the issuance of the Senior Notes are applied to refinance the
Targeted Notes or other Old Senior Notes in accordance with the Old Indentures
(in which case, to the extent the
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proceeds received from the issuance of the Senior Notes are applied to effect
such refinancing, such Senior Notes would constitute "permitted debt" under the
Old Indentures that would not reduce the amount of Additional Bank Borrowings
available) or (ii) the Company issues additional equity for cash that would
support additional incurrence debt. That portion of the proceeds from the
issuance of the Senior Notes that is not applied to repurchase, redeem or
otherwise refinance Targeted Notes or other Old Senior Notes may be utilized to
meet the Company's funding requirements for the implementation of its 1998 Plan
and therefore may replace a portion of the Additional Bank Borrowings, to the
extent the Company's ability to incur such borrowings is limited by the Old
Indentures.
The remaining disclosures contained in the February 2 Report remain
unchanged.
Forward Looking Statements. "SAFE HARBOR" STATEMENT UNDER THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995: A number of the matters and subject
areas discussed in this Current Report that are not historical or current facts
deal with potential future circumstances and developments. The discussion of
such matters and subject areas is qualified by the inherent risks and
uncertainties surrounding future expectations generally, and also may
materially differ from Nextel's actual future experience involving any one or
more of such matters and subject areas. Nextel has attempted to identify, in
context, certain of the factors that it currently believes may cause actual
future experience and results to differ from Nextel's current expectations
regarding the relevant matter or subject area. The operation and results of
Nextel's wireless communications business also may be subject to the effect of
other risks and uncertainties in addition to the relevant qualifying factors
identified elsewhere in this Current Report, including, but not limited to,
general economic conditions in the geographic areas and occupational market
segments that Nextel is targeting for its Digital Mobile network service, the
availability of adequate quantities of system infrastructure and subscriber
equipment and components to meet Nextel's service deployment and marketing
plans and customer demand, the success of efforts to improve and satisfactorily
address any issues relating to Digital Mobile network performance, the
continued successful performance of the Reconfigured iDEN technology being
deployed in the Company's various market areas, the ability to achieve market
penetration and average subscriber revenue levels sufficient to provide
financial viability to the Company's Digital Mobile network business, Nextel's
ability to timely and successfully accomplish required scale-up of its billing,
collection, customer care and similar back-room operations to keep pace with
customer growth, increased system usage rates and, growth in levels of
accounts receivable being generated by the Digital Mobile Network customer
base, access to sufficient debt or equity capital to meet Nextel's operating
and financing needs, the quality and price of similar or comparable wireless
communications services offered or to be offered by Nextel's competitors,
including providers of cellular and PCS service, future legislative or
regulatory actions relating to SMR services, other wireless communications
services or telecommunications generally and other risks and uncertainties
described from time to time in Nextel's reports filed with the Commission,
including the Annual Report on Form 10-K for the fiscal year ended December 31,
1996 and the Quarterly Report on Form 10-Q for the quarters ended March 31,
1997, June 30, 1997 and September 30, 1997.
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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.
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Exhibit No. Exhibit Description
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4.1 Certificate of Designation of the Powers, Preferences and
Relative, Participating, Optional and Other Special Rights of
11.125% Series E Exchangeable Preferred Stock and Qualifications,
Limitations and Restrictions Thereof.
4.2 Indenture, dated as of February 11, 1998, between Nextel
Communications, Inc. and Harris Trust and Savings Bank, as Trustee,
relating to Nextel's Senior Serial Redeemable Discount Notes due 2008.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NEXTEL COMMUNICATIONS, INC.
Date: February 12, 1998
By:/s/Thomas J. Sidman
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Thomas J. Sidman
Vice President and General Counsel
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EXHIBITS
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Exhibit No. Exhibit Description
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4.1 Certificate of Designation of the Powers, Preferences and
Relative, Participating, Optional and Other Special Rights of
11.125% Series E Exchangeable Preferred Stock and Qualifications,
Limitations and Restrictions Thereof.
4.2 Indenture, dated as of February 11, 1998, between Nextel
Communications, Inc. and Harris Trust and Savings Bank, as Trustee,
relating to Nextel's Senior Serial Redeemable Discount Notes due 2008.
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NEXTEL COMMUNICATIONS, INC.
CERTIFICATE OF DESIGNATION OF THE POWERS,
PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL AND OTHER SPECIAL RIGHTS
OF 11.125% SERIES E EXCHANGEABLE
PREFERRED STOCK AND QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS THEREOF
-----------------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
-----------------------------------------
Nextel Communications, Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Company"), does hereby certify that, pursuant to authority conferred upon the
board of directors of the Company (or any committee of such board of directors,
the "Board of Directors") by its Restated Certificate of Incorporation, as
amended (hereinafter referred to as the "Certificate of Incorporation"), and
pursuant to the provisions of Section 151 of the General Corporation Law of the
State of Delaware, said Board of Directors with full power and authority to act
on behalf of the Board of Directors, at a meeting held on January 29, 1998,
duly approved and adopted the following resolution (the "Resolution"):
RESOLVED, that, pursuant to the authority vested in the Board
of Directors by its Certificate of Incorporation, the Board of Directors does
hereby create, authorize and provide for the issue of 11.125% Series E
Exchangeable Preferred Stock, par value $0.01 per share, with a liquidation
preference of $1,000 per share, consisting of 2,200,000 shares, having the
designations, voting power, preferences and relative, participating, optional
and other special rights, qualifications, limitations and restrictions thereof
that are set forth in the Certificate of Incorporation and in this Resolution
as follows (the terms used herein, unless otherwise defined herein, are used
herein as defined in paragraph (n) hereof):
(a) Designation. There is hereby created out of the authorized
and unissued shares of preferred stock of the Company a series of preferred
stock designated as the "11.125% Series E Exchangeable Preferred Stock". The
number of shares constituting such series shall be 2,200,000 shares of 11.125%
Series E Exchangeable Preferred Stock, consisting of an initial issuance of
750,000 shares of 11.125% Series E Exchangeable Preferred Stock (the "Original
Preferred Stock"), plus registered shares of 11.125% Series E Exchangeable
Preferred Stock which may be issued in the Preferred Stock Exchange Offer (the
"Exchange Preferred Stock" and, together with the Original Preferred Stock, the
"Preferred Stock") plus additional shares of Preferred Stock which may be
issued to pay dividends on the Preferred Stock if the Company elects to pay
dividends in additional shares of Preferred Stock. The liquidation preference
of the Preferred Stock shall be $1,000 per share.
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(b) Rank. The Preferred Stock shall, with respect to dividend
distributions and distributions upon the liquidation, winding-up and
dissolution of the Company, rank: (i) senior to (A) all classes of common
stock of the Company and to (B) each other class of capital stock or series of
preferred stock (other than the Class C Preferred Stock) hereafter created by
the Board of Directors, the terms of which do not expressly provide that it
ranks senior to or on a parity with the Preferred Stock as to dividend
distributions and distributions upon the liquidation, winding-up and
dissolution of the Company (collectively referred to herein, together with all
classes of common stock of the Company, as the "Junior Securities"); (ii) on a
parity with (A) the Class A Preferred Stock (except with respect to the Special
Payments (as defined in this paragraph (b)), the Class B Preferred Stock
(except with respect to the Special Payments (as defined in this paragraph
(b)), the Class C Preferred Stock and the Series D Preferred Stock; and (B) any
class of capital stock or series of preferred stock hereafter created by the
Board of Directors, the terms of which expressly provide that such class or
series will rank on a parity with the Preferred Stock as to dividend
distributions and distributions upon the liquidation, winding-up and
dissolution of the Company (collectively referred to as "Parity Securities");
(iii) junior with respect to the dividend accruals and payments on the Class A
Preferred Stock and the $25,000,000 cash payment on the Class B Preferred
Stock, which are required under the terms of the Class A Preferred Stock and
the Class B Preferred Stock as in effect on the date of this Certificate of
Designation upon certain occurrences (such payments and dividend rights of the
Class A Preferred Stock and the Class B Preferred Stock, the "Special
Payments"); and (iv) subject to Preferred Stockholder Approval Rights (as
defined in subparagraph (f)(ii)(A)), junior to each class of capital stock or
series of preferred stock hereafter created by the Board of Directors, the
terms of which have been approved by the Holders of the Preferred Stock in
accordance with subparagraph (f)(ii) hereof and which expressly provide that
such class or series will rank senior to the Preferred Stock as to dividend
distributions and distributions upon liquidation, winding-up and dissolution of
the Company (collectively referred to as "Senior Securities").
(c) Dividends. (i) Beginning on the Closing Date, the Holders of
the outstanding shares of Preferred Stock shall be entitled to receive, when,
as and if declared by the Board of Directors, out of funds legally available
therefor, dividends on each share of Preferred Stock at a rate per annum equal
to 11.125% of the liquidation preference per share of Preferred Stock, payable
quarterly. All dividends shall be cumulative, whether or not earned or
declared, on a daily basis from the date of issuance of the applicable shares
of the Preferred Stock and shall be payable quarterly in arrears on each
Dividend Payment Date, commencing on May 15, 1998. On and before February 15,
2003, the Company may pay dividends, at its option, in cash or in additional
fully paid and nonassessable shares of Preferred Stock having an aggregate
liquidation preference equal to the amount of such dividends. After February
15, 2003, dividends may be paid only in cash. If any dividend (or portion
thereof) payable on any Dividend Payment Date after February 15, 2003 is not
declared or paid in full in cash on such Dividend Payment Date, the amount of
such dividend that is payable and that is not paid in cash on such date will
accrue interest at the dividend rate then applicable to the Preferred Stock,
compounding quarterly, until declared and paid in full. Each distribution in
the form of a dividend (whether in cash or in additional shares of Preferred
Stock) shall be payable to Holders of record as they appear on the stock books
of the Company on such record date, not less than 10 nor more than 60 days
preceding the relevant Dividend Payment Date, as shall be fixed by the Board of
Directors. Dividends shall cease to accumulate in respect of shares of the
Preferred Stock on the Mandatory Exchange Date (as defined in paragraph
(g)(i)(A) hereof) or on the date of their earlier redemption unless the Company
shall have failed to issue the appropriate aggregate principal amount of
Exchange
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Debentures in respect of the Preferred Stock on the Mandatory Exchange Date or
shall have failed to pay the relevant redemption price on the date fixed for
redemption.
(ii) Notwithstanding anything else provided herein, if the
Company fails to consummate a Preferred Stock Exchange Offer in accordance with
the Registration Rights Agreement dated the Closing Date on or prior to August
15, 1998, the dividend rate on the Preferred Stock will increase 0.5% per annum
to 11.625% per annum of liquidation preference per share of Preferred Stock
from August 15, 1998 (and if the Preferred Stock Exchange Offer is not
consummated on or prior to November 15, 1998, the dividend rate on the
Preferred Stock will increase an additional 0.5% per annum to 12.125% per annum
of liquidation preference per share of Preferred Stock from November 15, 1998),
payable in additional shares of Preferred Stock quarterly in arrears on each
Dividend Payment Date, commencing November 15, 1998 until (A) the date that
such Preferred Stock Exchange Offer is consummated, (B) a shelf registration
statement with respect to resales of the Preferred Stock is declared effective
in accordance with the Registration Rights Agreement, or (C) the Preferred
Stock becomes freely tradeable without registration under the Securities Act,
at which time, in any such case, (x) the per annum dividend rate shall return
to 11.125%, and (y) upon the request of any Holder of the Preferred Stock, the
Company shall deliver to such Holder certificates evidencing such Holder's
Preferred Stock without the legends restricting the transfer thereof.
(iii) All dividends paid with respect to shares of the
Preferred Stock pursuant to paragraph (c)(i) hereof shall be paid pro rata to
the Holders entitled thereto.
(iv) Nothing herein contained shall in any way or under
any circumstances be construed or deemed to require the Board of Directors to
declare, or the Company to pay or set apart for payment, any dividends on
shares of the Preferred Stock at any time.
(v) Dividends on account of arrears for any past Dividend
Period and dividends in connection with any optional redemption pursuant to
paragraph (e)(i) hereof may be declared and paid at any time, without reference
to any regular Dividend Payment Date, to Holders of record on such date, not
more than 45 days prior to the payment thereof, as may be fixed by the Board of
Directors.
(vi) Other than any amount constituting Special Payments,
no full dividends shall be declared by the Board of Directors or paid or funds
set apart for payment of dividends by the Company on any Parity Securities for
any period unless full cumulative dividends shall have been or
contemporaneously are declared and paid in full, or declared and (in the case
of dividends payable in cash) a sum in cash set apart sufficient for such
payment on the Preferred Stock for all Dividend Periods terminating on or prior
to the date of payment of such full dividends on such Parity Securities. The
making of Special Payments shall not, in and of itself, require that any
dividend be declared or any dividend or other amount be paid or accrued in
respect of the Preferred Stock. Except as noted in the case of Special
Payments, if any dividends are not paid in full, as aforesaid, upon the shares
of the Preferred Stock and any other Parity Securities, all dividends declared
upon shares of the Preferred Stock and any other Parity Securities shall be
declared pro rata so that the amount of dividends declared per share on the
Preferred Stock and such Parity Securities shall in all
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cases bear to each other the same ratio that accrued dividends per share on the
Preferred Stock and such Parity Securities bear to each other.
(vii) (A) Holders of shares of Preferred Stock shall be
entitled to receive the dividends provided for in paragraph (c)(i) hereof in
preference to and in priority over any dividends upon any of the Junior
Securities.
(B) So long as any shares of Preferred Stock are
outstanding, the Company shall not declare, pay or set apart for payment any
dividend on any of the Junior Securities or make any payment on account of, or
set apart for payment money for a sinking or other similar fund for, the
purchase, redemption or other retirement of any of the Junior Securities or any
warrants, rights, calls or options exercisable for or convertible into any of
the Junior Securities (other than the repurchase, redemption or other
acquisition or retirement for value of Junior Securities (and any warrants,
rights, calls or options exercisable for or convertible into such Junior
Securities) permitted under clause (II) of the second paragraph in subparagraph
(m)(ii) hereof, provided that such Junior Securities may only be repurchased,
redeemed or otherwise acquired or retired either in exchange for Junior
Securities or upon the termination, retirement, death or disability of such
employee, consultant or advisor), or make any distribution in respect thereof,
either directly or indirectly, and whether in cash, obligations or shares of
the Company or other property (other than distributions or dividends in Junior
Securities to the holders of Junior Securities) and shall not permit any
corporation or other entity directly or indirectly controlled by the Company to
purchase or redeem any of the Junior Securities or any such warrants, rights,
calls or options, unless full cumulative dividends determined in accordance
herewith have been paid in full on the Preferred Stock.
(C) So long as any shares of the Preferred Stock
are outstanding, the Company shall not make any payment on account of, or set
apart for payment money for a sinking or other similar fund for, the purchase,
redemption or other retirement of any of the Parity Securities or any warrants,
rights, calls or options exercisable for or convertible into any of the Parity
Securities, and shall not permit any corporation or other entity directly or
indirectly controlled by the Company to purchase or redeem any of the Parity
Securities or any such warrants, rights, calls or options, unless the dividends
determined in accordance herewith on the Preferred Stock have been paid in
full.
(viii) Dividends payable on shares of the Preferred Stock
for any period less than a year shall be computed on the basis of a 360-day
year of 12 30-day months and the actual number of days elapsed in the period
for which dividends are payable. If any Dividend Payment Date occurs on a day
that is not a Business Day, any accrued dividends otherwise payable on such
Dividend Payment Date shall be paid on the next succeeding Business Day.
(d) Liquidation Preference. Upon any voluntary or involuntary
liquidation, dissolution or winding-up of the affairs of the Company, Holders
of Preferred Stock then outstanding shall be entitled to be paid, out of the
assets of the Company available for distribution to its stockholders, $1,000
per share of Preferred Stock, plus an amount in cash equal to accumulated and
unpaid dividends thereon to the date fixed for liquidation, dissolution or
winding-up (including an amount equal to a prorated dividend for the period
from the last Dividend Payment Date to the date fixed for liquidation,
dissolution or winding-up), before any payment shall be made on or any assets
distributed to the holders of any of the Junior Securities, including, without
limitation, common stock of the
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Company. However, neither the merger, consolidation or sale of all or
substantially all of the assets of the Company shall be deemed to be a
liquidation, dissolution or winding-up of the Company. If, upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Company, the
amounts payable with respect to the Preferred Stock and all other Parity
Securities are not paid in full, the holders of the Preferred Stock and the
Parity Securities shall share equally and ratably (subject to the preference of
the Holders of Class A Preferred Stock and Class B Preferred Stock to receive
any Special Payments then due and not paid in full) in any distribution of
assets of the Company in proportion to the full liquidation preference and
accumulated and unpaid dividends to which each is entitled. After payment of
the full amount of the liquidation preference and accumulated and unpaid
dividends to which they are entitled, the Holders of Preferred Stock shall not
be entitled to any further participation in any distribution of assets of the
Company.
(e) Redemption. (i) Optional Redemption. (A) The Preferred
Stock may be redeemed (subject to the restrictions described in this paragraph
(e), contractual and other restrictions with respect thereto existing on the
Closing Date, compliance with covenants contained in the Existing Indentures
and the legal availability of funds therefor) at any time after December 15,
2005 (the "Optional Redemption Date"), at the Company's option, in whole or in
part, in the manner provided in subparagraph (e)(iii), at a redemption price
equal to the amount of the liquidation preference thereof, plus an amount equal
to all accumulated and unpaid dividends (including an amount in cash equal to a
prorated dividend for the period from the dividend payment date immediately
prior to the redemption date to the redemption date); provided, however, that
in the event that the Old Senior Notes are repurchased, redeemed or repaid in
full prior to the Optional Redemption Date, the Preferred Stock may be redeemed
(subject to the restrictions described in this paragraph (e), contractual and
other restrictions thereto existing on the Closing Date, compliance with
covenants contained in the Existing Indentures and to the legal availability of
funds therefor) at any time on or after February 15, 2003, at the Company's
option, in whole or in part, in the manner provided in subparagraph (e)(iii),
at the redemption prices (expressed as a percentage of the liquidation
preference thereof) set forth below, plus an amount in cash equal to all
accumulated and unpaid dividends (including an amount in cash equal to a
prorated dividend for the period from the Dividend Payment Date immediately
prior to the Redemption Date to the Redemption Date), if redeemed during the
12-month period beginning February 15 of each of the years set forth below.
