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EXHIBIT 10.34
AMENDED AND RESTATED CAPITAL SUBSCRIPTION AGREEMENT
This AMENDED AND RESTATED CAPITAL SUBSCRIPTION AGREEMENT,
dated as of May 12, 1999 (this "Agreement"), made by and among (i) NEXTEL
ARGENTINA S.R.L. (the "Borrower"), a sociedad de responsabilidad limitada
organized under the laws of Argentina, (ii) NEXTEL INTERNATIONAL (ARGENTINA),
LTD. (the "Parent"), a company incorporated under the laws of the Cayman
Islands, and (iii) NEXTEL INTERNATIONAL, INC. (the "Parent Shareholder"), a
corporation organized under the laws of the State of Washington, United States
of America.
PRELIMINARY STATEMENTS
(1) Pursuant to a Credit Agreement dated as of February 27,
1998 (as amended by Amendment No. 1 and Waiver dated as of May 8, 1998,
Amendment No. 2 dated as of September 30, 1998 and Amendment No. 3 dated as of
May 12, 1999, and as further amended, modified and supplemented and in effect
from time to time, the "Credit Agreement"), between the Borrower, the
Subsidiary Guarantors party thereto, the Lenders party thereto and The Chase
Manhattan Bank, as Administrative Agent, the Borrower has requested that the
Lenders extend credit (by means of loans and letters of credit) to it in an
aggregate principal amount not exceeding U.S. $83,000,000 at any one time
outstanding (which amount may, in the circumstances therein provided be
increased to U.S. $150,000,000), to finance the import of capital goods by the
Borrower into Argentina, to finance capital expenditures related to the
development, expansion and upgrade of the Borrower's network system, to finance
permitted spectrum acquisitions by the Borrower, to finance the general working
capital needs of the Borrower and its subsidiaries and to refinance certain
existing indebtedness of the Borrower.
(2) On the date hereof, the Parent Shareholder owns
indirectly all of the issued and outstanding share capital of the Parent, and
the Parent owns all but four of the issued and outstanding quotas of capital of
the Borrower, the remaining four quotas being owned by Nextel International
(Holdings) Ltd.
(3) The Borrower, the Parent and the Parent Shareholder are
parties to a Capital Subscription Agreement dated as of March 17, 1998 (the
"Existing Capital Subscription Agreement"). Pursuant to the terms of Amendment
No. 3 to the Credit Agreement, it is a condition precedent to the Lenders
continuing to extend credit to the Borrower that the parties hereto amend and
restate the Existing Capital Subscription Agreement, so that, as amended and
restated, it reads in its entirety as herein provided.
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NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms used in this
Agreement shall have the meanings attributed to them in the Credit Agreement,
unless otherwise expressly defined in this Agreement. In addition, the
following capitalized terms shall have the following meanings:
"Borrower Equity Holders" means, collectively, the Parent,
Nextel International (Holdings) Ltd. and any New Holder(s) of the Borrower who
become such in accordance with this Agreement.
"Equity Contribution" means, as to any Person (i) the amount
of cash consideration paid to such Person in exchange for newly-issued Capital
Stock of such Person, (ii) the amount of any contribution of cash to such
Person in respect of its Capital Stock made by any then-existing equityholder
and (iii) in the case of the Borrower, the value of equipment contributed to
the Parent by the Parent Shareholder, and to the Borrower by the Parent, in
respect of its capital stock, so long as such equipment is newly manufactured
and has been purchased by the Parent Shareholder from third party vendor(s),
not an Affiliate, within 30 days prior to the date of delivery of such
equipment to the Borrower. For purposes hereof, the value of any equipment
contributed to the Parent and the Borrower as contemplated by the foregoing
clause (iii) shall be valued at the purchase price therefor reflected on the
invoice of the respective vendor.
"Equity Holder Commitments" has the meaning assigned to such
term in Section 2(c).
"Equity Holders" means, collectively, the Parent Equity
Holders and the Borrower Equity Holders.
"Material Adverse Effect" means, with respect to any Equity
Holder, any event, development or circumstance that has had, or could
reasonably be expected to have, a material adverse effect on (a) the business,
assets, property, condition, financial or otherwise, or prospects of such
Equity Holder and its subsidiaries taken as a whole or (b) the ability of such
Equity Holder to perform any of its obligations under this Agreement.
