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EXHIBIT 4.3
[Execution Copy]
AMENDMENT NO. 5 TO VENDOR FINANCING AGREEMENT
AMENDMENT NO. 5 TO VENDOR FINANCING AGREEMENT dated as of
October 9, 1997, between NEXTEL COMMUNICATIONS, INC. ("NCI"); NEXTEL FINANCE
COMPANY (the "Borrower") and the other Restricted Companies listed on the
signature pages hereto under the caption "RESTRICTED COMPANIES" (individually,
a "Restricted Company" and, collectively, the "Restricted Companies");
MOTOROLA, INC. ("Motorola"); and NTFC Capital Corporation ("NTFC Capital" and,
together with Motorola, the "Vendors").
NCI, the Restricted Companies and the Vendors are parties to
an Amended, Restated and Consolidated Credit Agreement dated as of September
27, 1996 (as modified and supplemented and in effect from time to time, the
"Vendor Financing Agreement"), and wish to amend the Vendor Financing Agreement
in certain respects. Accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 5 to Vendor Financing Agreement, terms defined in the Vendor
Financing Agreement are used herein as defined therein.
Section 2. Amendment. Subject to the satisfaction of the
condition precedent specified in Section 3 below, but effective as of the date
hereof, the Vendor Financing Agreement shall be amended as follows:
3.01 References Generally. References in the Vendor
Financing Agreement (including references to the Vendor Financing Agreement as
amended hereby) to "this Agreement" (and indirect references such as
"hereunder", "hereby", "herein" and "hereof") shall be deemed to be references
to the Vendor Financing Agreement as amended hereby.
3.02 Definitions. A new definition of "Amendment No. 5
Effective Date" shall be inserted into Section 1.01 of the Vendor Financing
Agreement, and the definitions of "Contributed Capital" and "Public Note
Indentures" in Section 1.01 of the Vendor Financing Agreement shall be amended
to read in their entirety as follows:
"Amendment No. 5 Effective Date" means the date on which the
amendments provided for in Amendment No. 5 hereto shall have become
effective.
"Contributed Capital" means, as at any time, the net
aggregate amount of equity capital received in the form of cash after
the Effective Date by the Restricted
Amendment No. 5 to Vendor Financing Agreement
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Companies in respect of shares of common stock to the extent such
amount does not exceed the aggregate proceeds of Qualifying Debt or
Equity Issuances by NCI after the Effective Date.
"Public Note Indentures" means (a) the Indenture dated as of
August 15, 1993 between NCI and The Bank of New York, as Trustee, (b)
the Indenture dated as of December 22, 1993 between NCI (as successor
to Dial Call Communications, Inc.) and The Bank of New York, as
Trustee, (c) the Indenture dated as of January 13, 1994 between NCI
(as successor to CenCall Communications Corp.) and The Bank of New
York, as Trustee, (d) the Indenture dated as of February 15, 1994
between NCI and The Bank of New York, as Trustee and (e) the Indenture
dated as of April 24, 1994 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee. In
addition, effective on the Amendment No. 5 Effective Date, the term
"Public Note Indentures" shall include the Indenture dated as of
September 17, 1997 between NCI and Xxxxxx Trust and Savings Bank, as
Trustee.
3.03 Intentionally Left Blank. This Section 3.03 has been
intentionally left blank.
