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EXHIBIT (k) (3)
FORM OF PURCHASE
FORWARD CONTRACT
FORWARD PURCHASE CONTRACT
THIS AGREEMENT is made as of this ____ day of March, 1997 among Nextel
STRYPES Trust (such trust and the trustees thereof acting in their capacity as
such being referred to herein as the "Purchaser"), a statutory business trust
organized under the Business Trust 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 Xxxxxx Investors, L.L.C. (each, a "Seller" and collectively,
the "Sellers").
WHEREAS, the Purchaser has filed with the Securities and Exchange
Commission a registration statement on Form N-2 (File Nos. 33-63795 and
811-7389) and pre-effective amendments Xx. 0, Xx. 0, Xx. 0 and No. 4 thereto
contemplating the offering of up to 8,243,875 of its STRYPES(SM) (the
"STRYPES"), the terms of which contemplate that, on ________ __, 2000 (the
"Exchange Date"), each such STRYPES will be mandatorily exchanged for a
specified number or amount of each type of Reference Security (as defined
herein) and other property constituting part of the Reference Property (as
defined herein) (or, in certain circumstances, cash, or a combination of cash
and Reference Property, with an equal value).
WHEREAS, the Purchaser has agreed, pursuant to an underwriting
agreement dated the date hereof (the "Underwriting Agreement") among the
Purchaser, the Sellers and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and each of the other
Underwriters named in Schedule A thereto (collectively, the "Underwriters",
which term shall also include any underwriter substituted as provided in Section
10 of the Underwriting Agreement), for whom Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxxxx Lufkin & Xxxxxxxx Securities
Corporation are acting as representatives, to issue and sell to the
Underwriters, acting severally and not jointly, an aggregate of 7,168,587
STRYPES (the "Initial STRYPES") and, at the Underwriters' option, all or any
part of additional STRYPES (the "Option STRYPES") to cover
over-allotments, if any.
WHEREAS, the STRYPES are to be issued pursuant to an Amended and
Restated Trust Agreement, dated as of February 27, 1997 (the "Trust Agreement"),
among the trustees of the Purchaser and ML IBK Positions, Inc. and Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, as Sponsors.
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(SM) Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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WHEREAS, in exchange for certain consideration to be paid by the
Purchaser hereunder, the Purchaser and the Sellers desire to provide for the
future acquisition, sale and delivery of the aggregate number or amount of each
type of Reference Security and other property constituting part of the Reference
Property required by the Purchaser in order to exchange all of the STRYPES on
the Exchange Date, at a price to be established under this Agreement.
WHEREAS, the Sellers collectively own 8,243,875 shares of the Class A
Common Stock, par value $.001 per share (the "Nextel Common Stock"), of Nextel
Communications, Inc., a Delaware corporation ("Nextel").
WHEREAS, the Purchaser and each Seller desire that, to the extent
permitted by applicable law, at the option of each Seller, the future sale and
delivery obligations of such Seller can be settled in whole or in part through
cash payment in lieu of delivery of all or a part of such Seller's Contract
Consideration (as defined herein).
WHEREAS, pursuant to a Security and Pledge Agreement dated as of March
__, 1997 (the "Security and Pledge Agreement"), among the Purchaser, the
Sellers, and The Bank of New York, as collateral agent (the "Collateral Agent")
for the benefit of the Purchaser, an aggregate of 7,168,587 shares of Nextel
Common Stock initially will be pledged by the Sellers to secure their respective
obligations hereunder.
WHEREAS, the Sellers and the Purchaser desire that ownership of the
Contract Consideration (including, without limitation, voting rights and rights
to receive any dividends, interest, distributions and other payments in respect
thereof, provided that, to the extent constituting part of the Reference
Property, such dividends, interest, distributions and other payments and the
proceeds of any sale required by the provisions hereof shall be retained by the
Collateral Agent in accordance with the provisions hereof or of the Security and
Pledge Agreement) remain in the Sellers unless and until delivery, if any, of
such Contract Consideration to the Purchaser pursuant to the provisions of this
Agreement.
NOW, THEREFORE, in consideration of their mutual covenants herein
contained, the parties hereto, intending to be legally bound, hereby mutually
covenant and agree as follows:
1.
Definitions
1.1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, the terms
defined in this Article 1 have the meanings assigned to them in this Article.
"Acceleration Amount" has the meaning specified in Section
7.1.
"Acceleration Amount Notice" has the meaning specified in
Section 7.1.
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"Acceleration Date" has the meaning specified in Section 7.1.
"Acceleration Value" has the meaning specified in Section 7.1.
"Administrator" means The Bank of New York, the Trust
Administrator for the Purchaser under the Administration Agreement
dated as of March __, 1997, or any successor thereto.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a partner in, or a director or officer
of, such Person.
"Aggregate Acceleration Value" has the meaning specified in
Section 7.1.
"Aggregate Number" has the meaning specified in Section
3.1(b).
"Bankruptcy Code" has the meaning specified in Section 8.9.
"Business Day" means any day that is not a Saturday, a Sunday
or a day on which the New York Stock Exchange, NASDAQ, or banking
institutions or trust companies in The City of New York are authorized
or obligated by law or executive order to close.
"Cash Payment Amount" has the meaning specified in Section
2.5.
"Closing Price" means, with respect to any Reference Security
on any date of determination, the closing sale price (or, if no closing
price is reported, the last reported sale price) of such Reference
Security on NASDAQ on such date or, if such Reference Security is not
listed for trading on NASDAQ on any such date, as reported in the
composite transactions for the principal United States securities
exchange on which such Reference Security is so listed, or, if such
Reference Security is not listed on a United States national or
regional securities exchange, as reported by the National Association
of Securities Dealers, Inc. Automated Quotation System, or, if such
Reference Security is not so reported, the last quoted bid price for
such Reference Security in the over-the-counter market as reported by
the National Quotation Bureau or similar organization, or, if such bid
price is not available, the market value of such Reference Security on
such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Administrator.
"Contract Commitment" means, with respect to any Seller, the
sum of such Seller's Firm Contract Commitment and each additional
Option Contract Commitment of such Seller.
"Contract Consideration" means, with respect to any Seller,
the aggregate number or amount of each type of Reference Security and
other property constituting part of the Reference Property deliverable
by such Seller at the Closing in respect of such Seller's Contract
Commitment as provided in Section 2.1, assuming that such Seller has
not
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elected to exercise the option described in Section 2.5 to deliver cash
in lieu of Reference Property.
"control" (including the terms "controlled by" or "under
common control with") means, as to any Person, the possession, direct
or indirect, of the power to vote ten percent or more of the securities
having ordinary voting power for the election of directors of such
Person or to direct or cause the direction of the management and
policies of such Person, whether through ownership of voting securities
or by contract or otherwise.
"Date of Delivery" has the meaning specified in Section
2.1(b).
"Distributed Assets" has the meaning specified in Section
3.1(c).
"Early Settlement Date" has the meaning specified in Section
7.2.
