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EXHIBIT 10.2
EXECUTION VERSION
FOURTH AMENDMENT
TO
MASTER EQUIPMENT FINANCING AGREEMENT
This Fourth Amendment (the "Fourth Amendment") to Master
Equipment Financing Agreement is entered into by and between NEXTEL
INTERNATIONAL, INC. (the "Company"), and MOTOROLA CREDIT CORPORATION, as
administrative agent (in such capacity, the "Administrative Agent"), as
collateral agent (in such capacity, the "Collateral Agent" and, together with
the Administrative Agent, the "Agents"), and as initial Lender (the "Lender").
W I T N E S S E T H:
WHEREAS, the Company, the Agents and the Lender are party to
that certain Master Equipment Financing Agreement, dated as of February 4, 1999
(as the same may heretofore have been or may hereafter be further amended or
modified, the "Financing Agreement"; capitalized terms used herein and not
otherwise defined herein having the meanings assigned thereto in the Financing
Agreement);
WHEREAS, the Company has requested that the Agents and the
Lender agree to certain amendments to the Financing Agreement; and
WHEREAS, subject to the terms and conditions set forth herein,
the Agents and the Lender are willing to undertake certain amendments to the
Financing Agreement.
NOW, THEREFORE, in consideration of the premises, and
intending to be legally bound hereby, the Company, the Agents and the Lender
hereby agree as follows:
SECTION 1. AMENDMENTS.
Upon the satisfaction by the Company of the conditions
precedent set forth in Section 2 below, and in reliance on the warranties of the
Company set forth in Section 3 below, the Financing Agreement is hereby amended
as follows:
1.1 Effective as of January 1, 2001, the definitions of
"Maturity Date" and of "Payment Date" in Section 1.1
of the Financing Agreement are hereby amended and
restated in its entirety as follows:
"Maturity Date" means June 30, 2006, provided, if
such date is not a Business Day, then the Maturity
Date shall be the immediately preceding Business Day.
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"Payment Date" means each Semi Annual Date in each
year commencing with the December 31, 2002 Semi
Annual Date and the last day of any Interest Period
for interest due on a LIBOR Advance.
1.2 Section 2.4(a) is hereby amended and restated in its
entirety to read as follows:
(a) The Company shall pay to the
Administrative Agent the principal of the Advances
made by the Lenders outstanding at the close of
business on the Commitment Termination Date in eight
(8) consecutive semi-annual installments on the
Payment Dates (provided that the last such payment
shall be in an amount sufficient to repay in full the
principal amount of such Advances), with the amount
of the installment paid on each Payment Date to be
equal to the respective percentages of the principal
of such Advances outstanding at the close of business
on the Commitment Termination Date as set forth
below:
Percentage of Commitment Termination
Date outstanding Principal
Payment Date Payable on such Payment Date
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December 31, 2002 12.5%
June 30, 2003 12.5%
December 31, 2003 12.5%
June 30, 2004 12.5%
December 31, 2004 12.5%
June 30, 2005 12.5%
December 31, 2005 12.5%
June 30, 2006 12.5%
1.3 Effective as of January 1, 2001, Sections 8.15(a)
through and including (e) of the Financing Agreement
are hereby amended and restated in their entirety as
follows:
(a) on the last Business Day of each fiscal quarter,
unencumbered cash held in an account having restrictions
reasonably acceptable to the Collateral Agent, in an amount
equal or greater than the amount of Consolidated Fixed Charges
of the Company and its Restricted Subsidiaries projected to be
payable on a prospective basis for the immediately following
fiscal quarter; such determination to be made on the basis of
the most recently delivered Approved Business Plan pursuant to
