1
Exhibit 10.19
AMENDMENT NO. 1 AND WAIVER
AMENDMENT AND WAIVER dated as of May 8, 1998 between Nextel
Argentina S.R.L. (the "Borrower"); each of the Subsidiary Guarantors party to
the Credit Agreement referred to below (the "Subsidiary Guarantors"); the
undersigned lenders (the "Lenders"); and THE CHASE MANHATTAN BANK, as
Administrative Agent (the "Administrative Agent").
The Borrower, the Subsidiary Guarantors, the Lenders and the
Administrative Agent are parties to a Credit Agreement dated as of February 27,
1998 (as modified, supplemented and in effect from time to time, the "Credit
Agreement") and wish to amend certain provisions, and to waive certain other
provisions, of the Credit Agreement.
Accordingly, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 1 and Waiver, terms defined in the Credit Agreement are used
herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the
conditions precedent specified in Section 4 hereof, the Lenders hereby agree
that the Credit Agreement shall be amended as follows:
A. References in the Credit Agreement (including references
to the Credit Agreement as amended hereby) to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein" and "hereof") shall be
deemed to be a reference to the Credit Agreement as amended hereby.
B. The following definition in Section 1.01 of the Credit
Agreement shall be amended to read in its entirety as follows:
"Excepted Property" means, as to any Person:
(a) all equipment, machinery and tangible personal property of
such Person that is (i) not identified by serial numbers or similar
identifying marks or (ii) located in Argentina but outside the Federal
Capital and
(b) all desks, personal computers and miscellaneous office
supplies of such Person whether or not identified by serial numbers or
similar identifying marks.
C. Section 2.01(f)(ii) of the Credit Agreement shall be
amended to read in its entirety as follows:
"(ii) from and after execution of the
Interconnection Agreement until the date of completion of the
interconnection contemplated by the Interconnection
2
2
Agreement, no Borrowing may be made to the extent that such
Borrowing, together with all then-outstanding Loans shall
exceed an aggregate amount of U.S. $45,000,000, and"
D. Section 5.01(b) of the Credit Agreement shall be amended
to add the words "or, in the case of the Parent Shareholder, the Venture Law
Group, a Professional Corporation" immediately after the words "Relevant
Parties" in the parenthetical thereof.
E. Section 5.01(h) of the Credit Agreement shall be amended
to read in its entirety as follows:
"(h) Obligor Security Documents.
(i) Assignments, security agreements, mortgages and similar
instruments executed and delivered by each Obligor in favor of
the Administrative Agent and the Lenders or in favor of the
Administrative Agent for the benefit of the Administrative
Agent and the Lenders, as appropriate, covering all Covered
Property of the Obligors, in each case subject to Section 6.11
and in form and substance satisfactory to the Administrative
Agent and special Argentine counsel to Chase. In addition,
each Obligor shall have taken such other action as the
Administrative Agent shall have requested in order to perfect
the Liens created pursuant to the Security Documents; and
(ii) (1) A trust agreement (fideicomiso), duly executed and
delivered by the Borrower and the Administrative Agent,
providing for the assignment of all of the Borrower's right,
title and interest under the Interconnection Agreement to
become effective upon the occurrence of an Event of Default,
notice from the Administrative Agent to the Borrower and
consent to such assignment by Telefonica and the Comision
Nacional de Comunicaciones of Argentina and otherwise in form
and substance satisfactory to the Administrative Agent and its
counsel and (2) a letter from Telefonica stating that it will
consent to an outright assignment of the Interconnection
Agreement to any party that has the requisite approvals and
authorizations to operate the Borrower's system, and otherwise
in form and substance satisfactory to the Administrative
Agent."
F. Section 6.11(b) of the Credit Agreement shall be amended
to read in its entirety as follows:
"(b) Further Assurances. Without affecting the obligations
of the Borrower under any provision prohibiting such action
hereunder, the Borrower will, and will cause each of its
Subsidiaries to, take such action from time to time (including
making appropriate filings and registrations and executing and
delivering such assignments, security agreements and other
instruments) as shall be requested by the Administrative Agent
to create, in favor of the Administrative Agent and each of
the Lenders, perfected security interests and Liens in all of
the Covered Property of the Borrower and each of its
Subsidiaries. Without limiting the generality of the
foregoing:
3
3
(i) from time to time, if the Borrower or any of its
Subsidiaries shall obtain any real property interest,
including improvements (other than real property located in
Argentina but outside the Federal Capital), after the Closing
Date, then the Borrower will or, as applicable, will cause the
respective Subsidiary holding such real property interest, to
execute and deliver in favor of the Administrative Agent and
the Lenders a mortgage, assignment in trust or guarantee, or
other instrument (as appropriate for the jurisdiction in which
such respective real property is situated) pursuant to which
such Obligor will create a Lien upon such real property
interest (and improvements) in favor of the Administrative
Agent and the Lenders as collateral security for the
obligations of such Obligor under this Agreement or, as
applicable, under the respective Subsidiary Guarantee
Agreement to which such Obligor is a party, and will deliver
such opinions of counsel, landlords or lessors consents,
notices and title insurance policies and evidence of such
registrations and filings as the Administrative Agent shall
reasonably request in connection therewith;
(ii) no later than March 31 and September 30 of each calendar
year, the Borrower will or, as applicable, will cause the
respective Subsidiary holding Covered Property (other than
real property) owned by the Borrower or any of its
Subsidiaries and not then subject to a security interest in
favor of the Administrative Agent and the Lenders, to execute
and deliver in favor of the Administrative Agent and the
Lenders a chattel mortgage, pledge agreement or other
instrument (as appropriate for the jurisdiction in which such
respective Covered Property is situated) pursuant to which
such Obligor will create a perfected security interest and
Lien upon which Covered Property interest in favor of the
Administrative Agent for the benefit of the Administrative
Agent and the Lenders as collateral security for the
obligations of such Obligor under this Agreement or, as
applicable, under the respective Subsidiary Guarantee
Agreement to which such Obligor is a party, and will deliver
such opinions of counsel and evidence of such registrations,
filings and other actions as the Administrative Agent shall
reasonably request in connection therewith; and
(iii) from time to time, the Borrower will or, as applicable,
will cause the respective Subsidiary holding any real or
tangible personal property interest then subject to a security
interest in favor of the Administrative Agent and each Lender
to (A) execute and deliver such amendments to the then
existing mortgages, pledges and other instruments in favor of
the Administrative Agent and each Lender as necessary to
change the named secured parties thereof to reflect each
Lender then party to this Agreement, which amendments shall be
in form and substance satisfactory to the Administrative Agent
and its counsel and (B) deliver to the Administrative Agent
such evidence of such registrations, filings and payment of
stamp or filing taxes as the Administrative Agent shall
reasonably request in connection therewith and take such other
actions as reasonably requested by the Administrative Agent in
order to give effect to such amendments, provided that none of
the Obligors shall be required to take any such action unless
either (1) the Administrative Agent has notified the Borrower
that the syndication Commitments under this Agreement has been
completed, or (2) the Required Lenders request that such
amendments be made."