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105.5625%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.7083%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.8542%
2006 and thereafter . . . . . . . . . . . . . . . . . . . . . 100.0000%
</TABLE>
provided that no optional redemption pursuant to this subparagraph (e)(i)(A)
shall be authorized or made unless prior thereto full unpaid cumulative
dividends for all Dividend Periods terminating on or prior to the Redemption
Date, and for an amount equal to a prorated dividend on the Preferred Stock to
be redeemed for the period from the Dividend Payment Date immediately prior to
the Redemption Date to the Redemption Date, shall have been, or immediately
prior to the Redemption Date are, declared and paid in cash or declared and a
sum set apart sufficient for such cash payment on the Redemption Date on such
Preferred Stock.
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<PAGE> 6
(B) In addition, on or prior to February 15,
2001, in the event that the Old Senior Notes are repurchased, redeemed or
repaid in full (subject to the restrictions described in this paragraph (e),
contractual and other restrictions with respect thereto existing on the Closing
Date, compliance with covenants contained in the Existing Indentures and to the
legal availability of funds therefor), the Company may redeem shares of
Preferred Stock having an aggregate liquidation preference of up to 35% of the
aggregate liquidation preference of all Preferred Stock originally issued on
the Closing Date, at a redemption price equal to 111.125% of the liquidation
preference, plus an amount in cash equal to a prorated dividend for the period
from the Dividend Payment Date immediately prior to the Redemption Date to the
Redemption Date (subject to the right of Holders of Preferred Stock on relevant
record dates to receive dividends due on relevant Dividend Payment Dates), with
the proceeds of any sale of its common stock; provided that such redemption
occurs within 180 days after consummation of such sale, and provided further
that no optional redemption pursuant to this subparagraph (e)(i)(B) shall be
authorized or made unless prior thereto full unpaid cumulative dividends for
all Dividend Periods terminating on or prior to the Redemption Date and for an
amount equal to a prorated dividend for the period from the Dividend Payment
Date immediately prior to the Redemption Date to the Redemption Date shall have
been, or immediately prior to the Redemption Notice are, declared and paid in
full in cash or declared and a sum set apart sufficient for such payment in
full in cash on the Redemption Date on the outstanding shares of the Preferred
Stock.
(C) In the event of a redemption pursuant to
paragraph (e)(i) hereof of only a portion of the then outstanding shares of the
Preferred Stock, the Company shall effect such redemption as it determines, pro
rata according to the number of shares held by each Holder of Preferred Stock,
provided that the Company may redeem such shares held by any Holder of fewer
than 100 shares of Preferred Stock without regard to such pro rata redemption
requirement, or by lot, in each case, as may be determined by the Company in
its sole discretion.
(ii) Mandatory Redemption. On February 15, 2010, the
Company shall redeem from any source of funds legally available therefor, in
the manner provided in paragraph (e)(iii) hereof, all of the shares of the
Preferred Stock then outstanding at a redemption price equal to 100% of the
liquidation preference per share, plus, without duplication, an amount in cash
equal to all accumulated and unpaid dividends per share (including an amount
equal to a prorated dividend for the period from the Dividend Payment Date
immediately prior to the Redemption Date to the Redemption Date).
(iii) Procedures for Redemption. (A) At least 30 days and
not more than 60 days prior to the date fixed for any redemption of the
Preferred Stock, written notice (the "Redemption Notice") shall be given by
first-class mail, postage prepaid, to each Holder of record on the record date
fixed for such redemption of the Preferred Stock at such Holder's address as
the same appears on the stock register of the Company, provided that no failure
to give such notice nor any deficiency therein shall affect the validity of the
procedure for the redemption of any shares of Preferred Stock to be redeemed
except as to the Holder or Holders to whom the Company has failed to give said
notice or except as to the Holder or Holders whose notice was defective. The
Redemption Notice shall state:
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<PAGE> 7
(1) whether the redemption is pursuant to subparagraph
(e)(i)(A), (e)(i)(B) or (e)(ii) hereof;
(2) the redemption price expressed as a percentage of the
liquidation preference;
(3) whether all or less than all the outstanding shares
of the Preferred Stock are to be redeemed and the total number of
shares of the Preferred Stock being redeemed;
(4) the number of shares of Preferred Stock held, as of
the appropriate record date, by the Holder that the Company intends to
redeem;
(5) the date fixed for redemption;
(6) that the Holder is to surrender to the Company, at
the place or places where certificates for shares of Preferred Stock
are to be surrendered for redemption, in the manner and at the price
designated, his certificate or certificates representing the shares of
Preferred Stock to be redeemed; and
(7) that dividends on the shares of the Preferred Stock
to be redeemed shall cease to accrue on such Redemption Date unless
the Company defaults in the payment of the redemption price.
(B) Each Holder of Preferred Stock shall
surrender the certificate or certificates representing such shares of Preferred
Stock to the Company, duly endorsed, in the manner and at the place designated
in the Redemption Notice and on the Redemption Date. The full redemption price
for such shares of Preferred Stock shall be payable in cash to the Person whose
name appears on such certificate or certificates as the owner thereof, and each
surrendered certificate shall be canceled and retired. In the event that less
than all of the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
(C) Unless the Company defaults in the payment in
full of the applicable redemption price, dividends on the Preferred Stock
called for redemption shall cease to accumulate on the Redemption Date, and the
Holders of such redeemed shares shall cease to have any further rights with
respect thereto from and after the Redemption Date, other than the right to
receive the redemption price, without interest.
(f) Voting Rights. (i) The Holders of shares of the Preferred
Stock, except as otherwise required under Delaware law or as set forth in
paragraphs (f)(ii), (f)(iii) and (f)(iv) hereof, shall not be entitled or
permitted to vote on any matter required or permitted to be voted upon by the
stockholders of the Company.
(ii) (A) So long as any shares of the Preferred Stock
are outstanding, the Company shall not authorize any class of Senior Securities
without Required Consent, except that, the Company may issue shares of Senior
Securities without Required Consent (1) in respect of any dividend or payment
obligations that constitute Special Payments or (2) in exchange for, or the
proceeds of which are used to redeem or repurchase, any or all shares of
Preferred Stock then
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<PAGE> 8
outstanding or Debt of the Company (such approval rights, herein referred to as
"Preferred Stockholder Approval Rights"); provided that, solely in the case of
Senior Securities issued in exchange for, or the proceeds of which are used to
redeem or repurchase, less than all shares of Preferred Stock then outstanding,
(a) the aggregate liquidation preference of such Senior Securities shall not
exceed the aggregate liquidation preference of, premium and accrued and unpaid
dividends on, and expenses in connection with the refinancing of, the shares of
Preferred Stock so exchanged, redeemed or repurchased, (b) such Senior
Securities shall not be Redeemable Stock and (c) such Senior Securities shall
not be entitled to the payment of cash dividends prior to February 15, 2003.
(B) So long as any shares of the Preferred Stock
are outstanding, the Company shall not amend this Certificate of Designation so
as to affect adversely the specified rights (including, without limitations,
the covenants described in paragraph (m)), preferences, privileges or voting
rights of Holders of shares of Preferred Stock, or to authorize the issuance of
any additional shares of Preferred Stock, without the affirmative vote or,
notwithstanding any contrary provisions of the By-Laws, written consent of
Holders of at least a majority of the outstanding shares of Preferred Stock,
voting or consenting, as the case may be, separately as one class, given in
person or by proxy, either in writing or by resolution adopted at an annual or
special meeting. Compliance with any provision of this Certificate of
Designation may be waived with Required Consent, which may be given by written
consent or by resolution adopted at an annual or special meeting.
(C) Except as set forth in subparagraph
(f)(ii)(B) hereof, (1) the creation, authorization or issuance of any shares of
any Junior Securities, Parity Securities or Senior Securities, or (2) the
increase or decrease in the amount of authorized capital stock of any class,
including any preferred stock, shall not require the consent of Holders of
Preferred Stock and shall not, unless not complying with subparagraph
(f)(ii)(B) hereof, be deemed to affect adversely the rights, preferences,
privileges or voting rights of Holders of shares of Preferred Stock.
(iii) (A) If (1) dividends on the Preferred Stock are in
arrears and unpaid (and if, after February 15, 2003, such dividends are not
paid in cash) for four consecutive quarterly periods or six quarterly periods
(whether or not consecutive) (each, a "Dividend Default"); or (2) the Company
fails to discharge any redemption obligation with respect to the Preferred
Stock (each, a "Redemption Default"); or (3) the Company fails to make an Offer
to Purchase (and to complete such purchase) following a Change of Control, if
such Offer to Purchase is required to be made pursuant to paragraph (h) hereof
(each, a "Change of Control Default"); or (4) the Company breaches or violates
one of the provisions set forth in paragraph (m) hereof and the breach or
violation continues for a period of 60 consecutive days or more after notice
thereof to the Company by Holders of 25% or more of the outstanding shares of
the Preferred Stock then outstanding (each, a "Restriction Default"); or (5)
the Company fails to pay when due (subject to any applicable grace period) the
principal of, or if there is an acceleration of, any Debt of the Company or any
Restricted Subsidiary having an outstanding principal amount of at least $25
million, individually or in the aggregate (each, a "Default Payment"), then the
number of directors constituting the Board of Directors shall be adjusted to
permit the Holders of the majority of the then outstanding shares of Preferred
Stock, voting separately as one class, to elect two directors. For the purpose
of determining the number of quarterly periods for which accrued dividends have
not been paid, any accrued and unpaid dividend that is subsequently paid shall
not be treated as unpaid. Each event described in clauses (1), (2), (3), (4)
and (5) of this subparagraph (f)(iii)(A) is a "Voting Rights Triggering Event."
Within 15 days of
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<PAGE> 9
the time the Company becomes aware of the occurrence of any default referred to
in clause (4) or (5) of this subparagraph (f)(iii)(A), the Company shall give
written notice thereof to the Holders.
(B) The right of the Holders of Preferred Stock
voting separately as one class to elect two directors as described in
subparagraph (f)(iii)(A) shall continue until such time as (1) in the event
such right arises due to a Dividend Default, all accumulated dividends that are
in arrears on the Preferred Stock and that gave rise to such Dividend Default
are paid in full (and, in the case of dividends payable after February 15,
2003, paid in cash); and (2) in the event such right arises due to a Redemption
Default, a Change of Control Default, a Restriction Default or a Payment
Default, the Company remedies any such failure, breach or default, at which
time the term of any directors elected pursuant to subparagraph (f)(iii)(A)
hereof shall terminate and the number of directors constituting the board of
directors shall be reduced to the number necessary to reflect the termination
of the right of the Holders of the Preferred Stock to elect directors, subject
always to the same provisions for the renewal and divestment of such special
voting rights in the case of any future Voting Rights Triggering Event. At any
time after voting power to elect directors shall have become vested and be
continuing in the Holders of shares of the Preferred Stock pursuant to
subparagraph (f)(iii)(A) hereof, or if vacancies shall exist in the offices of
directors elected by the Holders of shares of the Preferred Stock, a proper
officer of the Company may, and upon the written request of the Holders of
record of at least 25% of the shares of Preferred Stock then outstanding
addressed to the Secretary of the Company shall, call a special meeting of the
Holders of Preferred Stock, for the purpose of electing the directors which
such Holders are entitled to elect. If such meeting shall not be called by the
proper officer of the Company within 30 days after personal service of said
written request upon the Secretary of the Company, or within 30 days after
mailing the same within the United States by certified mail, addressed to the
Secretary of the Company at its principal executive offices, then the Holders
of record of at least 25% of the outstanding shares of the Preferred Stock may
designate in writing one of their number to call such meeting at the expense of
the Company, and such meeting may be called by the Person so designated upon
the notice required for the annual meetings of stockholders of the Company and
shall be held at the place for holding the annual meetings of stockholders or
such other place in the United States as shall be designated in such notice.
Notwithstanding the provisions of this subparagraph (f)(iii)(B), no such
special meeting shall be called if any such request is received less than 40
days before the date fixed for the next ensuing annual or special meeting of
stockholders of the Company. Any Holder of shares of the Preferred Stock so
designated shall have, and the Company shall provide, access to the lists of
Holders of shares of the Preferred Stock for purposes of calling a meeting
pursuant to the provisions of this subparagraph (f)(iii)(B).
(C) At any meeting held for the purpose of
electing directors at which the Holders of Preferred Stock shall have the
right, voting separately as one class, to elect directors as aforesaid, the
presence in person or by proxy of the Holders of at least a majority of the
outstanding Preferred Stock shall be required to constitute a quorum of such
Preferred Stock.
(D) Any vacancy occurring in the office of a
director elected by the Holders of the Preferred Stock may be filled by the
remaining director elected by such Holders unless and until such vacancy shall
be filled by such Holders.
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<PAGE> 10
(iv) In any case in which the Holders of shares of the
Preferred Stock shall be entitled to vote pursuant to this paragraph (f) or
pursuant to Delaware law, each Holder of shares of the Preferred Stock shall be
entitled to one vote for each share of Preferred Stock held. Any action that
may be taken hereunder by the Holders of the Preferred Stock at a meeting may
be taken by written consent of a majority of the Holders of such Preferred
Stock.
(g) Exchange. (i) Requirements. (A) The Company may, at the
sole option of the Board of Directors (subject to the legal availability of
funds therefor), at any time after the Optional Redemption Date, or at any time
prior to the Optional Redemption Date in the event all Old Senior Notes are
repurchased, redeemed or repaid in full, exchange all, but not less than all,
of the outstanding shares of Preferred Stock, including any shares of Preferred
Stock issued as payment for dividends, into Exchange Debentures, subject to the
conditions set forth in this subparagraph (g)(i)(A). In order to effect such
exchange, the Company shall (1) if necessary to satisfy the condition set forth
in clause (II) of this subparagraph (g)(i)(A) based upon the written advice of
counsel to the Company, file a registration statement with the Commission
relating to the exchange, and (2) if a registration statement is filed with the
Commission pursuant to clause (1), use its best efforts to cause such
registration statement to be declared effective as soon as practicable by the
Commission unless the opinion referred to in clause (II) of this subparagraph
(g)(i)(A) shall have been subsequently delivered. In order to effectuate such
exchange, the Company shall send a written notice (the "Exchange Notice") of
exchange by mail to each Holder of record, which notice shall state: (v) that
the Company is exchanging the Preferred Stock into Exchange Debentures pursuant
to this Certificate of Designation; (w) the date fixed for exchange (the
"Mandatory Exchange Date"), which date shall not be less than 15 days nor more
than 60 days following the date on which the Exchange Notice is mailed (except
as provided in the last sentence of this subparagraph (g)(i)(A)); (x) that the
Holder is to surrender to the Company, at the place or places where
certificates for shares of Preferred Stock are to be surrendered for exchange,
in the manner designated in the Exchange Notice, such Holder's certificate or
certificates representing the shares of Preferred Stock to be exchanged; (y)
that dividends on the shares of Preferred Stock to be exchanged shall cease to
accrue on the Mandatory Exchange Date whether or not certificates for shares of
Preferred Stock are surrendered for exchange on the Mandatory Exchange Date
unless the Company shall default in the delivery of Exchange Debentures; and
(z) that interest on the Exchange Debentures shall accrue from the Mandatory
Exchange Date whether or not certificates for shares of Preferred Stock are
surrendered for exchange on the Mandatory Exchange Date. On the Mandatory
Exchange Date, if the conditions set forth in clauses (I) through (VI) of this
subparagraph (g)(i)(A) are satisfied, the Company shall issue Exchange
Debentures in exchange for the Preferred Stock as provided in subparagraph
(g)(ii)(A), provided that on the Mandatory Exchange Date:
(I) there shall be legally available funds sufficient therefor
(including, without limitation, legally available funds
sufficient therefor under Sections 160 and 170 (or any
successor provisions) of the Delaware General Corporation
Law);
(II) either (x) a registration statement relating to the
Exchange Debentures shall have been declared effective under
the Securities Act of 1933, as amended (the "Securities Act")
prior to such exchange and shall continue to be in effect on
the Mandatory Exchange Date or (y) (1) the Company shall have
obtained a written opinion of counsel that an exemption from
the registration requirements of the Securities Act is
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<PAGE> 11
available for such exchange and that upon receipt of such
Exchange Debentures pursuant to such exchange made in
accordance with such exemption, each Holder that is not an
Affiliate of the Company will not be subject to any
restrictions imposed by the Securities Act upon the resale
thereof and (2) such exemption is relied upon by the Company
for such exchange;
(III) the Exchange Indenture shall have been duly executed by
the Company and the trustee thereunder (the "Trustee") with
irrevocable instructions to authenticate the Exchange
Debentures necessary for such exchange;
(IV) the Exchange Indenture and the Trustee shall have been
qualified under the Trust Indenture Act of 1939, as amended;
(V) immediately after giving effect to such exchange, no
Default or Event of Default (each as defined in the Exchange
Indenture) would exist under the Exchange Indenture; and
(VI) the Company shall have delivered to the Trustee a written
opinion of counsel, dated the date of the exchange, regarding
the satisfaction of the conditions set forth in clauses (I),
(II), (III) and (IV).
In the event that the issuance of the Exchange Debentures is not permitted on
the Mandatory Exchange Date or any of the conditions set forth in clauses (I)
through (VI) of the preceding sentence are not satisfied on the Mandatory
Exchange Date, the Company shall use its best efforts to satisfy such
conditions and effect such exchange as soon as practicable.
(B) Upon any exchange pursuant to subparagraph
(g)(i)(A) hereof, the Holders of outstanding shares of Preferred Stock shall be
entitled to receive a principal amount of Exchange Debentures for shares of
Preferred Stock, the liquidation preference of which, plus the amount of
accumulated and unpaid dividends (including a prorated dividend for the period
from the immediately preceding Dividend Payment Date to the Mandatory Exchange
Date) with respect to which, equals such amount; provided that the Company at
its option may pay cash for any or all accrued and unpaid dividends in lieu of
issuing Exchange Debentures in respect of such dividends.
(ii) Procedure for Exchange. (A) On or before the
Mandatory Exchange Date, each Holder shall surrender the certificate or
certificates representing such shares of Preferred Stock, in the manner and at
the place designated in the Exchange Notice. The Company shall cause the
Exchange Debentures to be executed on the Mandatory Exchange Date and, upon
surrender in accordance with the Exchange Notice of the certificates for any
shares of Preferred Stock so exchanged (properly endorsed or assigned for
transfer, if the notice shall so state), such shares shall be exchanged by the
Company into Exchange Debentures. The Company shall pay interest on the
Exchange Debentures at the rate and on the dates described in the Memorandum.
