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EXHIBIT (h)(l)
FORM OF PURCHASE AGREEMENT
NEXTEL STRYPES TRUST
(a Delaware business trust)
PURCHASE AGREEMENT
Dated: March __, 1997
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TABLE OF CONTENTS
SECTION 1. Representations and Warranties................................... 4
(a) Representations and Warranties by the Trust...................... 4
(i) Compliance with Registration Requirements................... 4
(ii) Independent Accountants..................................... 5
(iii) Financial Statement....................................... 5
(iv) No Material Adverse Change in Business..................... 5
(v) Good Standing of the Trust; No Subsidiaries................. 5
(vi) Registration Under the 1940 Act............................ 6
(vii) Outstanding STRYPES....................................... 6
(viii) Authorization of Agreement............................... 6
(ix) Authorization and Description of the Securities............ 6
(x) Authorization of Fundamental Agreements..................... 6
(xi) Compliance with Acts....................................... 7
(xii) Description of Trust Agreement and Fundamental
Agreements.............................................. 7
(xiii) Absence of Defaults and Conflicts........................ 7
(xiv) Absence of Proceedings.................................... 7
(xv) No Investment Restrictions, etc............................ 8
(xvi) Exhibits.................................................. 8
(xvii) Absence of Further Requirements.......................... 8
(xviii) Title to Property....................................... 8
(xix) Compliance with Cuba Act.................................. 8
(b) Representations and Warranties by the Contracting
Stockholders..................................................... 8
(i) Authority.................................................. 9
(ii) Delivery of Nextel Common Stock............................ 9
(iii) Authorization of Agreement................................. 9
(iv) Authorization of the Forward Purchase Contract and the
Security and Pledge Agreement............................. 9
(v) Absence of Defaults and Conflicts.......................... 10
(vi) Absence of Further Requirements............................ 10
(vii) Trust Registration Statement and Prospectus................ 11
(viii)Nextel Registration Statement and Prospectus............... 11
(ix) Security and Pledge Agreement.............................. 12
(c) Officer's Certificates........................................... 12
SECTION 2. Sale and Delivery to Underwriters; Closing....................... 12
(a) Initial Securities............................................... 12
(b) Option Securities................................................ 12
(c) Payment.......................................................... 13
(d) Denominations; Registration...................................... 13
SECTION 3. Covenants........................................................ 13
(a) Covenants of the Trust........................................... 13
(i) Compliance with Securities Regulations and Commission
Requests................................................ 13
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(ii) Filing of Amendments................................. 14
(iii) Delivery of Trust Registration Statements............ 14
(iv) Delivery of Trust Prospectuses....................... 14
(v) Continued Compliance with Securities Laws............ 15
(vi) Blue Sky Qualifications.............................. 15
(vii) Rule 158............................................. 15
(viii) Use of Proceeds...................................... 16
(ix) Listing.............................................. 16
(x) Reporting Requirements............................... 16
(b) Covenants of the Contracting Stockholders..................... 16
(i) Restriction on Sale of Securities.................... 16
(ii) Purpose Statement.................................... 16
SECTION 4. Payment of Expenses........................................... 16
(a) Expenses Payable by the Contracting Stockholders.............. 16
(b) Termination of Agreement...................................... 17
(c) Allocation of Expenses........................................ 17
SECTION 5. Conditions.................................................... 17
(a) Conditions of Underwriters' Obligations.............. 17
(1) Effectiveness of Trust Registration Statement........ 17
(2) Effectiveness of Nextel Registration Statement....... 18
(3) Opinion of Counsel for Underwriters and Trust........ 18
(4) Opinion of Special Delaware Counsel for the Trust.... 18
(5) Opinion of Counsel for Nextel........................ 18
(6) Opinion of Counsel for the Contracting Stockholders.. 18
(7) Trustee's Certificate................................ 18
(8) Nextel Officers' Certificate......................... 19
(9) Certificates of Contracting Stockholders............. 19
(10) Nextel Accountant's Comfort Letter................... 19
(11) Nextel Bring-down Comfort Letter..................... 20
(12) Maintenance of Rating................................ 20
(13) Approval of Listing.................................. 20
(14) No Objection......................................... 20
(15) Lock-up Agreements................................... 20
(16) Fundamental Agreements............................... 20
(17) Conditions to Purchase of Option Securities.......... 20
(18) Additional Documents................................. 21
(b) Termination of Agreement...................................... 22
SECTION 6. Indemnification............................................... 22
(a) Indemnification of the Underwriters and the Trust by the
Contracting Stockholders...................................... 22
(b) Indemnification of the Trust.................................. 23
(c) Actions against Parties; Notification......................... 24
(d) Settlement without Consent if Failure to Reimburse............ 24
SECTION 7. Contribution.................................................. 24
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery...................................................... 26
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SECTION 9. Termination of Agreement........................ 26
(a) Termination; General............................ 26
(b) Liabilities..................................... 26
SECTION 10. Default be One or More Underwriters............. 26
SECTION 11. Notices......................................... 27
SECTION 12. Parties......................................... 27
SECTION 13. GOVERNING LAW AND TIME.......................... 28
SECTION 14. Effect of Headings.............................. 28
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Nextel STRYPES Trust
(a Delaware business trust)
STRYPES(SM)
Exchangeable for Shares of Class A Common Stock of Nextel Communications, Inc.
PURCHASE AGREEMENT
March __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Nextel STRYPES Trust (such trust and the trustees thereof acting in
their capacities as such being referred to herein as the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del.
(Sections 3801 et seq.)), and Cherrywood Holdings, Inc. and ▇▇▇▇▇▇ Investors,
L.L.C. (each, a "Contracting Stockholder" and, collectively, the "Contracting
Stockholders"), confirm their respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation and each of the other Underwriters
named in Schedule A hereto (collectively, the "Underwriters", which term shall
also include any underwriter substituted as provided in Section 10 hereof), for
whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation are
acting as representatives (in such capacity, the "Representatives"), with
respect to (i) the issue and sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of the
Trust's STRYPES* (each, a
--------
(SM) Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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"STRYPES") set forth in Schedule A hereto, and (ii) the grant by the Trust to
the Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of ___________ additional
STRYPES to cover over-allotments, if any. The aforesaid 7,168,587 STRYPES (the
"Initial Securities") to be purchased by the Underwriters pursuant to this
Agreement and all or any part of the ___________ STRYPES subject to the option
described in Section 2(b) hereof (the "Option Securities") are hereinafter
called, collectively, the "Securities." The Securities are to be issued pursuant
to an Amended and Restated Trust Agreement, dated as of February 27, 1997, among
the trustees of the Trust (the "Trustees") and ML IBK Positions, Inc. and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, as Sponsors (the "Trust
Agreement").