"New Holder" has the meaning assigned to such term in Section
3(a)(ii).
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"Parent Equity Holders" means, collectively, the Parent
Shareholder and any New Holder(s) of the Parent who become such in accordance
with this Agreement.
SECTION 2. Undertaking to Make Equity Contributions.
(a) Pre-1999 Equity Contributions. The Parent, the Parent
Shareholder and the Borrower each represent and warrant to the other that,
through December 31, 1998, (i) the Parent Shareholder has made Equity
Contributions to the Parent (including Equity Contributions made by Telcom
Ventures LLC, as a predecessor in interest of the Parent Shareholder) in the
amount of not less than U.S. $133,800,000, and (ii) the Parent has made Equity
Contributions to the Borrower in an equivalent amount. Such amounts of Equity
Contributions to the Parent and to the Borrower referred to in this Section
2(a) are herein referred to as the "Pre-1999 Equity Contributions".
(b) Pre-Closing Equity Contributions. The Parent, the Parent
Shareholder and the Borrower each represent and warrant to the other that, from
January 1, 1999 through the Amendment No. 3 Effective Date, (i) the Parent
Shareholder has made Equity Contributions to the Parent in the amount of not
less than U.S. $65,500,000, and (ii) from the proceeds of such Equity
Contributions to the Parent, the Parent has either deposited the same in the
Equity Contribution Account or made Equity Contributions to the Borrower. Such
amounts of Equity Contributions to the Parent and to the Borrower referred to
in this Section 2(b) are herein referred to as the "Pre-Closing Equity
Contributions".
(c) New Equity Contributions. The Parent Equity Holders
shall make additional Equity Contributions to the Parent, by remitting the same
in U.S. Dollars and in immediately available funds to the Equity Contribution
Account (all such additional Equity Contributions to the Parent being herein
referred to as the "New Equity Contributions"), from time to time as herein
provided, to the extent necessary so that the aggregate amount of (x) the
Pre-Closing Equity Contributions, plus (y) the New Equity Contributions, so
made in the Parent on or before the dates set forth below shall each be equal
to or greater than the respective amounts set forth below beside such dates:
Date Amount
---- ------
December 31, 1999 U.S. $83,500,000
Xxxxx 00, 0000 X.X. $90,500,000
June 30, 2000 U.S. $111,500,000
September 30, 2000 U.S. $135,500,000
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Xxxxxxxx 00, 0000 X.X. $168,500,000
Xxxxx 00, 0000 X.X. $175,500,000
December 31, 2001 U.S. $188,000,000
September 30, 2002 U.S. $237,500,000
provided that, with the prior written consent of the Required Lenders, the
amount set forth above for any December 31 may be reduced (x) to the extent the
amount of Capital Expenditures by the Borrower and its Subsidiaries through
such December 31 are less than the maximum amount of Capital Expenditures
permitted through such December 31 by Section 7.08(c) of the Credit Agreement
and on the condition that the maximum amounts of Capital Expenditures permitted
by said Section are reduced by an equivalent amount or (y) to the extent the
operating performance of the Borrower or the expected operating performance of
the Borrower would indicate an excess amount in the Equity Contribution
Account.
The amounts set forth above shall be referred to in this
Agreement as the "Equity Holder Commitments" of the Parent Equity Holders. The
Parent may from time to time, upon not less than 10 days' prior written notice,
require that the Parent Equity Holders make the New Equity Contributions
contemplated hereby in advance of any date specified above, and if any such
notice is given, the Parent Equity Holders shall so make such New Equity
Contributions on the date and in the amount so required in such notice.
(d) Acceleration of New Equity Contributions. If an Event of
Default shall have occurred and be continuing at any time hereafter, the Parent
shall be entitled, on demand, to accelerate the due date of any and/or all New
Equity Contributions thereafter to be made pursuant to Section 2(c) as shall be
necessary so that the aggregate amount of New Equity Contributions made after
the date hereof through and including the date of such demand shall be at least
equal to 65% of the aggregate outstanding principal amount of the Loans under
the Credit Agreement on the date of such demand. Any such demand shall be made
by written notice to the Parent Equity Holders, whereupon such New Equity
Contributions shall be immediately due and payable, without further notice or
demand, all of which are hereby waived. Such accelerated New Equity
Contributions shall be deemed applied to the obligations to make New Equity
Contributions provided in Section 2(c) in inverse order of the due date
thereof.