(B) If notice has been mailed as aforesaid, and
if before the Mandatory Exchange Date (1) the Exchange Indenture shall have
been duly executed and delivered by the
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<PAGE> 12
Company and the Trustee and (2) all Exchange Debentures necessary for such
exchange shall have been duly executed by the Company and delivered to the
Trustee with irrevocable instructions to authenticate the Exchange Debentures
necessary for such exchange, then dividends will cease to accrue on the
Preferred Stock on and after the Mandatory Exchange Date and the rights of the
Holders as stockholders of the Company shall cease on and after the Mandatory
Exchange Date (except the right to receive Exchange Debentures), and the Person
or Persons entitled to receive the Exchange Debentures issuable upon exchange
shall be treated for all purposes as the registered holder or holders of such
Exchange Debentures as of the Mandatory Exchange Date.
(h) Change of Control. (i) Upon the occurrence of a Change of
Control, the Company shall be required (subject to any contractual and other
restrictions with respect thereto existing on the Closing Date and the legal
availability of funds therefor) to make an Offer to Purchase to each Holder to
purchase all or any part of such Holder's shares of Preferred Stock at a cash
purchase price equal to 101% of the liquidation preference thereof, plus
accrued and unpaid dividends (if any) to the date of purchase (the "Change of
Control Payment").
(ii) Within 30 days following any Change of Control, the
Company shall mail a notice to such Holder stating: (A) that the Offer to
Purchase is being made pursuant to this Certificate of Designation and that, to
the extent lawful, all shares of Preferred Stock tendered will be accepted for
payment; (B) the purchase price and the purchase date, which shall be no
earlier than 30 days nor later than 40 days from the date such notice is mailed
(the "Change of Control Payment Date"); (C) that any shares of Preferred Stock
not tendered will continue to accrue dividends in accordance with the terms of
this Certificate of Designation; (D) that, unless the Company defaults in the
payment of the Change of Control Payment, all shares of Preferred Stock
accepted for payment pursuant to the Offer to Purchase shall cease to accrue
dividends on and after the Change of Control Payment Date and all rights of the
Holders shall terminate on and after the Change of Control Date; and (E) a
description of the procedures to be followed by such Holder in order to have
its shares of Preferred Stock repurchased.
(iii) On the Change of Control Payment Date, (A) the
Company shall, to the extent lawful, (1) accept for payment shares of Preferred
Stock tendered pursuant to the Offer to Purchase and (2) promptly mail to each
Holder of shares of Preferred Stock so accepted payment in an amount equal to
the Change of Control Payment for such shares and (B) unless the Company
defaults in the payment for the shares of Preferred Stock tendered pursuant to
the Offer to Purchase, dividends shall cease to accrue with respect to the
shares of Preferred Stock tendered and all rights of Holders of such tendered
shares shall terminate, except for the right to receive payment therefor, on
the Change of Control Payment Date. The Company shall publicly announce the
results of the Offer to Purchase on or as soon as practicable after the Change
of Control Payment Date.
(iv) The Company shall comply with Rule 14e-1 under the
Exchange Act and any securities laws and regulations to the extent such laws
and regulations are applicable to the repurchase of shares of the Preferred
Stock in connection with a Change of Control.
(i) Conversion or Exchange. The Holders shall not have any rights
hereunder to convert such shares into or exchange such shares for shares of any
other class or classes or of any other series of any class or classes of
Capital Stock of the Company.
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<PAGE> 13
(j) Preemptive Rights. No shares of Preferred Stock shall have
any rights of preemption whatsoever as to any securities of the Company, or any
warrants, rights or options issued or granted with respect thereto, regardless
of how such securities or such warrants, rights or options may be designated,
issued or granted.
(k) Reissuance of Preferred Stock. Shares of Preferred Stock that
have been issued and reacquired in any manner, including shares purchased or
redeemed or exchanged, shall (upon compliance with any applicable provisions of
the laws of Delaware) have the status of authorized but unissued shares of
preferred stock of the Company undesignated as to series and may be designated
or redesignated and issued or reissued, as the case may be, as part of any
series of preferred stock of the Company, provided that any issuance of such
shares as Preferred Stock must be in compliance with the terms hereof.
(l) Business Day. If any payment, redemption or exchange shall be
required by the terms hereof to be made on a day that is not a Business Day,
such payment, redemption or exchange shall be made on the immediately
succeeding Business Day.
(m) Certain Additional Provisions. (i) 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 (A) with respect to Debt Incurred under this clause (A), 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 2.0 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 the Preferred Stock and
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 subparagraph (m)(ii)
(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 subparagraph (m)(ii), to the extent the inclusion
thereof was necessary to allow a subsequent Restricted Payment to be made, or
(B) on the date of such Incurrence, after giving effect to the Incurrence of
such Debt (or Acquired Debt) and the receipt and application of the net
proceeds thereof (and, if the net proceeds of such new Debt are used to acquire
a Person that becomes a Restricted Subsidiary or an operating business of the
Company or a Restricted Subsidiary, to all terms of such acquisition) on a pro
forma basis, the Operating Cash Flow to Consolidated Interest Expense Ratio
would equal or exceed 1.75 to 1.
(ii) Limitation on Restricted Payments. The Company
shall not, directly or indirectly:
(A) declare or pay any dividend on, or make any
distribution to the holders of, any Junior Securities (other than
dividends or distributions payable solely in its Junior Securities
(other than Redeemable Stock) or in options, warrants or other rights
to purchase Junior Securities (other than Redeemable Stock));
13
<PAGE> 14
(B) 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 Junior Securities of the Company that are
not Redeemable Stock or options, warrants or other rights to acquire
Junior Securities that are not Redeemable Stock), any Junior
Securities of the Company (including options, warrants or other rights
to acquire Junior Securities); or
(C) make, or permit any Restricted Subsidiary, directly
or indirectly, to make, any Investment (other than 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 (A) through (C), 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 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) after
February 15, 1994 of its Junior Securities (other than Redeemable
Stock), or any options, warrants or other rights to purchase such
Junior Securities (other than Redeemable Stock), and from the issuance
and sale, prior to the Closing Date, of the Class A Preferred Stock
and the Class B Preferred Stock, other than (x) (except for purposes
of determining whether an Investment under clause (C) above is
permitted) Junior Securities or options, warrants or other rights to
purchase Junior Securities (or shares issuable upon exercise thereof)
issued or sold in the PowerFone Merger, Questar/AMI Share Exchanges,
Motorola Business Acquisition and NTT transactions described in the
Company's prospectus, dated February 9, 1994, relating to the
Company's Senior Redeemable Discount Notes due 2004, and (y) 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
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<PAGE> 15
such Investment pursuant to this subparagraph (m)(ii) (other than as a
Directed Investment)) or (B) to Incur Debt under clause (A) of
subparagraph (m)(i) (unless and until the amount of any such Debt (I)
is treated as newly issued Debt and could be Incurred in accordance
with subparagraph (m)(i) (other than under clause (A) thereof) or (II)
has been repaid or refinanced with the proceeds of Debt Incurred in
accordance with subparagraph (m)(i) (other than under clause (A)
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 Junior Securities of the Company (other than
Redeemable Stock), or any options, warrants or other rights to
purchase such Junior Securities (other than Redeemable Stock), upon
the conversion of, or exchange for, Debt of the Company or a
Restricted Subsidiary.
The foregoing limitations in this subparagraph (m)(ii) 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 Junior Securities of the Company within
60 days after the declaration thereof if, on the date when the dividend was
declared, the Company could have paid such dividend in accordance with the
provisions of this Certificate of Designation, (II) repurchasing Junior
Securities of the Company (including options, warrants or other rights to
acquire such Junior Securities) 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 Junior
Securities of the Company to the extent necessary to prevent the loss or secure
the renewal or reinstatement of any license or franchise held by the Company or
any of its Subsidiaries from any governmental agency; or (IV) Investments in
Unrestricted Subsidiary Funding Company so long as (x) such Investments are
invested in Nextel International, Inc. and (y) Nextel International, Inc. is a
Subsidiary of the Company.
Notwithstanding the foregoing limitations in this subparagraph
(m)(ii), the Company shall 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).
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<PAGE> 16
Notwithstanding the foregoing, no Investment in a Person that
immediately thereafter would be a Restricted Subsidiary shall be a Restricted
Payment. In addition, if any Person in which an Investment is made, which
Investment constitutes a Restricted 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 Junior Securities 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
Junior Securities 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 subparagraph (m)(ii), 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).
(iii) 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 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 of such Unrestricted Subsidiary outstanding
immediately prior to such designation would have been permitted
16
<PAGE> 17
to be Incurred (and shall be deemed to have been Incurred) for all purposes of
this Certificate of Designation.
Subject to the second preceding paragraph and compliance with
subparagraph (m)(ii), 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 subparagraph (m)(ii)
(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 subparagraph
(m)(iii), 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 (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 subparagraph (m)(iii), 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.
(iv) Transactions with Affiliates. The Company shall not,
and shall not permit any Restricted Subsidiary to, directly or indirectly,
enter into any transaction (including the purchase, sale, lease or exchange of
any property or the rendering of any service) or series of related transactions
with any Affiliate of the Company on terms that are less favorable to the
Company or such Restricted Subsidiary, as the case may be, than those which
might be obtained at the time of such transaction from a Person that is not
such an Affiliate; provided, however, that this subparagraph (m)(iv) shall not
limit, or be applicable to, (A) any transaction between Unrestricted
Subsidiaries not involving the Company or any Restricted Subsidiary, (B) any
transaction between the Company and any Restricted Subsidiary or between
Restricted Subsidiaries or (C) any Permitted Transactions. In addition, any
transaction or series of related transactions, other than Permitted
Transactions, between the Company
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<PAGE> 18
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 subparagraph (m)(iv), 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 subparagraph (m)(iv).
(v) 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 and the Restricted Subsidiaries are
engaged in on the Closing Date.
(vi) 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 (1) transmit by mail to all Holders at their
registered addresses, without cost to such Holders, and (2) file with the
Transfer Agent 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 Transfer Agent's receipt of such reports,
information and documents shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein.
(vii) Senior Subordinated Debt. So long as any Preferred
Stock is outstanding, the Company shall not Incur any Debt, other than the
Exchange Debentures, that is expressly made subordinated in right of payment to
any Senior Debt (as defined in the Exchange Indenture) unless such Debt, by its
terms and by the terms of any agreement or instrument pursuant to which such
Debt is outstanding, is expressly made pari passu with, or subordinate in right
of payment to, the Exchange Debentures pursuant to provisions substantially
similar to those contained in the Exchange Indenture; provided that the
foregoing limitations shall not apply to distinctions between categories of
Senior Debt that exist by reason of any Liens or Guarantees arising or created
in respect of some but not all Senior Debt.
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<PAGE> 19
(viii) Merger, Sale of Assets, Etc. 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 the Preferred Stock shall be converted into or exchanged for and
shall become shares of such Surviving Entity having in respect of such
Surviving Entity substantially the same powers, preferences and relative
participating, optional or other special rights and the qualifications,
limitations or restrictions thereon that the Preferred Stock had immediately
prior to such transaction, 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 transaction or series of transactions), no 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
Transfer Agent, an Officers' Certificate, stating that such consolidation,
merger, sale, assignment, conveyance, transfer, lease or other disposition
complies with the requirements of this Certificate of Designation, and an
opinion of counsel that the conditions of this subparagraph (m)(viii) 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 the Certificate of Designation and the Preferred
Stock (including the provisions described in the two immediately preceding
paragraphs and subparagraphs (m)(i) and (m)(iii)), Subsidiaries of any
Surviving Entity shall, upon such transaction or series of transactions, become
Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to
subparagraph (m)(iii) and all Debt of the Surviving Entity and its Subsidiaries
that was not Debt of the Company
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<PAGE> 20
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.
(n) Definitions. As used in this Certificate of Designation, the
following terms shall have the following meanings (with terms defined in the
singular having comparable meanings when used in the plural and vice versa),
unless the context otherwise requires. Whenever this Certificate of
Designation 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. 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.
"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.
"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 subparagraph (m)(iv) and without limiting the application of the
preceding sentence for the purpose of such or any other purpose, 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 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.
"Annualized Operating Cash Flow" means, for any fiscal quarter, the
Operating Cash Flow for such fiscal quarter multiplied by four.
"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
20
<PAGE> 21
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 Schedule 13G (or any
successor schedule) under the Exchange Act.
"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 Transfer Agent.
"Business Day" means any day except a Saturday or Sunday or other day
on which commercial banks in The City of New York are required or authorized by
law or other governmental action to be closed.
"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:
(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
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<PAGE> 22
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
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 the Exchange 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 (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
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<PAGE> 23
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 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.
Notwithstanding anything to the contrary contained in this Certificate of
Designation, no Change of Control shall be deemed to occur under this
Certificate of Designation until the earlier of the day after (x) the Optional
Redemption Date (as defined in subparagraph (e)(i)(A)) and (y) the date all Old
Senior Notes are repurchased, redeemed or repaid in full, and if any Old Senior
Notes are outstanding at the time of an occurrence of an event set forth in
(a), (b) or (c) above, such occurrence shall not be deemed to be a Change of
Control under this Certificate of Designation until such Old Senior Notes are
repurchased, redeemed or repaid in full, in which case the day after the date
on which all Old Senior Notes are so repaid, redeemed or repurchased will be
deemed to be the date on which such Change of Control occurred.
"Class A Preferred Stock" means 26,941,933 shares of Class A
Convertible Redeemable Preferred Stock, par value $.01 per share, of the
Company.
"Class B Preferred Stock" means 82 shares of Class B Convertible
Preferred Stock, par value $.01 per share, of the Company.
"Class C Preferred Stock" means 26,941,933 shares of Class C
Convertible Redeemable Preferred Stock, par value $.01 per share, of the
Company.
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<PAGE> 24
"Closing Date" means the date on which the Original Preferred Stock is
originally issued under this Certificate of Designation.
"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 Exchange member
firm of national standing that is selected from time to time by the Company for
that purpose.
"Commission" means the Securities and Exchange Commission.
"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.
"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 (i) any
after-tax gain or loss attributable to the sale, conversion or other
disposition of assets other than in the ordinary course of business, (ii) any
after-tax gains resulting from the write-up of assets and any loss resulting
from the write-down of assets, (iii) 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), (iv) any foreign exchange gain or
loss, (v) all payments in respect of dividends on shares of Preferred Capital
Stock of the Company, (vi) any other extraordinary, non-recurring or unusual
items incurred by the Company or any of its Restricted Subsidiaries, (vii) 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 (viii) 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.
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<PAGE> 25
"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
Subsidiaries, determined on a consolidated basis in accordance with generally
accepted accounting principles and all commissions, discounts, other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing and net costs (including amortizations of discounts) associated with
interest rate swap and similar agreements and with foreign currency hedge,
exchange and similar agreements and the amount of dividends paid in respect of
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 (i) any after-tax gain or loss
attributable to the sale, conversion or other disposition of assets other than
in the ordinary course of business, (ii) any after-tax gains resulting from the
write-up of assets and any loss resulting from the write-down of assets, (iii)
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),
(iv) any foreign exchange gain or loss, (v) all payments in respect of
dividends on shares of Preferred Capital Stock of the Company, (vi) any other
extraordinary, non-recurring or unusual items incurred by the Company or any of
its Restricted Subsidiaries, (vii) 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, (viii) 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 (ix) 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 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
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<PAGE> 26
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.
"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
Certificate of Designation, 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 that is Incurred and outstanding under
all Credit Facilities at any time does not exceed $3,000,000,000.
"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 any event that is, or after notice or passage of time,
or both, would be, a Voting Rights Triggering Event.
"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.
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<PAGE> 27
"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.
"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 Series D Preferred Stock and Redeemable Stock), or any
options, warrants or other rights to purchase such Capital Stock (other than
the Series D Preferred Stock and 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 (A) of subparagraph (m)(i) unless
and until the amount of any such Debt (I) is treated as newly issued Debt and
could be Incurred in accordance with subparagraph (m)(i) (other than under
clause (A) thereof) or (II) has been repaid or refinanced with the proceeds of
Debt Incurred in accordance with subparagraph (m)(i) (other than under clause
(A) thereof) or (III) has otherwise been repaid and, in the circumstances
described in clauses (I) and (II), the Company delivers to the Transfer Agent 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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"Dividend Payment Date" means February 15, May 15, August 15 and
November 15 of each year.
"Dividend Period" means the dividend period commencing on each
February 15, May 15, August 15, and November 15 and ending on the day before
the following Dividend Payment Date; provided, however, that the first such
Dividend Period shall commence on the Closing Date and end on May 14, 1998.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Debentures" means the Company's Senior Subordinated
Debentures due 2010 issued pursuant to the Exchange Indenture.
"Exchange Indenture" means the indenture for the Exchange Debentures,
the form of which is on file at the principal executive offices of the Company
and terms of which may be modified to the extent the corresponding terms in the
Preferred Stock have been modified in accordance with this Certificate of
Designation.
"Existing Indentures" means the indentures relating to the Existing
Senior Notes.
"Existing Senior Notes" means the Company's $525,855,000 principal
amount at maturity of 11 l/2% Senior Redeemable Discount Notes Due 2003,
$1,126,435,000 principal amount at maturity of 9 3/4% Senior Redeemable
Discount Notes Due 2004, $541,830,000 principal amount at maturity of 12 1/4%
Senior Redeemable Discount Notes Due 2004, $111,165,000 principal amount at
maturity of 10 1/4% Senior Redeemable Discount Notes Due 2005, $409,876,000
principal amount at maturity of 10.65% Senior Redeemable Discount Notes Due
September 15, 2007, $1,129,100,000 principal amount at maturity of 9 3/4%
Senior Serial Redeemable Discount Notes due 2007 and $1,627,000,000 principal
amount at maturity of 9.95% Senior Serial Redeemable Discount Notes Due 2008.
"Fair Market Value" means, for purposes of clause (A) of subparagraph
(m)(i), the price that would be paid in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy, as determined in good faith by the
Board of Directors, whose determination shall be conclusive if evidenced by a
Board Resolution; provided that (x) the Fair Market Value of any security
registered under the Exchange Act shall be the average of the closing prices,
regular way, of such security for the 20 consecutive trading days immediately
preceding the sale of Capital Stock and (y) in the event the aggregate Fair
Market Value of any other property received by the Company exceeds $10 million,
such Fair Market Value shall be as determined in good faith by the Board of
Directors, including a majority of Disinterested Directors who are then members
of such Board of Directors, which determination shall be conclusive if
evidenced by a Board Resolution.
"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
28
<PAGE> 29
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 holder of shares of Preferred Stock.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume
(pursuant to a merger, consolidation, acquisition or other transaction),
Guarantee or otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to generally accepted
accounting principles or otherwise, of any such Debt or other obligation on the
balance sheet of such Person (and "Incurrence" and "Incurred", shall have
meanings correlative to the foregoing); provided, however, that a change in
generally accepted accounting principles that results in an obligation of such
Person that exists at such time becoming Debt shall not be deemed an Incurrence
of such Debt; provided further, however, that the accretion of original issue
discount on Debt shall not be deemed to be an Incurrence of Debt. Debt
otherwise Incurred by a Person before it becomes a Subsidiary of the Company
shall be deemed to have been Incurred at the time it becomes such a Subsidiary.
