Exhibit 10.30C
The security represented by this instrument has not been
registered under the Securities Act of 1933, as amended. The
transfer of such security is subject to the conditions specified
in the Amended and Restated Senior Secured Note and Warrant
Purchase Agreement, dated as of January 23, 1998, as amended and
modified from time to time, between the issuer (the "COMPANY"),
International Wireless Communications Holdings, Inc. and certain
investors from time to time a party thereto, and the Company
reserves the right to refuse the transfer of such security until
such conditions have been fulfilled with respect to such
transfer. Upon written request, a copy of such conditions shall
be furnished by the Company to the holder hereof without charge.
This Note has been issued with original issue discount, and as
required by treasury regulation Section 1.1275-3(b)(1),
information regarding the issue price, the amount of original
issue discount, the issue date and the yield to maturity may be
obtained from the Company.
RADIO MOVIL DIGITAL AMERICAS, INC.
AMENDED AND RESTATED
SENIOR SECURED PROMISSORY NOTE
Date of Issuance: $25,000,000
January 23, 1998
Radio Movil Digital Americas, Inc. a Delaware corporation (the
"COMPANY"), hereby promises to pay to the order of BT Foreign Investment
Corporation, a Delaware corporation ("BTFIC"), the principal amount of
$25,000,000, together with interest thereon on the unpaid principal amount of
each issuance of principal evidenced by this Note calculated from the date of
such issuance in accordance with the provisions of this Note and all other
amounts owing hereunder.
On July 23, 1996, the Company issued a Convertible Secured Promissory
Note to BTFIC, dated July 23, 1996, and payable to the order of BTFIC in the
original principal amount equal to $14,000,000 (the "$14,000,000 NOTE")
pursuant to a Note Purchase Agreement dated as of July 23, 1996, as amended
July 23, 1997 and September 30, 1997 (as so amended, the "$14,000,000
PURCHASE AGREEMENT").
On July 23, 1997, the Company issued a Convertible Secured Promissory
Note to BTFIC, dated July 23, 1997, and payable to BTFIC in the original
principal amount equal to $1,000,000 (the "$1,000,000 NOTE") pursuant to a
Note Purchase Agreement dated as of July 23, 1997, as amended September 30,
1997 (as so amended, the "$1,000,000 PURCHASE AGREEMENT").
The Company and BTFIC have agreed that additional issuances of principal
will be made to the Company under this Note, that all prior issuances of
principal made by BTFIC pursuant to the $14,000,000 Purchase Agreement and
the $1,000,000 Purchase Agreement will be evidenced by this Note and both
parties desire to amend and restate the Original Note to read as set forth in
this Note. The Company and BTFIC each agree that the indebtedness evidenced
by this Note, is, in part a restatement of the indebtedness previously
evidenced by, and this Note is issued in replacement and substitution for,
but not in payment of, the undersigned's $14,000,000 Note and $1,000,000
Note. The execution and delivery of this Note and all other documents and
instruments in connection herewith shall not be construed to (i) deem to have
repaid any amount of principal of or interest on the $14,000,000 Note or
$1,000,000 Note or (ii) release, cancel terminate or otherwise adversely
prejudice all or any part of the Lien granted to secure the Obligations or
any guaranty thereof.
This Note was issued pursuant to an Amended and Restated Senior Secured
Note and Warrant Purchase Agreement, dated as of January 23, 1998 (as amended
and modified from time to time, the "PURCHASE AGREEMENT"), among the Company,
International Wireless Communications Holdings, Inc. and certain investors
from time to time a party thereto, and this Note is the "Note" referred to in
the Purchase Agreement. As of the date hereof, no other "NOTES" have been
issued pursuant to the Purchase Agreement. The Purchase Agreement contains
terms governing the rights of the holder of this Note, and all provisions of
the Purchase Agreement are hereby incorporated herein in full by reference.
Except as otherwise indicated herein, capitalized terms used in this Note
have the same meanings set forth in the Purchase Agreement.
