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EXHIBIT 10.3
EXECUTION VERSION
SECOND AMENDMENT
TO
SECURED LOAN AGREEMENT
This Second Amendment (the "Second Amendment") to Secured Loan
Agreement is entered into by and between NEXTEL INTERNATIONAL, INC. (the
"Company") and MOTOROLA CREDIT CORPORATION (referred to herein as the "Creditor"
or "MCC").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a Secured Loan
Agreement, dated as of December 16, 1999 with the Creditor and with MCC in its
capacities as collateral agent (in such capacity, the "Collateral Agent") and as
administrative agent (in such capacity, the "Administrative Agent") (as
heretofore amended, modified or supplemented, 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 Creditor agree to
certain amendments to the Financing Agreement; and
WHEREAS, subject to the terms and conditions set forth herein, the
Creditor is 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 and the Creditor 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 definition of "Maturity
Date" in Section 1.1 of the Financing Agreement is hereby
amended and restated in its entirety as follows:
" "Maturity Date" means June 30, 2003, provided, if such date
is not a Business Day, then the Maturity Date shall be the
immediately preceding Business Day."
1.2 Schedule 1.1(e) to the Financing Agreement is hereby deleted
and replaced with Schedule 1.1(e) (Target Cumulative
Subscribers) attached hereto.
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1.3 The term "Borrowing Affiliate" shall be deemed to have the
meaning under the Financing Agreement which is given to such
term under the MEFA as of the date of this Second Amendment
(assuming the effectiveness of the Fourth Amendment thereto).
1.4 Clauses (a), (b) and (c) of Section 7.15 of the Financing
Agreement are hereby amended and restated in their entirety as
follows:
"(a) 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
(b) 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
3/31/03 105,000,000
(c) Notwithstanding anything herein to the contrary
(including, without limitation, the provisions of Section 10.1
hereof), a breach of Section 7.15(a) or Section 7.15(b) hereof as of
any quarter end date shall not constitute an
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Event of Default hereunder unless the Aggregate Subscribers as of
the end of such quarter were less than the "Total Ending
Consolidated Digital Subscribers" set forth opposite the quarter end
dates set forth in Schedule 1.1(e)."
SECTION 2. CONDITIONS.
As conditions precedent to the effectiveness of the Second
Amendment, each of the following shall have occurred:
2.1 the Company shall have delivered to the Creditor the Second
Amendment, duly executed and delivered and appropriately dated and in
form and substance satisfactory to the Creditor;
2.2 the Creditor shall have received an opinion of counsel for the
Company with respect to this amendment, reasonably acceptable to the
Creditor, and shall, within 30 days of the date hereof, receive an opinion
of Canadian counsel to the Company with respect to the collateral in
respect of the obligations of the Company under the Financing Agreement,
as amended by this amendment;
2.3 the Creditor shall have received within 10 Business Days of the
date hereof a binding commitment, reasonably acceptable to the Creditor,
with respect to the purchase by the Company and its affiliates of minimum
amounts of goods and services from the Creditor or its affiliates;
2.4 all necessary consents to the Second Amendment have been
obtained from third parties, including assignees of the Creditor and
insurers of the payment of Advances; and
2.5 the Company shall have delivered such other documents as the
Creditor may reasonably request;
it being understood and agreed that the failure to satisfy either of the
conditions in paragraphs 2.2 and 2.3 above in the time periods specified
shall result in the Second Amendment being void ab initio and of no force
and effect.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
To induce the Creditor to enter into the Second Amendment, the Company
hereby represents and warrants to the Creditor as of the date hereof (and shall
be deemed to represent and warrant as of the initial date of effectiveness of
this Second Amendment) that:
3.1 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
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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;
3.2 There has been no Material Adverse Effect since September 30,
2000;
3.3 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 Creditor, 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;
3.4 Each Credit Party has made all material required contributions
under the Plans for all periods through and September 30, 2000, or
adequate accruals therefor have been provided for in the financial
statements referenced in paragraph 3.3 above;
3.5 The actuarial value of vested benefits required to be funded by
each Credit Party, or with respect to which such 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
3.6 After giving effect to the Second 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 Second Amendment.
SECTION 4. GENERAL.
4.1 Reservation of Rights. The Company acknowledges and agrees
that the execution and delivery of the Second Amendment shall not be
deemed (i) to create a course of dealing or otherwise obligate the
Creditor to forbear or execute similar amendments under the same or
similar circumstances in the future, or (ii) as a waiver by the
Creditor of any covenant, condition, term or provision of the
Financing Agreement or any of the other Credit Documents, and the
failure of the Creditor 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 Creditor to thereafter demand
strict compliance therewith. The Creditor hereby reserves all
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rights granted under the Financing Agreement, the other Credit
Documents and the Second 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 Creditor in connection with the
preparation, execution and delivery of the Second Amendment and all
instruments and documents delivered in connection herewith.
4.4 Successors and Assigns. The Second Amendment shall be binding
upon and shall inure to the benefit of the Company, the Creditor and
the respective successors and assigns of the Company and the
Creditor.
4.5 Counterparts. The Second 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 Second Amendment.
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IN WITNESS WHEREOF, the Company and the Creditor have executed this Second
Amendment as of the 19th day of February, 2001.
COMPANY:
NEXTEL INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President & General Counsel
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CREDITOR:
MOTOROLA CREDIT CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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Schedule 1.1(e)
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
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