the Financing Agreement and the LIBOR Rate in effect on such
date;
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(b) a ratio of Indebtedness to EBITDA of not greater
than the ratios set forth below, measured at the end of each
fiscal quarter of the Company commencing with the fiscal
quarter ending September 30, 2002:
Quarter end date Maximum Indebtedness to EBITDA
9/30/02 169.6: 1
12/31/02 51.0 : 1
3/31/03 27.0 : 1
6/30/03 18.9 : 1
9/30/03 16.5 : 1
12/31/03 14.0 : 1
3/31/04 12.6 : 1
6/30/04 8.9 : 1
9/30/04 7.7 : 1
12/31/04 6.6 : 1
3/31/05 6.0 : 1
6/30/05 6.0 : 1
9/30/05 5.2 : 1
12/31/05 4.5 : 1
3/31/06 4.1 : 1
(c) The product of (i) four times (ii) EBITDA,
measured for the most recently ended fiscal quarter commencing
with the fiscal quarter ending December 31, 2000, of not less
than the amount on the quarter end dates set forth below:
Quarter end date Minimum EBITDA
12/31/00 (207,000,000)
3/31/01 (176,000,000)
6/30/01 (176,000,000)
9/30/01 (102,000,000)
12/31/01 (60,000,000)
3/31/02 (31,000,000)
6/30/02 (8,000,000)
9/30/02 17,000,000
12/31/02 56,000,000
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Quarter end date Minimum EBITDA
3/31/03 105,000,000
6/30/03 149,000,000
9/30/03 171,000,000
12/31/03 201,000,000
3/31/04 224,000,000
6/30/04 317,000,000
9/30/04 364,000,000
12/31/04 428,000,000
3/31/05 475,000,000
6/30/05 471,000,000
9/30/05 541,000,000
12/31/05 635,000,000
3/31/06 706,000,000
(d) minimum Adjusted Recurring Revenues, measured at
the end of each fiscal quarter commencing with the quarter
ending December 31, 2000, of not less than the amounts set
forth opposite the quarter end dates set forth below:
Quarter end date Minimum Adjusted Recurring Revenues
12/31/00 35,000,000
3/31/01 42,000,000
6/30/01 49,000,000
9/30/01 56,000,000
12/31/01 60,000,000
3/31/02 65,000,000
6/30/02 72,000,000
9/30/02 75,000,000
12/31/02 82,000,000
3/31/03 91,000,000
6/30/03 86,000,000
9/30/03 98,000,000
12/31/03 116,000,000
3/31/04 128,000,000
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Quarter end date Minimum Adjusted Recurring Revenues
6/30/04 112,000,000
9/30/04 129,000,000
12/31/04 152,000,000
3/31/05 168,000,000
6/30/05 141,000,000
9/30/05 162,000,000
12/31/05 190,000,000
3/31/06 211,000,000
(e) a minimum number of Adjusted Subscribers,
measured at the end of each fiscal quarter commencing with the
quarter ending December 31, 2000, of not less than the number
of Subscribers set forth opposite the quarter end dates set
forth below:
Quarter end date Minimum Adjusted Subscribers
12/31/00 227,000
3/31/01 275,000
6/30/01 301,000
9/30/01 326,000
12/31/01 354,000
3/31/02 389,000
6/30/02 422,000
9/30/02 459,000
12/31/02 499,000
3/31/03 538,000
6/30/03 571,000
9/30/03 609,000
12/31/03 654,000
3/31/04 704,000
6/30/04 742,000
9/30/04 787,000
12/31/04 839,000
3/31/05 897,000
6/30/05 942,000
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Quarter end date Minimum Adjusted Subscribers
9/30/05 994,000
12/31/05 1,055,000
3/31/06 1,123,000
1.4 Section 8.15(g) is hereby amended and restated in its
entirety as follows:
(g) Minimum Adjusted EBITDA, measured at the end of
each fiscal quarter commencing with the quarter ending
December 31, 2000, of not less than the Adjusted EBITDA set
forth opposite the quarter end dates set forth below:
Period end date Minimum Adjusted EBITDA
12/31/00 (25,000,000)
3/31/01 (19,000,000)
6/30/01 (15,000,000)
9/30/01 (9,000,000)
12/31/01 (2,000,000)
3/31/02 1,000,000
6/30/02 11,000,000
9/30/02 10,000,000
12/31/02 13,000,000
3/31/03 21,000,000
6/30/03 21,000,000
9/30/03 24,000,000
12/31/03 28,000,000
3/31/04 31,000,000
6/30/04 38,000,000
9/30/04 43,000,000
12/31/04 51,000,000
3/31/05 56,000,000
6/30/05 56,000,000
9/30/05 64,000,000
12/31/05 76,000,000
3/31/06 84,000,000
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1.5 Schedule 1.1(h) is hereby deleted and replaced by
Schedule 1.1(h) hereto.