1. PAYMENT OF INTEREST. Except as otherwise expressly provided herein
or in the Purchase Agreement, interest has accrued at the rate of 9% per
annum through July 23, 1997, 11.5% per annum thereafter through January 23,
1998 and 14.5% per annum thereafter (computed on the basis of a 360-day year
and the actual number of days elapsed in any year) on the unpaid principal
amount of this Note (including any predecessors thereof) outstanding from
time to time until the date paid, or (if less) at the highest rate then
permitted under applicable law. The Company shall pay to the holder of this
Note all accrued interest on the 23rd day of each February, May, August and
November and the Stated Maturity Date, beginning May 23rd, 1998. Unless
prohibited under applicable law, any accrued interest which is not paid on
the date on which it is due and payable shall bear interest at the same rate
at which interest is then accruing on the principal amount of this Note until
such time as payment therefor is actually delivered to the holder of this
Note. Any accrued interest which for any reason has not theretofore been
paid shall be paid in full on the date on which the final principal payment
on this Note is made.
2. PAYMENT OF PRINCIPAL ON NOTE.
(a) STATED MATURITY DATE. On the Stated Maturity Date, the Company
shall pay the principal amount of $25,000,000 (or such lesser principal
amount then outstanding) to the holder of this Note, together with all
accrued and unpaid interest on the principal amount
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being repaid and all other Obligations owing hereunder in accordance with
Section 8.6 of the Purchase Agreement.
(b) OPTIONAL PREPAYMENTS. Subject to subsection 3(c) below, the Company
may, at any time and from time to time, prepay all or any portion (in whole
number multiples of $5,000,000 only or such lesser amount as then outstanding
or as necessary to comply with subsection 3(c) hereof) of the outstanding
principal amount of the Notes, pro rata among the holders of the Notes on the
basis of the outstanding principal amount of the Note held by each holder. In
connection with each prepayment of principal hereunder, the Company shall
also pay all accrued and unpaid interest on the Notes and all other amounts
that are required to be repaid prior to or concurrently with principal in
accordance with Section 8.6 of the Purchase Agreement (which in certain
instances includes a premium on the Notes). A prepayment of less than all of
the outstanding principal amount of each of the Notes shall not relieve the
Company of its obligation to make the scheduled payment of the Note on the
scheduled payment date pursuant to Section 2(a) above.
(c) MANDATORY PREPAYMENTS, ETC..
(i) MANDATORY PREPAYMENT. The Company shall make a mandatory
prepayment of Obligations in accordance with Section 8.6 of the Purchase
Agreement (which in certain instances includes a premium on the Notes) in an
aggregate amount equal to (w) 100% of the aggregate amount of cash proceeds
(and the fair market value of all other proceeds) (net of reasonable selling
expenses, estimated taxes, any amounts applied to repay Indebtedness secured
by such assets and any reserve for adjustment in respect of the sale price of
the assets sold; it being understood that any reserves that are released
shall become a part of the Net Proceeds and the Company shall be obligated to
make a mandatory prepayment in an aggregate amount equal to the amount of
such reserves at the time that such reserves are released), including by
recovery of insurance proceeds in excess of $100,000 (except to the extent
that such insurance proceeds are promptly used to replace the assets giving
rise to the insurance proceeds and BTFIC in its discretion (such discretion
not to be unreasonable) determines to exclude such amounts from Net
Proceeds), received or to be received by it or any Affiliate ("NET PROCEEDS")
from any sale or disposition (whether voluntary or involuntary, including by
casualty loss) or series of related sales or dispositions (other than sales
of inventory in the ordinary course of business and sales expressly
contemplated by the Post Merger Reorganization that do not give rise to any
cash proceeds) of any assets of a Brazilian Entity or any equity interests of
a Brazilian Entity, (x) 100% until the conditions set forth in Section 4.10
of the Purchase Agreement have been fully satisfied, and thereafter 50% (or
30% after the aggregate unpaid principal amount of the Notes is less than
$20,000,000) of the aggregate amount of Net Proceeds from any sale or
