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EXHIBIT 4.15
Nextel Communications, Inc.
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Trustee
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Indenture
Dated as of [ , ]
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Senior Subordinated Debentures due 2010
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Nextel Communications, Inc.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of , 2010
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Trust Indenture Indenture
Act Section Section
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ss.310(a)(1) ....................................... 609
(a)(2) ....................................... 609
(a)(3) ....................................... Not Applicable
(a)(4) ....................................... Not Applicable
(b) ....................................... 608, 610
ss. 311(a) ....................................... 613
(b) ....................................... 13
(c) ....................................... 613
ss. 312(a) ....................................... 701, 702
(b) ....................................... 702
(c) ....................................... 702
ss. 313(a) ....................................... 703
(b) ....................................... 703
(c) ....................................... 703
(d) ....................................... 703
ss. 314(a) ....................................... 704
(a)(4) ....................................... 101, 1004
(b) ....................................... Not Applicable
(c)(1) ....................................... 102, 401, 1204
(c)(2) ....................................... 102, 401, 1204
(c)(3) ....................................... 1204
(d) ....................................... Not Applicable
(e) ....................................... 102
ss. 315(a) ....................................... 601
(b) ....................................... 602
(c) ....................................... 601
(d) ....................................... 601
(e) ....................................... 514
ss. 316(a) ....................................... 101
(a)(1)(A) ....................................... 502, 512
(a)(1)(B) ....................................... 502, 513
(a)(2) ....................................... Not Applicable
(b) ....................................... 508
(c) ....................................... 104
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Trust Indenture Indenture
Act Section Section
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ss. 317(a)(1) ....................................... 503
(a)(2) ....................................... 504
(b) ....................................... 1003
ss. 318(a) ....................................... 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
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TABLE OF CONTENTS
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Parties.......................................................................................1
Recitals of the Company.......................................................................1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions............................................................1
SECTION 102. Compliance Certificates and Opinions..................................25
SECTION 103. Form of Documents Delivered to Trustee................................26
SECTION 104. Acts of Holders; Record Dates.........................................26
SECTION 105. Notices, Etc., to Trustee and Company.................................28
SECTION 106. Notice to Holders; Waiver.............................................29
SECTION 107. Conflict with Trust Indenture Act.....................................29
SECTION 108. Effect of Headings and Table of Contents..............................29
SECTION 109. Successors and Assigns................................................29
SECTION 110. Separability Clause...................................................30
SECTION 111. Benefits of Indenture.................................................30
SECTION 112. Governing Law.........................................................30
SECTION 113. Legal Holidays........................................................30
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.......................................................31
SECTION 202. Form of Face of Security..............................................31
SECTION 203. Form of Reverse of Security...........................................32
SECTION 204. Form of Trustee's Certificate of Authentication.......................37
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.......................................................37
SECTION 302. Denominations.........................................................38
SECTION 303. Execution, Authentication, Delivery and Dating........................38
SECTION 304. Temporary Securities..................................................39
SECTION 305. Registration, Registration of Transfer and Exchange...................39
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......................40
SECTION 307. Payment of Interest; Interest Rights Preserved........................41
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SECTION 308. Persons Deemed Owners.................................................42
SECTION 309. Cancellation..........................................................42
SECTION 310. Computation of Interest...............................................43
SECTION 311. CUSIP Numbers.........................................................43
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture...............................43
SECTION 402. Application of Trust Money............................................44
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.....................................................44
SECTION 502. Acceleration of Maturity; Rescission and Annulment....................46
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.......48
SECTION 504. Trustee May File Proofs of Claim......................................48
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...........49
SECTION 506. Application of Money Collected........................................49
SECTION 507. Limitation on Suits...................................................49
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest..........................................................50
SECTION 509. Restoration of Rights and Remedies....................................50
SECTION 510. Rights and Remedies Cumulative........................................51
SECTION 511. Delay or Omission Not Waiver..........................................51
SECTION 512. Control by Holders....................................................51
SECTION 513. Waiver of Past Defaults...............................................51
SECTION 514. Undertaking for Costs.................................................52
SECTION 515. Waiver of Stay or Extension Laws......................................52
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities...................................52
SECTION 602. Notice of Defaults....................................................53
SECTION 603. Certain Rights of Trustee.............................................53
SECTION 604. Not Responsible for Recitals or Issuance of Securities................54
SECTION 605. May Hold Securities...................................................54
SECTION 606. Money Held in Trust...................................................54
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SECTION 607. Compensation and Reimbursement........................................55
SECTION 608. Conflicting Interests.................................................55
SECTION 609. Corporate Trustee Required; Eligibility...............................56
SECTION 610. Resignation and Removal; Appointment of Successor.....................56
SECTION 611. Acceptance of Appointment by Successor................................57
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...........58
SECTION 613. Preferential Collection of Claims Against Company.....................58
SECTION 614. Appointment of Authenticating Agent...................................58
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.............60
SECTION 702. Preservation of Information; Communications to Holders................60
SECTION 703. Reports by Trustee....................................................60
SECTION 704. Reports by Company....................................................61
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc..........................................61
SECTION 802. Successor Substituted.................................................62
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders....................63
SECTION 902. Supplemental Indentures with Consent of Holders.......................63
SECTION 903. Execution of Supplemental Indentures..................................64
SECTION 904. Effect of Supplemental Indentures.....................................64
SECTION 905. Conformity with Trust Indenture Act...................................65
SECTION 906. Reference in Securities to Supplemental Indentures....................65
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest...........................65
SECTION 1002. Maintenance of Office or Agency......................................65
SECTION 1003. Money for Security Payments to be Held in Trust......................66
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SECTION 1004. Existence............................................................67
SECTION 1005. Maintenance of Properties............................................67
SECTION 1006. Payment of Taxes and Other Claims....................................67
SECTION 1007. Maintenance of Insurance.............................................68
SECTION 1008. Limitation on Consolidated Debt......................................68
SECTION 1009. Limitation on Restricted Payments....................................69
SECTION 1010. Restricted Subsidiaries..............................................72
SECTION 1011. Transactions with Affiliates.........................................73
SECTION 1012. Senior Subordinated Indebtedness.....................................74
SECTION 1013. Change of Control....................................................74
SECTION 1014. [Intentionally Omitted]..............................................74
SECTION 1015. Activities of the Company and Restricted Subsidiaries................74
SECTION 1016. Provision of Financial Information...................................74
SECTION 1017. Statement by Officers as to Default; Compliance Certificates.........75
SECTION 1018. Waiver of Certain Covenants..........................................75
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption..................................................76
SECTION 1102. Applicability of Article.............................................76
SECTION 1103. Election to Redeem; Notice to Trustee................................76
SECTION 1104. Selection by Trustee of Securities to Be Redeemed....................77
SECTION 1105. Notice of Redemption.................................................77
SECTION 1106. Deposit of Redemption Price..........................................78
SECTION 1107. Securities Payable on Redemption Date................................78
SECTION 1108. Securities Redeemed in Part..........................................78
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance.........79
SECTION 1202. Defeasance and Discharge.............................................79
SECTION 1203. Covenant Defeasance..................................................79
SECTION 1204. Conditions to Defeasance or Covenant Defeasance......................80
SECTION 1205. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions..............................82
SECTION 1206. Reinstatement........................................................82
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ARTICLE THIRTEEN
Subordination
SECTION 1301. Securities Subordinate to Senior Indebtedness........................83
SECTION 1302. No Payment on Securities in Certain Circumstances....................83
SECTION 1303. Payment Over of Proceeds upon Dissolution, Etc. of the Company.......84
SECTION 1304. Subrogation of Holders to Rights of Holders of Senior
Indebtedness.........................................................86
SECTION 1305. Obligations of the Company Unconditional.............................86
SECTION 1306. Payments May Be Made Prior to Dissolution............................87
SECTION 1307. No Waiver of Subordination Provisions................................87
SECTION 1308. Authorization to Trustee to Take Action to Effectuate
Subordination........................................................88
SECTION 1309. Senior Indebtedness May Be Renewed or Extended, Etc..................88
SECTION 1310. Trustee to Have No Fiduciary Duty to Holders of Senior
Indebtedness.........................................................88
SECTION 1311. Rights of Trustee as Holder of Senior Indebtedness...................88
SECTION 1312. Notice to Trustee....................................................89
SECTION 1313. Reliance on Judicial Order or Certificate of Liquidating Agent.......89
SECTION 1314. Not to Prevent Events of Default.....................................90
SECTION 1315. Trustee's Compensation Not Prejudiced................................90
TESTIMONIUM..................................................................................
