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AMENDMENT NO. 3 TO CREDIT AGREEMENT
AMENDMENT NO. 3 TO CREDIT AGREEMENT dated as of March 23, 1999 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"); TORONTO DOMINION (TEXAS) INC., in its
capacity as Administrative Agent (in such capacity, the "Administrative Agent")
pursuant to authority granted by the Required Lenders pursuant to Section
10.02(b) of the Credit Agreement (as defined below); and THE CHASE MANHATTAN
BANK, in its capacity as Collateral Agent (in such capacity, the "Collateral
Agent").
NCI, the Restricted Companies, certain lenders, the Administrative Agent,
and the Collateral Agent, are parties to a Credit Agreement dated as of March
12, 1998 (as modified and supplemented and in effect from time to time, the
"Credit Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit (by means of loans and letters of credit) to be made by the
Lenders to the Borrower in an aggregate original principal or face amount not
exceeding $3,000,000,000 (which has been heretofore increased to $3,295,000,000
and which, in the circumstances contemplated by Section 7.01(e) thereof, may be
further increased to $3,500,000,000). NCI, the Restricted Companies, the
Administrative Agent (pursuant to authority granted by, and having obtained all
necessary consents of, the Required Lenders) and the Collateral Agent wish now
to consent to certain transactions to be undertaken by the Restricted Companies
and to amend the Credit Agreement in certain other respects, and accordingly,
the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment No.
3, terms defined in the Credit Agreement are used herein as defined therein.
Section 2. Consent. NCI and certain of the Restricted Companies
identified therein as "Transferring Subsidiaries" ("Transferring Subsidiaries")
have entered into an Agreement and Plan of Merger dated as of February 10, 1999
as amended by an Amendment No. 1 thereto dated April ___, 1999 (as so amended,
the "Tower Merger Agreement") with Tower Parent Corp., a newly formed Delaware
corporation and wholly owned direct Subsidiary of NCI that is an "Unrestricted
Subsidiary" under the Public Note Indentures ("TPC"), Tower Merger Vehicle, Inc.
a newly formed Delaware corporation and wholly owned direct Subsidiary of TPC
("Merger Sub"), Tower Asset Sub, Inc., a newly formed Delaware corporation and
wholly owned direct Subsidiary of Merger Sub ("Tower Sub"), SpectraSite
Holdings, Inc., a Delaware corporation ("Tower Aggregator"), SpectraSite
Communications, Inc., a Delaware corporation and wholly owned direct Subsidiary
of Tower Aggregator ("SCI"), and SHI Merger Sub, Inc., a newly formed Delaware
corporation and wholly owned direct Subsidiary of SCI ("SHI Merger Sub").
Pursuant to the Tower Merger Agreement it is contemplated, inter alia, that the
following transactions will be effected (in the order indicated below):
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(a) the Transferring Subsidiaries will transfer to TPC, in the
manner contemplated in Section 2.1(a) of the Tower Merger Agreement, the
"Tower Assets" under and as defined in said Section 2.1(a) (subject to
the exclusions described in Section 2.1(b) of the Tower Merger
Agreement), in exchange for Promissory Notes (the "TPC Notes") of TPC in
an aggregate principal amount of not less than the sum of $525,000,000
and the "Additional Tower Payment" under and as defined in the Tower
Merger Agreement, payable to the respective Transferring Subsidiaries;
(b) TPC will transfer to Tower Sub, in the manner contemplated in
Section 2.1(a) of the Tower Merger Agreement, the "Tower Assets", in
exchange for a Promissory Note (the "Tower Sub Note") of Tower Sub in an
aggregate principal amount equal to the sum of $455,000,000 and the
"Additional Tower Payment" under and as defined in the Tower Merger
Agreement, payable to TPC;
(c) SHI Merger Sub will merge with and into Merger Sub, in the
manner contemplated in Section 3.1 and 3.2 of the Tower Merger Agreement,
with Merger Sub being the continuing and surviving corporation; in such
merger, (i) all of the shares of Merger Sub Common Stock (there being no
other shares of any class of capital stock of Merger Sub outstanding)
will be converted into 14,000,000 shares of Tower Aggregator Series C
Preferred Stock, representing 23.3% of the authorized and outstanding
shares of Tower Aggregator Series C Preferred Stock (having an
approximate value of $70,000,000 and representing approximately 17% of
the total equity capital of Tower Aggregator), and (ii) all of the shares