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution to (by means of transfers
of cash or other property to others or payments for property or services for
the account or use of others, or otherwise), or purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities or evidence of Debt
issued by, any other Person or the designation of a Subsidiary as an
Unrestricted Subsidiary; provided that a transaction will not be an Investment
to the extent it involves (i) the issuance or sale by the Company of its
Capital Stock (other than Redeemable Stock), including options, warrants or
other rights to acquire such Capital Stock (other than Redeemable Stock) or
(ii) a transfer, assignment or contribution by the Company of shares of Capital
Stock (or any options, warrants or rights to acquire Capital Stock), or all or
substantially all of the assets of, any Unrestricted Subsidiary of the Company
to another Unrestricted Subsidiary of the Company.
"Investment Grade" means a rating of at least BBB-, in the case of
S&P, or Baa3, in the case of Moody's.
"Licenses" means SMR licenses granted by the Federal Communications
Commission 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).
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<PAGE> 30
"Marketable Securities" means: (i) 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; (ii) 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
(iii) 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.
"Memorandum" means the offering memorandum dated February 6, 1998 in
connection with the offering of the Preferred Stock.
"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 Transfer Agent.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his registered
address on the date of the Offer offering to purchase up to the liquidation
preference of Preferred Stock specified in such Offer at the purchase price
specified in such Offer (as determined pursuant to this Certificate of
Designation). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Expiration Date") of the Offer to Purchase
which shall be, subject to any contrary requirements of applicable law, not
less than 30 days or more than 60 days after the date of such Offer and a
settlement date (the "Purchase Date") for purchase of shares of Preferred Stock
within three Business Days after the Expiration Date. The Company shall notify
the Transfer Agent at least 15 days (or such shorter period as is acceptable to
the Transfer Agent) 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 Transfer Agent, 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 Transfer Agent
pursuant to this Certificate of Designation (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 shares of Preferred Stock pursuant to the Offer to Purchase.
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<PAGE> 31
The Offer shall also state: (1) the section of this Certificate of Designation
pursuant to which the Offer to Purchase is being made; (2) the Expiration Date
and the Purchase Date; (3) the aggregate liquidation preference of the
outstanding shares of Preferred Stock 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 liquidation
preference of Preferred Stock accepted for payment (as specified pursuant to
this Certificate of Designation) (the "Purchase Price"); (5) the Holder may
tender all or any portion of the Preferred Stock registered in the name of such
Holder and that any portion of Preferred Stock tendered must be tendered in an
integral multiple of $1,000 of liquidation preference; (6) the place or places
where the shares of Preferred Stock are to be surrendered for tender pursuant
to the Offer to Purchase; (7) that dividends on any shares of Preferred Stock
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 share of Preferred Stock or being
accepted for payment pursuant to the Offer to Purchase; (9) that each Holder
electing to tender shares of Preferred Stock pursuant to the Offer to Purchase
will be required to surrender such Preferred Stock at the place or places
specified in the Offer prior to the close of business on the Expiration Date
(such Preferred Stock being, if the Company or the Transfer Agent so requires,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Transfer Agent 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 Preferred Stock 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 liquidation preference of the Preferred Stock the Holder
tendered, the certificate number of the Preferred Stock the Holder tendered and
a statement that such Holder is withdrawing all or a portion of his tender;
(11) that the Company shall purchase all such shares of Preferred Stock duly
tendered and not withdrawn pursuant to the Offer to Purchase; and (12) that in
the case of any Holder whose shares of Preferred Stock are purchased only in
part, the Company shall execute, and the Transfer Agent shall countersign and
deliver to the Holder of such Preferred Stock without service charge, new
shares of Preferred Stock of any authorized denomination as requested by such
Holder, in an aggregate liquidation preference equal to and in exchange for the
unpurchased portion of the aggregate liquidation preference of the Preferred
Stock 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 the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company.
"Old Senior Note Indentures" means the indentures relating to the Old
Senior Notes.
"Old Senior Notes" means the Company's $525,855,000 principal amount
at maturity of 11 1/2% Senior Redeemable Discount Notes Due 2003,
$1,126,435,000 principal amount at maturity of 9 3/4% Senior Redeemable
Discount Notes Due 2004, $541,830,000 principal amount at maturity of 12 1/4%
Senior Redeemable Discount Notes Due 2004, $111,165,000 principal amount at
maturity of 10 1/4% Senior Redeemable Discount Notes Due 2005 and $409,876,000
principal amount at maturity of 10 1/8% Senior Redeemable Discount Notes Due
2004.
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"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 Cash Flow Ratio, (1) any Person that is a Restricted
Subsidiary on such date (or would become a Restricted Subsidiary in connection
with the transaction that requires the determination of such ratio) will be
deemed to have been a Restricted Subsidiary at all times during such fiscal
quarter, (2) any Person that is not a Restricted Subsidiary on such date (or
would cease to be a Restricted Subsidiary in connection with the transaction
that requires the determination of such ratio) will be deemed not to have been
a Restricted Subsidiary at any time during such fiscal quarter and (3) if the
Company or any Restricted Subsidiary shall have in any manner acquired
(including through commencement of activities constituting such operating
business) or disposed (including through termination or discontinuance of
activities constituting such operating business) of any operating business
during or subsequent to the most recently completed fiscal quarter, such
calculation will be made on a pro forma basis on the assumption that such
acquisition or disposition had been completed on the first day of such
completed fiscal quarter.
"Operating Cash Flow to Consolidated Interest Expense Ratio" means, as
at any date of determination, the ratio of (i) the Operating Cash Flow of the
Company for the most recently completed fiscal quarter of the Company to (ii)
the Consolidated Interest Expense of the Company and its Restricted
Subsidiaries for the most recently completed fiscal quarter of the Company.
"Permitted Debt" means: (i) any Debt (including Guarantees thereof)
outstanding on the Closing Date 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 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
32
<PAGE> 33
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 (B) of subparagraph
(m)(i) 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 mature prior to
the Stated Maturity or have a mandatory redemption date prior to the mandatory
redemption date of the Debt being renewed, refunded or extended or have an
Average Life shorter than the remaining Average Life of the Debt being renewed,
refunded or extended; and (vii) Debt payable solely in, or mandatorily
convertible into, Capital Stock (other than Redeemable Stock) of the Company;
(viii) Debt (in addition to Debt permitted under clauses (i) through (vii)
above) in an aggregate principal amount outstanding at any time not to exceed
$950 million.
"Permitted Distribution" of a Person means the redemption, repurchase,
defeasance or other acquisition or retirement for value of Junior Securities of
the Company, 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 Junior Securities of the Company (other than
Redeemable Stock).
"Permitted Investment" means any Investment in Marketable Securities.
"Permitted Transaction" means (i) any transaction pursuant to
agreements (whether or not definitive, and regardless of whether binding or
non-binding) existing on the Closing Date and described in or incorporated by
reference into the Memorandum and (ii) any transaction or transactions with any
vendor or vendors of property or materials used in the telecommunications
business (including related activities and services) of the Company or any
Restricted Subsidiary, provided (x) such transactions are in the ordinary
course of business and (y) such vendor does not beneficially own more than 50%
of the voting power of the Voting Stock of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"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.
33
<PAGE> 34
"preferred stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of preferred or preference stock of such Person,
including, without limitation, the Preferred Stock.
"Preferred Stock Exchange Offer" means each registered offer to
exchange the Preferred Stock for Exchange Preferred Stock.
"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 mandatory redemption date of the Preferred Stock, (ii) redeemable at the
option of the holder thereof at any time prior to the mandatory redemption date
of the Preferred Stock 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 mandatory redemption date of the Preferred Stock;
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 mandatory redemption date of the Preferred
Stock shall not constitute Redeemable Stock if the "change of control"
provisions as applicable to such Capital Stock are no more favorable to the
holders of such Capital Stock than the provisions contained in paragraph (h)
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 shares of Preferred Stock as are required to be
repurchased pursuant to paragraph (h).
"Redemption Date" with respect to any shares of Preferred Stock, means
the date on which such shares of Preferred Stock are redeemed by the Company.
"Required Consent" means for actions requiring the consent of Holders,
except as otherwise expressly provided in this Certificate of Designation with
respect to matters requiring the consent of each Holder affected thereby, (i)
the consent of the Holders of a majority of the then outstanding shares of
Preferred Stock to elect directors upon a Voting Rights Triggering Event, and
(ii) with respect to all other actions requiring the consent of the Holders,
the consent of the holders of either (x) a majority of the then outstanding
shares of Preferred Stock, (y) a majority of the shares then outstanding of (I)
the Preferred Stock, (II) the Series D Preferred Stock, if the holders of the
Series D Preferred Stock are being requested to consent to such action with
respect to the terms of the Series D Preferred Stock, and (III) any other issue
of pari passu preferred stock issued by the Company, if such preferred stock or
the certificate of designation pursuant to which such preferred stock was
issued both (A) require the consent of the holders of such preferred stock to
such action and (B) provide that the holders thereof will vote with the Holders
of the Preferred Stock with respect to such action.
"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 subparagraph (m)(iii).
"Series D Preferred Stock" means the Series D Exchangeable Preferred
Stock, par value $0.01 per share with a liquidation preference of $1,000 per
share, of the Company.
34
<PAGE> 35
"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 Transfer Agent.
"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 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.
35
<PAGE> 36
"Transfer Agent" means First Chicago Trust Company of New York.
"Unrestricted Subsidiary" means Unrestricted Subsidiary Finance
Company and any other Subsidiary that is not a Restricted Subsidiary and
includes any Restricted Subsidiary that becomes an Unrestricted Subsidiary in
accordance with subparagraph (m)(iii).
"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.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Restricted Subsidiary" of the Company means a Restricted
Subsidiary all of the outstanding Capital Stock of which (other than directors'
qualifying shares) shall at the time be owned by the Company or by one or more
Wholly Owned Restricted Subsidiaries or by the Company and one or more Wholly
Owned Restricted Subsidiaries.
(o). Transfer and Legending of Shares. (i) No transfer of
shares of the Preferred Stock shall be effective until such transfer is
registered on the books of the Company. Until registered under the Securities
Act, the expiration of the time period referred to in Rule 144(k) (as then in
effect) under the Securities Act from the Closing Date, or the Company and the
holder of such shares otherwise agree, all shares of Preferred Stock other than
the Exchange Preferred Stock shall bear the following legend:
THIS PREFERRED STOCK HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS PREFERRED STOCK IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
36
<PAGE> 37
(AS DEFINED IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), (2)
AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE
OF THIS PREFERRED STOCK, RESELL OR OTHERWISE TRANSFER THIS PREFERRED
STOCK EXCEPT (A) TO NEXTEL COMMUNICATIONS, INC. OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRANSFER AGENT A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THIS PREFERRED STOCK (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRANSFER AGENT) AND IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE LIQUIDATION PREFERENCE OF
PREFERRED STOCK AT THE TIME OF TRANSFER OF LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO NEXTEL COMMUNICATIONS, INC. THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (F)
AFTER REGISTRATION OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS PREFERRED STOCK IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS PREFERRED STOCK 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 TRANSFER AGENT. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRANSFER AGENT AND NEXTEL COMMUNICATIONS,
INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT. THE CERTIFICATE OF DESIGNATION CONTAINS A
PROVISION REQUIRING THE TRANSFER AGENT TO REFUSE TO REGISTER ANY
TRANSFER OF THIS PREFERRED STOCK IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
(ii) The Transfer Agent shall refuse to register any
attempted transfer of shares of Original Preferred Stock not in compliance with
this paragraph (o).
37
<PAGE> 38
(iii) At any time after 40 days following the Closing Date,
upon receipt by the Transfer Agent and the Company of a certificate
substantially in the form of Exhibit A hereto, the Transfer Agent shall
authenticate and deliver one or more shares of unlegended Preferred Stock in
the place of the legended Preferred Stock.
(iv) In connection with proposed transfers of Original
Preferred Stock described in Exhibit B or Exhibit C, the Transfer Agent or the
Company may require the transferor or transferee, as the case may be, to
deliver the appropriate letter attached hereto as Exhibits B or C. Each holder
of Original Preferred Stock shall notify the Company or the Transfer Agent in
the event of any transfer by such holder of any shares of Original Preferred
Stock to a foreign transferee.
38
<PAGE> 39
IN WITNESS WHEREOF, Nextel Communications, Inc. has caused
this Certificate of Designation to be executed in its corporate name by Steven
M. Shindler, its Vice President and attested by Ried R. Zulager, its Secretary,
this 10th day of February, 1998.
NEXTEL COMMUNICATIONS, INC.
By: /s/ STEVEN M. SHINDLER
-----------------------------------
Name: Steven M. Shindler
Title: Vice President
Attest:
By: /s/ RIED R. ZULAGER
----------------------------
Name: Ried R. Zulager
Title: Secretary
[corporate seal]
39
<PAGE> 40
EXHIBIT A
Form of Certificate as to
Completion of Distribution and
Termination of Restricted Period
__________________, ____
First Chicago Trust Company of New York
525 Washington Boulevard
Jersey City, NJ 07310
Attention:
Re: Nextel Communications, Inc.
(the "Company") Series E
Exchangeable Preferred
Stock (the "Securities")
Dear Ladies and Gentlemen:
This letter relates to ___ shares of Securities represented by
the attached Certificate (the "Legended Certificate") which bears a legend
outlining restrictions upon transfer of such Legended Certificate. Pursuant to
paragraph (o) of the Certificate of Designation (the "Certificate of
Designation") filed with the Secretary of State of the State of Delaware on
_________________, 1998 relating to the Securities, we hereby certify that we
are a person outside the United States to whom the Securities could be
transferred in accordance with Rule 904 of Regulation S promulgated under the
U.S. Securities Act of 1933, as amended. Accordingly, you are hereby requested
to exchange the legended certificate for an unlegended certificate representing
an identical number of shares of Securities, all in the manner provided for in
the Certificate of Designation.
<PAGE> 41
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 Holder]
By:
--------------------------------------------
Authorized Signature
A-2
<PAGE> 42
EXHIBIT B
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
_______________, ____
First Chicago Trust Company of New York
525 Washington Boulevard
Jersey City, NJ 07310
Attention:
Re: Nextel Communications, Inc.
(the "Company") Series E
Exchangeable Preferred
Stock (the "Securities")
Dear Ladies and Gentlemen:
In connection with our proposed purchase of ___ shares of the
Securities, we confirm that:
1. We understand that any subsequent transfer of the
Securities is subject to certain restrictions and conditions set forth
in the Certificate of Designation relating to the Securities (the
"Certificate of Designation") and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Securities
except in compliance with, such restrictions and conditions and the
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the
Securities have not been registered under the Securities Act, and that
the Securities may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we
should sell any Securities, we will do so only (A) to the Company or
any subsidiary thereof, (B) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined
therein), (C) inside the United States to an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act) that, prior to such transfer, furnishes to
you a signed letter substantially in the form of this letter and, if
such transfer is in respect of an aggregate liquidation preference of
the Securities at
<PAGE> 43
the time of transfer of less than $250,000, an opinion of counsel
acceptable to the Company that such transfer is in compliance with the
Securities Act pursuant to an effective registration statement under
the Securities Act, (D) outside the United States in accordance with
Rule 904 of Regulation S under the Securities Act or (E) pursuant to
the exemption from registration provided by Rule 144 under the
Securities Act, and we further agree to provide to any person
purchasing any of the Securities from us a notice advising such
purchaser that resales of the Securities are restricted as stated
herein.
3. We understand that, on any proposed resale of any
Securities, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that
the Securities purchased by us will bear a legend to the effect set
out in paragraph 2.
4. We are an institutional "accredited investor" and
have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment
in the Securities, and we and any accounts for which we are acting are
each able to bear the economic risk of our or its investment.
5. We are acquiring the Securities purchased by us for
our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise
sole investment discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Holder]
By:
----------------------------------------
Authorized Signature
B-2
<PAGE> 44
EXHIBIT C
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
_______________, _____
First Chicago Trust Company of New York
525 Washington Boulevard
Jersey City, NJ 07310
Attention:
Re: Nextel Communications, Inc.
(the "Company") Series E
Exchangeable Preferred
Stock (the "Securities")
Dear Ladies and Gentlemen:
In connection with our proposed sale of ____ shares of the
Securities, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person
in the United States;
(2) either (a) 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, or (b) the transaction was executed in, on
or through the facilities of a designated off-shore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
<PAGE> 45
In addition, if the sale is made during a restricted period and the provisions
of Rule 903(c)(2) or (3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(2) or (3) or Rule 904(c)(1), as the case
may be.