SIGNATURES AND SEALS.........................................................................
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INDENTURE, dated as of [________ __, ____], between Nextel
Communications, Inc., a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and [_______________], as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its Senior Subordinated Debentures due 2010 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) 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
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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.
"Acquired Debt" means Debt of a Person existing at the time
such Person becomes a Restricted Subsidiary or assumed by the Company
or a Restricted Subsidiary in connection with the acquisition of assets
from such Person.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. "Affiliate" shall be deemed
to include, but only for purposes of Section 1011 and without limiting
the application of the preceding sentence for the purpose of such or
any other 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.
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"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.
"Bank Credit Facility" means the secured credit facility among
the Company, Nextel Finance Company, the other Restricted Companies (as
defined in the agreement related to such facility), the Lenders, (as
defined in the agreement related to such facility), Toronto Dominion
(Texas) Inc. and The Chase Manhattan Bank.
"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.
"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
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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 ▇▇▇▇▇'▇ 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, ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ and
remain so rated for the remainder of the period referred to in
clause (x) above and (2) that, when determined as of the
Trading Day immediately before and the Trading Day immediately
after the date of such event, has Total Common Equity of at
least $10 billion (provided that, solely for the purpose of
calculating Total Common Equity as of such later Trading Day,
the average Closing Price of the Common Stock of such person
shall be deemed to equal the Closing Price of such Common
Stock on such later Trading Day, subject to the last sentence
of the definition of "Total Common Equity"); or
(b) the Company consolidates with, or merges with or
into, another Person or sells, assigns, conveys, transfers,
leases or otherwise disposes of all or substantially all of
its assets to any Person, or any Person consolidates with, or
merges with or into, the 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
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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 ▇▇▇▇▇'▇
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, ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ 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 662/3% 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
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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 Exchangeable
Preferred Stock is originally issued pursuant to the Company's
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, 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.
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"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
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.
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"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 (a) any after-tax gain or loss
attributable to the sale, conversion or other disposition of assets
other than in the ordinary course of business, (b) any after-tax gains
resulting from the write-up of assets and any loss resulting from the
write-down of assets, (c) any after-tax gain or loss on the repurchase
or redemption of any securities (including in connection with the early
retirement or defeasance of any Debt), (d) any foreign exchange gain or
loss, (e) all payments in respect of dividends on shares of Preferred
Capital Stock of the Company, (f) any other extraordinary,
non-recurring or unusual items incurred by the Company or any of its
Restricted Subsidiaries, (g) the net income (or loss) of any Person
acquired by the Company or any Restricted Subsidiary in a
pooling-of-interests transaction for any period prior to the date of
such transaction, (h) all income or losses of Unrestricted Subsidiaries
and Persons (other than Subsidiaries) accounted for by the Company
using the equity method of accounting except, in the case of any such
income, to the extent of dividends, interest or other cash
distributions received directly or indirectly from any such
Unrestricted Subsidiary or Person and (i) the net income (but not net
loss) of any Restricted Subsidiary which is subject to restrictions
which prevent the payment of dividends or the making of distributions
to the Company but only to the extent of such restrictions.
"Consolidated Net Income (Loss)" means, for any period, the
Company's Consolidated Net Income or Consolidated Net Loss for such
period, as applicable.
"Consolidated Net Worth" of any Person means the Consolidated
stockholders' equity of such Person, determined on a Consolidated basis
in accordance with generally accepted accounting principles, less
amounts attributable to 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.
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"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 date of this Indenture
is located at [_______________], Attention: [_________].
"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, 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
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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 307.
"Defeasance" has the meaning specified in Section 1202.
"Designated Senior Indebtedness" means the Debt specified in
clause (i) of the definition of Senior Indebtedness and any Debt
constituting Senior Indebtedness that, at the date of determination,
has an aggregate principal amount of at least $25 million and that is
specifically designated by the Company in the instrument creating or
evidencing such Senior Indebtedness as "Designated Senior
Indebtedness".
"Digital Mobile" means a radio communications system that
employs digital technology with a multi-site configuration that will
permit frequency reuse as described in the Memorandum.
"Digital Mobile-SMR Operating Cash Flow" means, for any fiscal
quarter, (i) the net income or loss, as the case may be, of the Company
and its Restricted Subsidiaries from its Digital Mobile and Specialized
Mobile Radio businesses and related activities and services for such
fiscal quarter, plus (ii) depreciation and amortization charged with
respect thereto for such fiscal quarter, all as determined on a
Consolidated basis in accordance with generally accepted accounting
principles, adjusted, to the extent included in calculating such net
income or loss, by excluding (a) any after-tax gain or loss
attributable to the sale, conversion or other disposition of assets
other than in the ordinary course of business, (b) any gains resulting
from the write-up of assets and any loss resulting from the write-down
of assets, (c) any gain or loss on the repurchase or redemption of any
securities (including in connection with the early retirement or
defeasance of any Debt), (d) any foreign exchange gain or loss, (e) any
other extraordinary, non-recurring or unusual items and (f) all income
or losses of Persons (other than Subsidiaries) accounted for by the
Company using the equity method of accounting, except, in the case of
any such income, to the extent of dividends, interest or other cash
distributions received directly or indirectly from any such Person,
plus (iii) all amounts deducted in calculating net income or loss for
such fiscal quarter in respect of interest expense and other financing
costs and all income taxes, whether or not deferred, applicable to such
fiscal quarter, all as determined on a Consolidated basis in accordance
with generally accepted accounting principles.
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"Directed Investment" by the Company or any of its Restricted
Subsidiaries means any Investment for which the cash or property used
for such Investment is received by the Company from the issuance and
sale (other than to a Restricted Subsidiary) on or after June 1, 1997
of shares of its Capital Stock (other than the Series D Preferred Stock
and Redeemable Stock), or any options, warrants or other rights to
purchase such Capital Stock (other than 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 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 Act" refers to the Securities Exchange Act of 1934
and any statute successor thereto, in each case as amended from time to
time.