of SHI Merger Sub Common Stock (there being no other shares of any class
of capital stock of Merger Sub outstanding) will be converted into shares
of Merger Sub Common Stock;
(d) upon the consummation of the merger referred to in paragraph
(c) above, as contemplated by Section 3.3 and 3.4 of the Tower Merger
Agreement, Tower Aggregator (directly or indirectly through its
Subsidiaries) will contribute to Tower Sub cash in an amount equal to the
principal of the Tower Sub Note and Tower Sub will repay the Tower Sub
Note in its entirety; and
(e) in addition, upon consummation of the merger referred to in
paragraph (c) above, (i) the Transferring Subsidiaries, Tower Sub and the
Landlord Parties (as defined therein) will enter into a Master Site Lease
Agreement in the form of Exhibit B to the Tower Merger Agreement (herein
the "Master Site Lease Agreement") providing, inter alia, for the lease
to the Transferring Subsidiaries of the Tower Assets referred to in
paragraph (a) above and (ii) NCI, the Transferring Subsidiaries, TPC,
Tower Aggregator and Tower Sub will enter into a Master Site Commitment
Agreement (the "Master Site Commitment Agreement") providing, inter alia,
for the construction by Tower Sub of additional tower sites in the United
States for lease by the Transferring Subsidiaries (and, in that
connection, SCI will pay to the Transferring Subsidiaries an amount equal
to $105,000,000).
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It is contemplated that payments to be made by TPC in respect of the TPC Notes
to the Transferring Subsidiaries may be made either in the form of cash or in
the form of the transfer by TPC of capital assets constructed or acquired by TPC
in accordance with Article VII(f) of the TPC Guarantee and Security Agreement.
The Restricted Companies have requested that the Administrative Agent
consent to the transactions described above to the extent set forth below;
accordingly, subject to the satisfaction of the conditions precedent specified
in Section 5 below, but effective as of the date hereof, the Administrative
Agent (having previously obtained the authorization of, and all necessary
consents of, the Required Lenders under the Credit Agreement) hereby consents to
the following transactions (in each case for the purpose, and to the extent, of
the respective provisions of the Credit Agreement identified in the lettered
paragraphs below):
(x) the transfer by the Transferring Subsidiaries to TPC, in the
manner contemplated in paragraph (a) above of the "Tower Assets" therein
referred to in exchange for TPC Notes, the consent in this paragraph (x)
being granted for purposes of Sections 7.03, 7.04 and 7.06 of the Credit
Agreement (and not to constitute utilization of any of the baskets in any
of said Sections), so long as (i) the form of the TPC Notes is
satisfactory in form and substance to the Collateral Agent and the TPC
Notes, following the execution and delivery thereof, are delivered to the
Collateral Agent in pledge pursuant to the Restricted Company Guarantee
and Security Agreement, together with any necessary endorsement, and (ii)
TPC shall take such action upon the consummation of the merger referred
to in paragraph (c) above (including delivering the certificates
representing the shares of Tower Aggregator Series C Preferred Stock and
executing and delivering such Uniform Commercial Code financing
statements) as the Collateral Agent shall reasonably request to perfect
the security interest in all of the Collateral under and as defined in
the TPC Guarantee and Security Agreement;
(y) the execution, delivery and performance by the Transferring
Subsidiaries of the Master Site Lease Agreement and the Master Site
Commitment Agreement, including the right of Tower Sub to acquire future
tower sites from the Transferring Subsidiaries, the consent in this
paragraph (y) being granted for purposes of Sections 7.03, 7.04 and 7.06
of the Credit Agreement (and not to constitute utilization of any of the
baskets in any of said Sections) and, insofar as the right of Tower Sub
to acquire future tower sites from the Transferring Subsidiaries might be
deemed to constitute a "Lien", for purposes of Section 7.02 of the Credit
Agreement; and
(z) the repayment of the TPC Notes by TPC through the transfer to
the Transferring Subsidiaries by TPC of capital assets acquired by TPC in
accordance with Article VII(f) of the TPC Guarantee and Security
Agreement, the consent in this paragraph (z) being granted for purposes
of Section 7.04 of the Credit Agreement (and not to constitute
utilization of any of the baskets in said Section).