(e) Obligations Not Released Upon Joinder of New Holders. In
the event any New Holder joins in this Agreement as provided in Section 3, the
obligations of any other party hereto who is then a Parent Equity Holder to
make New Equity Contributions under this
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Section 2 shall not by virtue thereof be released, reduced, discharged or
otherwise affected. If and to the extent that on any date a New Holder
actually makes any New Equity Contributions to be made by it as provided in the
Joinder Agreement pursuant to which it becomes a Parent Equity Holder, such New
Equity Contributions so made shall be deemed to have satisfied, in an
equivalent amount, the requirements for New Equity Contributions to be made by
the other Parent Equity Holders, with such amount being applied among such
Persons pro rata in accordance with their respective Equity Holder Commitments,
or otherwise in such manner as may be provided in such Joinder Agreement.
(f) Borrower Equity Contributions. To the extent that, under
Section 4.03 of the Undertaking and Security Agreement, any amounts held in the
Equity Contribution Account are remitted to or upon the order of the Borrower,
the amount so remitted shall constitute an Equity Contribution by the Parent in
the Borrower.
SECTION 3. Issuance and Transfer of Capital Stock; Joinder of
New Holders.
(a) Issuance of Capital Stock. Neither the Parent nor the
Borrower shall at any time issue any shares or quotas, respectively of its
Capital Stock, except as follows:
(i) either the Parent or the Borrower may issue shares or
quotas, respectively, of its Capital Stock to any Person who is at
such time already a Parent Equity Holder or Borrower Equity Holder, as
the case may be; and
(ii) if after giving effect thereto no Change of Control
would occur, either the Parent or the Borrower may issue shares or
quotas, respectively, of its Capital Stock to any other Person (a "New
Holder"), provided that (A) if such New Holder is to become a Parent
Equity Holder, such New Holder executes and delivers to the Parent and
the Administrative Agent a Joinder Agreement (a "Joinder Agreement")
substantially in the form of Annex A hereto, pursuant to which, among
other things, such New Holder becomes a Parent Equity Holder hereunder
and undertakes to make New Equity Contributions hereunder as specified
in such Joinder Agreement, (B) if such New Holder is to become a
Borrower Equity Holder, such New Holder executes and delivers to the
Administrative Agent a pledge agreement or other security document or
documents, in form and substance satisfactory to the Administrative
Agent, providing for the pledge of the shares or quotas, as the case
may be, of Capital Stock to be acquired by such New Holder to the
Administrative Agent, for the benefit of the Lenders, and (C) such New
Holder contemporaneously therewith also so delivers to the Parent, the
Borrower and the Administrative Agent (x) evidence as to the corporate
or other organizational existence of such New Holder, (y) evidence as
to the due authorization, execution, legality, validity,
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binding effect and enforceability of the documents referred to above,
and compliance with any applicable laws or other governmental
requirements (including any required governmental approvals, filings
or other requirements) in connection therewith, and (z) a favorable
legal opinion of counsel, reasonably satisfactory to the
Administrative Agent, covering such matters and such other matters as
may be reasonably requested by the Borrower or the Parent, as
applicable, and/or the Administrative Agent.
(b) Transfers of Capital Stock. No Equity Holder shall,
directly or indirectly (by merger, consolidation, amalgamation or otherwise),
sell, assign, transfer or otherwise dispose of all or any portion of the
Capital Stock of the Parent or the Borrower, as applicable, owned by it, except
as follows:
(i) a Parent Equity Holder may transfer shares of Capital
Stock of the Parent owned by it to any other Person who is at such
time already a Parent Equity Holder;
(ii) a Borrower Equity Holder may transfer quotas of Capital
Stock of the Borrower owned by it to any other Person who is at such
time already a Borrower Equity Holder;
(iii) an Equity Holder may merge, consolidate or amalgamate
with, or sell, transfer or otherwise dispose of all or substantially
all of its properties and assets as an entirety (including the Capital
Stock of the Parent or the Borrower, as the case may be, owned by it)
to, any Person, provided that (A) no Change of Control would result
therefrom, and (B) the surviving or resulting Person (if other than
such Equity Holder) or acquiring Person expressly assumes the
obligations of such Equity Holder under this Agreement and each other
Loan Document to which it is a party pursuant to an assumption
agreement satisfactory in form and substance to the Administrative
Agent; and
(iv) if after giving effect thereto no Change of Control
would occur, an Equity Holder may transfer shares or quotas of the
Capital Stock of the Parent or the Borrower, as applicable, owned by
it to any New Holder who delivers documents and otherwise complies
with the requirements specified in Section 3(a)(ii) which are
applicable in the case of issuance of Capital Stock to a New Holder.
