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EXHIBIT 10.38
GUARANTY
This Guaranty ("Guaranty") is effective as of the 23 day of
July, 1999, by and between Nextel International, Inc. (hereinafter referred to
as "Guarantor"), in favor of Motorola, Inc., a Delaware corporation (hereinafter
referred to as "Motorola").
WHEREAS, Guarantor, by and through its affiliates, is the owner of
substantially all of the issued and outstanding shares of the capital stock of
Comunicaciones Nextel de Mexico, S.A. de C.V., a Mexican company (hereinafter
referred to as the "Company"); and
WHEREAS, Motorola and Company have entered into a Subscriber Unit
Purchase Agreement dated as of July 23, 1999 (the "Purchase Agreement") covering
the supply of certain iDEN subscriber handset equipment and services for a
mobile communications system in Mexico City, Mexico; and
WHEREAS, Motorola has agreed, under certain circumstances, [*]; and
WHEREAS, [*]; and
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Guarantor, the Guarantor does
hereby covenant and agree as follows:
1. The Guarantor hereby unconditionally and irrevocably guarantees
the full and prompt performance of all payment obligations of the Company under
the Purchase Agreement, without deduction for any claim of setoff or
counterclaim, including the entire outstanding balance due under the Purchase
Agreement together with accrued interest, delinquency charges, and any other
charges cost and expenses provided for thereunder. If any amounts for federal,
state and/or local excise, sales, use, property, retailer's, occupation or any
other assessment in the nature of taxes however designated, on the products
and/or services provided under the Purchase Agreement (exclusive however, of any
taxes measured by net income or taxes based on Motorola's gross receipts or
based on Motorola's franchise), are determined to be applicable to the
transactions set forth in the Purchase Agreement or this Guaranty, or to the
extent Motorola is required to pay or bear the burden thereof, one hundred
percent (100%) thereof shall be added to the amounts guaranteed hereunder.
Personal property taxes assessed on the products and/or services provided under
the Purchase Agreement after the date title transfers to Company under the terms
and conditions of the Purchase
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* Confidential portions omitted and filed separately with the Commission
pursuant to an application for confidential treatment pursuant to Rule 24b-2
under the Securities and Exchange Act of 1934, as amended.
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Agreement, shall be the responsibility of Company, and shall be guaranteed by
Guarantor pursuant to the terms and conditions hereof. In the event Company
and/or Guarantor claims exemption from sales, use or other such taxes under the
Purchase Agreement or hereunder, Guarantor shall indemnify and hold Motorola
harmless for any such assessments levied by a proper taxing authority for such
taxes, including interest, penalties, and late charges pursuant to the terms and
conditions hereof, to the extent such indemnity is not provided by Company to
Motorola pursuant to the terms of the Purchase Agreement. Each such payment
shall payable to Motorola or its assignee at its principal offices. Guarantor's
obligations hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including but not limited to, any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of any of the following: (a) the invalidity or
unenforceability of the Purchase Agreement; (b) any extension, modification or
renewal of, or indulgence with respect to, or substitutions for, the sums owed
under the Purchase Agreement or any part thereof or any agreement relating
thereto at any time; (c) any failure or omission to enforce any right, power or
remedy with respect to the Purchase Agreement or any part thereof; (d) any
waiver of any right, power or remedy or of any default with respect to the
Purchase Agreement or any part thereof or any other agreement relating thereto;
or (e) any compromise, settlement, waiver or other modification, or any release
or surrender not knowingly given by Motorola, with or without consideration, of
the Purchase Agreement, any guarantees with respect to the Purchase Agreement or
any part thereof or any other obligation of any person or entity with respect to
the Purchase Agreement or any part thereof.
2. As long as the Purchase Agreement is outstanding, Guarantor
agrees that this Guaranty shall be an absolute, present, continuing, unlimited,
unconditional and irrevocable guaranty of payment (and not of collection). Suit
may be brought and maintained against the Guarantor by Motorola to enforce any
liability, obligation or duty guaranteed hereunder without joinder of any other
person or entity. The liability of Guarantor shall not be deemed to be waived,
released, discharged, impaired or affected by: any foreclosures, indulgence, or
variation of terms of the Purchase Agreement whether or not it might vary the
risk of guaranty under this Guaranty, including, without limitation, any
alteration, amendment, acceleration, extension, modification, waiver or change
concerning the amount of time or manner of payment or performance of any of the
obligations; any discharge or release of any of the obligations securing the
payment or performance thereof, whether or not in accordance with the respective
provisions thereof, or any bankruptcy, insolvency, reorganization, liquidation
or similar proceeding concerning Guarantor; the addition or omission or delay in
the enforcement of any right or remedy with respect to any of the obligations or
with respect to this Guaranty; or the receipt, exchange, surrender or
acquiescence in, any default with respect to any of the obligations.