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Section 3. Amendments. Subject to the satisfaction of the
conditions precedent specified in Section 5 below, but effective as of the date
hereof, the Credit Agreement shall be amended as follows:
3.01 References Generally. References in the Credit Agreement
(including references to the Credit 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 Credit Agreement as amended
hereby.
3.02 Definitions. Section 1.01 of the Credit Agreement is hereby
amended by adding the following new definitions (to the extent not already
included in said Section 1.01) and inserting the same in the appropriate
alphabetical locations and amending the following definitions (to the extent
already included in said Section 1.01), as follows:
"Amendment No. 3" means Amendment No. 3 to this Agreement.
"Amendment No. 3 Effective Date" means the date on which the
conditions to the effectiveness of the amendments provided for in
Amendment No. 3 set forth in Section 5 thereof are satisfied (or waived
in accordance with said Section 5).
"Event of Default" means any "Event of Default" as defined in
Article VIII and any TPC Event of Default (it being understood that a TPC
Event of Default is not an Event of Default for purposes of Article
VIII).
"Security Documents" means the Restricted Company Guarantee and
Security Agreement, the Mortgages, the TPC Guarantee and Security
Agreement and all Uniform Commercial Code financing statements required
by any of such instruments to be filed with respect to the security
interests in personal property and fixtures created pursuant thereto.
"Tower Merger Documents " means, collectively, the Tower Merger
Agreement, the Master Site Commitment Agreement and the Master Site Lease
Agreement (each as defined in Amendment No. 3), the Subordination,
Non-Disturbance and Attornment Agreement (as defined in said Master Site
Lease Agreement), the Security and Subordination Agreement and the
Stockholders Agreement (each as defined in the Tower Merger Agreement)
and the Intercreditor Agreement and Subordination Agreement to be
executed and delivered between TPC and the Transferring Subsidiaries and
certain other parties in connection with the consummation of the
transactions contemplated by the Tower Merger Agreement.
"TPC Event of Default" means the occurrence and continuance of any
of the following events:
(a) TPC shall fail to pay any principal of or interest on
any TPC Note when due (whether at stated maturity, by acceleration
or otherwise);
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(b) any representation or warranty made or deemed made by
or on behalf of TPC in or in connection with the TPC Guarantee and
Security Agreement or any amendment or modification thereof (or in
any report, certificate, financial statement or other document
furnished pursuant to or in connection with the TPC Guarantee and
Security Agreement or any amendment or modification thereof) shall
prove to have been incorrect when made or deemed made in any
material respect;
(c) TPC shall fail to observe or perform any covenant,
condition or agreement contained in Article VII of the TPC
Guarantee and Security Agreement;
(d) TPC shall fail to observe or perform any covenant,
condition or agreement contained in the TPC Guarantee and Security
Agreement (other than those specified in clause (a), (b) or (c)
above), and such failure shall continue unremedied for a period of
thirty or more days after notice thereof from the Administrative
Agent (given at the request of any Lender) to the Borrower;
(e) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (A) liquidation,
reorganization or other relief in respect of TPC or its debts, or
of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (B) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for TPC
or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days
or an order or decree approving or ordering any of the foregoing
shall be entered;
(f) TPC shall (A) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (B)
consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause
(e) above), (C) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for TPC or for a substantial part of its assets, (D) file
an answer admitting the material allegations of a petition filed
against it in any such proceeding, (E) make a general assignment
for the benefit of creditors or (F) take any action for the
purpose of effecting any of the foregoing;
(g) TPC shall become unable, admit in writing or fail
generally to pay its debts as they become due;
(h) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered
against TPC and the same
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shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or
levy upon any assets of TPC to enforce any such judgment; or
(i) a reasonable basis shall exist for the assertion
against TPC, or any predecessor in interest of TPC or its
Affiliates, of (or there shall have been asserted against TPC) any
claims or liabilities, whether accrued, absolute or contingent,
based on or arising from the generation, storage, transport,
handling or disposal of Hazardous Materials or RF Emissions by TPC
or any of its subsidiaries, Affiliates or predecessors that, in
the judgment of the Required Lenders is reasonably likely to be
determined adversely to TPC, and the amount thereof (either
individually or in the aggregate) is reasonably likely to have a
Material Adverse Effect (insofar as such amount is payable by TPC
but after deducting any portion thereof that is reasonably
expected to be paid by other creditworthy Persons jointly and
severally liable therefor).
"TPC Guarantee and Security Agreement" means a Guarantee and
Security Agreement substantially in the form of Exhibit A to Amendment
No. 3 between TPC and the Collateral Agent.