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 Holder]
By:
-------------------------------------
Authorized Signature
C-2
<PAGE> 1
Nextel Communications, Inc.
to
Harris Trust and Savings Bank
Trustee
----------------
Indenture
Dated as of February 11, 1998
----------------
9.95% Senior Serial Redeemable Discount Notes due 2008
<PAGE> 2
Nextel Communications, Inc.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of February 11, 1998
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
Section 310(a)(1) ................................................... 609
(a)(2) ................................................... 609
(a)(3) ................................................... Not Applicable
(a)(4) ................................................... Not Applicable
(a)(5) ................................................... 609
(b) ................................................... 608, 610
Section 311(a) ................................................... 613
(b) ................................................... 613
(c) ................................................... 613
Section 312(a) ................................................... 701, 702
(b) ................................................... 702(b)
(c) ................................................... 702(c)
Section 313(a) ................................................... 703
(b) ................................................... 703
(c) ................................................... 703
(d) ................................................... 703(b)
Section 314(a)(1)-(3) ................................................... 704
(a)(4) ................................................... 1017
(b) ................................................... Not Applicable
(c)(1) ................................................... 102, 401, 1204
(c)(2) ................................................... 102, 401, 1204
(c)(3) ................................................... 1204
(d) ................................................... Not Applicable
(e) ................................................... 102
Section 315(a) ................................................... 601, 603
(b) ................................................... 602
(c) ................................................... 601
(d) ................................................... 601
(e) ................................................... 514
Section 316(a)(1)(A) ................................................... 512
(a)(1)(B) ................................................... 513
(a)(2) ................................................... Not Applicable
(b) ................................................... 508
(c) ................................................... 104
Section 317(a)(1) ................................................... 503
(a)(2) ................................................... 504
(b) ................................................... 1003
Section 318(a) ................................................... 107
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C>
RECITALS OF THE COMPANY ..............................................................................1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions ..............................................................................1
Accreted Value................................................................2
Acquired Debt.................................................................2
Act ........................................................................3
Affiliate.....................................................................3
Agent Members.................................................................3
Annualized Operating Cash Flow................................................3
Authenticating Agent..........................................................3
Average Life..................................................................3
Beneficial Owner..............................................................3
Board of Directors............................................................3
Board Resolution..............................................................4
Business Day..................................................................4
Capital Lease Obligations.....................................................4
Capital Stock.................................................................4
Change of Control.............................................................4
Closing Date..................................................................6
Closing Price.................................................................6
Code ........................................................................7
Commission....................................................................7
Common Stock..................................................................7
Company.......................................................................7
Company Request...............................................................7
Company Order.................................................................7
Consolidated Adjusted Net Income..............................................7
Consolidated Adjusted Net Loss................................................7
Consolidated Adjusted Net Income (Loss).......................................8
Consolidated Debt to Annualized Operating Cash Flow
Ratio...................................................................8
Consolidated Interest Expense.................................................8
Consolidated Net Income.......................................................8
Consolidated Net Loss.........................................................8
Consolidated Net Income (Loss)................................................9
Consolidated Net Worth........................................................9
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C>
Consolidation.................................................................9
Corporate Trust Office........................................................9
Corporation...................................................................9
Covenant Defeasance...........................................................9
Credit Facility...............................................................9
Debt .......................................................................10
Default......................................................................10
Default Amount...............................................................10
Defaulted Interest...........................................................10
Defeasance...................................................................10
Depository...................................................................10
Digital Mobile...............................................................10
Digital Mobile-SMR Operating Cash Flow.......................................11
Directed Investment..........................................................11
Disinterested Director.......................................................11
Event of Default.............................................................12
Exchange Securities..........................................................12
Exchange Act.................................................................12
Existing Indentures..........................................................12
Existing Senior Notes........................................................12
Expiration Date..............................................................12
Fair Market Value............................................................12
FCC .......................................................................13
Global Securities............................................................13
Guarantee....................................................................13
Holder.......................................................................13
Incur .......................................................................13
Indenture....................................................................13
Institutional Accredited Investor............................................13
Interest Payment Date........................................................14
Investment...................................................................14
Investment Grade.............................................................14
Licenses.....................................................................14
Lien .......................................................................14
Marketable Securities........................................................14
Maturity.....................................................................15
Memorandum...................................................................15
Moody's......................................................................15
Non-U.S. Person..............................................................15
Notice of Default............................................................15
October Indenture............................................................15
October Notes................................................................15
Offer .......................................................................15
Offer to Purchase............................................................15
Officers' Certificate........................................................17
Offshore Global Securities...................................................17
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<S> <C>
Offshore Physical Securities.................................................17
Operating Cash Flow..........................................................17
Operating Cash Flow to Consolidated Interest Expense
Ratio..................................................................18
Opinion of Counsel...........................................................18
Outstanding..................................................................18
pari passu...................................................................19
Paying Agent.................................................................19
Permitted Debt...............................................................19
Permitted Distribution.......................................................20
Permitted Investment.........................................................21
Permitted Transaction........................................................21
Person.......................................................................21
Predecessor Security.........................................................21
Preferred Capital Stock......................................................21
Private Placement Legend.....................................................21
Purchase Amount..............................................................22
Purchase Date................................................................22
Purchase Price...............................................................22
QIB .......................................................................22
Record Expiration Date.......................................................22
Redeemable Stock.............................................................22
Redemption Date..............................................................22
Redemption Price.............................................................22
Registration Rights Agreement................................................22
Registration Statement.......................................................22
Regular Record Date..........................................................22
Regulation S.................................................................23
Required Consent.............................................................23
Restricted Payments..........................................................23
Restricted Subsidiary........................................................23
Rule 144A....................................................................23
S&P .......................................................................23
Securities...................................................................23
Securities Act...............................................................24
Security Register............................................................24
September Indenture..........................................................24
September Notes..............................................................24
Series D Exchange Debenture Indenture........................................24
Series D Preferred Stock.....................................................24
Series E Preferred Stock.....................................................24
Shelf Registration Statement.................................................24
Special Record Date..........................................................24
Specialized Mobile Radio.....................................................24
Stated Maturity..............................................................24
Subsidiary...................................................................25
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<S> <C>
Total Common Equity..........................................................25
Total Market Value of Equity.................................................25
Trading Day..................................................................25
Trustee......................................................................25
Trust Indenture Act..........................................................25
U.S. Global Securities.......................................................25
U.S. Government Obligation...................................................25
U.S. Physical Securities.....................................................26
Unrestricted Subsidiary......................................................26
Vendor Financing Debt........................................................26
Vice President...............................................................26
Voting Stock.................................................................26
Wholly Owned Restricted Subsidiary...........................................26
</TABLE>
<TABLE>
<S> <C>
SECTION 102. Compliance Certificates and Opinions........................................................26
SECTION 103. Form of Documents Delivered to Trustee......................................................27
SECTION 104. Acts of Holders; Record Dates...............................................................27
SECTION 105. Notices, Etc., to Trustee and Company.......................................................30
SECTION 106. Notice to Holders; Waiver...................................................................30
SECTION 107. Conflict with Trust Indenture Act...........................................................30
SECTION 108. Effect of Headings and Table of Contents....................................................31
SECTION 109. Successors and Assigns......................................................................31
SECTION 110. Separability Clause.........................................................................31
SECTION 111. Benefits of Indenture.......................................................................31
SECTION 112. Governing Law .............................................................................31
SECTION 113. Legal Holidays .............................................................................31
SECTION 114. No Recourse Against Others..................................................................31
<CAPTION>
ARTICLE TWO
Security Forms
<S> <C>
SECTION 201. Forms Generally.............................................................................32
</TABLE>
-v-
<PAGE> 7
<TABLE>
<S> <C>
SECTION 202. Form of Face of Security....................................................................33
SECTION 203. Form of Reverse of Security.................................................................35
SECTION 204. Form of Trustee's Certificate of Authentication.............................................41
SECTION 205. Restrictive Legends.........................................................................41
<CAPTION>
ARTICLE THREE
The Securities
<S> <C>
SECTION 301. Title and Terms.............................................................................43
SECTION 302. Denominations .............................................................................44
SECTION 303. Execution, Authentication, Delivery and Dating..............................................44
SECTION 304. Temporary Securities........................................................................45
SECTION 305. Registration, Registration of Transfer and Exchange.........................................45
SECTION 306. Book-Entry Provisions for Global Security...................................................46
SECTION 307. Special Transfer Provisions.................................................................48
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities............................................50
SECTION 309. Payment of Interest; Interest Rights Preserved..............................................51
SECTION 310. Persons Deemed Owners.......................................................................52
SECTION 311. Cancellation .............................................................................52
SECTION 312. Computation of Interest.....................................................................53
SECTION 313. CUSIP, CINS and ISIN Numbers................................................................53
<CAPTION>
ARTICLE FOUR
Satisfaction and Discharge
<S> <C>
SECTION 401. Satisfaction and Discharge of Indenture.....................................................53
</TABLE>
-vi-
<PAGE> 8
<TABLE>
<S> <C>
SECTION 402. Application of Trust Money..................................................................54
<CAPTION>
ARTICLE FIVE
Remedies
<S> <C>
SECTION 501. Events of Default...........................................................................55
SECTION 502. Acceleration of Maturity; Rescission and Annulment..........................................56
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................................58
SECTION 504. Trustee May File Proofs of Claim............................................................58
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities...................................................................59
SECTION 506. Application of Money Collected..............................................................59
SECTION 507. Limitation on Suits.........................................................................60
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.........................................................60
SECTION 509. Restoration of Rights and Remedies..........................................................60
SECTION 510. Rights and Remedies Cumulative..............................................................61
SECTION 511. Delay or Omission Not Waiver................................................................61
SECTION 512. Control by Holders..........................................................................61
SECTION 513. Waiver of Past Defaults.....................................................................61
SECTION 514. Undertaking for Costs.......................................................................62
SECTION 515. Waiver of Stay or Extension Laws............................................................62
<CAPTION>
ARTICLE SIX
The Trustee
<S> <C>
SECTION 601. Certain Duties and Responsibilities.........................................................63
SECTION 602. Notice of Defaults..........................................................................63
</TABLE>
-vii-
<PAGE> 9
<TABLE>
<S> <C>
SECTION 603. Certain Rights of Trustee...................................................................63
SECTION 604. Not Responsible for Recitals or Issuance of Securities......................................64
SECTION 605. May Hold Securities.........................................................................64
SECTION 606. Money Held in Trust.........................................................................64
SECTION 607. Compensation and Reimbursement..............................................................65
SECTION 608. Conflicting Interests.......................................................................65
SECTION 609. Corporate Trustee Required; Eligibility.....................................................66
SECTION 610. Resignation and Removal; Appointment of Successor...........................................66
SECTION 611. Acceptance of Appointment by Successor......................................................67
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.....................................................................68
SECTION 613. Preferential Collection of Claims Against Company...........................................68
SECTION 614. Appointment of Authenticating Agent.........................................................68
<CAPTION>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
<S> <C>
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders......................................................................70
SECTION 702. Preservation of Information; Communications to Holders......................................70
SECTION 703. Reports by Trustee..........................................................................70
SECTION 704. Reports by Company..........................................................................71
<CAPTION>
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
<S> <C>
SECTION 801. Company May Consolidate, Etc................................................................71
SECTION 802. Successor Substituted.......................................................................72
</TABLE>
-viii-
<PAGE> 10
<TABLE>
<CAPTION>
ARTICLE NINE
Supplemental Indentures
<S> <C>
SECTION 901. Supplemental Indentures Without Consent of Holders..........................................73
SECTION 902. Supplemental Indentures with Consent of Holders.............................................73
SECTION 903. Execution of Supplemental Indentures........................................................74
SECTION 904. Effect of Supplemental Indentures...........................................................74
SECTION 905. Conformity with Trust Indenture Act.........................................................75
SECTION 906. Reference in Securities to Supplemental Indentures..........................................75
<CAPTION>
ARTICLE TEN
Covenants
<S> <C>
SECTION 1001. Payment of Principal, Premium and Interest.................................................75
SECTION 1002. Maintenance of Office or Agency............................................................75
SECTION 1003. Money for Security Payments to be Held in Trust............................................76
SECTION 1004. Existence .............................................................................77
SECTION 1005. Maintenance of Properties..................................................................77
SECTION 1006. Payment of Taxes and Other Claims..........................................................77
SECTION 1007. Maintenance of Insurance...................................................................78
SECTION 1008. Limitation on Consolidated Debt............................................................78
SECTION 1009. Limitation on Restricted Payments..........................................................78
SECTION 1010. Restricted Subsidiaries....................................................................82
SECTION 1011. Transactions with Affiliates...............................................................83
SECTION 1012. [Intentionally Omitted]....................................................................83
SECTION 1013. Change of Control..........................................................................83
</TABLE>
-ix-
<PAGE> 11
<TABLE>
<S> <C>
SECTION 1014. [Intentionally Omitted]....................................................................84
SECTION 1015. Activities of the Company and Restricted Subsidiaries......................................84
SECTION 1016. Provision of Financial Information.........................................................84
SECTION 1017. Statement by Officers as to Default; Compliance
Certificates.................................................................84
SECTION 1018. Waiver of Certain Covenants................................................................85
SECTION 1019. Company to Supply Information Concerning
Original Issue Discount....................................85
<CAPTION>
ARTICLE ELEVEN
Redemption of Securities
<S> <C>
SECTION 1101. Right of Redemption........................................................................85
SECTION 1102. Applicability of Article...................................................................86
SECTION 1103. Election to Redeem; Notice to Trustee......................................................86
SECTION 1104. Selection by Trustee of Securities to Be Redeemed..........................................87
SECTION 1105. Notice of Redemption.......................................................................87
SECTION 1106. Deposit of Redemption Price................................................................88
SECTION 1107. Securities Payable on Redemption Date......................................................88
SECTION 1108. Securities Redeemed in Part................................................................88
<CAPTION>
ARTICLE TWELVE
Defeasance and Covenant Defeasance
<S> <C>
SECTION 1201. Company's Option to Effect Defeasance or Covenant
Defeasance...................................................................89
SECTION 1202. Defeasance and Discharge...................................................................89
SECTION 1203. Covenant Defeasance........................................................................90
</TABLE>
-x-
<PAGE> 12
<TABLE>
<S> <C>
SECTION 1204. Conditions to Defeasance or Covenant Defeasance............................................90
SECTION 1205. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions......................................92
SECTION 1206. Reinstatement .............................................................................92
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
EXHIBIT A Form of Certificate to Be Delivered in Connection with Transfers Pursuant
to Regulation S
EXHIBIT B Form of Certificate to Be Delivered in Connection with Transfers to Non-
QIB Institutional Accredited Investors
EXHIBIT C Form of Certificate to Be Delivered in Connection with Transfers Pursuant
to Regulation S
</TABLE>
-xi-
<PAGE> 13
INDENTURE, dated as of February 11, 1998, between Nextel
Communications, Inc., a Delaware corporation (herein called the "Company"),
having its principal office at 1505 Farm Credit Dr., McLean, Virginia 22102 and
Harris Trust and Savings Bank, an Illinois banking corporation, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue
of its Senior Serial Redeemable Discount Notes due 2008 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;
(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
<PAGE> 14
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 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 February 15
or August 15 prior to the date of determination (each a "Semi-Annual
Accrual Date") and (b) for the shorter period, if any, from the
immediately preceding Semi-Annual Accrual Date to the date of
determination, plus (iii) accrued and unpaid interest to the date
such Accreted Value is paid (without duplication of any amount set
forth in (ii) above), minus all amounts theretofore paid in respect
of such Security, which amounts are considered as part of the
"stated redemption price at maturity" of such Security within the
meaning of Section 1273(a)(2) of the Code or any successor
provisions (whether such amounts paid were denominated principal or
interest).
"Acquired Debt" means Debt of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed by the
Company or a Restricted Subsidiary in connection with the
acquisition of assets from such Person.
2
<PAGE> 15
"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 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.
"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.
3
<PAGE> 16
"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:
(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
4
<PAGE> 17
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
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 (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
5
<PAGE> 18
(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 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
6
<PAGE> 19
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
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 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
7
<PAGE> 20
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 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
8
<PAGE> 21
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 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
9
<PAGE> 22
aggregate principal balance of Debt that is Incurred and outstanding
under all Credit Facilities at any time does not exceed $3 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.
"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.
10
<PAGE> 23
"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.
"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
Series D Preferred Stock and Redeemable Stock), or any options,
warrants or other rights to purchase such Capital Stock (other than
the Series D Preferred Stock and 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
11
<PAGE> 24
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.
"Event of Default" has the meaning specified in Section
501.
"Exchange Securities" means any security of the Company
containing terms identical to the Securities initially issued
hereunder (except that such Securities shall have been registered
under the Securities Act) that are issued and exchanged for the
Securities pursuant to the Registration Rights Agreement.
"Exchange Act" refers to the Securities Exchange Act of
1934 and any statute successor thereto, in each case as amended from
time to time.
"Existing Indentures" means the indentures relating to the
Existing Senior Notes.
"Existing Senior Notes" means the Company's $525,855,000
principal amount at maturity of 11 1/2% Senior Redeemable Discount
Notes Due 2003, $1,126,435,000 principal amount at maturity of
9 3/4% Senior Redeemable Discount Notes Due 2004, $541,830,000
principal amount at maturity of 12 1/4% Senior Redeemable Discount
Notes Due 2004, $111,165,000 principal amount at maturity of 10 1/4%
Senior Redeemable Discount Notes Due 2005, $409,876,000 principal
amount at maturity of 10 1/2% Senior Redeemable Discount Notes Due
2004, $840,000,000 principal amount at maturity of 10.65% Senior
Redeemable Discount Notes Due 2007 and $1,129,100,000 principal
amount at maturity of 9 3/4% Senior Serial Redeemable Discount Notes
Due 2007.
"Expiration Date" has the meaning specified in the
definition of Offer to Purchase.
"Fair Market Value" means, for purposes of clause (i) of
Section 1008, the price that would be paid in an arm's-length
transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no
compulsion to buy, as determined in good faith by the Board of
Directors, whose determination shall be conclusive if evidenced by a
Board Resolution; provided that (x) the Fair Market Value of any
security registered under the Exchange Act shall be the average of
the closing prices, regular way, of such security for the 20
consecutive trading days immediately preceding the sale of Capital
Stock and (y) in the event the aggregate Fair Market Value of any
other property received by the Company exceeds $10 million, the Fair
Market Value of such property shall be (i) so long as such a Fair
Market Value determination of such property is required to be made
pursuant to the Certificate of Designation for the Series D
Preferred Stock or pursuant to the terms of the Series D 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
12
<PAGE> 25
who are then members of such Board of Directors, which determination
shall be conclusive if evidenced by a Board Resolution.
"FCC" means the Federal Communications Commission.
"Global Securities" has the meaning provided in Section
201.
"Guarantee" by any Person means any obligation, contingent
or otherwise, of such Person guaranteeing any Debt of any other
Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, (i) to
purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or to purchase (or to advance or supply funds
for the purchase of) any security for the payment of such Debt, (ii)
to purchase property, securities or services for the purpose of
assuring the holder of such Debt of the payment of such Debt, or
(iii) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Debt (and "Guaranteed",
"Guaranteeing" and "Guarantor" shall have meanings correlative to
the foregoing); provided, however, that the Guarantee by any Person
shall not include endorsements by such Person for collection or
deposit, in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Incur" means, with respect to any Debt or other
obligation of any Person, to create, issue, incur (by conversion,
exchange or otherwise), assume (pursuant to a merger, consolidation,
acquisition or other transaction), Guarantee or otherwise become
liable in respect of such Debt or other obligation or the recording,
as required pursuant to generally accepted accounting principles or
otherwise, of any such Debt or other obligation on the balance sheet
of such Person (and "Incurrence" and "Incurred", shall have meanings
correlative to the foregoing); provided, however, that a change in
generally accepted accounting principles that results in an
obligation of such Person that exists at such time becoming Debt
shall not be deemed an Incurrence of such Debt; provided further,
however, that the accretion of original issue discount on Debt shall
not be deemed to be an Incurrence of Debt. Debt otherwise Incurred
by a Person before it becomes a Subsidiary of the Company shall be
deemed to have been Incurred at the time it becomes such a
Subsidiary.
"Indenture" means this instrument as originally executed
or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of
the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Institutional Accredited Investor" means an institution
that is an "accredited investor" as that term is defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act.