The STRYPES will be exchanged for a specified number or amount of each
type of security and other property constituting part of the Reference Property
(as defined in the Trust Agreement) or, in certain circumstances, cash, or a
combination of cash and Reference Property, with an equal value, upon conclusion
of the term of the Trust on ___________ __, 2000 (the "Exchange Date") or upon
earlier dissolution of the Trust in certain circumstances. The Trust, Nextel
Communications, Inc., a Delaware corporation ("Nextel"), and the Underwriters
are concurrently entering into an agreement, dated the date hereof (the
"Registration Agreement"), relating to the registration of shares of common
stock, par value $.001 per share (the "Nextel Common Stock"), of Nextel
deliverable upon exchange of the STRYPES.
The Trust and the Contracting Stockholders understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Trust has filed with the Securities and Exchange Commission (the
"Commission") (i) a notification on Form N-8A (the "Notification") of
registration of the Trust as an investment company; and (ii) a registration
statement on Form N-2 (Nos. 33-63795 and 811-7389) for the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
Pre-Effective Amendments ▇▇. ▇, ▇▇. ▇, ▇▇. ▇ and No. 4 thereto, including a
preliminary prospectus relating to the offering of the Securities. Promptly
after execution and delivery of this Agreement, the Trust will either (i)
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (h) of Rule 497 ("Rule 497(h)") of
the 1933 Act Regulations or (ii) if the Trust has elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Trust Term Sheet") in accordance with the provisions of Rule 434 and Rule
497(h). The information included in such prospectus or in such Trust Term Sheet,
as the case may be, that was omitted from such registration statement (as so
amended) at the time it became effective but that is deemed to be part of such
registration statement (as so amended) at the time it became effective (i)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (ii) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Any prospectus relating to the offering of the Securities used
before such registration statement (as so amended) became effective, and any
prospectus relating to the offering of the Securities that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, in each case excluding any Nextel Prospectus (as
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defined below) attached thereto, is herein called a "Trust preliminary
prospectus." Such registration statement (as so amended), including the exhibits
thereto and the schedules thereto, if any, at the time it became effective and
including the Rule 430A Information and the Rule 434 Information, as applicable,
is herein called the "Trust Registration Statement." Any registration statement
filed by the Trust pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Trust Rule 462(b) Registration Statement," and after such
filing the term "Trust Registration Statement" shall include the Trust Rule
462(b) Registration Statement. The final prospectus relating to the offering of
the Securities, excluding any Nextel Prospectus attached thereto, in the form
first furnished to the Underwriters for use in connection with the offering of
the Securities is referred to herein as the "Trust Prospectus." If Rule 434 is
relied on, the term "Trust Prospectus" shall refer to the Trust preliminary
prospectus dated February 14, 1997 together with the Trust Term Sheet and all
references in this Agreement to the date of the Trust Prospectus shall mean the
date of the Trust Term Sheet. For purposes of this Agreement, all references to
the Trust Registration Statement, any Trust preliminary prospectus, the Trust
Prospectus or any Trust Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
Nextel has filed with the Commission a registration statement on Form
S-3 (No. 333-21171), covering the resale under the 1933 Act of the shares of
Nextel Common Stock deliverable upon exchange of the Securities, and
Pre-Effective Amendment No. 1 thereto, including the related preliminary
prospectus or prospectuses. Each prospectus used before such registration
statement became effective is herein called a "Nextel preliminary prospectus."
Such registration statement, including the exhibits thereto, the schedules
thereto, if any, and the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act, at the time it became effective, is
herein called the "Nextel Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for
use in connection with the offering of the Securities is herein called the
"Nextel Prospectus." For purposes of this Agreement, all references to the
Nextel Registration Statement, any Nextel preliminary prospectus, the Nextel
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to ▇▇▇▇▇.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the Nextel
Registration Statement, any Nextel preliminary prospectus or the Nextel
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is incorporated by reference in the Nextel Registration Statement, any Nextel
preliminary prospectus or the Nextel Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Nextel
Registration Statement, any Nextel preliminary prospectus or the Nextel
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is
incorporated by reference in the Nextel Registration Statement, such Nextel
preliminary prospectus or the Nextel Prospectus, as the case may be.
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Prior to the closing under this Agreement, the Trust and the
Contracting Stockholders will enter into a forward purchase contract (the
"Forward Purchase Contract"), pursuant to which the Contracting Stockholders
will agree to sell and the Trust will agree to purchase, immediately prior to
the Exchange Date, the Reference Property required by the Trust to exchange all
of the Securities on the Exchange Date as described in the Trust Prospectus,
subject to Contracting Stockholders' rights, to the extent permitted by
applicable law, to satisfy their respective obligations thereunder in whole or
in part through cash payment in lieu of delivery of all or a part of the
Reference Property (the "Forward Purchase"). Each Contracting Stockholder's
obligations under the Forward Purchase Contract will be secured by a pledge of
collateral pursuant to the terms of a security and pledge agreement among the
Contracting Stockholders, the Trust and The Bank of New York, as collateral
agent (the "Security and Pledge Agreement") thereunder for the benefit of the
Trust.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Trust. The Trust represents
and warrants to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. Each of the
Trust Registration Statement and any Trust Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Trust Registration Statement or any
Trust Rule 462(b) Registration Statement pursuant to Section 8(d) of
the 1933 Act, or order pursuant to Section 8(e) of the Investment
Company Act of 1940, as amended (the "1940 Act"), has been issued and
no proceedings for either such purpose have been instituted or are
pending or, to the knowledge of the Trust, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Trust Registration Statement, any
Trust Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery), the
Notification, the Trust Registration Statement, the Trust Rule 462(b)
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and the 1940 Act and the
rules and regulations of the Commission under the 1940 Act (the "1940
Act Regulations"), and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. Neither the Trust Prospectus nor any amendments or
supplements thereto, at the time the Trust Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If Rule 434 is used, the Trust will comply with the
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requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the Trust
Registration Statement (or any amendments or supplements thereto) or
the Trust Prospectus (or any amendments or supplements thereto) made in
reliance upon and in conformity with information furnished to the Trust
in writing by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use
in the Trust Registration Statement (or any amendments or supplements
thereto) or Trust Prospectus (or any amendments or supplements
thereto).