"Exchangeable Preferred Stock" means the Series E Exchangeable
Redeemable Preferred Stock of the Company issued on the Closing Date
and any shares of Preferred Capital Stock issued in exchange therefor
or as payment in kind dividends thereon.
"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,
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$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
101/8% Senior Redeemable Discount Notes Due 2004, $840,000,000
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.
"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, such Fair Market Value shall be as
determined in good faith by the Board of Directors, including a
majority of Disinterested Directors who are then members of such Board
of Directors, which determination shall be conclusive if evidenced by a
Board Resolution.
"FCC" means the Federal Communications Commission.
"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
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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.
"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 ▇▇▇▇▇'▇.
"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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"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 ▇▇▇▇▇'▇; and
(3) commercial paper rated A-1 or the equivalent thereof by
S&P or P-1 or the equivalent thereof by ▇▇▇▇▇'▇, and in each case
maturing within six months.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, offer to purchase or
otherwise.
"Memorandum" means the offering memorandum dated February 6,
1998 in connection with the offering of the Exchangeable Preferred
Stock.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or, if ▇▇▇▇▇'▇
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 ▇▇▇▇▇'▇ 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.
"Notice of Default" means a written notice of the kind
specified in Section 501(5).
"Offer" has the meaning specified in the definition of Offer
to Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent
by the Company by first class mail, postage prepaid, to each Holder at
his registered address 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 three
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Business Days after the Expiration Date. The Company shall notify the
Trustee at least 15 days (or such shorter period as is acceptable to
the Trustee) prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company. The Offer shall contain information
concerning the business of the Company and its Subsidiaries which, at a
minimum, shall include (i) the most recent annual and quarterly
financial statements and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" contained in the
documents required to be filed with the Trustee pursuant to this
Indenture (which requirements may be satisfied by delivery of such
documents together with the Offer), (ii) a description of material
developments in the Company's business subsequent to the date of the
latest of such financial statements referred to in clause (i)
(including a description of the events requiring the Company to make
the Offer to Purchase), (iii) if required under applicable law, pro
forma financial information concerning, among other things, the Offer
to Purchase and the events requiring the Company to make the Offer to
Purchase and (iv) any other information required by applicable law to
be included therein. The Offer shall contain all instructions and
materials necessary to enable such Holders to tender their Securities
pursuant to the Offer to Purchase. The Offer shall also state:
(1) the section of this Indenture pursuant to which
the Offer to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the principal amount 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 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;
(6) the place or places where the Securities are to
be surrendered for tender pursuant to the Offer to Purchase;
(7) that interest 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;
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(9) that each Holder electing to tender Securities
pursuant to the Offer to Purchase will be required to
surrender such Securities at the place or places specified
in the Offer prior to the close of business on the Expiration
Date (such Securities being, if the Company or Trustee so
requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all or
any portion of the Securities tendered if the Company (or its
Paying Agent) receives, not later than the close of business
on the Expiration Date, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount 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; 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 equal to and in exchange for the
unpurchased portion of the aggregate principal amount of the
Securities so tendered.
Any Offer to Purchase shall be governed by and effected in
accordance with the Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section
1017 shall be the principal executive, financial or accounting officer
of the Company.
"Operating Cash Flow" means, for any fiscal quarter, (i) the
Company's Consolidated Adjusted Net Income (Loss) plus depreciation and
amortization in respect thereof for such fiscal quarter, plus (ii) all
amounts deducted in calculating Consolidated Adjusted Net Income (Loss)
for such fiscal quarter in respect of interest expense and other
financing costs, including dividends paid in respect of Redeemable
Stock, and all income taxes, whether or not deferred, applicable to
such income period, all as determined on a Consolidated basis in
accordance with generally accepted accounting principles. For purposes
of calculating Operating Cash Flow for the fiscal quarter most recently
completed prior to any date on which an action is taken that requires a
calculation of the Operating Cash Flow to Consolidated Interest Expense
Ratio or Consolidated Debt to Annualized 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)
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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 cancelled 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 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities as to which Defeasance has been
effected pursuant to Section 1202;
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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.
"Payment Blockage Period" has the meaning provided in Section
1302.
"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);
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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 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 (x) the exchange by
such Person of Capital Stock (other than Redeemable Stock) for
outstanding Capital Stock and (y) the redemption, repurchase,
defeasance or other acquisition or retirement for value of Debt of
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the Company that is subordinate in right of payment to the Securities,
in exchange for (including any such exchange pursuant to the exercise
of a conversion right or privilege in connection with which cash is
paid in lieu of the issuance of fractional shares or scrip), or out of
the proceeds of a substantially concurrent issue and sale (other than
to a Restricted Subsidiary) of, either (a) Capital Stock of the Company
(other than Redeemable Stock) or (b) Debt of the Company that is
subordinate in right of payment to the Securities on subordination
terms no less favorable to the Holders of the Securities in their
capacities as such than the subordination terms (or other arrangement)
applicable to the Debt that is redeemed, repurchased, defeased or
otherwise acquired or retired for value, provided that, in the case of
this clause (b), such new Debt does not mature prior to the Stated
Maturity or have a mandatory redemption date prior to the mandatory
redemption date of the Debt being redeemed, repurchased, defeased or
otherwise acquired or retired for value or have an Average Life shorter
than the remaining Average Life of the Debt being redeemed,
repurchased, defeased or otherwise acquired or retired for value and
(z) dividend, penalty or other mandated payments, including mandatory
repurchases, on or in respect of any class or series of the Company's
Preferred 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 306
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.
"Purchase Amount" has the meaning specified in the definition
of Offer to Purchase.
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"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.
"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.
"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.
"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.
"Required Consent" means for actions requiring consent of
holders of the Securities, except as otherwise expressly provided
herein 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 then outstanding principal amount 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 of 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 then outstanding principal amount of the Securities, or (y)
a majority in then outstanding principal amount of (I) the Securities,
(II) the Series D Exchange Debentures, if the holders of the Series D
Exchange Debentures are being requested to consent to such action with
respect to the terms of the Series D Exchange Debentures, and (III) any
other issue of senior subordinated, unsecured notes issued by the
Company, if such notes or the indenture pursuant to which such notes
were issued both (A)
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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.
"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 ▇▇▇▇▇'▇) 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.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time.
"Securities Issue Date" means the date the Securities are
originally issued hereunder.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means (i) Debt of the Company under the
Existing Senior Notes and the Existing Senior Note Indentures, the Bank
Credit Facility and the Vendor Credit Facility and all fees, expenses
and indemnities payable in connection with any of the foregoing and
(ii) all other Debt of the Company (other than the Securities),
including principal and interest on such Debt, unless such Debt, by its
terms or by the terms of any agreement or instrument pursuant to which
such Debt is issued, is pari passu with, or subordinated in right of
payment to, the Securities; provided that the term "Senior
Indebtedness" shall not include (a) any Debt of the Company that, when
Incurred and without respect to any election under Section 1111(b) of
the United States Bankruptcy Code, was without recourse to the Company,
(b) any Debt of the Company to a Subsidiary of the Company or to a
joint venture in which the Company has an interest, (c) any Debt of the
Company, to the extent not permitted by Section 1008 or Section 1012,
(d) any repurchase, redemption or other obligation in respect of
Redeemable Stock, (e) any Debt to any employee of the Company or any of
its Subsidiaries, (f) any liability for federal, state, local
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or other taxes owed or owing by the Company or (g) any trade payables.