"Exchange Amount" has the meaning specified in Section 2.1(a).
"Exchange Date" has the meaning specified in the first recital
in this Agreement.
"Extraordinary Cash Dividend" means, with respect to any
consecutive 12-month period, the amount, if any, by which the aggregate
amount of all cash dividends on any Reference Security consisting of
capital stock occurring in such 12-month period (or, if such Reference
Security was not outstanding at the commencement of such 12-month
period, occurring in such shorter period during which such Reference
Security was outstanding) exceeds on a per share basis 10% of the
average of the Closing Prices per share of such Reference Security over
such 12-month period (or such shorter period during which such
Reference Security was outstanding); provided that, for purposes of the
foregoing definition, the amount of cash dividends paid on a per share
basis shall be appropriately adjusted to reflect the occurrence during
such period of any stock dividend or distribution of shares of capital
stock of the issuer of such Reference Security or any subdivision,
split, combination or reclassification of shares of such Reference
Security.
"Firm Consideration Amount" has the meaning specified in
Section 2.2(a).
"Firm Contract Commitment" has the meaning specified in
Section 2.1(a).
"Independent Dealers" has the meaning specified in Section
7.1.
"Initial Price" has the meaning specified in Section 2.1(a).
"Initial STRYPES" has the meaning specified in the second
recital in this Agreement.
"Maximum Contract Consideration" has the meaning specified in
Section 6.1(a).
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"Nextel" has the meaning specified in the fifth recital in
this Agreement.
"Nextel Common Stock" has the meaning specified in the fifth
recital in this Agreement.
"Nextel Successor" means any surviving entity or subsequent
surviving entity of Nextel.
"NASDAQ" means the Nasdaq National Market.
"Option Consideration Amount" has the meaning specified in
Section 2.2(b).
"Option Contract Commitment" has the meaning specified in
Section 2.1(b).
"Option STRYPES" has the meaning specified in the second
recital in this Agreement.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Purchaser" has the meaning specified in the introductory
paragraph of this Agreement.
"Receipt Date" has the meaning specified in Section 3.1(b).
"Reference Property" has the meaning specified in Section 2.1.
"Reference Property Value" means, subject to the provisions of
Section 3.1(b), the sum, determined as of 10:00 A.M. (New York City
time) on the second Business Day preceding the Exchange Date, of (a)
for any portion of the Reference Property consisting of cash, the
amount of such cash, (b) for any portion of the Reference Property
consisting of property other than cash or Reference Securities, the
fair market value of such property (as determined by a nationally
recognized independent investment banking firm retained for this
purpose by the Administrator) as of 10:00 A.M. (New York City time) on
the third Business Day preceding the Exchange Date, and (c) for any
portion of the Reference Property consisting of a Reference Security
(including Nextel Common Stock), an amount equal to the average Closing
Price per unit of such Reference Security on the 20 Trading Days
immediately prior to, but not including, the second Trading Day
preceding the Exchange Date multiplied by the number of units of such
Reference Security constituting part of the Reference Property.
"Reference Security" means, at any time, any security (as
defined in Section 2(1) of the Securities Act of 1933, as amended) then
constituting part of the Reference Property.
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"Reorganization Event" has the meaning specified in Section
3.1(d).
"Seller" and "Sellers" have the meanings specified in the
introductory paragraph of this Agreement.
"Seller Repayment Event" has the meaning specified in Section
4.
"STRYPES" has the meaning specified in the first recital in
this Agreement.
"Threshold Appreciation Price" has the meaning specified in
Section 2.1(a).
"Total Firm Contract Commitment" has the meaning specified in
Section 2.1(a).
"Total Option Contract Commitment" has the meaning specified
in Section 2.1(b).
"Trading Day" means, with respect to any Reference Security
the Closing Price of which is being determined, a day on which such
Reference Security (A) is not suspended from trading on any national or
regional securities exchange or association or over-the-counter market
at the close of business and (B) has traded at least once on the
national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of
such Reference Security.
"Trust Agreement" has the meaning specified in the third
recital in this Agreement.
"Underwriters" has the meaning specified in the second recital
in this Agreement.
"Underwriting Agreement" has the meaning specified in the
second recital in this Agreement.
2.
Future Sale of Contract Consideration or Cash Settlement
2.1. Sale and Purchase. (a) On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, at the Closing (as defined in Section 2.3 hereof), each Seller, severally
and not jointly, agrees to assign, transfer, convey and deliver to the
Purchaser, and the Purchaser agrees to acquire from each Seller, severally and
not jointly, the aggregate number or amount of each type of Reference Security
and other property constituting part of the Reference Property equal to the
product of the Exchange Amount and such Seller's Contract Commitment. For the
purposes of this Agreement, subject to Section 2.1(b) below, the respective
Contract Commitments of the Sellers are as follows:
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Number of
Name of Seller Units
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Cherrywood Holdings, Inc............................................. 5,108,907
Xxxxxx Investors, L.L.C.............................................. 2,059,680
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Total ..................................................... 7,168,587
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The number of Units set forth above opposite the name of each Seller is referred
to herein as such Seller's "Firm Contract Commitment" and the number of Units
equal to the sum of the Firm Contract Commitments is referred to herein as the
"Total Firm Contract Commitment".
The term "Reference Property" shall initially mean one share of Nextel
Common Stock and shall be subject to adjustment from time to time prior to the
date of Closing to reflect the addition or substitution of any cash, securities
and/or other property resulting from the application of the provisions of
Section 3.1 hereof. The term "Exchange Amount" shall mean the number or amount
of each type of Reference Security and other property constituting part of the
Reference Property determined as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Exchange Date in accordance with the following
formula: (i) if the Reference Property Value is greater than or equal to $ (the
"Threshold Appreciation Price"), % of the number or amount of each type of
Reference Security and other property constituting part of the Reference
Property, (ii) if the Reference Property Value is less than the Threshold
Appreciation Price but is greater than $ (the "Initial Price"), a percentage of
the number or amount of each type of Reference Security and other property
constituting part of the Reference Property, allocated as proportionately as
practicable, so that the aggregate value thereof is equal to the Initial Price
and (iii) if the Reference Property Value is less than or equal to the Initial
Price, 100% of the number or amount of each type of Reference Security and other
property constituting part of the Reference Property.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Sellers, severally and not jointly, hereby grant an option to the Purchaser to
purchase at the Closing up to an additional number or amount of each type of
Reference Security and other property then constituting part of the Reference
Property equal to the product of the Exchange Amount and ____________ (the
"Total Option Contract Commitment"). The option granted hereby will expire 30
days after the date hereof and may be exercised in whole or in part from time to
time for the sole purpose of obtaining the aggregate number or amount of each
type of Reference Security and other property constituting part of the Reference
Property that would be required to be delivered by the Purchaser upon exchange
of any Option STRYPES issued by the Purchaser upon exercise by the Underwriters
of the option described in Section 2(b) of the Underwriting Agreement. The
Purchaser may exercise the option granted hereby by delivering to the Sellers,
upon receipt by the Purchaser of notice that the Underwriters are exercising
their option to purchase Option STRYPES, prompt notice of such exercise by the
Underwriters,stating the number of Option STRYPES as to which the Underwriters
are then exercising the option and the time and date of payment and delivery for
such Option STRYPES (any such time and date of delivery, a "Date of Delivery").