SECTION 4. Representations and Warranties. Each Equity
Holder represents and warrants to the Borrower as follows:
(a) Existence. It is a corporation, company, sociedad de
responsabilidad limitada or other entity duly organized and validly existing
under the laws of its jurisdiction of
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incorporation, and is duly qualified to do business in all jurisdictions in
which the nature of the business proposed to be conducted by it under or as
contemplated by the Loan Documents makes such qualification necessary.
(b) Corporate Authority; Execution and Delivery;
Enforceability. It has all necessary corporate power and authority to execute,
deliver and perform its obligations under this Agreement; the execution,
delivery and performance by it of this Agreement has been duly authorized by
all necessary corporate action on its part; and this Agreement has been duly
and validly executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable in accordance with its terms (except as the
enforceability thereof may be limited by (a) applicable bankruptcy, insolvency,
moratorium or other similar laws affecting the enforcement of creditor's rights
generally and (b) the application of general principles of equity (regardless
of whether such enforceability is considered in a proceeding at law or in
equity)).
(c) No Breach. Except for consents and approvals already
received, none of the execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and compliance with the
terms and provisions hereof will conflict with or result in a breach of, or
require any consent under, (a) its charter, by-laws and other constitutive
documents, (b) any applicable rule or approval of a Governmental Authority, (c)
any material order, writ, injunction or decree of any Governmental Authority,
(d) any other agreement or instrument to which it is a party or by which it is
bound or to which it is subject, or constitute a default under any such
agreement or instrument or (e) result in or require the creation or imposition
of any Lien upon any property of it pursuant to the terms of any such agreement
or instrument, except, in the case of (d), which conflict, breach or consent
could not reasonably be expected to result in a Material Adverse Effect and
such Equity Holder is not in violation of any such rule, approval, order, writ,
injunction or decree or such charter, by-laws or other constitutive documents,
except such violations of rules and governmental approvals that could not
reasonably be expected to have a Material Adverse Effect.
(d) Governmental Approvals. No consent, approval or
authorization of, or registration, filing, or declaration with, any
Governmental Authority is required in connection with the execution, delivery
or performance by it of this Agreement. It is not necessary to ensure the
legality, validity, enforceability or admissibility into evidence of this
Agreement in Argentina, the Cayman Islands or the jurisdiction of organization
of such Equity Holder that any document be filed, recorded or enrolled with any
Governmental Authority in Argentina, the Cayman Islands or such other
jurisdiction or that any such agreement or document be stamped with any stamp,
registration or similar transaction tax; provided, however, that a nominal
Cayman Islands stamp duty will be payable if this Agreement is brought to or
executed in the Cayman Islands.
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(e) Immunity. Neither it nor any of its properties or
assets has any immunity from suit, court jurisdiction, attachment prior to
judgment, attachment in aid of execution of a judgment, execution of a judgment
or from any other legal process or remedy relating to its obligations under
this Agreement.
SECTION 5. Obligations Absolute, Etc. Each Equity Holder
further covenants and agrees that:
(a) The obligations of such Equity Holder hereunder to
make Equity Contributions in accordance with the terms of this Agreement (i)
constitute direct obligations of such Equity Holder, for the benefit of the
Parent and the Borrower and (ii) shall be enforceable by the Borrower and the
Parent.
(b) The obligation of each Equity Holder hereunder to
make or to cause to be made Equity Contributions in accordance with the terms
of this Agreement is and shall be absolute and unconditional and is not, and
shall not be, subject to any defense or right of set-off, counterclaim,
deduction, diminution, abatement, recoupment, defense, suspension, deferment or
reduction or any other legal or equitable defense which such Equity Holder has
or hereafter may have, against any other person (including that Administrative
Agent or any of the Lenders) for any reason whatsoever (including, without
limitation, any circumstance which constitutes, or might be construed to
constitute, an equitable or legal discharge of any or all of the Borrower's
obligations under the Credit Agreement, in bankruptcy or otherwise).