Each Trust preliminary prospectus and the prospectus relating
to the offering of the Securities filed as part of the Trust
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 497 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act Regulations
and the 1940 Act Regulations, and, if applicable, each Trust
preliminary prospectus and the Trust Prospectus delivered to the
Underwriters for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified
certain financial statements and supporting schedules included in the
Trust Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statement. The statement of assets,
liabilities and capital included in the Trust Registration Statement
and the Trust Prospectus, together with the notes thereto, present
fairly the financial position of the Trust at the date indicated; said
financial statement has been prepared in conformity with generally
accepted accounting principles.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Trust
Registration Statement and the Trust Prospectus, except as otherwise
stated therein or contemplated thereby, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs, business prospects, management, investment
objectives or investment policies of the Trust, whether or not arising
in the ordinary course of business (a "Material Adverse Effect") and
(B) there have been no transactions entered into by the Trust, other
than those in the ordinary course of business, which are material with
respect to the Trust.
(v) Good Standing of the Trust; No Subsidiaries. The Trust has
been duly created and is validly existing as a business trust in good
standing under the Delaware Act with power and authority to own its
properties and to conduct its business as described in the Trust
Prospectus and to enter into and perform its obligations under this
Agreement, the Trust Agreement and the Forward Purchase Contract; the
Trust is and will, under current law, be classified for United States
federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust has no
subsidiaries.
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(vi) Registration Under the 1940 Act. The Trust is registered
with the Commission as a non-diversified, closed-end management
investment company under the 1940 Act. No order of suspension or
revocation of such registration has been issued or proceedings therefor
initiated or, to the knowledge of the Trust, threatened by the
Commission. No person is serving or acting as an officer or trustee of
the Trust, except in accordance with the provisions of the 1940 Act.
(vii) Outstanding STRYPES. All of the outstanding STRYPES have
been duly and validly authorized and issued and are fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust; and the form of certificate used to evidence the STRYPES is in
due and proper form and complies with all provisions of applicable law.
(viii) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Trust.
(ix) Authorization and Description of the Securities. The
Securities have been duly authorized by the Trust for issuance and sale
to the Underwriters pursuant to this Agreement and, when issued and
delivered by the Trust pursuant to this Agreement against payment of
the purchase price therefor as provided herein, will be validly issued
and fully paid and non-assessable undivided beneficial interests in the
assets of the Trust; the STRYPES conform to all statements relating
thereto contained in the Trust Prospectus and such description conforms
to the rights set forth in the instruments defining the same; no holder
of the Securities will be subject to personal liability by reason of
being such a holder; and the issuance of the Securities is not subject
to the preemptive or other similar rights of any securityholder of the
Trust.
(x) Authorization of Fundamental Agreements. Each of the
Forward Purchase Contract, the Security and Pledge Agreement, the
Administration Agreement, dated March __, 1997, between the Trust and
The Bank of New York ("BONY") (the "Administration Agreement"), the
Custodian Agreement, dated February __, 1997, between the Trust and
BONY (the "Custodian Agreement"), the Paying Agent Agreement, dated
March __, 1997, between the Trust and BONY (the "Paying Agent
Agreement") and the Fund Indemnity Agreement, dated March __, 1997,
between the Trust and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc. (the "Fund Indemnity
Agreement"), (the Forward Purchase Contract, the Security and Pledge
Agreement, the Administration Agreement, the Custodian Agreement, the
Paying Agent Agreement and the Fund Indemnity Agreement are
collectively referred to herein as the "Fundamental Agreements"), has
been duly authorized by the Trust and, at the Closing Time, will have
been duly executed and delivered by the Trust and (assuming the due
authorization, execution and delivery by the other parties thereto)
will constitute a valid and binding agreement of the Trust, enforceable
against the Trust in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject
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to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xi) Compliance with Acts. The Trust Agreement and the
Fundamental Agreements comply with all applicable provisions of the
1933 Act and the 1940 Act, and all approvals of such documents required
under the 1940 Act by the holders of the STRYPES and the Trustees have
been obtained and are in full force and effect.
(xii) Description of Trust Agreement and Fundamental
Agreements. The Trust Agreement and the Fundamental Agreements will
conform in all material respects to the respective statements relating
thereto contained in the Trust Prospectus and, to the extent forms
thereof were filed as exhibits to the Trust Registration Statement,
will be in substantially the respective forms so filed.
(xiii) Absence of Defaults and Conflicts. The execution,
delivery and performance by the Trust of this Agreement and each
Fundamental Agreement and the consummation of the transactions
contemplated herein, therein and in the Trust Registration Statement
(including the issuance and sale of the Securities and the delivery of
the Reference Property in exchange therefor, the consummation of the
Forward Purchase and the use of the proceeds from the sale of the
Securities as described in the Trust Prospectus under the caption "Use
of Proceeds") and compliance by the Trust with its obligations
hereunder, under the Securities and under each Fundamental Agreement do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Trust is a party or by which it
may be bound, or to which any of the property or assets of the Trust is
subject (collectively, "Agreements and Instruments") (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the Trust Agreement or the
restated trust certificate of the Trust filed with the State of
Delaware on February __, 1997 or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Trust or any of its assets or properties. As used
herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness of
the Trust (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Trust.
(xiv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Trust, threatened, against or affecting the Trust,
which is required to be disclosed in the Trust Registration Statement
(other than as disclosed therein), or which might, individually or in
the aggregate,
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reasonably be expected to result in a Material Adverse Effect, or which
might, individually or in the aggregate, reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
Fundamental Agreements (including the issuance and sale of the
Securities and the delivery of the Reference Property in exchange
therefor and the consummation of the Forward Purchase) or the
performance by the Trust of its obligations hereunder or thereunder;
the aggregate of all pending legal or governmental proceedings to which
the Trust is a party or of which any of its property or assets is the
subject which are not described in the Trust Registration Statement,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(xv) No Investment Restrictions, etc. There are no material
restrictions, limitations or regulations with respect to the ability of
the Trust to invest its assets as described in the Trust Prospectus,
other than as described therein.