Senior Indebtedness will also include interest accruing subsequent to
events of bankruptcy of the Company at the rate provided for in the
document governing such Senior Indebtedness, whether or not such
interest is an allowed claim enforceable against the debtor in a
bankruptcy case under federal bankruptcy law.
"Senior Subordinated Obligations" means with respect to the
Company, any principal of, premium, if any, or interest on the
Securities payable pursuant to the terms of the Securities or upon
acceleration, to the extent relating to the purchase of Securities or
amounts corresponding to such principal, premium, if any, or interest
on the Securities.
"Series D 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 (the "Series D Exchange Debentures") in
exchange for outstanding shares of the 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.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"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
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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.
"United States Bankruptcy Code" means the Bankruptcy Reform
Act of 1978, as amended and as codified in Title 11 of the United
States Code, as amended from time to time hereafter, or any successor
federal bankruptcy law.
"U.S. Government Obligation" has the meaning specified in
Section 1204.
"Unrestricted Subsidiary" means Unrestricted Subsidiary
Funding Company and any other Subsidiary that is not a Restricted
Subsidiary and includes any Restricted Subsidiary that becomes an
Unrestricted Subsidiary in accordance with Section 1010.
"Vendor Credit Facility" means the secured credit facility
among the Company, Nextel Finance Company, the other Restricted
Companies (as defined in the agreement related to such facility),
Motorola, Inc. and NTFC Capital Corporation.
"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
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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.
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;
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(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 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.
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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 cancelled and of no effect), nor shall anything
in this paragraph be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Record Expiration Date
to be given to the Trustee in writing and to each Holder of Securities in the
manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record
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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 cancelled 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.
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: [______________],
or
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(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be part
of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
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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.
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.
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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.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
Nextel Communications, Inc.
Senior Subordinated Debentures due 2010
No. __________ $________
CUSIP NO.________
Nextel Communications, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to __________________,
or registered assigns, the principal sum of _____________________ Dollars on
February 15, 2010 and to pay interest thereon from the Securities Issue Date or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually in cash (or, on or prior to February 15, 2003,
in additional Securities, at the option of the Company) in arrears on August 15
and February 15 in each year, commencing with the first such date after the
Securities Issue Date at the rate of 11.125% 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 11.125% 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)
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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 ten days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
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, to the extent
paid in cash, 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.
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 Subordinated Debentures due 2010 (herein
called the "Securities"), issued
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and to be issued under an Indenture, dated as of [________ __, ____] (herein
called the "Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and _______________, 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 (subject to
contractual and other restrictions with respect thereto existing on the Closing
Date and compliance with covenants contained in the Existing Indentures) on or
after February 15, 2003, at the Company's option, in whole or in part, upon not
less that 30 or more than 60 days' prior written notice mailed by first class
mail to each holder's last address as it appears in the Security Register, at
the redemption prices (expressed as a percentage of the principal amount
thereof) set forth below, plus an amount in cash equal to all accrued and unpaid
interest to the redemption date, if redeemed during the 12-month period
beginning February 15 of each of the years set forth below.
YEAR PERCENTAGE
---- ----------
2003 105.5625%
2004 103.7083
2005 101.8542
2006 and thereafter 100.0000
In addition, on or prior to February 15, 2001 (subject to
contractual and other restrictions with respect thereto existing on the Closing
Date and compliance with covenants contained in the Existing Indentures), the
Company may redeem Securities having an aggregate principal amount of up to 35%
of the aggregate liquidation preference of the Exchangeable Preferred Stock
originally issued at a redemption price equal to 111.125% of the principal
amount thereof, plus accrued and unpaid interest to the redemption date, out of
the net proceeds of any sale of its common stock, provided that such redemption
occurs within 180 days after consummation of such sale.
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 payment of the Securities will, to the extent set forth in
the Indenture, be subordinated in right of payment to the prior payment in full,
in cash or cash equivalents, of all Senior Indebtedness.
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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If an Event of Default shall occur and be continuing, there
may be declared due and payable the Default Amount of the Securities plus
premium (if any) and interest thereon, in the manner and with the effect
provided in the Indenture. 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
Required Consent (defined as follows). The Indenture also contains provisions
permitting the Persons giving 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 of the then outstanding 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 then
outstanding principal amount
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of the Securities or (y) a majority in then outstanding principal amount of (I)
the Securities, (II) the Series D Exchange Debentures, if the holders of the
Series D Exchange Debentures are being requested to consent to such action with
respect to the terms of the Series D Exchange Debentures and (III) any other
issue of senior 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, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to certain suits described in the Indenture, including
any suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein (or, in the case of redemption, on or
after the Redemption Date or, in the case of any purchase of this Security
required to be made pursuant to an Offer to Purchase, on or after the Purchase
Date.)
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof (except as
provided in Section 302 of the Indenture). As provided in the Indenture and
subject to certain limitations therein set forth, Securities are exchangeable
for a like aggregate principal amount of Securities of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
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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.
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)
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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.
------------------------------
as Trustee
By
-----------------------------------
Authorized Signatory
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 the aggregate liquidation preference of the Exchangeable Preferred
Stock (including any Exchangeable Preferred Stock issued in payment of
dividends), plus accrued and unpaid dividends, on the date of exchange of the
Exchangeable Preferred Stock into Securities (plus any additional Securities
issued in lieu of cash interest as provided herein, 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, 306, 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
Subordinated Debentures due 2010" of the Company. Their Stated Maturity shall be
February 15, 2010 and they shall bear
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interest at the rate of 11.125% per annum, from the Securities Issue Date or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semi-annually on February 15 and
August 15, commencing with the first such date after the Securities Issue Date
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, to the extent
paid in cash, 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 Sections 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 (other than (i) Securities issued on the Securities
Issue Date in exchange for Exchangeable Preferred Stock, if the Company does not
elect to pay cash in lieu thereof, and (ii) Securities issued in lieu of cash
interest on the Securities on or prior to February 15, 2003).
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
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Trustee in accordance with such Company Order shall authenticate and deliver
such Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
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
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or more new Securities of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities may be exchanged for
other 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. 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. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
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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 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than
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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 308. 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 307) 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 309. 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 cancelled 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 cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled 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 cancelled Securities.
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SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption or repurchase as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption or repurchase and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such redemption
or repurchase shall not be affected by any defect in or omission of such
numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(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 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
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(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.
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):
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(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 in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount at Stated Maturity of the Outstanding Securities a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(6) a default or defaults under any bond(s), debenture(s),
note(s) or other evidence(s) of Debt for money borrowed by the Company
or any Restricted Subsidiary (or under any mortgage(s), indenture(s) or
instrument(s) under which there may be issued or by which there may be
secured or evidenced any Debt for money borrowed by the Company or any
Restricted Subsidiary) having, individually or in the aggregate, a
principal or similar amount outstanding of at least $25,000,000,
whether such Debt now exists or shall hereafter be created, which
default or defaults shall constitute a failure to pay any portion of
the principal or similar amount of such Debt when due and payable after
the expiration of any applicable grace period with respect thereto or
shall have resulted in such Debt becoming or being declared due and
payable; or
(7) a final judgment or final judgments for the payment of
money are entered against the Company or any Restricted Subsidiary in
an aggregate amount in excess of $25,000,000 by a court or courts of
competent jurisdiction, which judgments remain undischarged or unbonded
for a period (during which execution shall not be effectively stayed)
of 60 days after the right to appeal all such judgments has expired; or
(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
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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 Default Amount of
all the Securities plus premium (if any) and interest thereon 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
premium and 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 premium and 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.