Upon delivery of such notice as aforesaid, each Seller's Contract Commitment
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shall be increased automatically by a number of Units equal to that portion of
the total number of Option STRYPES then being purchased by the Underwriters
which such Seller's Firm Contract Commitment bears to the Total Firm Contract
Commitment, such number of Units by which such Seller's Contract Commitment
shall so increase being referred to as an "Option Contract Commitment" of such
Seller.
2.2. Consideration. (a) The consideration to be paid by the Purchaser
for each Seller's obligation hereunder to deliver (or cause to be delivered) the
Contract Consideration in respect of such Seller's Firm Contract Commitment
shall be an amount in cash (the "Firm Consideration Amount") equal to the
product of $____ and such Seller's Firm Contract Commitment. Upon the terms and
subject to the conditions of this Agreement, the Purchaser shall deliver to each
Seller such Seller's Firm Consideration Amount at the offices of Xxxxx & Xxxx
LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by the Purchaser and the Sellers, at 9:00 A.M. (New York
City time) on the third (fourth, if the pricing of the STRYPES offering occurs
after 4:30 P.M. (New York City 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 Purchaser and the Seller (such time and date of
payment being herein called the "Firm Payment Date").
(b) The consideration to be paid by the Purchaser in exchange for each
Seller's obligation hereunder to deliver (or cause to be delivered) the Contract
Consideration in respect of any Option Contract Commitment of such Seller shall
be an amount in cash (the "Option Consideration Amount") equal to the product of
such Option Contract Commitment and the Option Unit Consideration set forth in
an Option Unit Pricing Agreement substantially in the form of Exhibit A hereto.
The Option Unit Pricing Agreement may take the form of an exchange of any
standard form of written telecommunication among the Purchaser and the Sellers.
From and after the date of execution and delivery of any Option Unit Pricing
Agreement, this Agreement shall be deemed to incorporate such Option Unit
Pricing Agreement. Upon the terms and subject to the conditions of this
Agreement, the Purchaser shall deliver to each Seller such Seller's Option
Consideration Amount on the related Date of Delivery at the offices of Xxxxx &
Wood LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as shall be agreed upon by the Purchaser and the Sellers.
(c) Payment of the Firm Consideration Amount and the Option
Consideration Amount to each Seller shall be made by Fedwire transfer of
immediately available funds to an account designated by such Seller, or such
other form of payment specified by such Seller, against delivery by such Seller
to the Collateral Agent of the number of shares of Nextel Common Stock and/or
cash, securities and other property necessary to comply with such Seller's
obligations under Section 6.1 hereof.
2.3. Delivery of Contract Consideration. Consummation of the
acquisition, sale and delivery of the Contract Consideration shall take place on
a date mutually agreeable to the Purchaser and the Sellers, not later than one
(1) Business Day prior to the Exchange Date (the "Closing"). Delivery of the
Contract Consideration shall be made at the offices of [____________], or at
such other place as shall be agreed upon by the Purchaser and the Sellers.
Certificates representing Reference Securities in registered form that are part
of the Contract
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Consideration shall be registered in the Purchaser's name or in the name of a
depositary or a nominee of a depositary as requested by the Purchaser, unless
such Reference Securities are represented by one or more global certificates
registered in the name of a depositary or a nominee of a depositary or are book
entry securities, in which event the Purchaser's interest in such securities
shall be noted in a manner satisfactory to the Purchaser and its counsel. Other
property that is a part of the Contract Consideration delivered to the Purchaser
shall be transferable by the Purchaser to the same extent as when received by or
on behalf of the relevant Seller and shall not be subjected, by reason of or
following receipt by such Seller, to any transfer restrictions not generally
applicable to all holders of such other property.
2.4. No Fractional Interests. No fractional units or scrip representing
fractional units of any Reference Security shall be delivered at the Closing.
Instead of any fractional unit of any such Reference Security which would
otherwise be deliverable by any Seller at the Closing, such Seller shall make a
cash payment in respect of such fractional unit in an amount equal to the value
of such fractional unit based upon the average Closing Price per unit of such
Reference Security on the 20 Trading Days immediately prior to, but not
including, the second Trading Day preceding the Exchange Date. To the extent
practicable, the Sellers will deliver fractional interests of any Reference
Property other than cash or a Reference Security at the Closing. If such
delivery is not practicable, in lieu of any fractional interest of any Reference
Property other than cash or a Reference Security which would otherwise be
deliverable at the Closing, the Sellers shall make a cash payment in respect of
such fractional interest in an amount equal to the value of such fractional
interest based on the fair market value (as determined by a nationally
recognized independent investment banking firm retained for this purpose by the
Administrator) as of 10:00 A.M. (New York City time) on the third Business Day
preceding the Exchange Date of such Reference Property other than cash or a
Reference Security.
2.5. Cash Settlement. (a) Notwithstanding the provisions of Sections
2.1, 2.2, 2.3 and 2.4 hereof, to the extent permitted by applicable law, each
Seller shall have the option, exercisable in its sole discretion, to settle the
obligations of such Seller contained therein, in whole or in part, through a
cash payment at Closing in lieu of delivery of the portion of such Seller's
Contract Consideration in respect of which an election to exercise the cash
settlement option is made. The amount of such cash settlement payment (the "Cash
Payment Amount") to be made by the relevant Seller shall be equal to the sum,
determined as of 10:00 A.M. (New York City time) on the date of Closing, of (a)
for any portion of the Contract Consideration consisting of cash in respect of
which an election to exercise the cash settlement option is made, the amount of
such cash, without interest thereon, (b) for any portion of the Contract
Consideration consisting of property other than cash or Reference Securities in
respect of which an election to exercise the cash settlement option is made, the
fair market value of such property (as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Administrator) as of 10:00 A.M. (New York City time) on the third Business Day
preceding the Exchange Date, and (c) for any portion of the Contract
Consideration consisting of a Reference Security (including Nextel Common Stock)
(except as provided in Section 3.1(b)) in respect of which an election to
exercise the cash settlement option is made, an amount equal to the average
Closing Price per unit of such Reference Security on the 20 Trading Days
immediately prior to, but not including, the second Trading Day preceding the
Exchange Date multiplied by the number of units of such Reference Security
constituting part
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of the Contract Consideration in respect of which an election to exercise the
cash settlement option is made. On or prior to the twenty-seventh Business Day
preceding the Exchange Date, each Seller shall notify the Purchaser whether it
will exercise its option to require cash settlement pursuant to this Section
2.5.