(xvi) Exhibits. There are no contracts or documents which are
of a character required to be described in the Trust Registration
Statement or the Trust Prospectus or to be filed as exhibits thereto
which have not been so described or filed as required.
(xvii) Absence of Further Requirements. No declaration or
filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the Trust to own and
use its assets and to conduct its business in the manner described in
the Trust Prospectus or for the performance by the Trust of its
obligations under this Agreement, the Trust Agreement or any
Fundamental Agreement or the consummation by the Trust of the
transactions contemplated herein or therein (including the issuance and
sale of the Securities and the delivery of the Reference Property in
exchange therefor and the consummation of the Forward Purchase), except
such as have been already obtained or as may be required under the 1933
Act or the 1933 Act Regulations or state securities laws.
(xviii) Title to Property. The Trust has good title to all
properties owned by it, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (A) are described in the Trust
Prospectus or (B) do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Trust.
(xix) Compliance with Cuba Act. The Trust has complied with,
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulation thereunder (collectively, the "Cuba Act") or is exempt
therefrom.
(b) Representations and Warranties by the Contracting Stockholders.
Each Contracting Stockholder severally represents and warrants to each of the
Underwriters and the
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Trust as of the date hereof, as of the Closing Time referred to in Section 2(c)
hereof, and as of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agrees with each of the Underwriters and the Trust, as follows:
(i) Authority. Such Contracting Stockholder has the full
right, power and authority to enter into this Agreement, the Forward
Purchase Contract and the Security and Pledge Agreement, to pledge and
assign the shares of Nextel Common Stock to be pledged and assigned by
such Contracting Stockholder pursuant to the Security and Pledge
Agreement, and to sell, transfer and deliver the shares of Nextel
Common Stock to be sold by such Contracting Stockholder pursuant to the
Forward Purchase Contract.
(ii) Delivery of Nextel Common Stock. Such Contracting
Stockholder is the sole registered owner of and has, and at the Closing
Time (and, if any Option Securities are purchased, at the Date of
Delivery) will have, all rights in and to the shares of Nextel Common
Stock to be pledged and assigned by such Contracting Stockholder
pursuant to the Security and Pledge Agreement, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity, other than those created pursuant to the Security and Pledge
Agreement. If immediately prior to the Exchange Date such Contracting
Stockholder delivers to the Trust shares of Nextel Common Stock
pursuant to the Forward Purchase Contract, upon delivery by such
Contracting Stockholder to the Trust of the shares of Nextel Common
Stock to be sold by such Contracting Stockholder pursuant to the
Forward Purchase Contract, assuming the Trust purchased for value in
good faith and without notice of any adverse claim, the Trust will have
acquired all rights in and to such shares of Nextel Common Stock, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. The sale, transfer and delivery of shares
of Nextel Common Stock by such Contracting Stockholder to the Trust as
contemplated by the Forward Purchase Contract is not, and at the time
of delivery of such shares will not be, subject to any right of first
refusal or similar rights of any person pursuant to any contract to
which such Contracting Stockholder or any subsidiary of such
Contracting Stockholder is a party or by which any of them is bound.
(iii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by such Contracting Stockholder.
(iv) Authorization of the Forward Purchase Contract and the
Security and Pledge Agreement. Each of the Forward Purchase Contract
and the Security and Pledge Agreement has been duly authorized by such
Contracting Stockholder and, at the Closing Time, will have been duly
executed and delivered by such Contracting Stockholder and (assuming
the due authorization, execution and delivery by the other parties
thereto) will constitute a valid and binding agreement of such
Contracting Stockholder, enforceable against such Contracting
Stockholder in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law). Amounts received by such
Contracting
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Stockholder at Closing Time and at each Date of Delivery, if any,
pursuant to the Forward Purchase Contract will not be used by such
Contracting Stockholder for the purpose, whether immediate, incidental
or ultimate, of buying or carrying a margin stock, as such terms are
defined in Regulation G promulgated by the Board of Governors of the
Federal Reserve System.
(v) Absence of Defaults and Conflicts. The execution, delivery
and performance by such Contracting Stockholder of this Agreement, the
Forward Purchase Contract and the Security and Pledge Agreement and the
consummation by such Contracting Stockholder of the transactions
contemplated herein and therein and compliance by such Contracting
Stockholder with its obligations hereunder and thereunder do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Stockholder Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of such Contracting Stockholder or any subsidiary of
such Contracting Stockholder pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument to which such Contracting Stockholder or
any subsidiary of such Contracting Stockholder is a party or by which
it or any of them may be bound, or to which any of the property or
assets of such Contracting Stockholder or any subsidiary of such
Contracting Stockholder is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not, singly or
in the aggregate, materially and adversely affect the ability of such
Contracting Stockholder to perform its obligations under this
Agreement, the Forward Purchase Contract or the Security and Pledge
Agreement), nor will such action result in any violation of any
applicable law, statute, rule or regulation of any government or
government instrumentality having jurisdiction over such Contracting
Stockholder or any subsidiary of such Contracting Stockholder or any of
their assets, properties or operations (other than any state securities
or "blue sky" law, statute, rule or regulation, as to which no
representation and warranty is made), or any applicable judgment,
order, writ or decree of any government, government instrumentality or
domestic court having jurisdiction over such Contracting Stockholder or
any subsidiary of such Contracting Stockholder or any of their assets,
properties or operations (except in all cases for such violations that
would not, singly or in the aggregate, materially and adversely affect
the ability of such Contracting Stockholder to perform its obligations
under this Agreement, the Forward Purchase Contract or the Security and
Pledge Agreement). As used herein, a "Stockholder Repayment Event" with
respect to any Contracting Stockholder means any event or condition
which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by such Contracting Stockholder or any subsidiary
of such Contracting Stockholder.
(vi) Absence of Further Requirements. No declaration or filing
with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the execution,
delivery or performance by such Contracting Stockholder of this
Agreement, the Forward
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Purchase Contract or the Security and Pledge Agreement or the
consummation by such Contracting Stockholder of the transactions
contemplated herein or therein, except such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws.