"TPC Notes" has the meaning assigned to such term in Section 2 of
Amendment No. 3.
3.03 Accounting Terms, Etc. Section 1.04 of the Credit Agreement
is hereby amended by adding a new paragraph at the end thereof to read as
follows:
"For purposes of determining compliance with Section 7.08, TPC
shall be deemed treated as if it were a 'Restricted Company',
notwithstanding that (as provided in the last sentence of Section
6.11(a)) it may not be a 'Restricted Company' hereunder (in as much as it
is an 'Unrestricted Subsidiary' under the Public Note Indentures); in
addition, whenever delivering financial statements pursuant to Section
6.01(b) and (c), and calculations pursuant to clauses (iii) of Section
6.01(d), TPC shall similarly be treated as if it were a 'Restricted
Company'. In addition, when determining 'Indebtedness' of TPC for
purposes of said Sections, there shall be excluded any liability of TPC
arising as a result of the application of EITF (Emerging Issues Task
Force) Issue No. 97-10 (The Effect of Lessee Involvement in Asset
Construction) and its interpretation and application of FASB Statement
No. 66 (Accounting for Sales of Real Estate) and FASB Statement No. 98
(Accounting for Leases: Sale-Leaseback Transactions Involving Real
Estate; Sales-Type Leases of Real Estate; Definition of the Lease Term;
and Initial Direct Costs of Direct Financing Leases) to the transactions
contemplated by the Tower Merger Documents."
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3.04 Conditions Precedent (Representations and Warranties).
Section 5.02(a) of the Credit Agreement is hereby amended to read in its
entirety as follows:
"(a) Representations and Warranties. The representations and
warranties of each Credit Party set forth in this Agreement and the other
Loan Documents, and of TPC in the TPC Guarantee and Security Agreement,
shall be true and correct on and as of the date of such Borrowing, or (as
applicable) the date of issuance, amendment, renewal or extension of such
Letter of Credit, both before and after giving effect thereto and to the
use of the proceeds thereof (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, such
representation or warranty shall be true and correct as of such specific
date)."
3.05 Fundamental Changes. Section 7.03(f) of the Credit Agreement
is hereby amended to read in its entirety as follows:
"(f) any Restricted Company may sell any of its assets for
consideration in an amount not less than the fair market value of such
assets, provided that (A) at least 85% of such consideration is in the
form of cash, (B) the Net Cash Payments of such sale are applied to
prepay the Loans and reduce the Commitments hereunder to the extent
required by Section 2.09(b)(ii), (C) at the time of such sale and
immediately after giving effect thereto no Default shall have occurred
and be continuing and (D) the aggregate fair market value of all such
assets sold by the Restricted Companies after March 8, 1999 shall not
exceed $250,000,000."
3.06 Financial Covenants. Section 7.08 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"SECTION 7.08. Certain Financial and Other Covenants.
(a) Total Indebtedness to Cash Flow Ratio. NCI will not permit the
Total Indebtedness to Cash Flow Ratio at any time during any period below
to exceed the ratio set opposite such period below:
Period Ratio
------ -----
From September 30, 1999
through December 30, 1999 17.50 to 1
From December 31, 1999
through March 30, 2000 13.00 to 1
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From March 31, 2000
through June 29, 2000 10.00 to 1
From June 30, 2000
through December 30, 2000 7.50 to 1
From December 31, 2000
through June 29, 2001 6.00 to 1
From June 30, 2001
and at all times thereafter 5.00 to 1
(b) Interest Coverage Ratio. NCI will not permit the Interest
Coverage Ratio at any time during any period below to be less than the
ratio set opposite such period below:
Period Ratio
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From September 30, 1999
through December 30, 1999 1.10 to 1
From December 31, 1999
through June 29, 2000 1.50 to 1
From June 30, 2000
and at all times thereafter 2.00 to 1
(c) Pro-Forma Debt Service Ratio. NCI will not permit the
Pro-Forma Debt Service Ratio as at the last day of any fiscal quarter
ending on or after March 31, 2001 to be less than 1.00 to 1.
(d) Fixed Charges Ratio. NCI will not permit the Fixed Charges
Ratio as at the last day of any fiscal quarter ending on or after June
30, 2001 to be less than 1.00 to 1.