1.6 Notwithstanding anything contained in the Financing
Agreement to the contrary, Nexnet shall not be
considered a "Credit Party" or "Borrowing Affiliate"
for any purpose thereunder.
SECTION 2. CONDITIONS PRECEDENT.
As conditions precedent to the effectiveness of the
Fourth Amendment, each of the following shall have occurred:
(a) the Company shall have delivered to the Agents and the
Lender the Fourth Amendment, duly executed and delivered and
appropriately dated and in form and substance satisfactory to the
Agents and the Lender;
(b) the Agents shall have received an opinion of counsel for
the Company with respect to this amendment;
(c) all necessary consents to the Fourth Amendment have been
obtained from third parties, including assignees of the Lender and
insurers of the payment of Advances;
(d) the Agents shall have received, within 10 Business Days
of the date hereof, (I) affirmations of guarantees from all Guarantors
substantially in the form attached hereto together with assurances
reasonably acceptable to the Lender from Company's local counsel in
Mexico, Peru and the Philippines, to the effect that the Guarantees
and the Security Documents remain in full force and effect after
giving effect to the Fourth Amendment and (ii) a binding commitment,
reasonably acceptable to the Agents, with respect to the purchase by
the Company and its affiliates of minimum amounts of goods and
services from the Lender or its affiliates;
(e) the Agents shall have received, within 30 days of the
date hereof, written opinions, in each case reasonably acceptable to
the Lender, to the effect that the guarantees and the Security
Documents remain in full force and effect after giving effect to the
Fourth Amendment; and
(f) the Company shall have delivered such other documents as
the Agents may reasonably request;
it being understood and agreed that the failure to satisfy any of the
conditions in paragraphs (d) and (e) above in the time periods
specified shall result in the Fourth Amendment being void ab initio
and of no force and effect.
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SECTION 3. REPRESENTATIONS AND WARRANTIES.
To induce the Agents and the Lender to enter into the Fourth
Amendment, the Company hereby represents and warrants to the Agents and
the Lender as of the date hereof (and shall be deemed to represent and
warrant as of the initial date of effectiveness of this Fourth
Amendment) that:
(a) The representations and warranties contained in the
Financing Agreement and the other Credit Documents are true and correct
in all material respects on and as of the date hereof except for
representations and warranties that speak as of a particular date, in
which case such representations and warranties are true as of such
date;
(b) The consolidated audited balance sheets of the Company and
its Subsidiaries and consolidated statements of operations, changes in
stockholders' equity and cash flows of the Company and its Subsidiaries
each as of December 31, 1999, and all other information and data
heretofore furnished by the Company, or any agent of the Company on
behalf of the Company to the Administrative Agent, including, the
quarterly (each as at September 30, 2000) consolidated balance sheets
and consolidated statements of operations, changes in stockholders'
equity and cash flows, have been prepared in accordance with GAAP and
fairly present the condition and results of operations of the Company
and its Subsidiaries as of such dates or for such periods;
(c) The consolidated audited balance sheets of each of the
Borrowing Affiliates and their respective Subsidiaries and consolidated
statements of operations, stockholders' equity and cash flows of each
of the Borrowing Affiliates and their respective Subsidiaries, each as
at December 31, 1999, have been prepared in accordance with GAAP and
fairly represent in all material respects the condition and results of
operations of such Borrowing Affiliate and its Subsidiaries as of such
dates or for such periods;
(d) Each Affiliated Credit Party has made all material
required contributions under the Plans for all periods through and
including September 30, 2000, or adequate accruals therefor have been
provided for in the financial statements referenced in paragraph (b)
above;
(e) The actuarial value of vested benefits required to be
funded by each Affiliated Credit Party, or with respect to which such
Affiliated Credit Party is liable, under the Plans, determined using
the actuarial methods and assumptions used by the relevant Plan's
actuary as of the last valuation date for which an actuarial valuation
was completed to determine such Plan's funded status, did not as of the
last valuation date as of which an actuarial valuation has been
completed, which in the case of any individual Plan was not earlier
than January 1, 2000, exceed the actuarial value of the assets of the
Plans allocable to such vested and non-vested benefits by a material
amount; and
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(f) After giving effect to the Fourth Amendment, no Default or
Event of Default has occurred and is continuing and all of the
guarantees and Security Documents shall be in full force and effect
with the same priority (and with no need for any additional agreements,
instruments or filings to preserve the effectiveness or priority ) as
in effect immediately prior to the Fourth Amendment.