(vii) Trust Registration Statement and Prospectus. At the
respective times the Trust Registration Statement, any Trust Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Notification, the Trust
Registration Statement, the Trust Rule 462(b) Registration Statement
and any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1940 Act and the 1940 Act Regulations, and
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither the
Trust Prospectus nor any amendments or supplements thereto, at the time
the Trust Prospectus or any such amendment or supplement was issued and
at the Closing Time (and, if any Option Securities are purchased, at
the Date of Delivery), included or will include an untrue statement of
a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Trust Registration Statement (or
any amendments or supplements thereto) or the Trust Prospectus (or any
amendments or supplements thereto) made in reliance upon and in
conformity with information furnished to the Trust in writing by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Trust
Registration Statement (or any amendments or supplements thereto) or
Trust Prospectus (or any amendments or supplements thereto).
Each Trust preliminary prospectus and the prospectus relating
to the offering of the Securities filed as part of the Trust
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 497 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act Regulations
and the 1940 Act Regulations.
(viii) Nextel Registration Statement and Prospectus. The
Nextel Registration Statement and any post-effective amendments
thereto, at the respective times the Nextel Registration Statement and
any post-effective amendments thereto became effective, did not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Nextel Prospectus or any amendment or
supplement thereto, at the time the Nextel Prospectus was issued, at
the time any such amended or supplemented prospectus was issued or at
the Closing Time (and, if any Option Securities are purchased, at the
Date of Delivery), did not and will not include an untrue statement of
a material fact and did not and will not omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall apply only to
statements in or
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omissions from the Nextel Registration Statement (or any amendment
thereto) or the Nextel Prospectus (or any amendment or supplement
thereto) made in reliance upon and in conformity with information
furnished to Nextel in writing by such Contracting Stockholder
expressly for use in the Nextel Registration Statement (or any
amendment thereto) or the Nextel Prospectus (or any amendment or
supplement thereto).
(ix) Security and Pledge Agreement. The representations and
warranties of such Contracting Stockholder set forth in Section 8(a) of
the Security and Pledge Agreement are true and correct on and as of the
date hereof with the same effect as though such representations and
warranties had been set forth in full in this Agreement.
(c) Officer's Certificates. Any certificate signed by any Trustee of
the Trust delivered to the Representatives or counsel for the Underwriters shall
be deemed a representation and warranty by the Trust to the Underwriters as to
the matters covered thereby. Any certificate signed by or on behalf of any
Contracting Stockholder delivered to the Representatives or counsel to the
Underwriters or to the Trust or counsel to the Trust shall be deemed a
representation and warranty by such Contracting Stockholder to the Underwriters
or the Trust, as the case may be, as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Trust, at the price per STRYPES set forth in Schedule B, the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter, plus
any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Trust hereby grants an option to the Underwriters, severally and
not jointly, to purchase up to an additional _________ STRYPES at the price per
STRYPES set forth in Schedule B. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Securities upon notice by the
Representatives to the Trust setting forth the number of Option Securities as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and date
of delivery (a "Date of Delivery") shall be determined by the Representatives,
but shall not be later than seven full business days (or, in the case of any
exercise of said option by notice given after the Closing Time (as hereinafter
defined), earlier than two full business days) after the exercise of said
option, nor in any event prior to the Closing Time. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of Option Securities then being purchased which the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter bears
to the total number of Initial
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Securities, subject in each case to such adjustments as the Representatives in
their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇ &
Wood LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other
place as shall be agreed upon by the Representatives and the Trust, at 9:00 A.M.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof, or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Trust (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that any
or all of the Option Securities are purchased by the Underwriters, payment of
the purchase price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Representatives and the Trust, on each Date of Delivery as
specified in the notice from the Representatives to the Trust.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants.
(a) Covenants of the Trust. The Trust covenants with each Underwriter
as follows:
(i) Compliance with Securities Regulations and Commission
Requests. The Trust, subject to Section 3(a)(ii), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Representatives immediately, and confirm the notice in writing, (A)
when any post-effective amendment to the Trust Registration Statement
shall become effective, or any supplement to the Trust Prospectus or
any amended Trust Prospectus shall have been filed, (B) of the receipt
of any comments from the Commission, (C) of any request by the
Commission for any amendment to the Trust
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Registration Statement or any amendment or supplement to the Trust
Prospectus or for additional information, and (D) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Trust Registration Statement or of any order preventing or suspending
the use of any Trust preliminary prospectus or any order pursuant to
Section 8(e) of the 1940 Act, or of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes.
The Trust will promptly effect the filings necessary pursuant to Rule
497(h) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under
Rule 497(h) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Trust will
make every reasonable effort to prevent the issuance of any stop order
pursuant to Section 8(d) of the 1933 Act or any order pursuant to
Section 8(e) of the 1940 Act and, if any such order is issued, to
obtain the lifting thereof at the earliest possible moment.
(ii) Filing of Amendments. The Trust will give the
Representatives notice of its intention to file or prepare any
amendment to the Trust Registration Statement (including any filing
under Rule 462(b)), any Trust Term Sheet or any amendment, supplement
or revision to either the prospectus relating to the offering of the
Securities included in the Trust Registration Statement at the time it
became effective or to the Trust Prospectus, whether pursuant to the
1933 Act, the 1940 Act or otherwise, will furnish the Representatives
with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(iii) Delivery of Trust Registration Statements. The Trust has
furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Trust Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will
also deliver to the Representatives, without charge, a conformed copy
of the Trust Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. If
applicable, the copies of the Trust Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(iv) Delivery of Trust Prospectuses. The Trust has delivered
to each Underwriter, without charge, as many copies of each Trust
preliminary prospectus as such Underwriter reasonably requested, and
the Trust hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Trust will furnish to each Underwriter,
without charge, during the period when the Trust Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Trust Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. If applicable, the Trust Prospectus
and any amendments or supplements thereto furnished
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to the Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to
the extent permitted by Regulation S-T.