The "Default Amount" in respect of any particular Security as
of any particular date shall equal 100% of the principal amount payable in
respect of the Security at the Stated Maturity thereof.
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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.
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.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof or, with
respect to any Security required to have been purchased pursuant to an
Offer to Purchase made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization,
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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.
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;
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(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 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date or in the case of an Offer to Purchase made by the Company and
required to be accepted as to such Security, on the Purchase Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, 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.
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
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(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.
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
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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;
(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;
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(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 a Corporate Trust
Office in 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 306,
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.
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Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106, to all Holders as their names
and addresses appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect 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:
--------------------------------
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, 2000, 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
after the Securities Issue Date, 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
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Trustee, all the obligations of the Company under the Securities and
this Indenture and, in each case, this Indenture, as so supplemented,
shall remain in full force and effect, and
(ii) immediately before and immediately after giving
effect to such transaction or series of transactions on a pro forma
basis (including any Debt Incurred or anticipated to be Incurred in
connection with or in respect of such transaction or series of
transactions), no Default or Event of Default shall have occurred and
be continuing, and
(iii) the Consolidated Net Worth of the Company or the
Surviving Entity, as the case may be, shall be equal to or greater than
that of the Company immediately prior to such transaction or series of
transactions;
provided, however, that the foregoing requirements shall not apply to any
transaction or series of transactions involving the sale, assignment,
conveyance, transfer, lease or other disposition of the properties and assets by
any Restricted Subsidiary to any other Restricted Subsidiary, or the merger or
consolidation of any Restricted Subsidiary with or into any other Restricted
Subsidiary.
In connection with any consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition contemplated by the foregoing
provisions, the Company shall deliver, or cause to be delivered, to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate stating that such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition and the supplemental indenture
in respect thereof (required under clause (i)(B) of the preceding paragraph)
comply with the requirements of this Indenture and an Opinion of Counsel that
the deliveries required by this Article 8 have been complied with. Each such
Officers' Certificate shall set forth the manner of determination of the
Consolidated Net Worth in accordance with clause (iii) of the preceding
paragraph.
For all purposes of this Indenture and the Securities (including the
provisions described in the two immediately preceding paragraphs and Section
1008 and Section 1010, Subsidiaries of any Surviving Entity will, upon such
transaction or series of transactions, become Restricted Subsidiaries or
Unrestricted Subsidiaries as provided pursuant to Section 1010 and all Debt of
the Surviving Entity and its Subsidiaries that was not Debt of the Company and
its Subsidiaries immediately prior to such transaction or series of transactions
shall be deemed to have been Incurred upon such transaction or series of
transactions.
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 Required Consent, given by Act of said
Holders and 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
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premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of any Security required to be
purchased pursuant to an Offer to Purchase, on or after the applicable
Purchase Date), or
(2) reduce the percentage in principal amount at Stated
Maturity of the Outstanding Securities, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1018, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, or
(4) 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, or
(5) modify any of the provisions of Article Thirteen in a
manner adverse to the Holders in any material respect.
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
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a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
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.
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The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York) where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of (and premium, if any) or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will: (i) comply with the provisions of the Trust
Indenture Act applicable 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
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interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and material franchises; provided,
however, that the Company 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
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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.
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 the Exchangeable 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 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.
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SECTION 1009. Limitation on Restricted Payments.
The Company shall not, directly or indirectly:
(i) declare or pay any dividend on, or make any distribution
to the holders of, any shares of its Capital Stock (other than
dividends or distributions payable solely in its Capital Stock (other
than Redeemable Stock) or in options, warrants or other rights to
purchase any such Capital Stock (other than Redeemable Stock));
(ii) purchase, redeem or otherwise acquire or retire for
value, or permit any Restricted Subsidiary to, directly or indirectly,
purchase, redeem or otherwise acquire or retire for value (other than
value consisting solely of Capital Stock of the Company that is not
Redeemable Stock or options, warrants or other rights to acquire such
Capital Stock that is not Redeemable Stock), any Capital Stock of the
Company (including options, warrants or other rights to acquire such
Capital Stock);
(iii) redeem, repurchase, defease or otherwise acquire or
retire for value, or permit any Restricted Subsidiary to, directly or
indirectly, redeem, repurchase, defease or otherwise acquire or retire
for value (other than value consisting solely of Capital Stock of the
Company that is not Redeemable Stock or options, warrants or other
rights to acquire such Capital Stock that is not Redeemable Stock),
prior to any scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Debt that is subordinate (whether pursuant to
its terms or by operation of law) in right of payment to the
Securities; or
(iv) make, or permit any Restricted Subsidiary, directly or
indirectly, to make, any Investment (other than 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:
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(1) 50% of the Consolidated Net Income (or, in the
case of a Consolidated Net Loss, minus 100% of such deficit)
of the Company for the period (taken as one accounting period)
from April 1, 1994 to the last day of the last fiscal quarter
preceding the date of the proposed Restricted Payment, plus
(2) the aggregate net proceeds, including the fair
market value of property other than cash (as determined by the
Board of Directors, whose good faith determination shall be
conclusive and evidenced by a Board Resolution), received by
the Company from the issuance and sale (other than to a
Restricted Subsidiary) on or after February 15, 1994 of shares
of its Capital Stock (other than Redeemable Stock), or any
options, warrants or other rights to purchase such Capital
Stock (other than Redeemable Stock), other than (x) (except
for purposes of determining whether an Investment under clause
(iv) above is permitted) shares of Capital Stock or options,
warrants or other rights to purchase Capital Stock (or shares
issuable upon exercise thereof) issued or sold in the
PowerFone Merger, Questar/AMI Share Exchanges, Motorola
Transaction 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
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paid such dividend in accordance with the provisions of this Indenture, (II)
repurchasing Capital Stock of the Company (including options, warrants or other
rights to acquire such Capital Stock) from employees or former employees of the
Company or any Subsidiary thereof for consideration not to exceed $500,000 in
the aggregate in any fiscal year (with repurchases pursuant to this clause (II)
not being counted as Restricted Payments for purposes of clause (c) above) or
(III) the repurchase, redemption or other acquisition for value of Capital Stock
of the Company to the extent necessary to prevent the loss or secure the renewal
or reinstatement of any license or franchise held by the Company or any of its
Subsidiaries from any governmental agency; or (IV) Investments in Unrestricted
Subsidiary Funding Company so long as (x) such Investments are invested in
Nextel International, Inc. and (y) Nextel International, Inc. is a Subsidiary of
the Company.