(c) The obligations of the Equity Holders hereunder shall
be absolute and unconditional irrespective of:
(i) any lack of validity, enforceability or value of the
Credit Agreement or any other Loan Document or any other agreement or
instrument relating thereto or to any security interest therefor;
(ii) any change in the time, manner or place of payment of,
or in any other term of, the Credit Agreement or any other Loan
Document, or any amendment or waiver thereof, or any consent to
departure from any of the foregoing agreements;
(iii) any taking, exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any credit support or guaranty for the Credit Agreement
or any other Loan Document;
(iv) any manner of application of any collateral granted
under any of the Security Documents, or proceeds thereof, or any
manner of sale or other disposition of any such collateral or any
other assets of the Borrower;
(v) any failure to pay any taxes which may be payable with
respect to the performance of its obligations hereunder by such Equity
Holder or failure to obtain any authorization or approval from or
other action by, or to notify or file with, any
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governmental authority or regulatory body required in connection with
the performance of such obligations by such Equity Holder;
(vi) any impossibility or impracticality of performance,
force majeure, any act of any government, or other circumstance which
might constitute a defense available to, or a discharge of, such
Equity Holder, or a surety, or any other circumstance, event or
happening whatsoever, whether foreseen or unforeseen and whether
similar or dissimilar to anything referred to above in this Section,
(vii) the commencement of any involuntary proceeding or the
filing of any involuntary petition seeking (A) liquidation,
reorganization or other relief in respect of any of the Borrower, the
Parent or the Parent Shareholder 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 the Borrower or the Parent or for
a substantial part of its assets; or
(viii) the occurrence of any of the following: the Borrower,
the Parent or the Parent Shareholder 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 (vii) above, (C) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official 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.
(d) No Equity Holder has any right, nor shall have any
right, to terminate this Agreement or to be released, relieved or discharged
(other than by full and strict compliance by such Equity Holder with the terms
hereof) from any obligation or liability hereunder for any reason whatsoever.
(e) To the extent permitted by applicable law, the
obligations of the Equity Holders hereunder will be performed regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of the terms of any Loan Document or any other document related
thereto or the rights of any person with respect thereto.
(f) If for any reason whatsoever (including, without
limitation, the insolvency, entry into bankruptcy (voluntarily or otherwise) or
liquidation of the Borrower or the Parent or
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the failure of the Borrower or the Parent to issue Capital Stock or to accept
payment therefor), any Equity Holder does not or cannot make any Equity
Contribution required under this Agreement, such Equity Holder shall
nevertheless pay to the Administrative Agent (for application to the amounts
payable under the Credit Agreement) all such amounts that it would otherwise
have been obliged to pay in accordance with the terms of this Agreement, which
payment shall be deemed to discharge pro tanto its obligation hereunder.
SECTION 6. Waiver. To the fullest extent permitted by
applicable law, each Equity Holder hereby expressly waives (a) diligence,
presentment, demand for payment, protest, benefit of any statute of limitations
affecting the liability of the Borrower under the Credit Agreement or the Loan
Documents, all notices relating to an Equity Contribution, including, without
limitation, notice of acceptance of this Agreement and the incurring of the
obligation to make or to cause to be made an Equity Contribution, and any
requirement that the Administrative Agent, on behalf of the Lenders, exhaust
any right, power, or remedy or proceed against the Borrower or any collateral
granted to it under any of the Security Documents, for an Equity Contribution
and (b) the right to demand that the Administrative Agent or any Lender post a
bond or guaranty (excepcion de arraigo) in any action or proceeding initiated
against such Equity Holder.
SECTION 7. Rescission of Payment. To the fullest extent
permitted by applicable law, this Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time any payment (or part
thereof), made or caused to be made by any Equity Holder pursuant to this
Agreement, is rescinded or must otherwise be restored or returned to any Equity
Holder by any beneficiary of this Agreement upon the insolvency, bankruptcy or
reorganization of such Equity Holder or any other Person or otherwise, all as
though such payment has not been made or caused to be made.