(e) Secured Indebtedness to Cash Flow Ratio. The Restricted
Companies will not permit the Secured Indebtedness to Cash Flow Ratio at
any time during any period below to exceed the ratio set opposite such
period below:
Period Ratio
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From June 30, 1999
through September 29, 1999 10.00 to 1
From September 30, 1999
through December 30, 1999 7.00 to 1
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From December 31, 1999
through March 30, 2000 5.00 to 1
From March 31, 2000
through March 30, 2001 4.00 to 1
From March 31, 2001
and at all times thereafter 3.00 to 1
(f) Secured Indebtedness to Revenue Ratio. The Restricted
Companies will not permit the Secured Indebtedness to Revenue Ratio as at
any date set forth below to exceed the ratio set forth opposite such date
below:
Date Ratio
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March 31, 1998 2.50 to 1
June 30, 1998 2.25 to 1
September 30, 1998, December 31,
1998 and March 31, 1999 2.00 to 1
June 30, 1999 1.75 to 1
(g) Minimum Annualized Revenue. The Restricted Companies will not
permit Annualized Revenue (adjusted as provided in the next sentence) as
at any date below to be less than the amount set opposite such date
below:
Date Amount
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March 31, 1998 $ 900,000,000
June 30, 1998 $1,100,000,000
September 30, 1998 $1,300,000,000
December 31, 1998 $1,500,000,000
March 31, 1999 $1,750,000,000
June 30, 1999 $2,050,000,000
For purposes of this paragraph (g), Annualized Revenue as at any date
shall be reduced, for each acquisition consummated prior to such date by
any Restricted Company the Purchase Price for which exceeds $50,000,000
(excluding, however, any such acquisition consummated prior to the date
hereof), by an amount equal to the product of 4 multiplied by the revenue
of the business, or attributable to the assets, so acquired for the
fiscal quarter ending on, or most recently ended prior to, the date of
such acquisition, provided that, if at the last day of any fiscal quarter
of the Restricted Companies (the "current fiscal quarter") fewer than
four complete fiscal quarters shall have elapsed following the date of
such acquisition, such product shall be further multiplied by a fraction,
the numerator of which is the number of days during the period commencing
on the date of such
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acquisition to but excluding the last day of the current fiscal quarter
and the denominator of which is 365.
(h) Minimum Network Subscriber Units. The Restricted Companies
will not permit the aggregate number of Network Subscriber Units
(adjusted as provided in the next sentence) as at any date below to be
less than the number set opposite such date below:
Date Number
---- ------
March 31, 1998 1,300,000
June 30, 1998 1,500,000
September 30, 1998 1,700,000
December 31, 1998 2,000,000
March 31, 1999 2,400,000
June 30, 1999 2,900,000
For purposes of this paragraph (h), Network Subscriber Units as at any
date shall be reduced, for each acquisition consummated prior to such
date by any Restricted Company the Purchase Price for which exceeds
$50,000,000 (excluding, however, any such acquisition consummated prior
to the date hereof), by the number or Network Subscriber Units of the
business, or attributable to the assets, so acquired on the date on which
such acquisition is consummated."
3.07 Modifications to Certain Agreements. Section 7.10 of the
Credit Agreement is hereby amended by adding a new sentence at the end thereof
to read as follows:
"In addition, the Credit Parties will not consent to any
modification, supplement or waiver of any of the provisions of the TPC
Notes, or any of the provisions of any of the Tower Merger Documents,
without, in each case, the prior consent of the Administrative Agent
(with the approval of the Required Lenders), provided that no such
consent shall be required with respect to any modification, supplement or
waiver of any of the provisions of (i) any of the Tower Merger Documents
to the extent relating to particular tower sites (or to particular groups
of tower sites not aggregating more than 5% of the total tower sites),
(ii) to the conditions for delivery or lease of newly-constructed tower
sites pursuant to the Master Commitment Agreement or Master Lease
Agreement, as applicable, or (iii) to any other modification of any of
the Tower Merger Documents if the Administrative Agent and Collateral
Agent have determined that such modification is not material with respect
to the interests of the Lenders under this Agreement or any of the other
Loan Documents."