Notwithstanding the foregoing limitations in this Section 1009, the
Company will be permitted to make any Investment in a Person that is not (either
before or after giving effect thereto) a Subsidiary of the Company, provided
that, immediately after giving effect thereto, the amount equal to (a) the
aggregate amount of all Investments made pursuant to this paragraph minus (b)
all cash received by the Company or any Restricted Subsidiary from the sale,
transfer or other disposition to a Person that is not a Subsidiary of the
Company of any such Investment (or portion thereof) included in such aggregate
amount (with the amount of cash to be counted for this purpose not to exceed the
amount of such Investment (or portion thereof) so included), shall not exceed
the greater of (i) $250 million and (ii) 2% of the Total Market Value of Equity
of the Company as of such time. For purposes of determining the aggregate amount
of Investments referred to in clause (a), the amount of any Investment shall be
deemed to equal the cash portion thereof plus the fair market value of any
non-cash portion thereof (to the extent such portion constitutes an Investment)
at the time such Investment is made, as determined by the Board of Directors
(whose good faith determination shall be conclusive and evidenced by a Board
Resolution).
Notwithstanding the foregoing, no Investment in a Person that
immediately thereafter would be a Restricted Subsidiary will be a Restricted
Payment. In addition, if any Person in which an Investment is made, which
Investment constitutes a Restricted 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
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sale of its Capital Stock upon the exercise of any options or warrants of the
Company or any Restricted Subsidiary shall be deemed to be an amount equal to
(a) the additional cash consideration, if any, received by the Company upon such
exercise, minus (b) all expenses incurred in connection with such issuance or
sale.
For purposes of this Section 1009, if a particular Restricted Payment
involves a non-cash payment, including a distribution of assets, then such
Restricted Payment shall be deemed to be an amount equal to the cash portion of
such Restricted Payment, if any, plus an amount equal to the fair market value
of the non-cash portion of such Restricted Payment, as determined by the Board
of Directors (whose good faith determination shall be conclusive and evidenced
by a Board Resolution).
SECTION 1010. Restricted Subsidiaries.
The Company shall not designate any Restricted Subsidiary as an
Unrestricted Subsidiary, and shall not itself, and shall not permit any
Restricted Subsidiary to, sell, convey, transfer or otherwise dispose of any
assets, other than in the ordinary 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 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.
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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 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
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transactions) from a Person that is not such an Affiliate and thus shall be
permitted under this Section 1011.
SECTION 1012. Senior Subordinated Indebtedness.
So long as any Securities are outstanding, the Company will not Incur
any Debt that is expressly made subordinated in right of payment to any Senior
Indebtedness 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 Securities pursuant to
provisions substantially similar to those contained in this Indenture; provided
that the foregoing limitations shall not apply to distinctions between
categories of Senior Indebtedness that exist by reason of any Liens or
Guarantees arising or created in respect of some but not all Senior
Indebtedness.
SECTION 1013. Change of Control.
Upon the occurrence of a Change of Control, the Company shall be
required (subject to any contractual or other restrictions with respect thereto
existing on the Closing Date and compliance with covenants contained in the
Existing Indentures) to make an Offer to Purchase to each Holder of Securities
to repurchase all or any part of such holder's Securities at a cash purchase
price equal to 101% of their principal amount, plus accrued and unpaid interest
to the date of purchase. 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 40 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
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the Commission pursuant to such Section 13(a) or 15(d) or any successor
provision thereto if the Company were subject thereto, such documents to be
filed with the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required to file them. The
Company shall also in any event (a) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders, and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act or any successor provisions thereto if the
Company were subject thereto and (b) if filing such documents by the Company
with the Commission is not permitted under the Exchange Act, promptly upon
written request supply copies of such documents to any prospective Holder. The
Trustee's receipt of such reports, information and documents shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein.
SECTION 1017. Statement by Officers as to Default; Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date hereof an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder), and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as
possible and in any event within 10 days after the Company becomes aware of the
occurrence of a Default or an Event of Default, an Officers' Certificate setting
forth the details of such Default or Event of Default, and the action which the
Company proposes to take with respect thereto.
SECTION 1018. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 801, provided pursuant to Section
901(2) and set forth in Sections 1004 to 1016, inclusive, if before the time for
such compliance the Holders of at least a majority in principal amount at Stated
Maturity of the Outstanding Securities shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect; provided, however, with respect to an Offer to Purchase as to
which an Offer has been mailed, no such waiver may be made or shall be effective
against any Holder tendering Securities pursuant to such Offer, and the Company
may not omit to comply with the terms of such Offer as to such Holder.
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
The Securities may be redeemed at any time (subject to contractual and
other restrictions with respect thereto existing on the Closing Date and
compliance with covenants contained in the Existing Indentures) on or after
February 15, 2003, at the Company's option, in whole or in part, upon not less
that 30 or more than 60 days' prior written notice mailed by first class mail to
each holder's last address as it appears in the Security Register, at the
redemption prices (expressed as a percentage of the principal amount thereof)
set forth below, plus an amount in cash equal to all accrued and unpaid interest
to the redemption date, if redeemed during the 12-month period beginning
February 15 of each of the years set forth below.
YEAR PERCENTAGE
---- ----------
2003 105.5625%
2004 103.7083
2005 101.8542
2006 and thereafter 100.0000
In addition, on or prior to February 15, 2001 (subject to contractual
and other restrictions with respect thereto existing on the Closing Date and
compliance with covenants contained in the Existing Indentures), the Company may
redeem Securities having an aggregate principal amount of up to 35% of the
aggregate liquidation preference of the Exchangeable Preferred Stock originally
issued at a redemption price equal to 111.125% of the principal amount thereof,
plus accrued and unpaid interest to the redemption date, out of the net proceeds
of any sale of its common stock, provided that such redemption occurs within 180
days after consummation of such sale.
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
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Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities to be redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
In the case of any partial redemption, selection of the
Securities for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not listed on a national
securities exchange, on a pro rata basis, by lot or by such other method as the
Trustee in its sole discretion shall deem to be fair and appropriate; provided
that no Security of $1,000 in principal amount or less shall be redeemed in
part.
The Trustee shall promptly notify the Company and each
Security Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture and of the Securities,
unless the context otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state (including CUSIP number,
if any):
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
including CUSIP Numbers,
(4) that on the Redemption Date, the Redemption Price will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said Redemption
Date, and
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
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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. 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 307.
If any Security called for redemption in accordance with the
election of the Company made pursuant to Section 1101 shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount at Stated Maturity equal
to and in exchange for the unredeemed portion of the principal amount at Stated
Maturity of the Security so surrendered.
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ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have
Section 1202 or Section 1203 applied to the Outstanding Securities (as a whole
and not in part) upon compliance with the conditions set forth below in this
Article. Any such election shall be evidenced by a Board Resolution.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of its option to have this Section
applied to the Outstanding Securities (as a whole and not in part), the Company
shall be deemed to have been discharged from its obligations with respect to
such Securities as provided in this Section on and after the date the conditions
set forth in Section 1204 are satisfied (hereinafter called "Defeasance"), and
thereafter such Securities shall not be subject to redemption pursuant thereto.
For this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Securities and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1204 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option to have this Section applied to the Outstanding
Securities (as a whole and not in part) notwithstanding the prior exercise of
its option to have Section 1203 applied to such Securities.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise of its option to have this Section
applied to the Outstanding Securities (as a whole and not in part), (1) the
Company shall be released from its obligations under Section 801(iii), Sections
1005 through 1016, inclusive, and any covenant provided pursuant to Section
901(2) and (2) the occurrence of any event specified in Section 501(4) (with
respect to Section 801(iii)), Section 501(5) (with respect to any of Sections
1005 through 1016, inclusive, and any such covenants provided pursuant to
Section 901(2)), Section 501(6) or Section 501(7) shall be deemed not to be or
result in an Event of Default, in each case with respect to such Securities as
provided in this Section on and after the date the
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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 depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified in Clause
(x) above and held by such bank for the account of the holder of such
depositary 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 depositary 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
depositary receipt.