(b) In the event that any Seller elects to settle its obligations in
part through a cash payment at Closing, (i) such Seller shall be required to
cash settle an equal percentage of each type of Reference Security and other
property constituting part of the Reference Property that would otherwise be
deliverable by such Seller at Closing and (ii) the remaining number of units of
any Reference Security consisting of capital stock to be delivered at Closing
shall be evenly divisible by 100.
(c) If the Contract Consideration consists of securities and/or other
property other than Nextel Common Stock, each Seller's right to deliver (or
cause to be delivered) to the Purchaser hereunder such securities and/or other
property shall be conditioned upon such securities and/or other property to be
so delivered being transferable by the Purchaser, following receipt from
such Seller, without any restrictions not generally applicable to all holders
of such securities and/or other property. If the condition set forth in the
preceding sentence shall not be satisfied with respect to the securities and/or
other property to be delivered by any Seller, then, notwithstanding the
provisions hereof, such Seller's obligations contained in Sections 2.1, 2.2,
2.3 and 2.4 hereof shall be settled, in whole, through a cash payment at the
Closing in lieu of delivery of the Contract Consideration as provided in
Section 2.5(a).
2.6. Sellers' Conditions to Closing. Each Seller's obligation to
consummate the transactions contemplated hereunder is conditioned upon (a) the
purchase and sale of the Initial STRYPES pursuant to the Underwriting Agreement
having been consummated as contemplated therein, (b) the representations and
warranties of the Purchaser contained in paragraphs (iii) and (iv) of Article 5
hereof being true and correct as of the date of the Closing and (c) the Security
and Pledge Agreement having been executed by the parties thereto and the
delivery of the Collateral thereunder having been made.
2.7. Purchaser's Conditions to Closing. The Purchaser's obligation to
consummate the transactions contemplated hereunder is conditioned upon (a) the
purchase and sale of the Initial STRYPES pursuant to the Underwriting Agreement
having been consummated as contemplated therein, (b) the representations and
warranties of the Sellers contained in paragraphs (i), (iii)(b), (iv), (v) and
(vi) of Article 4 hereof being true and correct as of the date of the Closing
and (c) the Security and Pledge Agreement having been executed by the parties
thereto and the delivery of the Collateral thereunder having been made.
3.
Reference Property Adjustments
3.1. (a) Adjustment for Subdivisions, Splits, Combinations or
Reclassifications. If an issuer of a Reference Security shall:
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(A) subdivide or split the outstanding units of such
Reference Security into a greater number of units;
(B) combine the outstanding units of such Reference
Security into a smaller number of units; or
(C) issue by reclassification of units of such
Reference Security any units of another security of such issuer;
then, in any such event, the Reference Property shall be adjusted to include the
number of units of such Reference Security and/or other security of such issuer
which a holder of units of such Reference Security would have owned or been
entitled to receive immediately following any event described above had such
holder held, immediately prior to such event, the number of units of such
Reference Security constituting part of the Reference Property immediately prior
to such event. Each such adjustment shall become effective immediately after the
effective date for such subdivision, split, combination or reclassification, as
the case may be. Each such adjustment shall be made successively.
(b) Adjustment for Issuance of Certain Rights or Warrants. If an issuer
of a Reference Security shall issue rights or warrants to all holders of such
Reference Security entitling them, for a period expiring prior to the fifteenth
calendar day following the Exchange Date, to subscribe for or purchase any of
its securities or other property (other than rights to purchase units of such
Reference Security pursuant to a plan for the reinvestment of dividends or
interest), then in each such case, the Reference Property shall be adjusted to
include an amount in cash equal to the fair market value (determined as
described below), as of the fifth Business Day following the date on which such
rights or warrants are received by securityholders entitled thereto (the
"Receipt Date"), of each such right or warrant multiplied by the product of (A)
the number of such rights or warrants issued for each unit of such Reference
Security and (B) the number of units of such Reference Security constituting
part of the Reference Property on the date of issuance of such rights or
warrants, immediately prior to such issuance, without interest thereon. For
purposes of this subsection (b), the fair market value of each such right or
warrant shall be determined by the Administrator and shall be the quotient of
(x) the highest net bid, as of approximately 10:00 A.M., New York City time, on
the fifth Business Day following the Receipt Date for settlement three Business
Days later, by a recognized securities dealer in The City of New York selected
by or on behalf of the Administrator (from three (or such fewer number of
dealers as may be providing such bids) such recognized dealers selected by or on
behalf of the Administrator), for the purchase by such quoting dealer of the
number of rights or warrants (the "Aggregate Number") that a holder of such
Reference Security would receive if such holder held, as of the record date for
determination of stockholders entitled to receive such rights or warrants, a
number of units of such Reference Security equal to the product of (1) the
aggregate number of Outstanding STRYPES as of such record date and (2) the
number of units of such Reference Security constituting part of the Reference
Property, divided by (y) the Aggregate Number. Each such adjustment shall become
effective on the fifth Business Day following the Receipt Date of such rights or
warrants. If for any reason Administrator is unable to obtain the required bid
on the fifth Business Day following the Receipt Date, it shall attempt to obtain
such bid at successive intervals of three months thereafter and on the third
Business
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Day prior to the Exchange Date until it is able to obtain the required bid, or,
if earlier, until the third Business Day prior to the Exchange Date. From the
date of issuance of such rights or warrants until the required bid is obtained
or those efforts end on that Business Day, the Reference Property shall include
the number of such rights or warrants issued for each unit of such Reference
Security multiplied by the number of units of such Reference Security
constituting part of the Reference Property on the date of issuance of such
rights or warrants, immediately prior to such issuance, and such rights or
warrants constituting part of the Reference Property shall be deemed for
purposes of the definition of Reference Property Value and Section 2.5 hereof to
have a fair market value of zero.
(c) Adjustment for Distributions. If an issuer of a Reference Security
shall pay a dividend or make a distribution to all holders of such Reference
Security of cash, securities or other property (excluding any cash dividend on
any Reference Security consisting of capital stock that does not constitute an
Extraordinary Cash Dividend, excluding any payment of interest on any Reference
Security consisting of an evidence of indebtedness and excluding any dividend or
distribution described in subsection (a) or (b) above) or shall issue to all
holders of such Reference Security rights or warrants to subscribe for or
purchase any of its securities or other property (excluding any rights or
warrants referred to in subsection (b) above) (any of the foregoing being
referred to herein as "Distributed Assets"), then in each such case, the
Reference Property shall be adjusted to include, from and after such dividend,
distribution or issuance, (x) in respect of that portion, if any, of the
Distributed Assets consisting of cash, the amount of such Distributed Assets
consisting of cash received for each unit of such Reference Security multiplied
by the number of units of such Reference Security constituting part of the
Reference Property on the date of such dividend, distribution or issuance,
immediately prior to such dividend, distribution or issuance, without interest
thereon, plus (y) in respect of that portion, if any, of the Distributed Assets
which are other than cash, the number or amount of each type of Distributed
Assets other than cash received with respect to each unit of such Reference
Security multiplied by the number of units of such Reference Security
constituting part of the Reference Property on the date of such dividend,
distribution or issuance, immediately prior to such dividend, distribution or
issuance.