13
<PAGE> 26
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Investment" by any Person means any direct or indirect
loan, advance or other extension of credit or capital contribution
to (by means of transfers of cash or other property to others or
payments for property or services for the account or use of others,
or otherwise), or purchase or acquisition of Capital Stock, bonds,
notes, debentures or other securities or evidence of Debt issued by,
any other Person or the designation of a Subsidiary as an
Unrestricted Subsidiary; provided that a transaction will not be an
Investment to the extent it involves (i) the issuance or sale by the
Company of its Capital Stock (other than Redeemable Stock),
including options, warrants or other rights to acquire such Capital
Stock (other than Redeemable Stock) or (ii) a transfer, assignment
or contribution by the Company of shares of Capital Stock (or any
options, warrants or rights to acquire Capital Stock), or all or
substantially all of the assets of, any Unrestricted Subsidiary of
the Company to another Unrestricted Subsidiary of the Company.
"Investment Grade" means a rating of at least BBB-, in the
case of S&P, or Baa3, in the case of Moody's.
"Licenses" means SMR licenses granted by the FCC that
entitle the holder to use the radio channels covered thereby,
subject to compliance with FCC rules and regulations, in connection
with its SMR business.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement,
encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with
respect to such property or assets (including any conditional sale
or other title retention agreement having substantially the same
economic effect as any of the foregoing).
"Marketable Securities" means:
(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.
14
<PAGE> 27
"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 February
6, 1998 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).
"October Indenture" means the Indenture, dated October 22,
1997, between the Company and Harris Trust and Savings Bank,
Trustee, relating to the October Notes.
"October Notes" means the Company's $1,129,100,000
principal amount at maturity of 9 3/4% Senior Serial Redeemable
Discount Notes due 2007.
"Offer" has the meaning specified in the definition of
Offer to Purchase.
"Offer to Purchase" means a written offer (the "Offer")
sent by the Company by first class mail, postage prepaid, to each
Holder at his address appearing in the Security Register on the date
of the Offer offering to purchase up to the principal amount of
Securities specified in such Offer at the purchase price specified
in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an
expiration date (the "Expiration Date") of the Offer to Purchase
which shall be, subject to any contrary requirements of applicable
law, not less than 30 days or more than 60 days after the date of
such Offer and a settlement date (the "Purchase Date") for purchase
of Securities within five Business Days after the Expiration Date.
The Company shall notify the Trustee at least 15 days (or such
shorter period as is acceptable to the Trustee) prior to the mailing
of the Offer of the Company's obligation to make an Offer to
Purchase, and the Offer shall be mailed by the Company or, at the
Company's request, by the Trustee, in the name and at the expense of
the Company. The Offer shall contain information concerning the
business of the Company and its
15
<PAGE> 28
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 principal amount at Stated
Maturity of Securities accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(5) the Holder may tender all or any portion of
the Securities registered in the name of such Holder and
that any portion of Securities tendered must be tendered
in an integral multiple of $1,000 of principal amount at
Stated Maturity;
(6) the place or places where the Securities
are to be surrendered for tender pursuant to the Offer to
Purchase;
(7) that interest, if any, on any Securities
not tendered or tendered but not purchased by the Company
pursuant to the Offer to Purchase will continue to accrue;
(8) that on the Purchase Date the Purchase
Price will become due and payable upon each Security being
accepted for payment pursuant to the Offer to Purchase;
(9) that each Holder electing to tender
Securities pursuant to the Offer to Purchase will be
required to surrender such Securities at the place or
places specified in the Offer prior to the close of
business on the Expiration Date (such Securities being, if
the Company or the Trustee so requires, duly endorsed by,
or
16
<PAGE> 29
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;
(11) that the Company shall purchase all such
Securities duly tendered and not withdrawn pursuant to the
Offer to Purchase, unless otherwise provided herein; and
(12) that in the case of any Holder whose
Securities are purchased only in part, the Company shall
execute, and the Trustee shall authenticate and deliver to
the Holder of such Securities without service charge, new
Securities of any authorized denomination as requested by
such Holder, in an aggregate principal amount at Stated
Maturity equal to and in exchange for the unpurchased
portion of the aggregate principal amount at Stated
Maturity of the Securities so tendered.
Any Offer to Purchase shall be governed by and effected in
accordance with the Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section
1017 shall be the principal executive, financial or accounting
officer of the Company.
"Offshore Global Securities" has the meaning provided in
Section 201.
"Offshore Physical Securities" has the meaning provided in
Section 201.
"Operating Cash Flow" means, for any fiscal quarter, (i)
the Company's Consolidated Adjusted Net Income (Loss) plus
depreciation and amortization in respect thereof for such fiscal
quarter, plus (ii) all amounts deducted in calculating Consolidated
Adjusted Net Income (Loss) for such fiscal quarter in respect of
interest expense and other financing costs, including dividends paid
in respect of Redeemable Stock, and all income taxes, whether or not
deferred, applicable to such income period, all as determined on a
Consolidated basis in accordance with generally accepted accounting
principles. For purposes of calculating Operating Cash Flow for the
fiscal quarter most recently completed prior to any date on which an
action is taken that requires a calculation of the Operating Cash
Flow to Consolidated Interest Expense Ratio or Consolidated Debt to
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Annualized Operating Cash Flow Ratio, (1) any Person that is a
Restricted Subsidiary on such date (or would become a Restricted
Subsidiary in connection with the transaction that requires the
determination of such ratio) will be deemed to have been a
Restricted Subsidiary at all times during such fiscal quarter, (2)
any Person that is not a Restricted Subsidiary on such date (or
would cease to be a Restricted Subsidiary in connection with the
transaction that requires the determination of such ratio) will be
deemed not to have been a Restricted Subsidiary at any time during
such fiscal quarter and (3) if the Company or any Restricted
Subsidiary shall have in any manner acquired (including through
commencement of activities constituting such operating business) or
disposed (including through termination or discontinuance of
activities constituting such operating business) of any operating
business during or subsequent to the most recently completed fiscal
quarter, such calculation will be made on a pro forma basis on the
assumption that such acquisition or disposition had been completed
on the first day of such completed fiscal quarter.
"Operating Cash Flow to Consolidated Interest Expense
Ratio" means, as at any date of determination, the ratio of (i) the
Operating Cash Flow of the Company for the most recently completed
fiscal quarter of the Company to (ii) the Consolidated Interest
Expense of the Company and its Restricted Subsidiaries for the most
recently completed fiscal quarter of the Company.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company, and who shall be acceptable to
the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by
the Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities which have been paid
pursuant to Section 308 or in exchange for or in lieu of
which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the
Company; and
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(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
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);
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(v) Debt (A) in respect of performance,
surety or appeal bonds provided in the ordinary course of
business, (B) under foreign currency hedge, interest rate
swap or similar agreements; provided that such agreements
(a) are designed solely to protect the Company or its
Restricted Subsidiaries against fluctuations in foreign
currency exchange rates or interest rates and (b) do not
increase the Debt of the obligor outstanding at any time
other than as a result of fluctuations in foreign currency
exchange rates or interest rates or by reason of fees,
indemnities and compensation payable thereunder; and (C)
arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, or
from Guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of the Company
or any Restricted Subsidiary pursuant to such agreements,
in any case Incurred in connection with the disposition of
any business, assets or Restricted Subsidiary (other than
Guarantees of Debt Incurred by any Person acquiring all or
any portion of such business, assets or Restricted
Subsidiary for the purpose of financing such acquisition),
in a principal amount not to exceed the gross proceeds
actually received by the Company or any Restricted
Subsidiary in connection with such disposition;
(vi) renewals, refundings or extensions of any
Debt referred to in clause (i) or (iii) above or Incurred
pursuant to clause (ii) of Section 1008 and any renewals,
refundings or extensions thereof, plus (A) the amount of
any premium reasonably determined by the Company as
necessary to accomplish such renewal, refunding or
extension and (B) such other fees and expenses of the
Company reasonably incurred in connection with the
renewal, refunding or extension, provided that such
renewal, refunding or extension shall constitute Permitted
Debt only (a) to the extent that it does not result in an
increase in the aggregate principal amount (or, if such
Debt provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of
acceleration of the maturity thereof, in an amount not
greater than such lesser amount) of such Debt (except as
permitted by clause (A) or (B) above), and (b) to the
extent such renewed, refunded or extended Debt does not
have a mandatory redemption date prior to the mandatory
redemption date of the Debt being renewed, refunded or
extended or have an Average Life shorter than the
remaining Average Life of the Debt being renewed, refunded
or extended; and
(vii) Debt payable solely in, or mandatorily
convertible into, Capital Stock (other than Redeemable
Stock) of the Company;
(viii) Debt (in addition to Debt permitted
under clauses (i) through (vii) above) in an aggregate
principal amount outstanding at any time not to exceed
$450 million.
"Permitted Distribution" of a Person means (x) the
exchange by such Person of Capital Stock (other than Redeemable
Stock) for outstanding Capital Stock; (y) the redemption,
repurchase, defeasance or other acquisition or retirement for value
of Debt of the Company that is subordinate in right of payment to
the Securities, in exchange for
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(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 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.
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"Purchase Amount" has the meaning specified in the
definition of Offer to Purchase.
"Purchase Date" has the meaning specified in the
definition of Offer to Purchase.
"Purchase Price" has the meaning specified in the
definition of Offer to Purchase.
"QIB" means a "qualified institutional buyer" as defined
in Rule 144A.
"Record Expiration Date" has the meaning specified in
Section 104.
"Redeemable Stock" of any Person means any Capital Stock
of such Person that by its terms or otherwise is (i) required to be
redeemed prior to the Stated Maturity of the Securities, (ii)
redeemable at the option of the holder thereof at any time prior to
the Stated Maturity of the Securities or (iii) convertible into or
exchangeable for Capital Stock referred to in clause (i) or (ii)
above or Debt having a scheduled maturity prior to the Stated
Maturity of the Securities; provided that any Capital Stock that
would not constitute Redeemable Stock but for provisions thereof
giving holders thereof the right to require such Person to
repurchase or redeem such Capital Stock upon the occurrence of a
"change of control" occurring prior to the Stated Maturity of the
Securities shall not constitute Redeemable Stock if the "change of
control" provisions applicable to such Capital Stock are no more
favorable to the holders of such Capital Stock than the provisions
contained in Section 1013 and such Capital Stock specifically
provides that such Person will not repurchase or redeem any such
stock pursuant to such provision prior to the Company's repurchase
of such Securities as are required to be repurchased pursuant to
Section 1013; and further provided that the Series D Preferred Stock
and the Series E Preferred Stock shall not be considered to
constitute Redeemable Stock.
"Redemption Date", when used with respect to any Security
to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registration Rights Agreement" means the Registration
Rights Agreement dated the Closing Date, between the Company, Morgan
Stanley & Co. Incorporated, Chase Securities Inc., TD Securities
(USA) Inc., J.P. Morgan Securities Inc. and NationsBanc Montgomery
Securities LLC.
"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 February 1 or August 1 (whether or
not a Business Day), as the case may be, next preceding such
Interest Payment Date.
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"Regulation S" means Regulation S under the Securities
Act.
"Required Consent" means, except as otherwise expressly
provided in this Indenture with respect to matters requiring the
consent of each holder of Securities affected thereby: (i) the
consent of holders of not less than a majority in aggregate
principal amount at Stated Maturity of the Securities for any action
to (x) direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any power conferred upon such Trustee, or (y) consent to or waive,
on behalf of the holders of all the Securities, any past default and
its consequences, and (ii) with respect to all other actions
requiring the consent of holders of the Securities, the consent of
either (x) a majority in aggregate principal amount at Stated
Maturity of the Securities or (y) a majority in aggregate principal
amount at Stated Maturity of (I) the Securities, (II) the September
Notes, if the holders of the September Notes are being requested to
consent to such action with respect to the terms of the September
Notes or the September Indenture, (III) the October Notes, if the
holders of the October Notes are being requested to consent to such
action with respect to the terms of the October Notes or the October
Indenture, and (IV) any other issue of unsubordinated, unsecured
notes issued by the Company, if such notes or the indenture pursuant
to which such notes were issued both (A) require the consent of the
holders of such notes to such action and (B) provide that the
holders thereof will vote with the holders of the Securities with
respect to such action.
"Restricted Payments" has the meaning specified in Section
1009.
"Restricted Subsidiary" means any Subsidiary of the
Company, whether existing on the Closing Date or created subsequent
thereto, designated from time to time by the Board of Directors as
(or otherwise deemed to be) a "Restricted Subsidiary" in accordance
with Section 1010.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services or, if
Standard & Poor's Ratings Services shall cease rating debt
securities having a maturity at original issuance of at least one
year and such ratings business shall have been transferred to a
successor Person, such successor Person; provided, however, that if
Standard & Poor's Ratings Services ceases rating debt securities
having a maturity at original issuance of at least one year and its
ratings business with respect thereto shall not have been
transferred to any successor Person, then "S&P" shall mean any other
nationally recognized rating agency (other than Moody's) that rates
debt securities having a maturity at original issuance of at least
one year and that shall have been designated by the Company by a
written notice given to the Trustee.
"Securities" means securities designated in the first
paragraph of the RECITALS OF THE COMPANY that are authenticated and
delivered under this Indenture. For all purposes of this Indenture,
the term "Securities" shall include the Securities issued on the
Closing Date, any Exchange Securities to be issued and exchanged for
any Securities
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pursuant to the Registration Rights Agreement and any other
Securities issued after the Closing Date under this Indenture. For
purposes of this Indenture all Securities shall vote together as one
series of Securities under this Indenture.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to
time.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"September Indenture" means the Indenture, dated September
17, 1997, between the Company and Harris Trust and Savings Bank,
Trustee, relating to the September Notes.
"September Notes" means the Company's $840,000,000
principal amount at maturity of 10.65% Senior Redeemable Discount
Notes due 2007.
"Series D 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 Series D Preferred Stock, pursuant to which certain
exchange debentures may be issued by the Company in exchange for
outstanding shares of Series D Preferred Stock.
"Series D 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.
"Series E Preferred Stock" means the 11.125% Series E
Exchangeable Redeemable Preferred Stock of the Company issued on
February 11, 1998 and any shares of Preferred Capital Stock issued
in exchange therefor or as payment in kind dividends thereon.
"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.
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"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 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.
"U.S. Global Securities" has the meaning provided in
Section 201.
"U.S. Government Obligation" has the meaning specified in
Section 1204.
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"U.S. Physical Securities" has the meaning provided in
Section 201.
"Unrestricted Subsidiary" means Unrestricted Subsidiary
Funding Company and any other Subsidiary that is not a Restricted
Subsidiary and includes any Restricted Subsidiary that becomes an
Unrestricted Subsidiary in accordance with Section 1010.
"Vendor Financing Debt" means any Debt owed to (i) a
vendor or supplier of any property or materials used by the Company
or its Restricted Subsidiaries in their telecommunications business,
(ii) any Affiliate of such a vendor or supplier, (iii) any assignee
of such a vendor, supplier or Affiliate of such a vendor or
supplier, or (iv) a bank or other financial institution that has
financed or refinanced the purchase of such property or materials
from such a vendor, supplier, Affiliate of such a vendor or supplier
or assignee of such a vendor or supplier; provided that the
aggregate amount of such Debt does not exceed the sum of (w) the
purchase price of such property or materials (including
transportation, installation, warranty and testing charges, as well
as applicable taxes paid, in respect of such property or materials),
(x) the cost of design, development, site acquisition and
construction, (y) any interest or other financing costs accruing or
otherwise payable in respect of the foregoing, and (z) the cost of
any services provided by such vendor, supplier or Affiliate of such
vendor or supplier.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice
president".
"Voting Stock" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of
directors (or persons performing similar functions) of such Person,
whether at all times or only so long as no senior class of
securities has such voting power by reason of any contingency.
"Wholly Owned Restricted Subsidiary" of the Company means
a Restricted Subsidiary all of the outstanding Capital Stock of
which (other than directors' qualifying shares) shall at the time be
owned by the Company or by one or more Wholly Owned Restricted
Subsidiaries or by the Company and one or more Wholly Owned
Restricted Subsidiaries.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be given
in the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirement set
forth in this Indenture.
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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, 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
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in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the
Security Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders of Securities, provided that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the
giving or making of any notice, declaration, request or direction referred to
in the next paragraph. If any record date is set pursuant to this paragraph,
the Holders of Outstanding Securities on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable Record
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date; and provided, further, that for the purpose of
determining whether Holders of the requisite principal amount of such
Securities have taken such action, no Security shall be deemed to have been
Outstanding on such record date unless it is also Outstanding on the date such
action is to become effective. Nothing in this paragraph shall prevent the
Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), nor shall anything in this paragraph be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
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<PAGE> 41
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Record Expiration Date to be given to the Trustee in writing and to
each Holder of Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2), (iv) any direction referred to in
Section 512 or (v) the Required Consent. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities on such record date, and
no other Holders, shall be entitled to join in such notice, declaration,
request or direction, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Record Expiration Date by Holders of the
requisite principal amount of Outstanding Securities on such record date; and
provided, further, that for the purpose of determining whether Holders of the
requisite principal amount of such Securities have taken such action, no
Security shall be deemed to have been Outstanding on such record date unless it
is also Outstanding on the date such action is to become effective. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action (whereupon the record date previously set shall
automatically and without any action by any Person be canceled and of no
effect), nor shall anything in this paragraph be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the matter(s) to be submitted
for potential action by Holders and the applicable Record Expiration Date to be
given to the Company in writing and to each Holder of Securities in the manner
set forth in Section 106.
With respect to any record date set pursuant to this
Section, the party hereto that sets such record date may designate any day as
the "Record Expiration Date" and from time to time may change the Record
Expiration Date to any earlier or later day, provided that no such change shall
be effective unless notice of the proposed new Record Expiration Date is given
to the other party hereto in writing, and to each Holder of Securities in the
manner set forth in Section 106, on or before the existing Record Expiration
Date. If a Record Expiration Date is not designated with respect to any record
date set pursuant to this Section, the party hereto that set such record date
shall be deemed to have initially designated the 180th day after such record
date as the Record Expiration Date with respect thereto, subject to its right
to change the Record Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Record Expiration Date shall be later than
the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Security
may do so with regard to all or any part of 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.
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<PAGE> 42
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing and mailed, first-class postage
prepaid, to or with the Trustee at its Corporate Trust Office,
Attention: Indenture Trust Division, or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act that is required under such Act to
be part of and govern this Indenture, the latter provision shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
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<PAGE> 43
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.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date, Purchase Date or Stated Maturity of any Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect (including with respect to the accrual of interest) as if
made on the Interest Payment Date, Redemption Date or Purchase Date, or at the
Stated Maturity.
SECTION 114. No Recourse Against Others.