disposition of any assets or equity interests ("LATIN AMERICAN NON-BRAZILIAN
ASSETS") of a Latin American Non-Brazilian Entity remaining after subtracting
from such Net Proceeds an aggregate amount, not to exceed $3,000,000 less the
then outstanding amount of the BTCO Fee, which shall be re-invested in a
Brazilian Entity and such amount will be used for no other purpose (and the
holder of this Note has been provided satisfactory evidence to such effect
and, in addition, no such reduction shall occur if the BTCO Fee has not been
fully paid), and to the extent not already covered by clauses (w) and (x)
above, (y) 100% of the aggregate amount of Dividends and
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intercompany Indebtedness paid by a Brazilian Holding Entity, and (z) 50% (or
30% after the aggregate unpaid principal amount of the Notes is less than
$20,000,000) of the aggregate amount of Dividends and intercompany
Indebtedness paid by a Latin American Non-Brazilian Entity. Notwithstanding
the foregoing, in lieu of making a prepayment of the principal amount of the
Notes as otherwise required above, upon concurrent notice to the holder
hereof, and, if and only if, the conditions set forth in this subsection
2(c)(i) are fully satisfied and all Obligations other than the unpaid
principal amount of the Notes have been paid in full, the Company may
immediately deposit or cause to be deposited an aggregate amount equal to the
aggregate amount of its prepayment obligation into a bank account maintained
with an entity designated by the holder or holders of at least a majority of
the outstanding principal amount of the Notes (which entity may be an
Affiliate of BTFIC) in which the holders of Notes have (and the Company has
delivered satisfactory evidence to the holder hereof that the holders of
Notes have, which satisfactory evidence will include the delivery of an
acceptable opinion to such effect, other than with respect to priority) a
first priority Lien on such account and the funds contained therein, to be
held as collateral for the prompt payment and performance of the Obligations
(the "SALES RESERVE ACCOUNT"). Notwithstanding the foregoing, after the
requirements set forth in Section 4.10 of the Purchase Agreement have been
fully satisfied, any principal amounts held in the Sales Reserve Account in
excess of the principal amounts that would be held in such account had the
requirements set forth in Section 4.10 been fully satisfied as of the date of
issuance, shall be released from the Sales Reserve Account and delivered to
the Company or its designee.
(ii) MANNER OF PAYMENT. Except as otherwise provided herein, all such
prepayments of the Notes under this subsection 2(c) shall be made within five
(5) business days of the consummation of the particular event or transaction
giving rise to such payment obligation, and the Company shall deliver to the
holder a certificate of its chief financial officer showing the calculation
of the amount of such prepayment. Each prepayment shall be applied to the
payment of Obligations in the manner, and order in which payments are made
pursuant to Section 8.6 of the Purchase Agreement.
(d) NOTICE. The Company shall give notice to the holder of this Note of
any event or transaction which the Company reasonably believes will trigger a
prepayment under subsection 2(c) not later than 12:00 noon, New York time, on
the tenth Business Day preceding the date of payment (but in no event later
than the occurrence of such event or transaction), specifying the aggregate
principal amount it expects to be prepaid and the payment date (or,
alternatively, if applicable, the aggregate amount to be deposited into the
Sales Reserve Account).
3. TRANSFER AND EXCHANGE; REPLACEMENT; CANCELLATION.
(a) TRANSFER AND EXCHANGE. Upon surrender of any Note for transfer or
for exchange to the Company at its principal office, the Company at its
expense will (subject to the conditions set forth herein and in the Purchase
Agreement) execute and deliver in exchange therefor a new Note or Notes, as
the case may be, as requested by the holder or transferee, which aggregate
the unpaid principal amount of such Note, issued as such holder or transferee
may request, dated so that there will be no gain or loss of interest on such
surrendered Note and
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otherwise of like tenor. The issuance of new Notes shall be made without
charge to the holder(s) of the surrendered Note for any issuance tax in
respect thereof or other cost incurred by the Company in connection with such
issuance.