(d) Adjustment for Consolidation, Merger or Other Reorganization Event.
In the event of (i) any consolidation or merger of an issuer of a Reference
Security with or into another entity (other than a consolidation or merger in
which such issuer is the continuing corporation and in which the Reference
Security outstanding immediately prior to the consolidation or merger is not
exchanged for cash, securities or other property of such issuer or another
entity), (ii) any sale, transfer, lease or conveyance to another corporation of
the property of an issuer of a Reference Security as an entirety or
substantially as an entirety, (iii) any statutory exchange of securities of an
issuer of a Reference Security with another entity (other than in connection
with a merger or acquisition) or (iv) any liquidation, dissolution, winding up
or bankruptcy of an issuer of a Reference Security (excluding any distribution
in such event referred to in subsection (c) above) (any such event described in
clause (i), (ii), (iii) or (iv), a "Reorganization Event"), the Reference
Property shall be adjusted to include, from and after the effective date for
such Reorganization Event, in lieu of the number of units of such Reference
Security constituting part of the Reference Property immediately prior to the
effective date for such Reorganization Event, the amount or number of any cash,
securities and/or other property owned
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or received in such Reorganization Event with respect to each unit of such
Reference Security multiplied by the number of units of such Reference Security
constituting part of the Reference Property immediately prior to the effective
date for such Reorganization Event.
4.
Representations and Warranties of the Sellers
Each Seller severally represents and warrants to the Purchaser as of
the date hereof and as of the date of Closing as follows:
(i) Such Seller has the full right, power and authority to enter
into and perform its obligations under this Agreement and the Security and
Pledge Agreement, including, without limitation, to pledge and assign the shares
of Nextel Common Stock and/or cash, securities and other property to be pledged
and assigned by such Seller pursuant to the Security and Pledge Agreement, and
to sell, transfer and deliver the Contract Consideration to be sold by such
Seller pursuant to this Agreement.
(ii) This Agreement and the Security and Pledge Agreement have
been duly authorized, executed and delivered by such Seller and (assuming the
due authorization, execution and delivery by the other parties thereto)
constitute valid and binding agreements of such Seller, enforceable against such
Seller in accordance with their respective terms, except as the enforcement
hereof and 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 hereof and thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law). Neither the Firm Consideration Amount received by such Seller
at Closing nor any Option Consideration Amount received by such Seller at any
Date of Delivery will be used by such Seller 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.
(iii) (a) At the date hereof, such Seller is the registered owner
of and has all rights in and to the shares of Nextel Common Stock to be pledged
and assigned by such Seller pursuant to the Security and Pledge Agreement, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity and (b) to the extent such Seller elects to deliver all or a portion
of the Contract Consideration at Closing, upon delivery of such Contract
Consideration against payment therefor pursuant to this Agreement, the Purchaser
will be the sole owner of such Contract Consideration and, assuming the
Purchaser purchased for value in good faith and without notice of any adverse
claim, the Purchaser will have acquired all rights in and to such Contract
Consideration, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. The sale, transfer and delivery of the Contract
Consideration by such Seller as contemplated by this Agreement is not, and at
the time of delivery such Contract Consideration will not be, subject to any
right of first refusal or similar rights of any person
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pursuant to any contract to which such Seller or any Affiliate of such Seller is
a party or by which any of them is bound.
(iv) 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 Seller of this Agreement or the Security and
Pledge Agreement or the consummation by such Seller of the transactions
contemplated herein and therein, except such as have been already obtained or as
may be required under the 1933 Act or the rules and regulations promulgated
thereunder or state securities laws.
(v) The execution, delivery and performance by such Seller of
this Agreement and the Security and Pledge Agreement and the consummation by
such Seller of the transactions contemplated herein and therein and compliance
by such Seller 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 Seller Repayment Event
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of such Seller or any Affiliate of such
Seller pursuant to, any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument to which such
Seller or any Affiliate of such Seller is a party or by which it or any of them
is bound, or to which any of the property or assets of such Seller or any
Affiliate of such Seller 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 Seller to perform
its obligations under this Agreement or the Security and Pledge Agreement), nor
will such action result in any violation of the provisions of any applicable
law, statute, rule or regulation of any government or government instrumentality
having jurisdiction over such Seller or any Affiliate of such Seller 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 Seller or any Affiliate of such Seller or any of their assets,
properties or operations (except in all cases for violations that would not,
singly or in the aggregate, materially and adversely affect the ability of such
Seller to perform its obligations under this Agreement or the Security and
Pledge Agreement). As used herein, a "Seller Repayment Event" with respect to
any Seller 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 Seller or any Affiliate of such
Seller.
(vi) such Seller is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, required to be
registered thereunder.
In so far as the foregoing representations and warranties of each
Seller relate to its power and authority to enter into this Agreement and the
forward transaction contemplated herein and the legality and binding nature of
this Agreement and that transaction, each Seller makes such
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representations and warranties on the basis of its good faith belief that this
Agreement constitutes a forward contract, and not a contract for sale of a
security for future delivery.
5.
Representations and Warranties of Purchaser
The Purchaser represents and warrants to each Seller as of the date
hereof and as of the date of Closing as follows:
(i) The Purchaser has been duly created and is validly existing
as a business trust in good standing under the laws of the State of Delaware
with power and authority to enter into and perform its obligations under this
Agreement and the Security and Pledge Agreement.
(ii) This Agreement and the Security and Pledge Agreement have
been duly authorized, executed and delivered by the Purchaser and (assuming the
due authorization, execution and delivery by the other parties thereto)
constitute valid and binding agreements of the Purchaser, enforceable against
the Purchaser in accordance with their respective terms, except as the
enforcement hereof and 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 hereof and thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(iii) 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 the Purchaser of this Agreement or the Security and
Pledge Agreement or the consummation by the Purchaser of the transactions
contemplated herein and therein, except such as have been already obtained or as
may be required under the 1933 Act or the rules and regulations promulgated
thereunder or state securities laws.
(iv) The execution, delivery and performance by the Purchaser of
this Agreement and the Security and Pledge Agreement and the consummation by the
Purchaser of the transactions contemplated herein and therein and compliance by
the Purchaser 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 Purchaser Repayment Event
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Purchaser pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument to which the Purchaser is a party or
by which the Purchaser is bound, or to which any of the property or assets of
the Purchaser 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 the Purchaser to perform its
obligations under this Agreement or the Security and Pledge Agreement), nor will
such action result in any violation of the provisions of the Trust Agreement of
the Purchaser, or any applicable law, statute, rule, or regulation of any
government or government instrumentality having jurisdiction over the
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Purchaser or any of its assets or properties (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 the Purchaser or any of its assets, properties or operations (except in all
cases for violations that would not, singly or in the aggregate, materially and
adversely affect the ability of the Purchaser to perform its obligations under
this Agreement or the Security and Pledge Agreement). As used herein, a
"Purchaser Repayment Event" 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 the Purchaser.