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3.08 Security Document Event of Default. Paragraph (p) of Article
VIII of the Credit Agreement is hereby amended to read in its entirety as
follows:
"(p) Any of the following shall occur: (i) the Liens created by
the Security Documents shall at any time, with respect to any material
portion of the property of the Restricted Companies and TPC (taken as a
whole), not constitute valid and perfected Liens on the Collateral
intended to be covered thereby (to the extent perfection by filing,
registration, recordation or possession is required herein or therein) in
favor of the Collateral Agent for the benefit of the Lenders hereunder,
free and clear of all other Liens (other than Liens permitted under
Section 7.02 or under the respective Security Documents); (ii) except for
expiration in accordance with its terms, any of the Security Documents
shall for whatever reason be terminated, or shall cease to be in full
force and effect, with respect to any material portion of the property of
the Restricted Companies and TPC (taken as a whole); or (iii) the
enforceability of any of the Security Documents shall be contested by any
Credit Party or TPC (as applicable); or"
3.09 TPC-Related Event of Default. Article VIII of the Credit
Agreement is hereby amended by adding a new paragraph (q) therein immediately
following paragraph (p) thereof to read as follows:
"(q) Any of the Restricted Companies shall default in the payment
of any Rent under the Master Site Lease Agreement (as defined in
Amendment No. 3) and the same shall continue beyond the period of grace
provided for therein and, as a result thereof, the Restricted Companies
shall receive a "Cross Default Notice" under and as defined in Section
27(d) of said Master Site Lease Agreement, or any of the Restricted
Companies shall receive notice of one or more defaults under said Master
Site Lease Agreement which defaults, if uncured, could result in the
termination of the Restricted Companies' rights with respect to 10% or
more of the sites covered in said Master Site Lease Agreement;"
Section 4. Representations and Warranties. NCI and each of the
Restricted Companies hereby represents and warrants to the Lenders and the
Agents that it has heretofore delivered to the Collateral Agent and Special
Counsel true and complete copies of the Tower Merger Documents
(or forms thereof), including Amendment No. 1 to the Tower Merger Agreement.
Section 5. Conditions Precedent. The consent set forth in Section
2 hereof, and the amendments set forth in Section 3 hereof, shall become
effective, as of the date hereof, upon the date on which each of the following
conditions is satisfied (or waived in accordance with the last paragraph
hereof):
(a) Counterparts. The Administrative Agent (or Special Counsel)
shall have received from NCI, the Restricted Companies and the Collateral
Agent, either (i) a counterpart of this Amendment No. 3 signed on behalf
of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy
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transmission of a signed signature page of this Amendment No. 3) that
such party has signed a counterpart of this Amendment No. 3.
(b) TPC Guarantee and Security Agreement. TPC shall have executed
and delivered in favor of the Collateral Agent a Guarantee and Security
Agreement in substantially the form of Exhibit A hereto.
(c) Opinion of Counsel to Credit Parties. The Administrative Agent
(or Special Counsel) shall have received a favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the
Amendment No. 3 Effective Date) of Jones, Day, Reavis & Pogue, counsel to
the Credit Parties, covering such matters relating to TPC and the TPC
Guarantee and Security Agreement as either the Administrative Agent or
the Collateral Agent shall request (and each Credit Party hereby requests
such counsel to deliver such opinion). To the extent deemed appropriate
by the Credit Parties, internal corporate matters in such opinion (such
as due incorporation and the like) may be rendered in a separate opinion
from the General Counsel of TPC.
(d) Corporate Matters. The Administrative Agent (or Special
Counsel) shall have received such documents and certificates as the
Administrative Agent or Special Counsel may reasonably request relating
to the organization, existence and good standing of TPC, the
authorization of this Amendment No. 3 and any other legal matters
relating to the Credit Parties, this Amendment No. 3, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel.
(e) TPC Collateral Security. TPC shall have taken such action
(including executing and delivering such Uniform Commercial Code
financing statements) as shall be necessary to create and perfect valid
and enforceable first priority Liens consistent with the provisions of
the TPC Guarantee and Security Agreement, on substantially all of the
property of TPC, and the Transferring Subsidiaries shall have delivered
to the Collateral Agent in pledge each of the TPC Notes (it being
understood that the delivery of certificates evidencing the shares of
Tower Aggregator Series C Preferred Stock contemplated by the TPC
Guarantee and Security Agreement, together with the related stock powers,
and the delivery of the TPC Notes to the Collateral Agent under the
Restricted Company Guarantee and Security Agreement, shall not be
required until the date upon which such shares are acquired by TPC
pursuant to the Tower Merger Agreement).