SECTION 8. Notices. Any notice or other communication
hereunder shall be given in the manner set forth in the Credit Agreement to the
parties at the following addresses:
(a) If to the Borrower, at:
Nextel Argentina S.R.L.
Palestina 977
Capital Federal X.X. 0000
Xxxxxx Xxxxx, Xxxxxxxxx
South America
Attention: Managing Director
Telephone: 00.00.0000.0000
Facsimile: 54.1.1.4959.9923
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with a copy to the Parent Shareholder
at its address provided pursuant hereto
(b) If to the Parent at:
Nextel International (Argentina), Ltd.
x/x Xxxxxx xxx Xxxxxx
X.X. Xxx 000, Xxxxxx House
South Church Street
Cayman Islands, British West Indies
Attention: Managing Director
Telephone: 000.000.0000
Facsimile: 345.949.8080
with a copy to the Parent Shareholder
at its address provided pursuant hereto
(c) If to the Parent Shareholder at:
Nextel International, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
X.X.X.
Attention: Chief Financial Officer
Telephone:
Facsimile:
and, as to any party, at such other address as such party may advise each other
party hereto in writing.
SECTION 9. Successors and Assigns. This Agreement shall be
binding upon the parties hereto and their respective successors and inure to
the benefit of the Administrative Agent and the Lenders and their respective
successors and assigns. This Agreement may not be assigned by the parties
hereto, except that each of the Parent and the Borrower may xxxxx x Xxxx in all
of its right, title and interest under this Agreement to the Lenders and/or the
Administrative Agent for the benefit of the Lenders on the terms set forth in
the Security Documents, and each Equity Holder hereby consents to the grant of
such Lien.
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SECTION 10. Amendment, Etc. No amendment or waiver of any
provision of this Agreement nor any consent to any departure by any Equity
Holder herefrom shall in any event be effective unless the same shall be in
writing and signed by each of the parties hereto, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. No failure or delay on the part of the Administrative
Agent, the Borrower or the Parent in exercising any right or remedy hereunder
shall operate as a waiver thereof nor shall any single or partial exercise of
any power or right preclude other or further exercise thereof or the exercise
of any other right or remedy.
SECTION 11. Remedies. No remedy herein conferred upon or
reserved to any party is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute. In order to entitle any party to
exercise any remedy reserved to it in this Agreement, it shall not be necessary
to give any notice, other than such notice as may be expressly required by this
Agreement. No notice to or demand on the Parent or the Parent Shareholder in
any case shall entitle it to any other or further notice or demand in the same
or similar circumstances.
SECTION 12. Headings. The headings herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
SECTION 13. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 14. Jurisdiction, Service of Process and Venue.
(a) Submission to Jurisdiction. Each party hereto hereby
agrees that any suit, action or proceeding with respect to this Agreement or
any judgment entered by any court in respect thereof may be brought in the
United States District Court for the Southern District of New York, in the
Supreme Court of the State of New York sitting in New York County (including
its Appellate Division), or in any other appellate court in the State of New
York, as the party commencing such suit, action or proceeding may elect in its
sole discretion; and each party hereto hereby irrevocably submits to the
jurisdiction of such courts for the purpose of any such suit, action,
proceeding or judgment. Each party hereto further submits, for the purpose of
any such suit, action, proceeding or judgment brought or rendered against it,
to the appropriate courts of the jurisdiction of its domicile.
(b) Process Agent. Each Equity Holder hereby agrees that
service of all writs, process and summonses in any such suit, action or
proceeding brought in the State of New York may be made upon CT Corporation,
presently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
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10019, U.S.A. (the "Process Agent"), and each Equity Holder hereby confirms and
agrees that the Process Agent has been duly and irrevocably appointed as its
agent and true and lawful attorney-in-fact in its name, place and stead to
accept such service of any and all such writs, process and summonses, and
agrees that the failure of the Process Agent to give any notice of any such
service of process to such Equity Holder shall not impair or affect the
validity of such service or of any judgment based thereon. Each Equity Holder
hereby further irrevocably consents to the service of process in any suit,
action or proceeding in such courts by the mailing thereof by registered or
certified mail, postage prepaid, at its address set forth beneath its signature
hereto.