6.
Covenants
6.1. Collateral. (a) Each Seller shall cause to be held by the
Collateral Agent during the term of this Agreement an aggregate number of shares
of Nextel Common Stock and/or cash, securities and/or other property at least
equal to the maximum number or amount of each type of Reference Security and
other property constituting part of the Reference Property that may be required
to be delivered by such Seller at the Closing pursuant to Section 2.1 hereof,
assuming that (x) the fair market value of any Reference Property consisting of
rights or warrants described in Section 3.1(b) hereof is the value determined
pursuant to such Section 3.1(b), and (y) such Seller has not elected to exercise
its option to require cash settlement of all or any portion of its obligations
hereunder pursuant to Section 2.5 hereof (such aggregate number of shares of
Nextel Common Stock and/or cash, securities and/or other property being referred
to herein as such Seller's "Maximum Contract Consideration"), subject to such
Seller's right to deliver to the Collateral Agent substitute collateral for all
or any portion of the Maximum Contract Consideration in accordance with Section
4(b) of the Security and Pledge Agreement.
(b) Each Seller shall direct the Collateral Agent to sell (as provided
in Section 2(c) of the Security and Pledge Agreement) any rights or warrants
described in Section 3.1(b) hereof at the net bid received by the Collateral
Agent in accordance with the procedures specified in Section 4(g) of the
Security and Pledge Agreement and to hold during the term of this Agreement the
proceeds from such sale. If the Collateral Agent is unable to consummate such
sale, the rights or warrants shall be held by the Collateral Agent, and neither
such Seller nor the Collateral Agent shall be required to take any action to
sell such rights or warrants other than as specified in such Section 4(g) of the
Security and Pledge Agreement.
6.2. Affirmative Covenants. During the term of this Agreement, each
Seller covenants and agrees that it will:
(a) Comply in all material respects with all applicable laws, rules,
regulations and orders to the extent noncompliance would have a material adverse
effect on the ability of such Seller to perform its obligations hereunder or
under the Security and Pledge Agreement, such compliance to include, without
limitation, paying before the same become delinquent all taxes,
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assessments and governmental charges imposed upon it or upon its property,
including the Collateral, except to the extent contested in good faith.
(b) Furnish to the Purchaser as soon as possible and in any event
within twenty calendar days after such Seller shall become aware of the
occurrence of each failure by such Seller to comply with or perform any
agreement or obligation contained in Sections 6.1, 6.2 or 6.3 of this Agreement
or Sections 2(b), 7(a), 7(b) and 7(c) of the Security and Pledge Agreement
continuing on the date of such statement, a statement of the president or any
vice president of such Seller describing such failure and setting forth details
of such failure and the action which such Seller has taken and proposes to take
with respect thereto.
(c) Preserve and maintain its corporate existence, rights (charter and
statutory), powers, franchises and qualifications, except that such Seller may
terminate franchises and qualifications that it determines are not required to
serve the interests of such Seller, provided such termination does not have a
material adverse effect on the ability of such Seller to perform its obligations
hereunder or under the Security and Pledge Agreement.
(d) At any reasonable time and from time to time, upon reasonable
notice, prior to the occurrence of an Event of Default (as defined in the
Security and Pledge Agreement), and upon any notice after the occurrence of an
Event of Default until delivery of the Collateral to such Seller to the extent
required in accordance with Sections 2.1, 2.3, 2.4 and 7.1 hereof, as
applicable, permit the Purchaser or representatives thereof to visit the offices
of such Seller and, to the extent necessary or desirable to preserve, protect,
exercise or enforce any of the Purchaser's rights hereunder, to examine and make
copies of and abstracts from the records and books of account of such Seller and
discuss the affairs, finances and accounts of such Seller with any of its
officers, directors and representatives; provided that the covenant and
agreement contained in this Section 6.2(d) is expressly made subject to the
understanding that the Purchaser and any such representatives shall keep
confidential all non-public information made available to them except to the
extent disclosure of such information is necessary to preserve, protect,
exercise or enforce the Purchaser's rights hereunder or is otherwise required by
law, rule, regulation or court order.
(e) Keep proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and business
of such Seller, including the Collateral, in accordance with appropriate
accounting principles consistently applied.
6.3. Taxes. Each Seller shall pay any and all documentary, stamp,
transfer or similar taxes and charges that may be payable in respect of the
execution and delivery by such Seller of this Agreement and the transfer and
delivery by such Seller of the Contract Consideration pursuant hereto.
6.4. Tax Treatment. The Purchaser and each Seller hereby agree to
treat, for all United States Federal, state and local tax purposes, this
Agreement as a pre-paid forward contract, which does not constitute, in whole or
in part, indebtedness, pursuant to which the Purchaser is obligated to purchase
at the Closing the Contract Consideration which each Seller
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is obligated to deliver at that time (subject to each Seller's right to deliver
cash in lieu of the Contract Consideration as provided in Section 2.5 hereof).
6.5. Certain Notices. (a) In case at any time while any of the STRYPES
are outstanding any Seller who receives written notice in its capacity as a
holder of any Reference Security that:
(i) an issuer of a Reference Security shall declare a
dividend (or any other distribution) on or in respect of such Reference
Security to which Section 3.1(c) hereof shall apply (other than any
cash dividends, if any, paid from time to time by the issuer of such
Reference Security that do not constitute Extraordinary Cash
Dividends);
(ii) an issuer of a Reference Security shall authorize
the issuance to all holders of such Reference Security of rights or
warrants to subscribe for or purchase units of such Reference Security
or of any other subscription rights or warrants;
(iii) there shall occur any conversion or
reclassification of any Reference Security (other than a subdivision or
combination of outstanding units of such Reference Security) or any
consolidation, merger or reorganization to which an issuer of a
Reference Security is a party and for which approval of any unitholders
of such issuer is required, or the sale or transfer of all or
substantially all of the assets of an issuer of a Reference Security;
or
(iv) there shall occur the voluntary or involuntary
dissolution, liquidation, winding up or bankruptcy of an issuer of a
Reference Security;
then such Seller shall promptly notify the Purchaser of such fact and of (x) the
date, if known by such Seller, on which a record is to be taken for the purpose
of such dividend, distribution or grant of rights or warrants, or, if a record
is not to be taken, the date as of which the holders of such Reference Security
of record to be entitled to such dividend, distribution or grant of rights or
warrants are to be determined, or (y) the date, if known by such Seller, on
which such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or bankruptcy is expected to become effective.
(b) Immediately upon the occurrence of any Event of Default, within the
meaning of the Security and Pledge Agreement, with respect to any Seller, or
upon any Seller's obtaining knowledge that an Event of Default, within the
meaning of the Security and Pledge Agreement, shall have occurred with respect
to another Seller, such Seller shall promptly notify the Purchaser of such
occurrence.
6.6. Limitations on Trading During Certain Days. Each of the Sellers
and the Purchaser hereby agrees that it will not, and it will cause each of its
Affiliates not to, buy or sell units of any Reference Security for their own
account during the 20 Trading Days immediately prior to the second Trading Day
preceding the Exchange Date or any Early Settlement Date.
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6.7. Further Assurances. From time to time on and after the date hereof
through the date of Closing, each of the parties hereto shall use its best
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper and advisable to consummate and make
effective as promptly as practicable the transactions contemplated by this
Agreement in accordance with the terms and conditions hereof, including (i)
using best efforts to remove any legal impediment to the consummation of such
transactions and (ii) the execution and delivery of all such deeds, agreements,
assignments and further instruments of transfer and conveyance necessary, proper
or advisable to consummate and make effective the transactions contemplated by
this Agreement in accordance with the terms and conditions hereof.
7.
Acceleration of Delivery
7.1. Termination Event; Delivery. If an Event of Default, within the
meaning of the Security and Pledge Agreement, shall occur with respect to any
Seller, then this Agreement shall be liquidated. Upon the occurrence of any
such Event of Default with respect to any Seller, (i) an Acceleration Date shall
occur, (ii) the Sellers' rights under Section 2.5 hereof shall terminate
immediately and (iii) there shall become immediately deliverable and payable by
each Seller (and immediately deliverable by the Collateral Agent under the
Security and Pledge Agreement to the Purchaser) a number or amount of each type
of Reference Security and other property constituting part of the Reference
Property, allocated as proportionately as practicable, having an aggregate value
(determined in the manner provided in Section 2.5 hereof for the Cash Payment
Amount) equal to the Aggregate Acceleration Value multiplied by a fraction, the
numerator of which shall be such Seller's Firm Contract Commitment and the
denominator of which shall be the Total Firm Contract Commitment (the
"Acceleration Amount"). The "Aggregate Acceleration Value" means the product
obtained by multiplying: (i) the quotient obtained by dividing (A) the
Acceleration Value by (B) 1,000 by (ii) the sum of the Contract Commitments of
the Sellers; except that, if no quotations for the determination of the
Acceleration Value are obtained as described below, the Aggregate Acceleration
Value shall be the value of the aggregate number or amount of each type of
Reference Security and other property constituting part of the Reference
Property that would be required to be delivered by the Sellers on such date
under this Agreement if the Exchange Date were redefined to be the Acceleration
Date.
The "Acceleration Value" means an amount determined on the basis of
quotations from four nationally recognized independent investment banking firms
selected by the Administrator (the "Independent Dealers") as follows. Each
quotation will be for the amount that would be paid to the relevant Independent
Dealer in consideration of an agreement between the Purchaser and such
Independent Dealer that would have the effect of preserving the Purchaser's
right to receive the payments and deliveries that the Purchaser would, but for
the occurrence of the Acceleration Date, have been entitled to receive after the
Acceleration Date under Article 2 hereof (taking into account any Reference
Property adjustments that may have been effected on or prior to the Acceleration
Date), provided that, for purposes of determining the payments and deliveries to
which the Purchaser is entitled under Article 2 hereof, the sum of the Contract
Commitments of the Sellers shall be deemed to equal 1,000. On or as soon as
reasonably practicable following the Acceleration Date, the Administrator will
request each Independent
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Dealer to provide its quotation as soon as reasonably practicable, but in any
event within two Business Days. The Administrator shall compute the Acceleration
Value upon receipt of each Independent Dealer's quotation, provided that if, at
the close of business on the fourth Business Day following the Acceleration
Date, the Administrator shall have received quotations from fewer than four of
the Independent Dealers, the Administrator shall compute the Acceleration Value
using the quotations, if any, it shall have received at or prior to such time.
If four quotations are provided, the Acceleration Value shall be the arithmetic
mean of the two quotations remaining after disregarding the highest and lowest
quotations. (For this purpose, if more than one quotation has the same highest
or lowest value, then one of such quotations shall be disregarded.) If two or
three quotations are provided, the Acceleration Value shall be the arithmetic
mean of such quotations. If one quotation is provided, the Acceleration Value
shall be equal to such quotation. If no quotations are provided, the
Acceleration Value will not be determined and the Aggregate Acceleration Value
shall be determined as provided above.
As promptly as reasonably practicable after receipt of the quotations
on which the Acceleration Value is based (or, as the case may be, after failure
to receive any such quotations within the time period prescribed above) the
Purchaser shall deliver to the Collateral Agent and the Sellers a notice (the
"Acceleration Amount Notice") specifying the Acceleration Amount required to be
delivered by each Seller. The Purchaser and each Seller agree that the
Aggregate Acceleration Value is a reasonable pre-estimate of loss and not a
penalty. Such amount is payable for the loss of bargain and the Purchaser will
not be entitled to recover additional damage as a consequence of loss resulting
from an Event of Default.
7.2. Nextel Reorganization Event; Delivery. Notwithstanding the
provisions of Sections 2.1, 2.3 and 2.5 hereof, if a Reorganization Event with
respect to Nextel or any Nextel Successor shall occur, each Seller's obligations
under Section 2.1 shall be automatically accelerated and each Seller shall
deliver to the Purchaser, on the tenth Business Day after the effective date for
such Reorganization Event (the "Early Settlement Date"), the Contract
Consideration that would be required to be delivered by such Seller at Closing
under this Agreement if the Exchange Date were redefined to be the Early
Settlement Date.
8.
Miscellaneous
8.1. Adjustments to Reference Property; Selection of Independent Firm.
The Purchaser shall be responsible for the effectuation and calculation of any
adjustment to the Reference Property and any amount deliverable pursuant to
Sections 2.1, 2.4, 2.5 and 7 hereof. The Purchaser shall provide the Sellers
reasonable opportunity to review the calculations pertaining to any adjustment
of the Reference Property. As soon as practicable, but in no event later than
10:00 A.M. (New York City time) on the date of Closing, the Purchaser shall
provide the Sellers with a statement showing the Purchaser's calculations of the
amounts deliverable pursuant to Sections 2.1, 2.4, 2.5 and 7 hereof. If any
Seller disagrees with any such calculation or determination, the Contract
Consideration or any Cash Payment Amount, ____________ or such other independent
accounting or investment banking firm agreed upon by such Seller and the
Purchaser shall be retained to make such calculation, which shall be
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binding upon the Purchaser and such Seller. The fees and expenses of such firm
shall be borne by the relevant Seller. If, pursuant to the terms and conditions
of this Agreement, the Administrator shall be required to retain a nationally
recognized independent investment banking firm for any purpose provided herein,
such nationally recognized independent investment banking firm shall be selected
and retained by the Administrator only after giving the Sellers 30 days prior
notice (or such shorter notice as may be reasonably practicable) of the identity
of such firm and after consultation with the Sellers, and the Administrator
shall not select any firm that is not reasonably acceptable to the Sellers. The
fees and expenses of any such nationally recognized independent investment
banking firm retained by the Administrator shall be borne by the Sellers.