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(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 date of this instrument, 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.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
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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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ARTICLE THIRTEEN
Subordination
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company and the Trustee each covenants and agrees, and
each Holder, by its acceptance of a Security, likewise covenants and agrees,
that all Securities shall be issued subject to the subordination provisions
contained in this Article Thirteen, and each Holder of a Security, whether upon
original issue or upon transfer, assignment or exchange thereof, accepts and
agrees that the Senior Subordinated Obligations shall be, to the extent and in
the manner set forth in this Article Thirteen, subordinated in right of payment
and subject to the prior payment in full, in cash or cash equivalents, of all
amounts payable under Senior Indebtedness, including, without limitation, the
Company's obligations under the Designated Senior Indebtedness, and any interest
accruing subsequent to an event specified in Sections 501(8) and 501(9), whether
or not such interest is an allowed claim enforceable against the debtor under
the United States Bankruptcy Code.
SECTION 1302. No Payment on Securities in Certain Circumstances.
(a) No direct or indirect payment by or on behalf of the
Company of any Senior Subordinated Obligations, whether pursuant to the terms of
the Securities or upon acceleration or otherwise, shall be made if, at the time
of such payment, a default in the payment of all or any portion of the
obligations under any Designated Senior Indebtedness has occurred and is
continuing beyond any applicable grace period therefor, and such default shall
not have been cured or waived, or the benefits of this sentence waived by or on
behalf of, the holders of such Designated Senior Indebtedness.
(b) In addition, during the continuance of any other event of
default with respect to any Designated Senior Indebtedness pursuant to which the
maturity thereof may be accelerated, upon receipt by the Trustee and the Company
of written notice from the trustee or other representative for the holders of
such Designated Senior Indebtedness, no payment of Senior Subordinated
Obligations may be made by or on behalf of the Company upon or in respect of the
Securities for a period (a "Payment Blockage Period") commencing on the date of
receipt of such notice and ending 179 days thereafter (unless, in each case,
such Payment Blockage Period shall be terminated by written notice to the
Trustee from such trustee of, or other representatives for, such holders). Not
more than one Payment Blockage Period may be commenced with respect to the
Securities during any period of 360 consecutive days. Notwithstanding anything
in this Indenture to the contrary, there must be 180 consecutive days in any
360-day period in which no Payment Blockage Period is in effect. No event of
default that existed or was continuing (it being acknowledged that any
subsequent action that would give rise to an event of default pursuant to any
provision under which an event of default previously existed or was continuing
shall constitute a new event of default for this purpose) on the date of the
commencement of any Payment Blockage Period with respect to the Designated
Senior
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Indebtedness initiating such Payment Blockage Period shall be, or shall be made,
the basis for the commencement of a second Payment Blockage Period by the
representative for, or the holders of, such Designated Senior Indebtedness,
whether or not within a period of 360 consecutive days, unless such event of
default shall have been cured or waived for a period of not less than 180
consecutive days.
(c) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder and the Trustee is aware
that such payment is prohibited by paragraphs (a) and (b) of this Section 1302,
the Trustee shall promptly notify the holders of the Designated Senior
Indebtedness of such prohibited payment and such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Designated Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Designated
Senior Indebtedness may have been issued, as their respective interests may
appear, but only to the extent that, upon notice from the Trustee to the holders
of Designated Senior Indebtedness that such prohibited payment has been made,
the holders of the Designated Senior Indebtedness (or their representative or
representatives or a trustee) within 30 days of receipt of such notice from the
Trustee, notify the Trustee of the amounts then due and owing on the Designated
Senior Indebtedness, if any, and only the amounts specified in such notice to
the Trustee shall be paid to the holders of Designated Senior Indebtedness and
any excess above such amounts due and owing on Designated Senior Indebtedness
shall be paid to the Company.
SECTION 1303. Payment Over of Proceeds upon Dissolution, Etc. of the Company.
(a) (i) Upon any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or
securities, upon any dissolution or winding up or total or partial liquidation
or reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or to
become due upon all Senior Indebtedness (including any interest accruing
subsequent to an event of bankruptcy, whether or not such interest is an allowed
claim enforceable against the debtor under the United States Bankruptcy Code)
shall first be paid in full, in cash or cash equivalents, before the Holders of
the Securities or the Trustee on behalf of the Holders of the Securities shall
be entitled to receive any payment by the Company on account of Senior
Subordinated Obligations, or any payment to acquire any of the Securities for
cash, property or securities, or any distribution with respect to the Securities
of any cash, property or securities. Before any payment may be made by, or on
behalf of, the Company of any Securities upon any such dissolution, winding up,
liquidation or reorganization, any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee on behalf of
the Holders of the Securities would be entitled, but for the subordination
provisions of this Article Thirteen, shall be made by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person making such payment or distribution or by the Holders of the Securities
or the Trustee if received by them or it, directly to the holders of the Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders) or
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their representatives or to any trustee or trustees under any indenture pursuant
to which any such Senior Indebtedness may have been issued, as their respective
interests appear, to the extent necessary to pay all such Senior Indebtedness in
full, in cash or cash equivalents, after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(ii) Notwithstanding the occurrence of any event or events
described in the foregoing clause (a)(i), the Holders of Securities may receive
securities that are subordinated, at least to the same extent as the Securities,
to Senior Indebtedness and any securities in exchange therefor.
(b) To the extent any payment of Senior Indebtedness (whether
by or on behalf of the Company, as proceeds of security or enforcement of any
right of setoff or otherwise) is declared to be fraudulent or preferential, set
aside or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Senior Indebtedness or any part
thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred. To the extent the obligation to
repay any Senior Indebtedness is declared to be fraudulent, invalid, or
otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then the obligation so declared fraudulent, invalid
or otherwise set aside (and all other amounts that would come due with respect
thereto had such obligation not been so affected) shall be deemed to be
reinstated and outstanding as Senior Indebtedness for all purposes of this
Indenture as if such declaration, invalidity or setting aside had not occurred.
(c) In the event that, notwithstanding the foregoing
provisions prohibiting such payment or distribution, any payment or distribution
of assets of the Company of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or any Holder at a time when such
payment or distribution is prohibited by Section 1303(a) and before all
obligations in respect of Senior Indebtedness are paid in full, in cash or cash
equivalents, such payment or distribution shall be received and held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness (pro rata to such holders on the basis of the respective
amount of Senior Indebtedness held by such holders) or their representatives, or
to the trustee or trustees under any indenture pursuant to which any such Senior
Indebtedness may have been issued, as their respective interests appear, for
application to the payment of Senior Indebtedness remaining unpaid until all
such Senior Indebtedness has been paid in full, in cash or cash equivalents,
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Indebtedness.