3.04 Indebtedness. Paragraphs (c) and (d) of Section 7.01
of the Vendor Financing Agreement are hereby amended to read in their entirety
as follows:
"(c) Indebtedness of the Credit Parties existing on the
Amendment No. 5 Effective Date and set forth in Schedule 7.01 and,
(i) in the case of the Public Notes,
extensions, renewals and refinancings thereof, so long as (x)
any such extension, renewal and refinancing does not increase
the outstanding stated principal amount of the Public Notes
being extended, renewed or refinanced, (y) the maturity date
of such extension, renewal or refinancing is later than the
maturity date of the Public Notes being extended, renewed or
refinanced and (z) the terms and conditions of such
extension, renewal or refinancing (other than in respect of
interest, which shall not be restricted), are no less
favorable to NCI, the Restricted Companies, the Vendors, the
Lenders, and the Agents than the terms and conditions of the
January 1994 Indenture and the Public Notes issued
thereunder;
(ii) in the case of any such Indebtedness of
the Restricted Companies, extensions, renewals and
refinancings thereof, so long as (w) such extension, renewal
and refinancing does not increase the outstanding principal
amount of the Indebtedness being extended, renewed or
refinanced, (x) the Average Life to Maturity of the
Indebtedness so extended, renewed or
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refinanced shall not be shorter than the Average Life to
Maturity of the Indebtedness being extended, renewed or
refinanced, (y) at the time of such extension, renewal or
refinancing, and after giving effect thereto, no Default
shall have occurred and be continuing and (z) the terms and
conditions of such Indebtedness as so extended, renewed or
refinanced (other than in respect of interest, which shall
not be restricted) are no less favorable to the Restricted
Companies, the Vendors, the Lenders and the Agents than the
terms and conditions of this Agreement and the other Loan
Documents;
(d) additional Indebtedness incurred by NCI after the date
of Amendment No. 5 hereto (i.e. October 9, 1997), provided that (i)
the sum of (x) the aggregate principal amount of any such Indebtedness
issued at par plus (y) the net proceeds (after underwriting or
placement agent fees or commissions) of any such Indebtedness issued
at less than par, shall not exceed $1,000,000,000, (ii) no scheduled
payments, prepayments, redemptions or sinking fund or like payments in
respect of such Indebtedness shall be required prior to September 30,
2003, (iii) such Indebtedness shall provide that interest payable in
respect thereof shall be capitalized prior to the fifth anniversary of
the date of incurrence of such Indebtedness (it being understood that,
if interest shall be capitalized only through a date within fifteen
days prior to such fifth anniversary, such Indebtedness shall
nevertheless be deemed to comply with the foregoing requirement) and
(iv) the terms and conditions of such Indebtedness (other than in
respect of interest, which shall not be restricted) are no less
favorable to NCI, the Restricted Companies, the Vendors, the Lenders
and the Agents than the terms and conditions of the January 1994
Indenture and the Public Notes issued thereunder;"
3.05 Restricted Payments. Section 7.05 of the Vendor
Financing Agreement shall be amended by (A) deleting the word "and" at the end
of subclause (v) of clause (c) thereof, (B) inserting "; and" in lieu of the
period at the end of clause (d) thereof and (C) inserting the following new
clause (e) at the end thereof to read as follows:
"(e) so long as at the time thereof, and after giving effect
thereto, no Default shall have occurred and be continuing, the
Borrower may make Restricted Payments to NCI to the extent necessary
to enable NCI to refinance or repurchase (directly or indirectly) any
of the Public Notes (it being understood that the amount of such
Restricted Payment may include any redemption or tender premium
required to be paid by NCI in connection with such refinancing or
repurchase), provided that the aggregate amount of all such Restricted
Payments shall not exceed the amount of additional equity capital
contributed by NCI to the Borrower in cash after the Amendment No. 5
Effective Date)."
Amendment No. 5 to Vendor Financing Agreement
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3.06 Schedule 7.01. Schedule 7.01 of the Vendor Financing
Agreement is hereby amended to read in its entirety as set forth in Schedule
7.01 hereto.
Section 3. Conditions Precedent. The amendments set forth
in Section 2 hereof, shall become effective, as of the date hereof, upon the
execution and delivery of this Amendment No. 5 by NCI, the Restricted Companies
and the Required Vendors.
Section 4. Miscellaneous. Except as herein provided, the
Vendor Financing Agreement shall remain unchanged and in full force and effect.
This Amendment No. 5 to Vendor Financing Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same amendatory instrument and any of the parties hereto may execute this
Amendment No. 5 to Vendor Financing Agreement by signing any such counterpart.
This Amendment No. 5 to Vendor Financing Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
Amendment No. 5 to Vendor Financing Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 5 to Vendor Financing Agreement to be duly executed and delivered
as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.
By /s/ XXXXXX X. XXXXXX
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Name: XXXXXX X. XXXXXX
Title: VICE PRESIDENT
RESTRICTED COMPANIES
NEXTEL FINANCE COMPANY (successor to
Fleet Call Corporation),
By /s/ XXXXXX X. XXXXXX
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Name: XXXXXX X. XXXXXX
Title: VICE PRESIDENT
ADVANCED MOBILECOMM OF
NORTH CAROLINA, INC.