3. Guarantor represents and warrants to Motorola as follows:
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(a) Guarantor is an indirect shareholder of the Company and owns,
through its affiliates, substantially all of the issued and outstanding capital
stock thereof, and as such, Guarantor has received legally sufficient
consideration in connection with the transactions referenced herein to make this
Guaranty legally and equitably enforceable against Guarantor;
(b) Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation and has the
corporate power and authority to own its properties and to carry on its
business;
(c) Guarantor has the corporate power to execute and deliver this
Guaranty and to perform its obligations hereunder. The execution, delivery and
performance of this Guaranty by Guarantor has been duly authorized by all
requisite corporate action and the same will not violate any provision of law or
any order of any court or governmental agency applicable to Guarantor or the
articles of organization and/or by-laws of Guarantor;
(d) The execution, delivery and performance by Guarantor of this
Guaranty will not violate the terms of any instrument, document or agreement to
which Guarantor is a party, either individually or jointly, with any other
person, firm, entity or corporation or by which Guarantor or any of the property
of Guarantor is bound, or be in conflict with, result in a breach of, or
constitute (with giving of notice or lapse of time or both) a default under any
such instrument, document or agreement, or result in the creation or imposition
of any lien upon any of the property or assets of Guarantor; and
(e) This Guaranty constitutes the valid and legally binding
obligation of Guarantor, enforceable in accordance with its terms and no
material consent, approval or authorization of any governmental authority,
bureau or agency is required in connection with the execution, delivery or
performance of this Guaranty by Guarantor, or with the validity and
enforceability of this Guaranty as to Guarantor.
4. This Guaranty is, and shall be deemed to be, a contract entered
into, under and pursuant to the substantive laws of the State of Illinois,
United States of America, without regard to the conflict of laws rules thereof.
5. Guarantor agrees that if Motorola shall employ outside legal
counsel in order to successfully present, enforce or defend any or all of
Motorola's rights or remedies hereunder, then in any such event, Guarantor shall
pay all reasonable attorneys' fees and reasonable expenses incurred by Motorola
in connection therewith.
6. Any notices, requests, demands or other communications required
or permitted to be given to any party hereunder shall be deemed to have been
sufficiently given or served for all purposes when either: (i) presented
personally; or (ii) if sent by facsimile, upon transmittal with confirmed
answerback; or (iii) upon post office's confirmation of receipt (or refusal of
delivery) by the addressee, if sent by prepaid certified mail or via overnight
courier, return receipt requested, to any party hereto at its address shown
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below, or at such other address of which it shall have notified in writing the
party giving such notice.
Nextel International, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Chief Financial Officer
Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone No.: (000) 000-0000
Facsimile No. (000) 000-0000
Attn: Global Finance Group
7. This Guaranty may not be amended or modified except by a
modification in writing signed by Guarantor and Motorola.
8. All of the terms, agreement and conditions of this Guaranty shall
extend to and be binding upon Guarantor, its successors and assigns, and shall
inure to the benefit of Motorola and its respective successors and assigns.
Guarantor acknowledges that time is of the essence. Guarantor acknowledges and
agrees that this Guaranty and Motorola's rights and benefits hereunder, are
freely assignable and transferable by Motorola.
9. Guarantor waives presentment, protest, notice of protest and
notice of either dishonor, default or nonperformance in connection with the
Purchase Agreement or with respect to any other obligations thereunder or under
this Guaranty to the extent it may lawfully do so, and any and all demands and
other notice of every kind that may be required to be given by law.
10. Any determination that any provision hereof is invalid, illegal
or unenforceable in any respect shall not affect the validity, legality or
enforceability of such provision in any other respect and shall not affect the
validity, legality or enforceability of any other provision contained herein.
11. This Guaranty shall be effective upon the date of execution
hereof and the obligations of the Guarantor shall continue until the receipt by
Motorola of payment in full (principal and accrued interest) of sums due under
the Purchase Agreement.
12. In the event Guarantor is caused to make payment hereunder,
Guarantor waives any rights of subrogation as against the Company until all
amounts payable by Company have been paid in full to Motorola.
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13. Guarantor acknowledges that it has or may have in the future
other guaranteed obligations in favor of Motorola and/or its affiliates and
subsidiaries, and Guarantor agrees that nothing herein shall in any way modify,
amend, or alter the terms and conditions of any other guarantee made by
Guarantor.
NEXTEL INTERNATIONAL, INC.
Title: Vice President and Treasurer
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By: /s/ Xxxxxx X. Xxxxxx
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