8.2. Notices. Notices to the Purchaser shall be directed to it in care
of the Administrator at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy
number (212) 635- 7128, attention of Xxxxxxxxxxx X. Xxxxxxxx, with a copy to
Xxxxxxx Xxxxxxxxx, Esq., Xxxxx, Xxxxxx & Xxxxxx, 000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; notices to the Sellers shall be directed to them in care
of Telcom Ventures, L.L.C., 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, telecopy number (703) ________, attention of ________________,
with a copy to Xxxxxxx X. Xxxxxxxx, Esq. at Xxxxx Xxxxxxxxxx, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, telecopy number (000) 000-0000.
Notwithstanding the foregoing, notices to a party shall be directed to such
other address for such party as shall be specified by such party in a like
notice given pursuant to this Section 8.2. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
either (i) personally delivered (including delivery by courier service or by
Federal Express or any other nationally recognized overnight delivery service
for next day delivery) to the offices specified in the preceding sentence, in
which case they shall be deemed received on the first Business Day by which
delivery shall have been made to said offices; or (ii) sent by certified mail,
return receipt requested, in accordance with the preceding sentence, in which
case they shall be deemed received when receipted for unless acknowledgment is
refused (in which case delivery shall be deemed to have been received on the
first Business Day on which such acknowledgment is refused).
8.3. Governing Law; Consent to Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE. For
the purpose of any suit, action or proceeding arising out of or relating to this
Agreement, the parties hereto hereby expressly and irrevocably consent and
submit to the non-exclusive jurisdiction of any competent court in the place of
its domicile and any United States Federal court sitting in the Borough of
Manhattan, City and State of New York, and expressly and irrevocably waive, to
the extent permitted under applicable law, any immunity from the jurisdiction
thereof and any claim or defense in such suit, action or proceeding based on a
claim of improper venue, forum non conveniens or any similar basis to which it
might otherwise be entitled.
8.4. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE PARTIES HERETO HEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER
AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE,
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CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH PARTY HERETO
ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY EACH OTHER PARTY HERETO THAT THE
PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH SUCH
OTHER PARTY HERETO HAS RELIED, IS RELYING AND WILL RELY IN ENTERING INTO THIS
AGREEMENT AND ANY DOCUMENT RELATED THERETO. EACH PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF ANY OTHER PARTY HERETO TO THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
8.5. Entire Agreement. Except as expressly set forth herein, this
Agreement and the Security and Pledge Agreement constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements, understandings and negotiations, both written and oral, among
the parties with respect to the subject matter of this Agreement.
8.6. Amendments; Waivers. Any provision of this Agreement may be
amended or waived prior to the Closing if, and only if, such amendment or waiver
is in writing and signed, in the case of an amendment, by the Purchaser and each
of the Sellers or, in the case of a waiver, by the party against whom the waiver
is to be effective. No failure or delay by either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
8.7. Successors, Assigns. The provisions of this Agreement shall be
binding upon and accrue to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns. Notwithstanding the
foregoing, neither this Agreement nor any right, remedy, obligation or liability
arising hereunder or by reason hereof shall be assignable by any party hereto
without the prior written consent of the other parties hereto.
8.8. No Third Party Rights. This Agreement is not intended and shall
not be construed to create any rights in any person other than the Sellers and
the Purchaser and no person shall assert any rights as third party beneficiary
hereunder.
8.9. Application of Bankruptcy Code. The parties hereto acknowledge and
agree that the Collateral Agent is a "financial intermediary" within the
meaning of Section 101(22) of Title 11 of the United States Code (the
"Bankruptcy Code") and is acting as agent and custodian for the Purchaser in
connection with this Agreement and that the Purchaser is a "customer" of the
Collateral Agent within the meaning of said Section 101(22). The parties hereto
further acknowledge and agree that this Agreement is a "securities contract", as
such term is defined in Section 741(7) of the Bankruptcy Code, entitled to the
protection of Section 555 of the Bankruptcy Code.
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8.10. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date and year first above written.
Purchaser: Seller:
NEXTEL STRYPES TRUST CHERRYWOOD HOLDINGS, INC.
By: By:
------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxx, Name:
as Managing Trustee Title:
Seller:
XXXXXX INVESTORS, L.L.C.
By:
--------------------------------
Name:
Title:
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Exhibit A
NEXTEL STRYPES TRUST
(a Delaware business trust)
Option Unit Pricing Agreement
____________, 1997
CHERRYWOOD HOLDINGS, INC.
XXXXXX INVESTORS L.L.C.
c/o Telcom Ventures, L.L.C.
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Forward Purchase Contract, dated as of March __,
1997 (the "Forward Purchase Contract"), among Nextel STRYPES Trust (the
"Purchaser") and each of you (collectively, the "Sellers") relating to the
future purchase by the Purchaser of the Contract Consideration from the Sellers.
The Underwriters have exercised their option, pursuant to Section 2(b) of the
Underwriting Agreement, to purchase an aggregate of __________ Option STRYPES.
In connection with such exercise, the Purchaser has agreed to issue and sell to
the Underwriters, severally and not jointly, ______________ Option STRYPES.
Payment for and delivery of such Option STRYPES will be made at ______ on _____,
1997 (the "Date of Delivery").
Pursuant to subsection (b) of Section 2.1 of the Forward Purchase Contract,
the Purchaser and the Sellers hereby agree that the Option Unit Consideration to
be used in calculating the Option Consideration Amounts payable by the Purchaser
to the Sellers on the Date of Delivery as consideration for each Seller's
obligation to deliver (or cause to be delivered) the Contract Consideration in
respect of the Option Contract Commitment of such Seller created hereby shall be
$___________.*
--------
* The Option Unit Consideration shall be an amount equal to the initial public
offering price per Option STRYPES, net of (1) the underwriting discount per
Option STRYPES and (2) the cost per Option STRYPES of the zero-coupon U.S.
Government securities to be purchased by the Purchaser to provide for the
quarterly distributions on the Option STRYPES to which this Option Unit
Pricing Agreement relates. The selection of the zero-coupon U.S.
Government securities to be purchased in respect of any Option STRYPES
shall be made in a manner and on a basis consistent with the selection of
the zero-coupon U.S. Government securities purchased in respect of the
Initial STRYPES.
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Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Forward Purchase Contract.
If the foregoing is in accordance with our agreement, please sign and
return to Purchaser a counterpart hereof, whereupon this instrument, along with
all counterparts, will become a binding agreement among the Purchaser and each
Seller in accordance with its terms.
Very truly yours,
Nextel STRYPES TRUST
By: _____________________________
Name: Xxxxxx X. Xxxxxxx,
as Managing Trustee
CONFIRMED AND ACCEPTED, as of
the date first above written:
CHERRYWOOD HOLDINGS, INC.
By: ____________________________
Name:
Title:
XXXXXX INVESTORS, L.L.C.
By: ____________________________
Name:
Title:
A-2