(c) Other Service. Nothing herein shall in any way be deemed
to limit the ability of any party hereto to serve any such writs, process or
summonses in any other manner permitted by applicable law or to obtain
jurisdiction over any Equity Holder in such other jurisdictions, and in such
manner, as may be permitted by applicable law.
(d) Venue. Each Equity Holder hereby irrevocably waives any
objection that it may now or hereafter have to the laying of the venue of any
suit, action or proceeding arising out of or relating to this Agreement brought
in the Supreme Court of the State of New York, County of New York or in the
United States District Court for the Southern District of New York, and hereby
further irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
(e) Excepcion de Arraigo. Each Equity Holder hereby
irrevocably waives, to the fullest extent now or hereafter permitted under the
laws of Argentina or other relevant jurisdiction, the right to demand that any
party post a performance bond or guarantee (excepcion de arraigo) in any action
or proceeding initiated against such Equity Holder in Argentina in connection
with this Agreement or the transactions contemplated hereby.
SECTION 15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
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SECTION 16. Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
SECTION 17. Severability. If any provision of this Agreement
shall be held or deemed to be or shall, in fact, be illegal, inoperative or
unenforceable, the same shall not affect any other provision or provisions
herein contained or render the same invalid, inoperative or unenforceable to
any extent whatever.
SECTION 18. Immunity. To the extent that any Equity Holder
may be or become entitled, in any jurisdiction in which judicial proceedings
may at any time be commenced with respect to this Agreement, to claim for
itself or its properties or revenues any immunity from suit, court
jurisdiction, attachment prior to judgment, attachment in aid of execution of
a judgment, execution of a judgment or from any other legal process or remedy
relating to its obligations under this Agreement, and to the extent that in any
such jurisdiction there may be attributed such an immunity (whether or not
claimed), such Equity Holder hereby waives such immunity to the fullest extent
permitted by the laws of such jurisdiction.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be executed by their duly authorized signatures in counterparts all as of
the date first above written.
NEXTEL ARGENTINA S.R.L.
By:/s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: Delegate General Manager
NEXTEL INTERNATIONAL (ARGENTINA), LTD.
By:/s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Vice President and Treasurer
NEXTEL INTERNATIONAL, INC.
By:/s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President and Treasurer
16
ANNEX A
JOINDER AGREEMENT
This Joinder Agreement dated as of [________], 199_ is
delivered in connection with the Capital Subscription Agreement dated as of
[___________], 1999 (as modified and supplemented and in effect from time to
time, the "Capital Subscription Agreement") between Nextel Argentina S.R.L.,
Nextel International (Argentina), Ltd. and Nextel International, Inc.
Capitalized terms used but not defined herein shall have the respective
meanings assigned to such terms in the Capital Subscription Agreement.
The Capital Subscription Agreement requires that any New
Holder of the Borrower or the Parent from time to time enter into an Agreement
substantially in the form hereof. Accordingly, as a New Holder of the Parent,
the undersigned hereby agrees as follows:
1. By its signature below, the undersigned shall be a
party to the Capital Subscription Agreement as an Equity Holder fully and
completely as if its signature were affixed to the Capital Subscription
Agreement.
2. Without limiting the generality of the foregoing, the
undersigned hereby ratifies and confirms the terms and conditions of the
Capital Subscription Agreement and such terms and conditions are hereby
incorporated by reference herein.
[3. The undersigned hereby undertakes to make Equity
Contributions as follows:]
4. Each Equity Contribution to be made by the
undersigned shall be applied pro rata to the Parent Equity Holder Commitments.
5. The undersigned hereby represents and warrants that
(a) it has duly and validly executed and delivered this Joinder Agreement and
(b) the representations and warranties set forth in Section 3 of the Capital
Subscription Agreement are correct and complete on and as of the date hereof as
if each reference therein to an "Equity Holder" were a reference to it.
6. This Joinder Agreement shall be governed by and
construed in accordance with the law of the State of New York.
17
IN WITNESS WHEREOF, the undersigned has caused this Joinder
Agreement to be duly executed as of the date first above written.
[NAME OF NEW HOLDER]
By:
-------------------------
Title:
ACCEPTED:
NEXTEL INTERNATIONAL (ARGENTINA), LTD.
By:
-------------------------
Title:
