1
EXHIBIT 10.1
Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement.
EXECUTION COPY
iDEN(R) INFRASTRUCTURE MINIMUM PURCHASE COMMITMENT AGREEMENT
This Agreement ("Agreement") is between Motorola, Inc., a Delaware corporation,
by and through its Global Telecom Solutions Sector, Telecom Carrier Solutions
Group with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Motorola") and Nextel International, Inc. a Delaware corporation with offices
at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., #▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Nextel International")
or ("NII").
WHEREAS, the parties have mutually agreed to enter into the following agreements
(collectively, the "Purchase Agreements"):
Nextel International, Inc./ Nextel Argentina S.R.L./ Motorola, Inc.
iDEN(R) Infrastructure Equipment Supply Agreement, effective as of June
30, 2000, as amended
Nextel International, Inc./ Nextel Telecomunicacoes Ltda./ Motorola, Inc.
iDEN(R) Infrastructure Equipment Supply Agreement, effective as of June
30, 2000, as amended
Nextel International, Inc./ Comunicaciones Nextel de Mexico, S.A. de C.V./
Motorola, Inc. iDEN(R) Infrastructure Equipment Supply Agreement,
effective as of June 30, 2000, as amended
Nextel International, Inc./ Nextel del Peru S.A./ Motorola, Inc. iDEN(R)
Infrastructure Equipment Supply Agreement, effective as of June 30, 2000,
as amended
Nextel International, Inc./ Nextel Communications Philippines,
Inc./Motorola iDEN(R) Infrastructure Equipment Supply Agreement, effective
as of June 30, 2000
Hereafter, all of the Nextel entities above are referred to as "NII
Affiliates".
WHEREAS, this Agreement sets forth the obligations of the parties and terms and
conditions in respect to minimum purchase commitments.
NOW THEREFORE, in consideration of discounts, sales promotions, financing
offerings, their mutual promises set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which each party
acknowledges, the parties agree to as follows:
--------
(R)(R)Registered U.S. Patent & Trademark Office.
Motorola/Nextel International 1 Minimum Purchase Commitment Agreement
January 18, 2001
2
Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement.
1.0 DEFINITIONS AND INCORPORATIONS BY REFERENCE
NII QUALIFIED ENTITIES
The operating subsidiaries of Nextel International that are party to one
of the Purchase Agreements and the operating subsidiaries of Nextel
International that subsequently enter into an iDEN infrastructure supply
agreement with Motorola. The latter category of operating subsidiaries
specifically exclude the Nextel International subsidiaries in Canada and
Japan and are limited to operating subsidiaries in which Nextel
International or a wholly owned affiliate has a substantial ownership
interest and substantial operating control of the business. "Substantial
interest and substantial operating control" is defined as occurring where
Nextel International has both approval authority of all purchase orders
and has criteria 1-4 or criteria 5 below:
1. Greater than 20% of the equity of the initial
partnership;
2. Ability to appoint, or have veto rights for key
management positions of Chief Technical Officer and
Chief Financial Officer;
3. Board of Director seats commensurate with equity
interest;
4. Technical approval or at least veto power over the
technology used;
5. Motorola is an equity partner, and the combined equity
ownership and control satisfies provisions 1-4 in this
section.
INCORPORATIONS BY REFERENCE
The following definitions and sections from the Purchase Agreements are
incorporated into this Agreement: "Confidential Information"; Section 12
"Confidentiality"; Section 21 "Governing Law"; Section 23 "Notice";
Section 24 "Survival of Provisions"; Section 26 "General"; Section 27
"Authority"; Section 28 "Term"; Section 30 "Disputes and Dispute
Resolution"; Section 33 "Severability"; and Section 35 "Counterparts".
2.0 MINIMUM PURCHASE COMMITMENT FOR CALENDAR YEAR 2001
2.1 Nextel International commits that the NII Affiliates shall take
shipment of an aggregate of at least Two Hundred Thirty Million
Dollars ($230,000,000) of "FNE", "Software", and "Services" (all as
defined in the Purchase Agreements)
Motorola/Nextel International 2 Minimum Purchase Commitment Agreement
January 18, 2001
3
Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement.
in calendar year 2001. Should such commitment not be achieved, and
NII and NII Affiliates, in aggregate, are successful in securing
additional Funding of a minimum of Eight Hundred and Fifty Million
Dollars (US$850 million) in 2001, as defined in 2.3 of this
Agreement (the "Funding"), Nextel International agrees to pay
Motorola an amount equal to ten percent (10%) of the difference
between Two Hundred Thirty Million Dollars ($230,000,000) and the
actual aggregate amounts of FNE, Software, and Services
shipped/provided by Motorola to the NII Affiliates in calendar year
2001.
2.2 Notwithstanding the above, in the event NII and NII Affiliates, in
aggregate, do not secure the Funding and the 2001 minimum shipment
commitment of $230 million to the NII Affiliates is not achieved,
NII agrees to pay Motorola an amount equal to the greater of:
2.2.1 the percentage calculated as the ratio with the numerator as
the actual Funding secured by NII and NII Affiliates in 2001
and the denominator of $850 million, multiplied by 10% of the
difference between Two Hundred Thirty Million Dollars
($230,000,000) and the actual aggregate amounts of FNE,
Software, and Services shipped/provided by Motorola to the NII
Affiliates in calendar year 2001; or
2.2.2 six percent (6%) of the difference between Two Hundred Thirty
Million Dollars ($230,000,000) and the actual aggregate
amounts of FNE, Software, and Services shipped/provided by
Motorola to the NII Affiliates in calendar year 2001.
2.3 Funding, as referenced in this Agreement, means the obtainment by
NII and NII Affiliates, in aggregate, of a minimum of Eight Hundred
and Fifty Million Dollars (US$850,000,000), through the sum of (a)
all equity infusions of any nature and from any source, including
but not limited to the proceeds of an NII or NII Affiliate Initial
Public Offering or capital infusions from NII or NII Affiliate
shareholders, and (b) any proceeds of credit facilities with a tenor
of greater than one year (or any commitments to provide such credit
facilities) or debt capital market issuances with a tenor of greater
than one year, including but not limited to shareholder loans,
mezzanine debt, high yield debt, medium term notes or subordinated
debt, secured in aggregate by NII or NII Affiliates.
2.4 These payments are in addition to any other payments Nextel
International may be obligated to make pursuant to the Purchase
Agreements, including but not limited to those set forth in Exhibit
I of the Purchase Agreement. This Agreement shall apply for the year
2001 only and shall take effect if the Eighteen (18) month principal
payment deferrals granted by Motorola Credit Corporation ("MCC")
Motorola/Nextel International 3 Minimum Purchase Commitment Agreement
January 18, 2001
4
Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement.
under certain amendments to certain financing agreements (the
"Financing Agreements") entered into by and between NII, NII
Affiliates and MCC become effective.
2.5 The payments above will be assessed and invoiced on December 31,
2001 year-to-date shipments. This payment shall be due Net 30 days.
2.6 Upon Motorola's thirty (30) day prior written request, NII shall
provide Motorola, by December 03, 2001, all information regarding
amount of Funding secured or to be secured in 2001 by NII or NII
Affiliates.
3.0 Entire Agreement
This Agreement hereto constitutes the entire understanding among the
parties concerning the subject matter hereof and supersede all prior
discussions, agreements, and representations, whether oral or written, and
whether or not executed by the parties. No modification, Amendment, or
other change may be made to this Agreement or any Exhibit unless reduced
to writing and executed by authorized representatives of all parties, or
in the case of a Change Order executed by authorized representatives of
Customer and Motorola.
This Purchase Commitment Agreement is a stand-alone commitment and is not
part of the Purchase Agreements. This Purchase Commitment Agreement is
therefore not subject to the Order of Precedence Clause in Section 22 of
the Purchase Agreements.
4.0 Counterparts
This Agreement 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 Agreement.
THIS AGREEMENT IS EFFECTIVE AS OF THE 1ST DAY OF JANUARY 2001 ("EFFECTIVE
DATE").
MOTOROLA, INC. NEXTEL INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- ---------------------------------
(Authorized Signatory) (Authorized Signatory)
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- -------------------------------
Title: Senior Vice President and Title: Vice President & General Counsel
------------------------------- -------------------------------
General Manager TCSG-NA
Motorola/Nextel International 4 Minimum Purchase Commitment Agreement
January 18, 2001
5
Confidential: Use or disclosure of this document is subject to the restriction
on the Confidentiality Statement.
By:
-------------------------------
Name
-------------------------------
Title: :
-------------------------------
Motorola/Nextel International 5 Minimum Purchase Commitment Agreement
January 18, 2001