(b) REPLACEMENT. Upon receipt of evidence reasonably satisfactory to
the Company (an affidavit of the holder of this Note shall be satisfactory)
of the ownership and the loss, theft, destruction or mutilation of any Note
and, in the case of any such loss, theft or destruction, upon receipt of an
indemnity reasonably satisfactory to the Company (provided that if the holder
is a financial institution or other institutional investor, its own agreement
shall be satisfactory), or, in the case of any such mutilation, upon the
surrender of such Note to the Company at its principal office, the Company
shall (at its expense) execute and deliver, in lieu thereof, a new Note of
the same class and representing the same rights represented by such lost,
stolen, destroyed or mutilated Note and dated so that there will be no loss
of interest on such Note. Any Note in lieu of which any such new Note has
been so executed and delivered by the Company shall not be deemed to be an
outstanding Note for any purpose of the Purchase Agreement.
(c) CANCELLATION. Subject to (and without prejudice to) Section 8.19 of
the Purchase Agreement, after all principal accrued interest, premium and all
other Obligations which may be owing on this Note have been paid in full in
cash, this Note shall be surrendered to the Company for cancellation.
4. PAYMENTS. All payments to be made to the holders of the Notes shall
be made in the lawful money of the United States of America in immediately
available funds. Any payment received by the holder of this Note after 12:00
noon (New York time) on any day, will be deemed to have been received on the
next following Business Day.
5. PLACE OF PAYMENT. Payments of principal, interest, premium and other
amounts shall be delivered to the holder hereof at the following address:
Bankers Trust Company
New York, New York
ABA: 000000000
Credit: BT Foreign Investment Corporation
Account: 00000000
Further Reference: D951355/D974278
Attention: Xxxxx Xxxxx
or to such other address or to the attention of such other Person as
specified by prior written notice to the Company.
6. BUSINESS DAYS. If any payment is due, or any time period for giving
notice or taking action expires, on a day which is not a Business Day, the
payment shall be due and payable on, and the time period shall automatically
be shortened to, the immediately preceding Business Day.
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7. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF
THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
8. USURY LAWS. It is the intention of the Company and the holder of
this Note to conform strictly to all applicable usury laws now or hereafter
in force, and any interest payable under this Note shall be subject to
reduction to the amount not in excess of the maximum legal amount allowed
under the applicable usury laws as now or hereafter construed by the courts
having jurisdiction over such matters. If the maturity of this Note is
accelerated by reason of an election by the holder hereof resulting from an
Event of Default, voluntary prepayment by the Company or otherwise, then
earned interest may never include more than the maximum amount permitted by
law, computed from the date hereof until payment, and any interest in excess
of the maximum amount permitted by law shall be canceled automatically and,
if theretofore paid, shall at the option of the holder hereof either be
rebated to the Company or credited on the principal amount of this Note, or
if this Note has been paid, then the excess shall be rebated to the Company.
The aggregate of all interest (whether designated as interest, service
charges, points or otherwise) contracted for, chargeable, or receivable under
this Note shall under no circumstances exceed the maximum legal rate upon the
unpaid principal balance of this Note remaining unpaid from time to time. If
such interest does exceed the maximum legal rate, it shall be deemed a
mistake and such excess shall be canceled automatically and, if theretofore
paid, rebated to the Company or credited on the principal amount of this
Note, or if this Note has been repaid, then such excess shall be rebated to
the Company.
9. COLLATERAL. The obligations of the Company under this Note are
secured by the Collateral and the Security Documents.
* * * *
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IN WITNESS WHEREOF, the Company has executed and delivered this Note on
the Date of Issuance.
RADIO MOVIL DIGITAL AMERICAS, INC.
By __________________________________
Its __________________________________
Attest:
_________________________
Secretary
STATE OF CALIFORNIA )
COUNTY )
I, the undersigned authority, a Notary public in and for said County and
State, hereby certify that _______________________, whose name as of RADIO
MOVIL DIGITAL AMERICAS, INC. a Delaware corporation, is signed to the
foregoing instrument, and who is known to me, acknowledge before me on this
day that, being informed of the contents of the instrument, he/she, as such
officer and with full authority, executed the same voluntarily for and as the
act of said corporation.
Given under my hand and official seal this _____ day of January, 1998
______________________________________
Notary Public
Commission Expires: __________________