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<PAGE> 44
No recourse for the payment of the principal of, premium,
if any, or interest on any of the Securities, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company contained in this Indenture, or in any of
the Securities, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator or against any past, present or
future partner, shareholder, other equity holder, officer, director, employee
or controlling person, as such, of the Company or of any successor Person,
either directly or through the Company or any successor Person, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of, and
as a consideration for, the execution of this Indenture and the issue of the
Securities.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of
authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution thereof.
Securities offered and sold in reliance on Rule 144A shall
be issued initially in the form of one or more permanent global Securities in
registered form, substantially in the form set forth in Section 202 (the "U.S.
Global Securities"), deposited with the Trustee, as custodian for the
Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Securities
may from time to time be increased or decreased by adjustments made on the
records of the Trustee as custodian for the Depository or its nominee, as
hereinafter provided.
Securities offered and sold in offshore transactions in
reliance on Regulation S shall be issued initially in the form of one or more
permanent Global Securities in registered form substantially in the form set
forth in Section 202 (the "Offshore Global Securities") deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Offshore Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary, as hereinafter provided.
The Offshore Physical Securities and U.S. Physical
Securities are sometimes collectively herein referred to as the "Physical
Securities." The U.S. Global Securities and the Offshore Global Securities are
sometimes collectively herein referred to as the "Global Securities."
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<PAGE> 45
Securities offered and sold in reliance on Regulation D
under the Securities Act shall be issued in the form of permanent certificated
Securities in registered form in substantially the form set forth in Section
202 (the "U.S. Physical Securities"). Securities issued pursuant to Section
307 in exchange for interests in the Global Securities shall be in the form of
permanent certificated Securities in registered form substantially in the form
set forth in Section 202 (the "Offshore Physical Securities").
The definitive Securities shall be printed, lithographed
or engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
Nextel Communications, Inc.
9.95% Senior Serial Redeemable Discount Notes due 2008
No. $
----------- --------
CUSIP NO.
--------
CINS 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 February 15, 2008 and to pay cash interest
thereon from February 15, 2003 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually in arrears on
February 15 and August 15 in each year, commencing August 15, 2003 at the rate
of 9.95% per annum, until the principal hereof is paid or duly provided for,
provided that any principal and premium, and any such installment of interest,
which is overdue shall bear interest at the rate of 9.95% per annum (to the
extent that the payment of such interest shall be legally enforceable), from
the dates such amounts are due until they are paid or duly provided for, and
such interest shall be payable on demand. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the February 1 or
August 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
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<PAGE> 46
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The principal of this Security shall not bear or accrue
cash interest until February 15, 2003, except in the case of a default in
payment of principal upon acceleration, redemption or repurchase and, in such
case, the overdue principal and any overdue premium shall bear interest at the
rate of 9.95% per annum (to the extent that the payment of such interest shall
be legally enforceable), from the dates such amounts are due until they are
paid or duly provided for. Interest on any overdue principal or premium shall
be payable on demand. Any such interest on overdue principal or premium which
is not paid on demand shall bear interest at the rate of 9.95% 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 August 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 February 15, 2003 and in
addition to the interest otherwise due on the Securities after such date) will
accrue from August 15, 1998, at an annual rate of 0.5% of Accreted Value on the
preceding Semi-Annual Accrual Date on the Securities (and if such exchange
offer is not consummated before November 15, 1998, an additional incremental
interest amount will accrue from November 15, 1998 at an annual rate of 0.5% of
Accreted Value on the preceding Semi-Annual Accrual Date) payable in cash
semi-annually, in arrears, on each February 15 and August 15, commencing
February 15, 1999, until the earlier of the date upon which (i) the exchange
offer is consummated, (ii) a Shelf Registration Statement with respect to all
Registrable Securities (as defined in the Registration Rights Agreement) is
declared effective, or (iii) the Securities become fully tradeable without
registration under the Securities Act, provided that upon the request of any
Holder of the Securities, the Company will deliver to such Holder certificates
evidencing such Holder's Securities without the Private Placement Legend. The
Holder of this Security is entitled to the benefits of such Registration Rights
Agreement.
Payment of the principal of (and premium, if any) and any
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
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<PAGE> 47
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
NEXTEL COMMUNICATIONS, INC.
[Seal]
By:
----------------------
Title:
Attest:
- ------------------------------
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of
Securities of the Company designated as its Senior Serial Redeemable Discount
Notes due 2008 (herein called the "Securities"), limited in aggregate principal
amount at Stated Maturity to $1,627,000,000, issued and to be issued under an
Indenture, dated as of February 11, 1998 (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
February 15, 2003, at the Company's option, in whole or in part, upon not less
than 30 nor more than 60 days' prior written notice mailed by first class mail
to each holder's last address as it appears in the Security Register, at the
Redemption Prices (expressed as a percentage of the principal amount at
maturity thereof) set forth below, plus an amount in cash equal to all accrued
and unpaid interest, if any, to the Redemption Date, if redeemed during the
12-month period beginning February 15 of each of the years set forth below.
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2003 104.9750%
2004 103.3167%
2005 101.6583%
</TABLE>
35
<PAGE> 48
On or after February 15, 2006, the Company may redeem the
Securities at a Redemption Price equal to 100% of the principal amount at
maturity thereof, together in the case of any such redemption with accrued
interest, if any, to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
In addition to any redemption provided for in the
immediately preceding paragraphs, in the event of the sale by the Company after
the Closing Date and prior to February 15, 2001 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
35% of the aggregate Accreted Value of the Outstanding Securities will, within
180 days of such sale, at the option of the Company, upon not less than 30 nor
more than 60 days' notice by mail, be redeemable from the net proceeds thereof
(but only to the extent such proceeds consist of cash or readily marketable
cash equivalents received in respect of the Company's Capital Stock so sold, in
each case net of all commissions, discounts, fees, expenses and taxes incurred
in respect thereof) at a Redemption Price equal to 109.95% of the Accreted
Value of the Securities to be redeemed to the Redemption Date.
For purposes of this Security and the Indenture, Accreted
Value of any Outstanding Security as of or to any date of determination means
an amount equal to the sum of (i) the issue price of such Security as
determined in accordance with Section 1273 of the Code plus (ii) the aggregate
of the portions of the original issue discount (the excess of the amounts
considered as part of the "stated redemption price at maturity" of such
Security within the meaning of Section 1273(a)(2) of the Code or any successor
provisions, whether denominated as principal or interest, over the issue price
of such Security) that shall theretofore have accrued pursuant to Section 1272
of the Code (without regard to Section 1272(a)(7) of the Code) from the date of
issue of such Security (a) for each six-month or shorter period ending April 30
or October 31 prior to the date of determination and (b) for the shorter
period, if any, from the end of the immediately preceding six-month or shorter
period, as the case may be, to the date of determination, plus (iii) accrued
and unpaid interest to the date such Accreted Value is paid (without
duplication of any amount set forth in (ii) above), minus all amounts
theretofore paid in respect of such Security, which amounts are considered as
part of the "stated redemption price at maturity" of such Security within the
meaning of Section 1273(a)(2) of the Code or any successor provisions (whether
such amounts paid were denominated principal or interest).
The Securities do not have the benefit of any sinking fund
obligations.
In the event of redemption, or purchase pursuant to an
Offer to Purchase, of this Security in part only, a new Security or Securities
for the unredeemed or unpurchased portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security or certain restrictive
covenants and Events of Default with respect to this Security, in each case
upon compliance with certain conditions set forth in the Indenture.
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<PAGE> 49
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 February
15, 2003, 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 February 15, 2003, the Default Amount in respect of this Security as of
any particular date shall equal 100% of the principal amount payable in respect
of this Security at the Stated Maturity hereof. Upon payment of (i) the
Default Amount so declared due and payable and any overdue installment of
interest in respect of this Security, (ii) any overdue principal or premium
payable on redemption or repurchase of this Security and (iii) as provided on
the face hereof, any interest on any overdue Default Amount, principal, premium
or interest in respect of this Security (to the extent that the payment of such
interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and any premium and interest on this
Security shall terminate.
The Indenture provides that, subject to certain
conditions, if a Change of Control occurs, the Company shall be required to
make an Offer to Purchase for all of the Securities.
Unless the context otherwise requires, references herein
to the principal amount of any Security mean, as of any day, (i) with respect
to any portion thereof required hereunder to be redeemed or repurchased on any
redemption or repurchase date on or prior to such day, the amount due and
payable in respect of such portion upon such redemption or repurchase date
(excluding premium and interest), (ii) with respect to any portion thereof not
required to be so redeemed or repurchased, but which has been declared due and
payable prior to the Stated Maturity thereof as provided in the Indenture, the
Default Amount in respect of such portion as of such day and (iii) with respect
to any portion thereof not required so to be redeemed or repurchased and not so
declared due and payable, such portion of the principal amount of such Security
payable at Stated Maturity thereof.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
under the Indenture at any time by the Company and the Trustee after having
received the Required Consent (defined as follows). The Indenture also
contains provisions permitting those Persons giving the Required Consent, on
behalf of the Holders of all the Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As used herein, "Required Consent" means, except as
otherwise expressly provided in the Indenture with respect to matters requiring
the consent of each holder of Securities affected thereby: (i) the consent of
holders of not less than a majority in aggregate principal amount at Stated
Maturity of the Securities for any action to (x) direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any power conferred upon such Trustee, or (y) consent to or waive,
on behalf of the holders of all the
37
<PAGE> 50
Securities, any past default and its consequences, and (ii) with respect to all
other actions requiring the consent of holders of the Securities, the consent
of either (x) a majority in aggregate principal amount at Stated Maturity of
the Securities or (y) a majority in aggregate principal amount at Stated
Maturity of (I) the Securities, (II) the September Notes, if the holders of the
September Notes are being requested to consent to such action with respect to
the terms of the September Notes or the September Indenture, (III) the October
Notes, if the holders of the October Notes are being requested to consent to
such action with respect to the terms of the October Notes or the October
Indenture, and (IV) any other issue of unsubordinated, unsecured notes issued
by the Company, if such notes or the indenture pursuant to which such notes
were issued both (A) require the consent of the holders of such notes to such
action and (B) provide that the holders thereof will vote with the holders of
the Securities with respect to such action.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right to institute
any proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities, the Holders of not less than 25% in
principal amount at Stated Maturity of the Securities at the time Outstanding
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity and the Trustee shall not have received from the Holders of a
majority in principal amount at Stated Maturity of Securities at the time
Outstanding a direction inconsistent with such request, and shall have failed
to institute any such proceeding, within 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to certain suits
described in the Indenture, including any suit instituted by the Holder of this
Security for the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed herein (or,
in the case of redemption, on or after the Redemption Date or, in the case of
any purchase of this Security required to be made pursuant to an Offer to
Purchase, on or after the Purchase Date.)
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan,
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, the Securities are exchangeable for a like aggregate
38
<PAGE> 51
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.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder
hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- --------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________________ attorney to transfer said Security on
the books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES
AND UNLEGENDED OFFSHORE PHYSICAL AND GLOBAL SECURITIES]
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date the Shelf Registration
Statement with respect to resales of the Securities is declared effective or
(ii) the end of the period referred to in Rule 144(k) under the Securities
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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 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.)
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
for an Exchange Security or sold in connection with an effective Shelf
Registration Statement pursuant to the Registration Rights Agreement, (i) each
U.S. Global Security and each U.S. Physical Security shall bear the legend set
forth below on the reverse thereof and (ii) each Offshore Physical Security and
each Offshore Global Security shall bear the legend set forth below on the
reverse
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<PAGE> 54
thereof, until at least the 41st day after the Closing Date and receipt by the
Company and the Trustee of a certificate substantially in the form of Exhibit A
hereto:
THIS SENIOR NOTE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS SENIOR NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT
IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SENIOR NOTE, RESELL OR OTHERWISE TRANSFER THIS SENIOR
NOTE EXCEPT (A) TO NEXTEL COMMUNICATIONS, INC. OR ANY SUBSIDIARY THEREOF, (B) TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
(E) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR
TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
SENIOR NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE ACCRETED VALUE OF SENIOR NOTES AT
THE TIME OF TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
NEXTEL COMMUNICATIONS, INC. THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, OR (F) AFTER REGISTRATION OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SENIOR NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS SENIOR NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK
THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND NEXTEL COMMUNICATIONS, INC. SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND
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<PAGE> 55
"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 SENIOR NOTE 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.
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount at Stated Maturity of
Securities which may be authenticated and delivered under this Indenture is
limited to $1,627,000,000, 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 Serial Redeemable Discount Notes due 2008" of the Company. Their
Stated Maturity shall be February 15, 2008 and they shall bear cash interest at
the rate of 9.95% per annum, from February 15, 2003 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, as
the
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<PAGE> 56
case may be, payable semi-annually on February 15 and August 15, commencing
August 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.
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.
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<PAGE> 57
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.
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 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
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<PAGE> 58
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 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.
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<PAGE> 59
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.
(b) Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depository,
its successors or their respective nominees. Interests of beneficial owners in
a Global Security may be transferred in accordance with the rules and
procedures of the Depository and the provisions of Section 307. In addition,
U.S. Physical Securities and Offshore Physical Securities shall be transferred
to all beneficial owners in exchange for their beneficial interests in the U.S.
Global Securities or Offshore Global Securities, respectively, if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for the U.S. Global Securities or Offshore Global Securities, as the
case may be, and a successor depository is not appointed by the Company within
90 days of such notice, (ii) an Event of Default has occurred and is continuing
and the Security Registrar has received a request therefor from the Depository
or (iii) in accordance with the rules and procedures of the Depository and the
provisions of Section 307.
(c) In connection with any transfer of a portion of the
beneficial interests in the Global Security to beneficial owners pursuant to
paragraph (b) of this Section, the Security Registrar shall reflect on the
Security Register the date and a decrease in the principal amount of the Global
Security in an amount equal to the principal amount of the beneficial interest
in the Global Security to be transferred, and the Company shall execute, and
the Trustee shall authenticate and deliver, one or more Physical Securities of
like tenor and amount.
(d) In connection with the transfer of an entire U.S.
Global Security or Offshore Global Security to beneficial owners pursuant to
paragraph (b) of this Section, such U.S. Global Security or Offshore Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in exchange for its
beneficial interest in such U.S. Global Security or Offshore Global Security,
as the case may be, an equal aggregate principal amount of U.S. Physical
Securities or Offshore Physical Securities of authorized denominations.
(e) Any Physical Security delivered in exchange for an
interest in the Global Security pursuant to paragraph (b), (c) or (d) of this
Section shall, except as otherwise provided by paragraph (d) of Section 307
bear the legend regarding transfer restrictions applicable to the Physical
Securities set forth in Section 205.
(f) The registered holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through
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Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
SECTION 307. Special Transfer Provisions.
Unless and until a Security is exchanged for an Exchange
Security or sold in connection with an effective Shelf Registration Statement
pursuant to the Registration Rights Agreement, the following provisions shall
apply:
(a) Transfers to QIBs. The following provisions
shall apply with respect to the registration of any proposed transfer of a
Physical Security or an interest in the Global Security prior to the removal of
the Private Placement Legend to a QIB (excluding Non-U.S. Persons):
(i) If the Security to be transferred consists of (x) (A)
U.S. Physical Securities or (B) an interest in an Offshore Global
Security prior to the removal of the Private Placement Legend, the
Security Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided
for on the form of security stating, or has otherwise advised the
Company and the Security Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A, to a
transferee who has signed the certification provided for on the form
of Security stating, or has otherwise advised the Company and the
Security Registrar in writing, that it is purchasing the Security
for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A or (y) an interest in a U.S.
Global Security, the transfer of such interest may be effected only
through the book entry system maintained by the Depository.
(ii) If the proposed transferee is an Agent Member,
and the Security to be transferred consists of U.S. Physical
Securities, upon receipt by the Security Registrar of the documents
referred to in clause (i) and instructions given in accordance with
the Depository's and the Security Registrar's procedures, the
Security Registrar shall reflect in the Security Register the date
and an increase in the principal amount at maturity of the U.S.
Global Security in an amount equal to the principal amount at
maturity of the U.S. Physical Securities to be transferred, and the
Trustee shall cancel the U.S. Physical Securities so transferred.
(b) Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with respect to the
registration of any proposed transfer of a Security to any Institutional
Accredited Investor which is not a QIB (excluding Non-U.S. Persons):
(i) The Security Registrar shall register the transfer of
any Security, whether or not such Security bears the Private
Placement Legend, if (x) the requested transfer is after
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<PAGE> 61
the time period referred to in Rule 144(k) under the Securities Act
as in effect with respect to such transfer or (y) the proposed
transferee has delivered to the Security Registrar (A) a certificate
substantially in the form of Exhibit B hereto and (B) if the
aggregate principal amount of the Notes being transferred is less
than $250,000 at the time of such transfer, an Opinion of Counsel
acceptable to the Company that such transfer is in compliance with
the Securities Act.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in the U.S. Global Security, upon
receipt by the Security Registrar of (x) the documents, if any,
required by the preceding paragraph (i), and (y) instructions given
in accordance with the Depositary's and the Security Registrar's
procedures, the Security Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S.
Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred,
and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more U.S. Physical Securities of like tenor and
amount.
(c) Transfers of Interests in the Offshore Global
Securities or Offshore Physical Securities. The following provisions shall
apply with respect to any transfer of interests in the Offshore Global
Securities or Offshore Physical Securities:
(i) prior to removal of the Private Placement Legend
from an Offshore Global Security or Offshore Physical Security
pursuant to Section 205, the Security Registrar shall refuse to
register such transfer unless such transfer complies with Section
307(a) or Section 307(d), as the case may be; and
(ii) after such removal, the Security Registrar shall
register the transfer of any such Security without requiring any
additional certification.
(d) Transfers to Non-U.S. Persons at Any Time. The
following provisions shall apply with respect to any transfer of a Security to
a Non-U.S. Person:
(i) The Security Registrar shall register any
proposed transfer to any Non-U.S. Person if the Security to be
transferred is a U.S. Physical Security or an interest in a U.S.
Global Security only upon receipt of a certificate substantially in
the form of Exhibit C hereto from the proposed transferor.
(ii) (A) If the proposed Transferor is an
Agent Member holding a beneficial interest in a U.S. Global
Security, upon receipt by the Security Registrar of (x) the
documents required by paragraph (i) and (y) instructions in
accordance with the Depositary's and the Security Registrar's
procedures, the Security Registrar shall reflect on its books and
records the date and a decrease in the principal amount of such U.S.
Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred,
and (B) if the proposed transferee is an Agent Member, upon receipt
by the Security Registrar of instructions given in accordance with
the Depositary's and the Security Registrar's procedures, the
Security Registrar shall reflect on
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its books and records the date and an increase in the principal
amount of the Offshore Global Security in an amount equal to the
principal amount of the U.S. Physical Securities or the U.S. Global
Security, as the case may be, to be transferred, and the Trustee
shall cancel the Physical Security, if any, so transferred or
decrease the amount of the U.S. Global Security.