(d) For purposes of this Section 1303, the words "cash,
property or securities" shall not be deemed to include, so long as the effect of
this clause is not to cause the Securities to be treated in any case or
proceeding or similar event described in this Section 1303 as part of the same
class of claims as the Senior Indebtedness or any class of claims pari passu
with, or senior to, the Senior Indebtedness for any payment or distribution,
securities of the Company or any
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other corporation provided for by a plan of reorganization or readjustment that
are subordinated, at least to the extent that the Securities are subordinated,
to the payment of all Senior Indebtedness then outstanding; provided that (i) if
a new corporation results from such reorganization or readjustment, such
corporation assumes the Senior Indebtedness and (ii) the rights of the holders
of the Senior Indebtedness are not, without the consent of such holders, altered
by such reorganization or readjustment. The consolidation of the Company with,
or the merger of the Company with or into, another corporation or the
liquidation or dissolution of the Company following the sale, conveyance,
transfer, lease or other disposition of all or substantially all of its property
and assets to another corporation upon the terms and conditions provided in
Article Eight shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section 1303 if such other corporation
shall, as a part of such consolidation, merger, sale, conveyance, transfer,
lease or other disposition, comply with the conditions provided in Article
Eight.
SECTION 1304. Subrogation of Holders to Rights of Holders of Senior
Indebtedness.
Upon the payment in full of all Senior Indebtedness in cash or
cash equivalents, the Holders of Securities shall be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company made on such Senior Indebtedness until the
principal of, premium, if any, and interest on the Securities shall be paid in
full, and no such payments or distributions to the holders of Senior
Indebtedness (or any trustee therefor) of any cash, property or securities of
the Company to which the Holders or the Trustee on their behalf would be
entitled except for the provisions of this Article Thirteen, and no payment
pursuant to the provisions of this Article Thirteen to the holders of Senior
Indebtedness by Holders or the Trustee on their behalf shall be, as among the
Trustee, the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, deemed to be a payment by the Company to or on
account of the Senior Indebtedness, it being understood that the provisions of
this Article Thirteen are and are intended solely for the purpose of defining
the relative rights of the Holders, on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Thirteen
shall have been applied, pursuant to the provisions of this Article Thirteen, to
the payment of all amounts payable under Senior Indebtedness, then, and in such
case, the Holders shall be entitled to receive from the holders of such Senior
Indebtedness, any payments or distributions received by such holders of Senior
Indebtedness in excess of the amount required to make payment in full, in cash
or cash equivalents, of such Senior Indebtedness of such holders.
SECTION 1305. Obligations of the Company Unconditional.
Nothing contained in this Article Thirteen or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the
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holders of Senior Indebtedness, and the Holders, the obligation of the Company,
which is unconditional and absolute, to pay to the Holders the principal of,
premium, if any, and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or to affect the relative
rights of the Holders and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable law
upon a Default or an Event of Default under this Indenture, subject to the
rights, if any, under this Article Thirteen, of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing
contained in this Article Thirteen will restrict the right of the Trustee or the
Holders to take any action to declare the Securities to be due and payable prior
to their Stated Maturity pursuant to Section 501 or to pursue any rights or
remedies hereunder; provided, however, that all Senior Indebtedness then due and
payable or thereafter declared to be due and payable shall first be paid in
full, in cash or cash equivalents, before the Holders or the Trustee are
entitled to receive any direct or indirect payment from the Company of Senior
Subordinated Obligations.
SECTION 1306. Payments May Be Made Prior to Dissolution.
Nothing contained in this Article Thirteen or elsewhere in
this Indenture or in any of the Securities (a) shall prevent the Company at any
time, except under the conditions described in Article Five or Section 1302 or
1303, from making payments of or on account of the Senior Subordinated
Obligations to the Holders entitled thereto or from depositing any moneys with
the Trustee for such payments, or (b) shall prevent the application by the
Trustee (or any Paying Agent other than the Company) of any moneys deposited
with it hereunder to the payment of or on account of the Senior Subordinated
Obligations, if the Trustee or such Paying Agent, as the case may be, did not,
at least two business days prior to the date upon which such payment becomes due
and payable, have written notice as provided in Section 1302 or 1312 of any
event prohibiting the making of such payment. The Company shall give prompt
written notice to the Trustee of any dissolution, winding up, liquidation or
reorganization of the Company.
SECTION 1307. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce the subordination provisions of this
Article Thirteen shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with. The
provisions of this Article Thirteen are intended to be for the benefit of, and
shall be enforceable directly by, the holders of Senior Indebtedness.
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SECTION 1308. Authorization to Trustee to Take Action to Effectuate
Subordination.
Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate, as between the Holders and the holders of the Senior
Indebtedness, the subordination as provided in this Article Thirteen and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1309. Senior Indebtedness May Be Renewed or Extended, Etc.
Without in any way limiting the generality of Section 1307 of
this Indenture, the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders,
without incurring responsibility to the Holders and without impairing or
releasing the subordination provided in this Article Thirteen or the obligations
hereunder of the Holders to the holders of Senior Indebtedness, do any one or
more of the following: (a) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding or secured; (b) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (c)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 1310. Trustee to Have No Fiduciary Duty to Holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Thirteen, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and the Trustee shall not be liable to any holder thereof if it
shall pay over or deliver to the Holders, the Company or any other Person moneys
or assets to which any holder of Senior Indebtedness shall be entitled by virtue
of this Article Thirteen or otherwise.
SECTION 1311. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set forth in this
Article Thirteen in respect of any Senior Indebtedness at any time held by it,
to the same extent as any other holder of Senior Indebtedness and nothing in
this Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
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SECTION 1312. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment of
moneys to or by the Trustee in respect of Securities pursuant to the provisions
of this Article Thirteen or otherwise. The Trustee shall not be charged with
knowledge of the existence of a default or event of default with respect to the
Senior Indebtedness or any other facts that would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
written notice thereof mailed or delivered to the Trustee at its Corporate Trust
Office signed by an Officer of the Company or the holder or representative of
any class of Senior Indebtedness or any trustee or agent therefor; and prior to
the receipt of any such written notice, the Trustee shall, subject to Article
Six, be entitled to assume that no such facts exist; provided that, if the
Trustee shall not have received the notice provided for in this Section 1312 at
least two business days prior to the date upon which, by the terms of this
Indenture, any money shall become payable for any purpose (including, without
limitation, the payment of the principal or, premium, if any, or interest on any
Security), then notwithstanding anything herein to the contrary, the Trustee
shall have full power and authority to receive any money from the Company and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary that may be received by it on or after
such prior date except for an acceleration of the Securities prior to such
application. Nothing contained in this Section 1312 shall limit the right of the
holders of Senior Indebtedness to recover payments as contemplated by this
Article Thirteen.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a Person representing himself or itself to be a holder of
any Senior Indebtedness (or a trustee on behalf of, or other representative of,
such holder) to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Thirteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Thirteen.
SECTION 1313. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities
referred to in this Article Thirteen, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding up, liquidation or
reorganization proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person making
such payment or distribution, delivered to the Trustee or to the Holders for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Thirteen.
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SECTION 1314. Not to Prevent Events of Default.
The failure to make a payment on account of principal of,
premium, if any, or interest on the Securities by reason of any provision of
this Article Thirteen will not be construed as preventing the occurrence of an
Event of Default.
SECTION 1315. Trustee's Compensation Not Prejudiced.
Nothing in this Article Thirteen will apply to amounts due to
the Trustee pursuant to other sections of this Indenture.
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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:
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Title:
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Attest:
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,
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Trustee
By:
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Title:
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Attest:
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90