SECTION 4. GENERAL.
4.1 Reservation of Rights; Subsequent Adjustment. The Company
acknowledges and agrees that the execution and delivery of the
Fourth Amendment shall not be deemed (a) to create a course of
dealing or otherwise obligate the Agents or the Lender to
forbear or execute similar amendments under the same or
similar circumstances in the future, or (b) as a waiver by the
Agents or the Lender of any covenant, condition, term or
provision of the Financing Agreement or any of the other
Credit Documents, and the failure of the Agents or the Lender
to require strict performance by the Company or any other
Credit Party of any provision thereof shall not waive, affect
or diminish any right of the Agents or the Lender to
thereafter demand strict compliance therewith. The Agents and
the Lender hereby reserve all rights granted under the
Financing Agreement, the other Credit Documents and the Fourth
Amendment.
4.2 Full Force and Effect. As hereby modified, the Financing
Agreement and each of the other Credit Documents shall remain
in full force and effect and each is hereby ratified, approved
and confirmed in all respects.
4.3 Affirmation. The Company hereby affirms its obligations
under Section 4 of the Financing Agreement and agrees to pay
on demand all reasonable costs and expenses of the Agents and
the Lender in connection with the preparation, execution and
delivery of the Fourth Amendment and all instruments and
documents delivered in connection herewith.
4.4 Successors and Assigns. The Fourth Amendment shall be
binding upon and shall inure to the benefit of the Company,
the Agents and the Lender and the respective successors and
assigns of the Company, the Agents and the Lender.
4.5 Counterparts. The Fourth Amendment may be executed in any
number of counterparts and by the different parties on
separate counterparts, and each such counterpart shall be
deemed to be an original, but all such counterparts shall
together constitute but one and the same Fourth Amendment.
* * * * *
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IN WITNESS WHEREOF, the Company, the Agents and the Lender have
executed this Fourth Amendment as of the 19th day of February, 2001.
COMPANY:
NEXTEL INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------------
Title: Vice President and General Counsel
-----------------------------------------
LENDER:
MOTOROLA CREDIT CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
AGENTS:
MOTOROLA CREDIT CORPORATION,
as Administrative Agent
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
MOTOROLA CREDIT CORPORATION,
as Collateral Agent
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
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Schedule 1.1(h)
TOTAL ENDING CONSOLIDATED
DIGITAL SUBSCRIBERS
4Q00 538,496
1Q01 632,146
2Q01 720,267
3Q01 814,645
4Q01 915,566
1Q02 1,022,001
2Q02 1,134,497
3Q02 1,252,623
4Q02 1,374,215
1Q03 1,492,409
2Q03 1,595,040
3Q03 1,713,066
4Q03 1,851,618
1Q04 2,005,565
2Q04 2,119,442
3Q04 2,250,402
4Q04 2,404,137
1Q05 2,574,954
2Q05 2,703,776
3Q05 2,851,922
4Q05 3,025,832
1Q06 3,219,066
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ACKNOWLEDGMENT AND CONSENT(1)
For the avoidance of doubt, and without limitation of the intent and
effect of Section 4 of its Borrowing Affiliate Guaranty or of any Security
Documents (as such terms are defined in the Master Equipment Financing Agreement
referred to in the Fourth Amendment to Master Equipment Financing Agreement (the
"Amendment"), to which this Acknowledgement and Consent is appended), each of
the undersigned hereby unconditionally and irrevocably (i) acknowledges receipt
of a copy of the Master Equipment Financing Agreement and the Amendment, and
(ii) consents to all of the terms and provisions of the Master Equipment
Financing Agreement as amended by the Amendment.
Capitalized terms which are used herein without definition shall have
the respective meanings ascribed thereto in the Master Equipment Financing
Agreement referred to herein. This Acknowledgement and Consent is for the
benefit of the Lenders and the Agents and their respective successors and
assigns. No term or provision of this Acknowledgment and Consent may be modified
or otherwise changed without the prior written consent of the Agents, given as
provided in the Master Equipment Financing Agreement. This Acknowledgement and
Consent shall be binding upon the successors and assigns of each of the
undersigned. This Acknowledgement and Consent may be executed by any of the
undersigned in separate counterparts, each of which shall be an original and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the undersigned has duly executed and
delivered this Acknowledgement and Consent as of February 20, 2001.