(e) Private Placement Legend. Upon the transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Security Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of securities
bearing the Private Placement Legend, the Security Registrar shall deliver only
Securities that bear the Private Placement Legend unless either (i) the
circumstances contemplated by Section 205 exist or (ii) there is delivered to
the Trustee an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act.
(f) General. By its acceptance of any Security
bearing the Private Placement Legend, each Holder of such a Security
acknowledges the restrictions on transfer of such Security set forth in this
Indenture and in the Private Placement Legend and agrees that it will transfer
such Security only as provided in this Indenture. The Security Registrar shall
not register a transfer of any Security unless such transfer complies with the
restrictions on transfer of such Security set forth in the Private Placement
Legend and in this Indenture. In connection with any transfer of Securities,
each Holder agrees by its acceptance of the Securities to furnish the Trustee
or the Company such certifications, legal opinions or other information as
either of them may reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act; provided that the Trustee
shall not be required to determine (but may rely on a determination made by the
Company with respect to) the sufficiency of any such certifications, legal
opinions or other information.
The Trustee shall retain copies of all letters, notices
and other written communications received pursuant to Section 306 or this
Section 307. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Trustee.
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall
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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.
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
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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 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 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
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canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of as
directed by a Company Order; provided, however, that the Trustee shall not be
required to destroy canceled Securities.
SECTION 312. Computation of Interest.
Interest on the Securities shall be computed on the basis
of a 360-day year of twelve 30-day months.
SECTION 313. CUSIP, CINS and ISIN Numbers.
The Company in issuing the Securities may use "CUSIP,"
"CINS" and "ISIN" numbers (if then generally in use), and, if so, the Trustee
shall use the "CUSIP," "CINS" and "ISIN" numbers in notices of redemption or
repurchase as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption or
repurchase and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption or repurchase shall
not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except
as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore
authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 308 and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
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(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.
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.
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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 Offer has been
mailed to Holders or failure to make an Offer to Purchase as
required hereunder; or
(4) default in the performance, or breach, of
Section 801; or
(5) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default whose performance or whose breach is
elsewhere in this Section specifically dealt with) or in the
Securities, and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount at Stated
Maturity of the Outstanding Securities a written notice specifying
such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(6) a default or defaults under any bond(s),
debenture(s), note(s) or other evidence(s) of Debt for money
borrowed by the Company or any Restricted Subsidiary (or under any
mortgage(s), indenture(s) or instrument(s) under which there may be
issued or by which there may be secured or evidenced any Debt for
money borrowed by the Company or any Restricted Subsidiary) having,
individually or in the aggregate, a principal or similar amount
outstanding of at least $25,000,000, whether such Debt now exists or
shall hereafter be created, which default or defaults shall
constitute a failure to pay any portion of the principal or 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
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(7) a final judgment or final judgments for the
payment of money are entered against the Company or any Restricted
Subsidiary in an aggregate amount in excess of $25,000,000 by a
court or courts of competent jurisdiction, which judgments remain
undischarged or unbonded for a period (during which execution shall
not be effectively stayed) of 60 days after the right to appeal all
such judgments has expired; or
(8) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company or any Restricted Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or any Restricted Subsidiary a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Restricted Subsidiary under any
applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Restricted Subsidiary or of
any substantial part of the property of the Company or any
Restricted Subsidiary, or ordering the winding up or liquidation of
the affairs of the Company or any Restricted Subsidiary, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60
consecutive days; or
(9) the commencement by the Company or any
Restricted Subsidiary of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company
or any Restricted Subsidiary to the entry of a decree or order for
relief in respect of the Company or any Restricted Subsidiary in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to
the commencement of any bankruptcy or insolvency case or proceeding
against the Company or any Restricted Subsidiary, or the filing by
the Company or any Restricted Subsidiary of a petition or answer or
consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by the Company or any
Restricted Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of
the Company or any Restricted Subsidiary or of any substantial part
of the property of the Company or any Restricted Subsidiary, or the
making by the Company or any Restricted Subsidiary of an assignment
for the benefit of creditors, or the admission by the Company or any
Restricted Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by
the Company or any Restricted Subsidiary in furtherance of any such
action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(8) or (9)) occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount
at Stated Maturity of the Outstanding Securities may declare the
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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 February 15, 2003, 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 February 15,
2003, 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),
(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.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Unless the context otherwise requires, references in this
Indenture to the principal amount of any Security mean, as of any day, (i) with
respect to any portion thereof required thereunder to be redeemed or
repurchased on any redemption or repurchase date on or prior to such day, the
amount due and payable in respect of such portion upon such redemption or
repurchase date (excluding premium and interest), (ii) with respect to any
portion thereof not required to be so redeemed or repurchased, but which has
been declared due and payable prior to the Stated Maturity thereof, the Default
Amount in respect of such portion as of such day and (iii) with respect to any
portion thereof not required so to be redeemed or repurchased and not so
declared due and payable, such portion of the principal amount of such Security
payable at Stated Maturity thereof.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest
on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity thereof or,
with respect to any Security required to have been purchased
pursuant to an Offer to Purchase made by the Company, at the
Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest,
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate provided by the Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the
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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.
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.
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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
(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
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reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 308, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of
any Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
By giving the Required Consent, those Persons giving the
Required Consent shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
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By giving the Required Consent, those Persons giving the
Required Consent may, on behalf of the Holders of all the Securities, waive any
past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium,
if any) or interest on any Security (including any Security which is
required to have been purchased pursuant to an Offer to Purchase
which has been made by the Company), or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
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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, 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;
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(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 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.
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.
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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 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
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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 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 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
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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 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
February 1 and August 1, commencing February 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 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, 1999, 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.
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(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.
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
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(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 transaction or series of
transactions), no Default or Event of Default shall have occurred
and be continuing, and
(iii) the Consolidated Net Worth of the Company or the
Surviving Entity, as the case may be, shall be equal to or greater
than that of the Company immediately prior to such transaction or
series of transactions;
provided, however, that the foregoing requirements shall not apply to any
transaction or series of transactions involving the sale, assignment,
conveyance, transfer, lease or other disposition of the properties and assets
by any Restricted Subsidiary to any other Restricted Subsidiary, or the merger
or consolidation of any Restricted Subsidiary with or into any other Restricted
Subsidiary.
In connection with any consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition contemplated by the foregoing
provisions, the Company shall deliver, or cause to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate stating that such consolidation, merger, sale,
assignment, conveyance, transfer, lease or other disposition and the
supplemental indenture in respect thereof (required under clause (i)(B) of the
preceding paragraph) comply with the requirements of this Indenture and an
Opinion of Counsel that the conditions of this Article 8 have been complied
with. Each such Officers' Certificate shall set forth the manner of
determination of the Consolidated Net Worth in accordance with clause (iii) of
the preceding paragraph.
For all purposes of this Indenture and the Securities (including the
provisions described in the two immediately preceding paragraphs and Section
1008 and Section 1010), Subsidiaries of any Surviving Entity will, upon such
transaction or series of transactions, become Restricted Subsidiaries or
Unrestricted Subsidiaries as provided pursuant to Section 1010 and all Debt of
the Surviving Entity and its Subsidiaries that was not Debt of the Company and
its Subsidiaries immediately prior to such transaction or series of
transactions shall be deemed to have been Incurred upon such transaction or
series of transactions.
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.
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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
interests of the Holders in any material respect (as determined in
good faith by the Board of Directors).
SECTION 902. Supplemental Indentures with Consent of Holders.
After receipt of the Required Consent, given by Act of
those Persons giving the Required Consent delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of,
or any installment of interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable thereon, or reduce the Default Amount that would be
due and payable on acceleration of the Maturity thereof pursuant to
Section 502, or change the place of payment where, or the coin or
currency in which, any Security or any premium or interest thereon
is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or
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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 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, 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
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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 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
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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 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
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
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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 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
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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 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 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
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(IV) Investments in Unrestricted Subsidiary Funding Company so long as (x) such
Investments are invested in Nextel International, Inc. and (y) Nextel
International, Inc. is a Subsidiary of the Company.
Notwithstanding the foregoing limitations in this Section 1009, the
Company will be permitted to make any Investment in a Person that is not
(either before or after giving effect thereto) a Subsidiary of the Company,
provided that, immediately after giving effect thereto, the amount equal to (a)
the aggregate amount of all Investments made pursuant to this paragraph minus
(b) all cash received by the Company or any Restricted Subsidiary from the
sale, transfer or other disposition to a Person that is not a Subsidiary of the
Company of any such Investment (or portion thereof) included in such aggregate
amount (with the amount of cash to be counted for this purpose not to exceed
the amount of such Investment (or portion thereof) so included), shall not
exceed the greater of (i) $250 million and (ii) 2% of the Total Market Value of
Equity of the Company as of such time. For purposes of determining the
aggregate amount of Investments referred to in clause (a), the amount of any
Investment shall be deemed to equal the cash portion thereof plus the fair
market value of any non-cash portion thereof (to the extent such portion
constitutes an Investment) at the time such Investment is made, as determined
by the Board of Directors (whose good faith determination shall be conclusive
and evidenced by a Board Resolution).
Notwithstanding the foregoing, no Investment in a Person that
immediately thereafter would be a Restricted Subsidiary will be a Restricted
Payment. In addition, if any Person in which an Investment is made, which
Investment constitutes a Restricted 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
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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 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 (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
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Capital Stock of, or owns or holds any Lien on any property of, any Restricted
Subsidiary which is not a Subsidiary of the Subsidiary to be so designated.
The Board of Directors, from time to time, may designate any Person
that is about to become a Subsidiary of the Company as an Unrestricted
Subsidiary, and may designate any newly-created Subsidiary as an Unrestricted
Subsidiary, if at the time such Subsidiary is created it contains no assets
(other than such de minimis amount of assets then required by law for the
formation of corporations) and no Debt. Subsidiaries of the Company that are
not designated by the Board of Directors as Restricted or Unrestricted
Subsidiaries shall be deemed to be Restricted Subsidiaries. Notwithstanding
any provisions of this Section 1010, all Subsidiaries of an Unrestricted
Subsidiary shall be Unrestricted Subsidiaries. The Board of Directors shall
not change the designation of a Subsidiary of the Company more than twice in
any period of five years.
SECTION 1011. Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, enter into any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any
service) or series of related transactions with any Affiliate of the Company on
terms that are less favorable to the Company or such Restricted Subsidiary, as
the case may be, than those which might be obtained at the time of such
transaction from a Person that is not such an Affiliate; provided, however,
that this Section 1011 shall not limit, or be applicable to, (i) any
transaction between Unrestricted Subsidiaries not involving the Company or any
Restricted Subsidiary, (ii) any transaction between the Company and any
Restricted Subsidiary or between Restricted Subsidiaries or (iii) any Permitted
Transactions. In addition, any transaction or series of related transactions,
other than Permitted 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 February 15, 2003 or 101% of the principal
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amount thereof, plus accrued and unpaid interest, if any, to any Purchase Date
on and after February 15, 2003. 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 and the Restricted Subsidiaries are
engaged in on the Closing Date.
SECTION 1016. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act, or any successor provision thereto, the Company shall file
with the Commission the annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provision thereto if the
Company were subject thereto, such documents to be filed with the Commission on
or prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required to file them. The Company shall also in any
event (a) within 15 days of each Required Filing Date (i) transmit by mail to
all Holders, as their names and addresses appear in the Security Register,
without cost to such Holders, and (ii) file with the Trustee copies of the
annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act or any successor provisions thereto if the Company
were subject thereto and (b) if filing such documents by the Company with the
Commission is not permitted under the Exchange Act, promptly upon written
request supply copies of such documents to any prospective Holder. The
Trustee's receipt of such reports, information and documents shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein.
SECTION 1017. Statement by Officers as to Default; Compliance Certificates.
(a) The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending after the date
hereof an Officers' Certificate, stating whether or not to the best knowledge
of the signers thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder), and if the
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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.
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
February 15, 2003, at the Company's option, in whole or in part, upon not less
than 30 or more than 60 days' prior written notice mailed by first class mail
to each Holder's last address as it appears in the Security Register, at the
redemption prices (expressed as a percentage of the principal amount at
maturity thereof) set forth below, plus an amount in cash equal to all accrued
and unpaid interest to the Redemption
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Date, if redeemed during the 12-month period beginning February 15 of each of
the years set forth below.
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2003 104.9750%
2004 103.3167%
2005 101.6583%
</TABLE>
On or after February 15, 2006, the Company may redeem the
Securities at a Redemption Price equal to 100% of the principal amount at
maturity thereof, together in the case of any such redemption with accrued
interest, if any, to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates for the payment of such
interest installments.
In addition to any redemption provided for in the
immediately preceding paragraphs, in the event of the sale by the Company after
the Closing Date and prior to February 15, 2001 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
35% of the aggregate Accreted Value of the Outstanding Securities will, within
180 days of such sale, at the option of the Company, upon not less than 30 nor
more than 60 days' notice by mail, be redeemable from the net proceeds thereof
(but only to the extent such proceeds consist of cash or readily marketable
cash equivalents received in respect of the Company's Capital Stock so sold, in
each case net of all commissions, discounts, fees, expenses and taxes incurred
in respect thereof) at a Redemption Price equal to 109.95% 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.
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SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
In the case of any partial redemption, selection of the
Securities for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which
the Securities are listed or, if the Securities are not listed on a national
securities exchange, on a pro rata basis, by lot or by such other method as the
Trustee in its sole discretion shall deem to be fair and appropriate; provided
that no Security of $1,000 in principal amount or less shall be redeemed in
part.
The Trustee shall promptly notify the Company and each
Security Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture and of the Securities,
unless the context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state (including CUSIP,
CINS and ISIN numbers, if any):
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to
be redeemed, including CUSIP, CINS and ISIN numbers,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and
(i) that, in the case of a Redemption Date on or after February 15,
2003, cash interest thereon will cease to accrue on and after said
Redemption Date and (ii) that, in the case of a Redemption Date
prior to February 15, 2003, the Accreted Value thereof will not
increase after said Redemption Date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
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(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 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
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Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities,
of any authorized denomination as requested by such Holder, in aggregate
principal amount at Stated Maturity equal to and in exchange for the unredeemed
portion of the principal amount at Stated Maturity of the Security so
surrendered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have
Section 1202 or Section 1203 applied to the Outstanding Securities (as a whole
and not in part) upon compliance with the conditions set forth below in this
Article. Any such election shall be evidenced by a Board Resolution.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of its option to have this
Section applied to the Outstanding Securities (as a whole and not in part), the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 1204 are satisfied (hereinafter called
"Defeasance"), and thereafter such Securities shall not be subject to
redemption pursuant thereto. For this purpose, such Defeasance means that 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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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, 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
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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 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.
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(8) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (solely for
purposes of this Section and Section 1206, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section 1204
in respect of the Outstanding Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to the Outstanding Securities.
SECTION 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article with respect to any Securities by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1202 or 1203 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1205 with
respect to such Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
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--------------------
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.
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/ STEVEN SHINDLER
-----------------------------------
Title: Steven Shindler, Vice President
--------------------------------
Attest:
/s/ RIED ZULAGER
- ------------------------------
Ried Zulager, Secretary
HARRIS TRUST AND SAVINGS BANK, Trustee
By: /s/ J. BARTOLINI
----------------------------------
Title: Vice President
-------------------------------
Attest:
/s/ D.G. DONOVAN
- ------------------------------
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EXHIBIT A
Form of Certificate to Be
Delivered in Connection with
Transfers Pursuant to Regulation S
---------------, -----
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, Illinois 60606
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
Re: Nextel Communications, Inc. (the "Company")
9.95% Senior Serial Redeemable Discount Notes Due 2008
(the "Notes")
Dear Sirs:
This letter relates to U.S. $__________ principal amount
of Notes represented by a Note (the "Legended Note") which bears a legend
outlining restrictions upon transfer of such Legended Note. Pursuant to
Section 2.02 of the Indenture dated as of February 11, 1998 (the "Indenture")
relating to the Notes, we hereby certify that we are (or we will hold such
securities on behalf of) a person outside the United States to whom the Notes
could be transferred in accordance with Rule 904 of Regulation S promulgated
under the U.S. Securities Act of 1933, as amended. Accordingly, you are hereby
requested to exchange the legended certificate for an unlegended certificate
representing an identical principal amount of Notes, all in the manner provided
for in the Indenture.
You and the Company are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
----------------------------
Authorized Signature
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EXHIBIT B
Form of Certificate to Be Delivered
in Connection with Transfers to
Non-QIB Institutional Accredited Investors
--------- ---, -----
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, Illinois 60606
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
Re: Nextel Communications, Inc. (the "Company")
9.95% Senior Serial Redeemable Discount Notes due 2008
(the "Notes")
Dear Sirs:
In connection with our proposed purchase of
U.S.$__________ aggregate principal amount at stated maturity of the Notes, we
confirm that:
1. We understand that any subsequent transfer of the
Notes is subject to certain restrictions and conditions set forth in the
Indenture dated as of February 11, 1998 (the "Indenture"), relating to the
Notes, and we agree to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes
have not been registered under the Securities Act, and that the Notes may not
be offered or sold except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should offer or sell any Notes, we will do so
only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule
144A under the Securities Act to a "qualified institutional buyer" (as defined
therein), (C) to an institutional "accredited investor" (as defined below)
that, prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to you and to the Company a signed letter substantially in
the form of this letter, (D) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act, (E) pursuant to an effective
registration statement under the Securities Act, or (F) outside the United
States in accordance with Rule 904 of Regulation S under the Securities Act,
and we further agree to provide to any person purchasing any of the Notes from
us a notice advising such purchaser that resales of the Notes are restricted as
stated herein.
3. We understand that, on any proposed resale of any
Notes, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you
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and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in the
notes, and we and any accounts for which we are acting are each able to bear
the economic risk of our or its investment.
5. We are acquiring the Notes purchased by us for
our own account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
-----------------------------------
Authorized Signature
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EXHIBIT C
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
---------------, -----
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, Illinois 60606
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
Re: Nextel Communications, Inc. (the "Company")
9.95% Senior Redeemable Discount Notes due 2008
(the "Notes")
Dear Sirs:
In connection with our proposed sale of U.S. $__________
aggregate principal amount at maturity of the Notes, we confirm that such sale
has been effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933 and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person
in the United States;
(2) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us
in the United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme
to evade the registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
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Very truly yours,
[Name of Transferor]
By:
---------------------------------
Authorized Signature
98