AIRLINK COMMUNICATIONS, INC.
(successor to TRS, Inc.)
AMERICAN MOBILE SYSTEMS,
INCORPORATED (successor to Saber
Communications, Inc.)
DIAL CALL, INC.
DIAL DISTANCE, INC.
FC NEW YORK, INC. (successor to Metrocom
Trunked Radio Communication Systems, Inc.)
FCI 900, INC.
FLEET CALL OF TEXAS, INC. (successor to
FM Tower Company, Metrolink
Communications Corporation and National
Tower Trunking Systems, Inc.)
Amendment No. 5 to Vendor Financing Agreement
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NEXTEL COMMUNICATIONS OF THE
MID-ATLANTIC, INC. (successor to Dispatch
Communications of Maryland, Inc., Dispatch
Communications of Minnesota, Inc., Dispatch
Communications of New England, Inc.,
Dispatch Communications of Pennsylvania,Inc.)
NEXTEL LICENSE HOLDINGS 1, INC.
NEXTEL LICENSE HOLDINGS 2, INC.
(successor to Comqor, Inc.)
NEXTEL LICENSE HOLDINGS 3, INC.
(successor to Dial Call Arkansas, Inc.,
Custom Radio/Xxxxxxx Communications, Inc.,
Dial Call Florida, Inc., Dial Call
Kentucky, Inc., Dial Call Louisiana, Inc.,
Dial Call Texas, Inc., Dial Call
Virginia, Inc., Dial Call West Virginia, Inc.
and U.S. Digital, Inc.)
NEXTEL LICENSE HOLDINGS 4, INC.
NEXTEL OF TEXAS, INC. (successor to Fort
Worth Communications, Inc.)
NEXTEL WEST CORP.
(successor to Airwave Communications Corp.
(Seattle), C-Call Corporation, Dispatch
Communications of Arizona, Inc., ESMR Sub,
Inc., Fleet Call of Utah, Inc., Fleet Call
West, Inc., Mijac Enterprises, Inc., Mobile
Radio of Illinois, Inc., Motorola SF, Inc.,
Nextel Hawaii Acquisition Corp.,
Nextel Utah Acquisition Corp., Nextel
Western Acquisition Corp., OneComm
Corporation, N.A., Powerfone
Holdings, Inc., Powerfone, Inc.,
Smart SMR of Illinois, Inc., Shoreland
Communications, Inc. and Spectrum Resources
of the Midwest, Inc.)
SAFETY NET, INC.
SMART SMR, INC.
Amendment No. 5 to Vendor Financing Agreement
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SMART SMR OF CALIFORNIA, INC.
SMART SMR OF NEW YORK, INC.
By /s/ XXXXXX X. XXXXXX
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Name: XXXXXX X. XXXXXX
Title: VICE PRESIDENT
FORT WORTH TRUNKED RADIO
LIMITED PARTNERSHIP
By Nextel of Texas,Inc.,
a General Partner
By /s/ XXXXXX X. XXXXXX
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Name: XXXXXX X. XXXXXX
Title: VICE PRESIDENT
Amendment No. 5 to Vendor Financing Agreement
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MOTOROLA, INC.
By /s/ XXXX X. XXXXX
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Name: XXXX X. XXXXX
Title: DIRECTOR, WORLDWIDE
FINANCING
NTFC CAPITAL CORPORATION
By
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Name:
Title:
The undersigned, as assignee of certain of the Loans made by
Motorola under the above-referenced Vendor Financing Agreement, hereby consents
to the execution and delivery of the foregoing Amendment No. 5.
XXXXXX COMMERCIAL PAPER, INC.
By /s/ XXXXXXX XXXXXXX
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Name: XXXXXXX XXXXXXX
Title: AUTHORIZED SIGNATORY
XXXXXX SYNDICATED LOANS INC.
By /s/ XXXXXX X. XXX
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Name: XXXXXX X. XXX
Title: AUTHORIZED SIGNATORY
Amendment No. 5 to Vendor Financing Agreement
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Schedule 7.01
[Existing Indebtedness]
No Indebtedness other than (i) Indebtedness evidenced by the Public Notes and
(ii) other Indebtedness not exceeding $5,000,000 outstanding in the aggregate.
Schedule 7.01