(f) Amendment to Restricted Company Guarantee and Security
Agreement. The Restricted Companies shall have executed and delivered an
amendment to the Restricted Company Guarantee and Security Agreement in
form and substance satisfactory to the Collateral Agent confirming, to
the extent necessary, the right of the Collateral Agent to exercise
rights with respect to the TPC Notes upon the occurrence of a TPC Event
of Default, regardless of whether any other Default or Event of Default
under the Credit Agreement shall have occurred and be continuing (and
regardless of whether any other
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rights or remedies shall have been exercised by the Lenders or the
Agents under Article VIII of the Credit Agreement).
(g) Amendment Fee. The Administrative Agent shall have received,
for account of each Lender that, by delivery of an appropriate
authorization to the Administrative Agent (or Special Counsel) on or
before 5:00 p.m., New York City time, on April 5, 1999, shall have
authorized the Administrative Agent to execute and deliver this Amendment
No. 3, an amendment fee in an amount equal to 1/4 of 1% of the sum of (i)
the aggregate outstanding principal amount of the Loans and LC Exposure
held by such Lender plus (ii) the aggregate unutilized amount of
Commitments held by such Lender.
The Administrative Agent shall notify the Borrower and the Lenders of the
Amendment No. 3 Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the consent set forth in Section 2, and the
amendments set forth in Section 3, shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 10.02 of the
Credit Agreement) at or prior to 3:00 p.m., New York City time, on June 30, 1999
(and, in the event such conditions are not so satisfied or waived, the consent
and amendments contemplated hereby shall not become effective).
None of the foregoing conditions may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into
by NCI, the Restricted Companies, the Required Lenders and the Collateral
Agent, or by NCI, the Restricted Companies, the Collateral Agent, and the
Administrative Agent with the consent of the Required Lenders.
Section 5. Miscellaneous. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 3 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. 3 by signing any such
counterpart. This Amendment No. 3 shall be governed by, and construed in
accordance with, the law of the State of New York.
TPC Guarantee and Security Agreement
14
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3
to Credit Agreement to be duly executed and delivered as of the day and year
first above written.
NEXTEL COMMUNICATIONS, INC.
By /S/ STEVEN M. SHINDLER
----------------------
Name: Steven M. Shindler
Title: Vice President
RESTRICTED COMPANIES
--------------------
NEXTEL FINANCE COMPANY
By /S/ STEVEN M. SHINDLER
----------------------
Name: Steven M. Shindler
Title: Vice President
TPC Guarantee and Security Agreement
15
-15-
CELL CALL, INC.
FCI 900, Inc.
NEXTEL COMMUNICATIONS OF
THE MID-ATLANTIC, INC.
NEXTEL OF CALIFORNIA, INC.
NEXTEL LICENSE ACQUISITION
CORP.
NEXTEL LICENSE HOLDINGS 1,
INC.
NEXTEL LICENSE HOLDINGS 2,
INC.
NEXTEL LICENSE HOLDINGS 3,
INC.
NEXTEL LICENSE HOLDINGS 4,
INC.
NEXTEL OF NEW YORK, INC.
NEXTEL OPERATIONS, INC.
NEXTEL SOUTH CORP.
NEXTEL SOCAL, INC.
NEXTEL OF TEXAS, INC.
NEXTEL SYSTEMS CORP.
NEXTEL WEST CORP.
PITTENCRIEFF
COMMUNICATIONS, INC.
RADIOCALL SERVICE AND
SYSTEMS, INC.
SAFETY NET, INC.
SPECTRUM RESOURCES OF
THE NORTHEAST, INC.
SRI, INC.
By /S/ STEVEN M. SHINDLER
Name: Steven M. Shindler
Title: Vice President
TPC Guarantee and Security Agreement
16
-16-
FORT WORTH TRUNKED RADIO
LIMITED PARTNERSHIP
By Nextel of Texas, Inc.,
a General Partner
By /S/ STEVEN M. SHINDLER
----------------------
Name: Steven M. Shindler
Title: Vice President
TORONTO DOMINION (TEXAS) INC., THE CHASE MANHATTAN BANK,
as Administrative Agent as Collateral Agent
By /S/ JEFFREY R. LENTS By /S/ TRACEY NAVIN EWING
-------------------- ----------------------
Name: Jeffrey R. Lents Name: Tracey Navin Ewing
Title: Vice President Title: Vice President
TPC Guarantee and Security Agreement