(v) Continued Compliance with Securities Laws. The Trust will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations, and the 1940 Act and the 1940 Act Regulations
so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Trust Prospectus. If at any
time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Trust, to amend the
Trust Registration Statement or amend or supplement the Trust
Prospectus in order that the Trust Prospectus will not include any
untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such
counsel, at any such time to amend the Trust Registration Statement or
amend or supplement the Trust Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations or the 1940
Act or the 1940 Act Regulations, the Trust will promptly prepare and
file with the Commission, subject to Section 3(a)(ii), such amendment
or supplement as may be necessary to correct such statement or omission
or to make the Trust Registration Statement or the Trust Prospectus
comply with such requirements, and the Trust will furnish to the
Underwriters such number of copies of such amendment or supplement as
the Underwriters may reasonably request.
(vi) Blue Sky Qualifications. The Trust will use its best
efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions of the United States as the
Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Trust Registration Statement and any Trust Rule
462(b) Registration Statement; provided, however, that the Trust shall
not be obligated to file any general consent to service of process or
to qualify as a foreign trust or association or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Trust
will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period
of not less than one year from the effective date of the Trust
Registration Statement and any Trust Rule 462(b) Registration
Statement.
(vii) Rule 158. The Trust will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
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(viii) Use of Proceeds. The Trust will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Trust Prospectus under "Use of Proceeds."
(ix) Listing. The Trust will use its best efforts to effect
and maintain the listing of the Securities on the American Stock
Exchange.
(x) Reporting Requirements. The Trust, during the period when
the Trust Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations and all documents required to
be filed with the Commission pursuant to the 1940 Act within the time
periods required by the 1940 Act and the 1940 Act Regulations.
(b) Covenants of the Contracting Stockholders. Each Contracting
Stockholder covenants with each Underwriter and the Trust as follows:
(i) Restriction on Sale of Securities. During a period of 90
days from the date of the Trust Prospectus, such Contracting
Stockholder will not, without the prior written consent of the ▇▇▇▇▇▇▇
▇▇▇▇▇, (x) offer, sell, contract to sell or otherwise dispose of,
directly or indirectly, any shares of Nextel Common Stock, securities
convertible into, exchangeable for or repayable with shares of Nextel
Common Stock, or rights or warrants to acquire shares of Nextel Common
Stock, or (y) cause to be filed any registration statement under the
1933 Act with respect to any shares of Nextel Common Stock, securities
convertible into, exchangeable for or repayable with shares of Nextel
Common Stock, or rights or warrants to acquire shares of Nextel Common
Stock. The foregoing sentence shall not apply to the execution and
delivery by such Contracting Stockholder of the Forward Purchase
Contract or the consummation by such Contracting Stockholder of the
transactions contemplated therein.
(ii) Purpose Statement. At or prior to Closing Time, such
Contracting Stockholder will deliver to the Trust a duly executed
purpose statement on Form F. R. G-3 of the Board of Governors of the
Federal Reserve System.
SECTION 4. Payment of Expenses. (a) Expenses Payable by the Contracting
Stockholders. The Contracting Stockholders, jointly and severally, will pay all
expenses incident to the performance by the Trust and each Contracting
Stockholder of their respective obligations under this Agreement and the
Registration Agreement, including (i) the preparation, printing and filing of
the Notification and the Trust Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii)
the preparation, printing and delivery to the Underwriters of this Agreement,
the Forward Purchase Contract and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, (iv) the fee's and disbursements of the
Trust's counsel, accountants and other advisors, (v) the fees and disbursements
of the Contracting Stockholders' counsel and other advisors, (vi) the
qualification of the Securities under securities laws in
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accordance with the provisions of Section 3(a)(vi) hereof, including filing fees
and the reasonable fees and disbursements of the counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vii) the printing and delivery to the
Underwriters of copies of each Trust preliminary prospectus, any Trust Term
Sheets and of the Trust Prospectus and any amendments or supplements thereto,
(viii) the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (ix) the fees and expenses of
any transfer agent or registrar for Securities, (x) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, securing any required review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Securities
and (xi) the fees and expenses incurred in connection with the listing of the
Securities on the American Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Contracting Stockholders, jointly and severally, shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
(c) Allocation of Expenses. The provisions of this Section 4 shall not
affect any agreement that the Contracting Stockholders may make for the sharing
of the costs and expenses to be borne by them pursuant to this Section 4.
SECTION 5. Conditions.
(a) Conditions of Underwriters' Obligations. The obligations
of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Trust and the Contracting Stockholders
contained in Sections 1(a) and 1(b) hereof, respectively, to the accuracy of the
representations and warranties of Nextel contained in the Registration
Agreement, to the accuracy of the statements in certificates of any Trustee of
the Trust, any officer of Nextel or by or on behalf of any Contracting
Stockholder delivered pursuant to the provisions hereof, to the performance by
the Trust and the Contracting Stockholders of their respective covenants and
other obligations hereunder, to the performance by Nextel of its covenants and
other obligations under the Registration Agreement, and to the following further
conditions:
(1) Effectiveness of Trust Registration Statement. The Trust
Registration Statement, including any Trust Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the Trust Registration Statement
pursuant to Section 8(d) of the 1933 Act, or order pursuant to Section
8(e) of the 1940 Act, shall have been issued and no proceedings
therefor shall have been initiated or threatened by the Commission, and
any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of counsel
to the Underwriters. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule
497(h) (or a post-effective amendment providing such information shall
have been filed and declared effective in
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accordance with the requirements of Rule 430A) or, if the Trust has
elected to rely upon Rule 434, a Trust Term Sheet shall have been filed
with the Commission in accordance with Rule 497(h).
(2) Effectiveness of Nextel Registration Statement. The Nextel
Registration Statement has become effective and at Closing Time no stop
order suspending the effectiveness of the Nextel Registration Statement
shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied
with to the reasonable satisfaction of counsel to the Underwriters.
(3) Opinion of Counsel for Underwriters and Trust. At Closing
Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters and the Trust, together with signed or reproduced copies
of such letter for each of the other Underwriters, with respect to such
matters as the Representatives may reasonably request. In giving such
opinion such counsel may rely, as to all matters governed by the laws
of jurisdictions other than the law of the State of New York and the
federal law of the United States, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of public officials.
(4) Opinion of Special Delaware Counsel for the Trust. At
Closing Time, the Representatives shall have received the favorable
opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
special Delaware counsel for the Trust, in form and substance
reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters.
(5) Opinion of Counsel for Nextel. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for Nextel, in
form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters.
(6) Opinion of Counsel for the Contracting Stockholders. At
Closing Time, the Representatives shall have received the favorable
opinion, dated as of Closing Time, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel for the
Contracting Stockholders, in form and substance reasonable satisfactory
to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters.
(7) Trustee's Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the Trust Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs, business prospects, management, investment
objectives or investment policies of the Trust, whether or not arising
in the ordinary course of business, and the Representatives shall have
received a certificate of the Trust
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Administrator, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same
force and effect as though expressly made at and as of Closing Time,
(iii) the Trust has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of
the Trust Registration Statement pursuant to Section 8(d) of the 1933
Act, or order pursuant to Section 8(e) of the 1940 Act, has been issued
and no proceedings for that purpose have been instituted or are pending
or are contemplated by the Commission.
(8) Nextel Officers' Certificate. At Closing Time, there shall
not have been, since the date hereof or since the respective dates as
of which information is given in the Nextel Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of Nextel and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of Nextel
and of the chief financial or chief accounting officer of Nextel, dated
as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties of
Nextel contained in Section 1(a) of the Registration Agreement are true
and correct with the same force and effect as though expressly made at
and as of Closing Time, (iii) Nextel has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time pursuant to the Registration Agreement, and
(iv) no stop order suspending the effectiveness of the Nextel
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of their knowledge, are
pending or are contemplated by the Commission.
(9) Certificates of Contracting Stockholders. At Closing Time,
the Representatives shall have received a certificate by or on behalf
of each Contracting Stockholder, dated as of Closing Time, to the
effect that (i) the representations and warranties of such Contracting
Stockholder contained in Section 1(b) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing
Time and (ii) such Contracting Stockholder has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time.
(10) Nextel Accountant's Comfort Letter. At the time of the
execution of this Agreement, the Representatives shall have received
from Deloitte & Touche LLP a letter dated such date, in form and
substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Nextel Registration Statement and the
Nextel Prospectus.
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(11) Nextel Bring-down Comfort Letter. At Closing Time, the
Representatives shall have received from Deloitte & Touche LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished by them pursuant to Section
5(a)(10) hereof, except that the "specified date" referred to shall be
a date not more than three business days prior to Closing Time.
(12) Maintenance of Rating. Since the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to
any of Nextel's debt securities or preferred stock by any "nationally
recognized statistical rating agency," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no
such organization shall have publicly announced that it has under
surveillance or review its rating of any of Nextel's debt securities or
preferred stock.
(13) Approval of Listing. At Closing Time, the Securities
shall have been approved for listing on the American Stock Exchange,
subject only to official notice of issuance.
(14) No Objection. The NASD shall not have raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(15) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received an agreement substantially in the
form of Exhibit A hereto signed by each of the persons and entities
listed on Schedule C hereto.
(16) Fundamental Agreements. Each Fundamental Agreement shall
have been executed and delivered by all parties thereto, and each
Contracting Stockholder shall have delivered to the Collateral Agent
the number of shares of Nextel Common Stock required by the Security
and Pledge Agreement to be initially pledged and assigned by such
Contracting Stockholder thereunder in accordance with the requirements
of the Security and Pledge Agreement.
(17) Conditions to Purchase of Option Securities. In the event
that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Trust and the Contracting
Stockholders contained herein, the representations and warranties of
Nextel contained in the Registration Agreement and the statements in
any certificates furnished by the Trust, Nextel or the Contracting
Stockholders hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives
shall have received:
(A) Trustee's Certificate. A certificate, dated such Date of
Delivery, of the Trust Administrator confirming that the
certificate delivered at Closing Time pursuant to Section
5(a)(7) hereof is true and correct as of such Date of
Delivery.
(B) Nextel Officers' Certificate. A certificate, dated such
Date of Delivery, of the President or a Vice President of
Nextel and of the chief financial or chief
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accounting officer of Nextel confirming that the certificate
delivered at Closing Time pursuant to Section 5(a)(8) hereof
is true and correct as of such Date of Delivery.
(C) Certificates of Contracting Stockholders. Certificates,
dated such Date of Delivery, by or on behalf of each
Contracting Stockholder confirming that the certificate
delivered at Closing Time pursuant to Section 5(a)(9) hereof
is true and correct as of such Date of Delivery.
(D) Opinion of Counsel for Underwriters and Trust. The
favorable opinion of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters and the Trust, in form and substance satisfactory
to the Representatives, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion
delivered pursuant to Section 5(a)(3) hereof.
(E) Opinion of Special Delaware Counsel for the Trust. The
favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special
Delaware counsel for the Trust, in form and substance
satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as
the opinion delivered pursuant to Section 5(a)(4) hereof.
(F) Opinion of Counsel for Nextel. The favorable opinion of
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for Nextel, in form and
substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery, to the same effect as the opinion
delivered pursuant to Section 5(a)(5) hereof.
(G) Opinion of Counsel for the Contracting Stockholders. The
favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel for the
Contracting Stockholders, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery,
to the same effect as the opinion delivered pursuant to
Section 5(a)(6) hereof.
(H) Nextel Bring-down Comfort Letter. A Letter from Deloitte &
Touche LLP, in form and substance satisfactory to counsel for
the Underwriters and dated such Date of Delivery,
substantially the same in form and substance as the letter
furnished to the Underwriters pursuant to Section 5(a)(11)
hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery.
(18) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, contained
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herein or in the Registration Agreement; and all proceedings taken by
the Trust in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(b) Termination of Agreement. If any condition specified in subsection
(a) of this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase of
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the Underwriters to purchase the relevant Option Securities, may
be terminated by the Representatives by notice to the Trust and the Contracting
Stockholders at any time at or prior to Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that Sections 1,
6, 7 and 8 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of the Underwriters and the Trust by the
Contracting Stockholders. The Contracting Stockholders, jointly and severally,
agree to indemnify and hold harmless each Underwriter, the Trust and each
person, if any, who controls any Underwriter or the Trust within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Trust
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Trust preliminary
prospectus or the Trust Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Nextel
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Nextel preliminary prospectus or the
Nextel Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
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(iii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, referred to
under (i) or (ii) above; provided that (subject to Section 6(d) below)
any such settlement is effected with the written consent of the
Contracting Stockholders; and
(iv) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, referred to under (i) or
(ii) above, to the extent that any such expense is not paid under (i),
(ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with (A) written information furnished to the Trust by
any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Trust
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any Trust
preliminary prospectus or the Trust Prospectus (or any amendment or supplement
thereto) or (B) written information furnished to the Nextel by any Underwriter
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Nextel Registration Statement (or
any amendment thereto) or any Nextel preliminary prospectus or the Nextel
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of the Trust and the Contracting Stockholders. Each
Underwriter severally agrees to indemnify and hold harmless the Trust, each
Contracting Stockholder, each person, if any, who controls the Trust or any
Contracting Stockholder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a)(i) or (a)(ii)
of this Section, as incurred, but only with respect to (A) untrue statements or
omissions, or alleged untrue statements or omissions, made in the Trust
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any Trust
preliminary prospectus or the Trust Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Trust by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Trust Registration Statement (or any amendment thereto) or such Trust
preliminary prospectus or the Trust Prospectus (or any amendment or supplement
thereto) or (B) untrue statements or omissions, or alleged untrue statements or
omissions, made in the Nextel Registration Statement (or any amendment thereto)
or any Nextel preliminary prospectus or the Nextel Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to Nextel by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇
expressly for use in the Nextel Registration Statement (or any amendment
thereto) or any Nextel preliminary prospectus or the Nextel Prospectus (or any
amendment or supplement thereto).
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(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder which it may have otherwise than
on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Contracting Stockholders. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(iii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Trust and the
Contracting Stockholders on the one hand and the Underwriters on the other hand
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Trust and the
Contracting Stockholders on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions which
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resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Trust and the Contracting
Stockholders on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be such that the Underwriters shall be responsible for that portion
of the aggregate amount of such losses, liabilities, claims, damages and
expenses represented by the percentage that the total underwriting discount
received by the Underwriters as set forth on the cover of the Trust Prospectus,
or, if Rule 434 is used, the corresponding location on the Trust Term Sheet,
bears to the aggregate initial public offering price of the Securities as set
forth on such cover and the Contracting Stockholders jointly shall be
responsible for the balance. The relative fault of the Trust and the Contracting
Stockholders on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Trust or the
Contracting Stockholders on the one hand or by the Underwriters on the other
hand and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
The Trust, the Contracting Stockholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Trust or any Contracting Stockholder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Trust or such Contracting
Stockholder, as the case may be. The Underwriters' respective obligations to
contribute
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pursuant to this Section 7 are several in proportion to the number of Securities
set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of the Trust, Nextel or any Contracting Stockholder
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or
controlling persons, or by or on behalf of the Trust or the Contracting
Stockholders, and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Trust and the Contracting Stockholders, at any time
at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given
in the Trust Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs, business prospects,
management, investment objectives or investment policies of the Trust, whether
or not arising in the ordinary course of business, or (ii) if there has been,
since the time of execution of this Agreement, or since the respective dates as
of which information is given in the Nextel Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of Nextel and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (iii)
if there has occurred any material adverse change in the financial markets in
the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iv) if trading in the Securities or in the
Nextel Common Stock has been suspended or limited by the Commission or the
Nasdaq Stock Market, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the NASD or any other governmental authority, or
(v) if a banking moratorium has been declared by either federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More Underwriters. If one or more of the
Underwriters shall fail at Closing Time or a Date of Delivery to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not
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less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Trust
to sell the Option Securities to be purchased and sold on such Date of
Delivery, shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, either the Representatives or the Trust shall have the right
to postpone Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Trust Registration Statement or Trust Prospectus or in any other documents
or arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇; notices
to the Trust shall be directed to it c/o Puglisi & Associates, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and
notices to the Contracting Stockholders shall be directed to them c/o Telcom
Ventures, L.L.C., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of [__________].
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Trust and the Contracting Stockholders
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their
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respective successors, and said controlling persons and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust and the Contracting Stockholders
a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters, the Trust and the
Contracting Stockholders in accordance with its terms.
Very truly yours,
NEXTEL STRYPES TRUST
____________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Managing Trustee
CHERRYWOOD HOLDINGS, INC.
By _________________________________________
Name:
Title:
▇▇▇▇▇▇ INVESTORS, L.L.C.
By _________________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By__________________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
29
34
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.............................
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation....
---------
Total .................................. 7,168,587
=========
Sch A - 1
35
SCHEDULE B
NEXTEL STRYPES TRUST
STRYPES(SM)
1. The initial public offering price of the Securities shall be $ per
STRYPES.
2. The purchase price for the Securities to be paid by the Underwriters
shall be $ per STRYPES, being an amount equal to the initial public offering
price set forth above less $ per STRYPES.
3. The "Threshold Appreciation Price" with respect to the Securities
shall be $ .
_________________________________
(SM) Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
Sch B - 1
36
SCHEDULE C
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
The HRS Education Trust
The SRS Education Trust
Sch C - 1
37
[FORM OF LOCK-UP PURSUANT TO SECTION 5(a)(15)]
Exhibit A
_______ __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Proposed Public Offering of STRYPES by the Underwriters
Ladies and Gentlemen:
The undersigned, a beneficial owner of shares of Class A Common Stock,
par value $.001 per share (the "Nextel Common Stock"), of Nextel Communications,
Inc., a Delaware corporation (the "Company"), understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation propose to enter into an
Purchase Agreement (the "Purchase Agreement") with Nextel STRYPES Trust, a
Delaware business trust (the "Trust"), Cherrywood Holdings, Inc. and ▇▇▇▇▇▇
Investors, L.L.C. providing for the public offering of the Trust's STRYPESSM,
which are exchangeable on __________, 2000 or upon earlier dissolution of the
Trust for shares of Nextel Common Stock. For good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the undersigned
agrees with each underwriter to be named in the Purchase Agreement that, during
a period of 90 days from the date of the Purchase Agreement, the undersigned
will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, offer, sell,
contract to sell or otherwise dispose of, directly or indirectly, any shares of
Nextel Common Stock or any securities convertible into, exchangeable for or
repayable with shares of Nextel Common Stock, whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or cause to be filed any
registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing.
Very truly yours,
Signature: ________________________
Print Name: _______________________
A-1