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EXHIBIT 4.4
[Execution Copy]
AMENDMENT NO. 2 TO SECOND SECURED VENDOR FINANCING AGREEMENT
AMENDMENT NO. 2 TO SECOND SECURED 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"); and the VENDOR LENDERS listed on the signature pages hereto under
the caption "VENDOR LENDERS" (individually, a "Vendor Lender" and,
collectively, the "Vendor Lenders").
NCI, the Restricted Companies and the Vendor Lenders are
parties to a Second Secured Vendor Financing Agreement dated as of August 19,
1997 (as modified and supplemented and in effect from time to time, the "Second
Secured Vendor Financing Agreement"), and wish to amend the Second Secured
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. 2 to Second Secured Vendor Financing Agreement, terms defined in
the Second Secured 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 Second Secured Vendor Financing Agreement shall be amended as
follows:
3.01 References Generally. References in the Second Secured
Vendor Financing Agreement (including references to the Second Secured 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 Second Secured Vendor Financing Agreement as
amended hereby.
3.02 Definitions. A new definition of "Amendment No. 2
Effective Date" shall be inserted into Section 1.01 of the Second Secured
Vendor Financing Agreement, and the definitions of "Contributed Capital" and
"Public Note Indentures" in Section 1.01 of the Second Secured Vendor Financing
Agreement shall be amended to read in their entirety as follows:
"Amendment No. 2 Effective Date" means the date on which the
amendments provided for in Amendment No. 2 hereto shall have become
effective.
Amendment No. 2 to Second Secured Vendor Financing Agreement
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"Contributed Capital" means, as at any time, the net
aggregate amount of equity capital received in the form of cash after
September 30, 1996 by the Restricted 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. 2 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 Second Secured Vendor Financing Agreement are hereby amended to read in
their entirety as follows:
"(c) Indebtedness of the Credit Parties existing on the
Amendment No. 2 Effective Date and set forth in Schedule 7.01 to the
Vendor Financing Agreement 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 Vendor
Lenders, the Vendors, the Lenders and the Agents than the
terms and conditions of the January 1994 Indenture and the
Public Notes issued thereunder;
Amendment No. 2 to Second Secured Vendor Financing Agreement
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(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 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 Vendor
Lenders, the Vendors, the Lenders and the Agents than the
terms and conditions of this Agreement and the other Second
Secured Loan Documents;
(d) additional Indebtedness incurred by NCI after the date
of Amendment No. 2 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 Vendor Lenders, 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 Second
Secured 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
Amendment No. 2 to Second Secured Vendor Financing Agreement
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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. 2
Effective Date)."
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. 2 by NCI, the Restricted Companies
and the Required Vendor Lenders.
Section 4. Miscellaneous. Except as herein provided, the
Second Secured Vendor Financing Agreement shall remain unchanged and in full
force and effect. This Amendment No. 2 to Second Secured 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. 2 to Second Secured Vendor
Financing Agreement by signing any such counterpart. This Amendment No. 2 to
Second Secured Vendor Financing Agreement shall be governed by, and construed
in accordance with, the law of the State of New York.
Amendment No. 2 to Second Secured Vendor Financing Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to Second Secured 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. 2 to Second Secured 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. 2 to Second Secured 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
VENDOR LENDERS
MOTOROLA, INC.
By /s/ XXXX X. XXXXX
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Name: XXXX X. XXXXX
Title: DIRECTOR, WORLDWIDE
FINANCING
Amendment No. 2 to Second Secured Vendor Financing Agreement