COMUNICACIONES
NEXTEL DE MEXICO S.A. DE C.V.
By: /s/ Xxxxxx Xxxxxxxxx Javarro
-------------------------------------
By:
-------------------------------------
NEXTEL DE PERU S.A.
By: /s/ Xxxxxxx xx Xxxxxxxx
-------------------------------------
By:
-------------------------------------
[additional signature page follows]
------------------------
(1) To be executed by all Borrowing Affiliates.
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NEXTEL COMMUNICATIONS PHILIPPINES, INC.
By: /s/ Xxxxxxx X. Urera
-------------------------------------
By:
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ACKNOWLEDGMENT AND CONSENT(2)
For the avoidance of doubt, and without limitation of the intent and
effect of Section 4 of its Affiliate Parent Guaranty or of any of the Security
Documents (as such terms are defined in the Master Equipment Financing Agreement
referred to in the Fourth Amendment to Master Equipment Financing Agreement (the
"Amendment"), to which this Acknowledgement and Consent is appended), each of
the undersigned hereby unconditionally and irrevocably (i) acknowledges receipt
of a copy of the Master Equipment Financing Agreement and the Amendment, and
(ii) consents to all of the terms and provisions of the Master Equipment
Financing Agreement as amended by the Amendment.
Capitalized terms which are used herein without definition shall have
the respective meanings ascribed thereto in the Master Equipment Financing
Agreement referred to herein. This Acknowledgement and Consent is for the
benefit of the Lenders and the Agents and their respective successors and
assigns. No term or provision of this Acknowledgment and Consent may be modified
or otherwise changed without the prior written consent of the Agents, given as
provided in the Master Equipment Financing Agreement. This Acknowledgement and
Consent shall be binding upon the successors and assigns of each of the
undersigned. This Acknowledgement and Consent may be executed by any of the
undersigned in separate counterparts, each of which shall be an original and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the undersigned has duly executed and
delivered this Acknowledgement and Consent as of February 20, 2001.
NEXTEL INTERNATIONAL (DELAWARE), LTD.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
NEXTEL INTERNATIONAL (HOLDINGS), LTD.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
----------------------
(2) To be executed by all Third Party Guarantors and all Affiliated Parent
Guarantors. Counsel to the Company to confirm that this list is complete.
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NEXTEL INTERNATIONAL (PHILIPPINES) LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
TOP MEGA ENTERPRISE, LTD.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
NEXTEL INTERNATIONAL (JAPAN), LTD.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
NEXTEL INTERNATIONAL (MEXICO), LTD.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
NEXTEL INTERNATIONAL (PERU) LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
XXXXXX HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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ACKNOWLEDGMENT AND CONSENT
For the avoidance of doubt, and without limitation of any applicable
provisions of the Amended and Restated Stockholder Guarantor Pledge or the other
Security Documents (as such terms are defined in the Master Equipment Financing
Agreement referred to in the Fourth Amendment to Master Equipment Financing
Agreement (the "Amendment"), to which this Acknowledgement and Consent is
appended), each of the undersigned hereby unconditionally and irrevocably (i)
acknowledges receipt of a copy of the Master Equipment Financing Agreement and
the Amendment, and (ii) consents to all of the terms and provisions of the
Master Equipment Financing Agreement as amended by the Amendment.
Capitalized terms which are used herein without definition shall have
the respective meanings ascribed thereto in the Master Equipment Financing
Agreement referred to herein. This Acknowledgement and Consent is for the
benefit of the Lenders and the Agents and their respective successors and
assigns. No term or provision of this Acknowledgment and Consent may be modified
or otherwise changed without the prior written consent of the Agents, given as
provided in the Master Equipment Financing Agreement. This Acknowledgement and
Consent shall be binding upon the successors and assigns of each of the
undersigned. This Acknowledgement and Consent may be executed by any of the
undersigned in separate counterparts, each of which shall be an original and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the undersigned has duly executed and
delivered this Acknowledgement and Consent as of February 20, 2001.
NEXTEL INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------------
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