4
4
G. Clause (m) of Article VIII of the Credit Agreement shall
be amended by deleting the words "(or in the case of real or tangible personal
property located in Argentina but outside the Federal Capital of Buenos Aires,
in favor of Chase)".
H. Section 10.04(b)(iii) of the Credit Agreement shall be
amended by deleting clause (A) thereof in its entirety and relettering clauses
(B) and (C) accordingly.
I. By its signature below, Societe Generale shall
automatically and without any further action be deemed to become a "Lender"
under and for all purposes of the Credit Agreement; and Schedule I to the
Credit Agreement shall be replaced with, and the Commitments of each Lender
(including Societe Generale) shall be as set forth in, Schedule I hereto.
J. Section 2.02(e)(iii) of the Credit Agreement shall be
without further force and effect as of the date hereof.
Section 3. Waivers. Subject to the satisfaction of the
conditions precedent specified in Section 4 hereof, the Lenders hereby waive
until May 15, 1998:
A. compliance by the Borrower with Sections 4.13, 5.01(h)
and 6.11(b) of the Credit Agreement insofar as such Sections
require (a) the granting and perfection of a Lien, or the
representation and warranty with respect thereto, covering the
Borrower's tangible personal property, real property, fixtures
and lease agreements relating to real property, in each case
located within the Federal Capital and (b) endorsement of
insurance policies of the Borrower reflecting the
Administrative Agent as the loss payee thereunder for the
benefit of the Lenders; and
B. any and all defaults under said Sections during such
period and any and all Events of Default and Defaults under
Article VIII of the Credit Agreement that consist, or arise as
a result, of such defaults;
The Borrower hereby agrees that (a) it will deliver to the
Administrative Agent on or before May 15, 1998 evidence of the granting and
perfection of a Lien in each of the items of property of the Borrower listed in
clause (a) above all on the terms provided in the Credit Agreement (as amended
hereby) and the Security Documents, such evidence to include without
limitation, favorable legal opinions in form and substance satisfactory to the
Administrative Agent and (b) the failure to comply with the undertaking in
clause (a) above shall constitute an Event of Default under Article VIII of
the Credit Agreement.
Section 4. Conditions Precedent. The amendments to the
Credit Agreement set forth in Section 2 hereof and the waivers contained in
Section 3 hereof shall become effective upon the execution (i) of this
Amendment No. 1 and Waiver by each of the Borrower and Lenders constituting the
Required Lenders and (ii) of the Consent and Agreement set forth below by each
of the Relevant Parties.
5
5
Section 5. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 1 and Waiver may be executed in counterparts which, taken
together, shall constitute a single document and any of the parties hereto may
execute this Amendment No. 1 and Waiver by signing any such counterpart. Terms
defined in the Credit Agreement are used herein as defined therein. This
Amendment No. 1 and Waiver shall be governed by and construed in accordance
with the law of the State of New York.
6
6
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 and Waiver to be duly executed as of the date and year first
above written.
NEXTEL ARGENTINA S.R.L.
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Title: General Manager
THE CHASE MANHATTAN BANK
By /s/ Xxxxxx Xxxxxxxxx
--------------------------
Title: Vice President
BHF-BANK AKTIENGESELLSCHAFT
By /s/ Xxxxxxxxxx Xxxx
--------------------------
Title: Vice President
By /s/ Xxxxxx X. Xxxxxx
--------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By /s/ Xxxx Xxxxxx
------------------------
Title:
By /s/ Xxxx Xxxxx
------------------------
Title:
SOCIETE GENERALE
By /s/ Xxxxxx X. Xxxxx
------------------------
Title: Director
7
7
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ Xxxxxx Xxxxxxxxx
--------------------------
Title: Vice President
CONSENT AND AGREEMENT
Each of the undersigned hereby (1) consents to the amendments and waivers
provided for in this Amendment No. 1 and Waiver, (2) agrees that each reference
to the Credit Agreement in each Loan Document (as defined in the Credit
Agreement) to which it is a party shall be a reference to the Credit Agreement
as amended by this Amendment No. 1 and Waiver and (3) confirms its obligations
under each Loan Document to which it is a party after giving effect to the
amendments and waivers set forth in this Amendment No. 1 and Waiver.
NEXTEL INTERNATIONAL, INC.
By /s/ Heng-Pin Kiang
------------------------------------
Title: Vice President
NEXTEL INTERNATIONAL (ARGENTINA) LTD.
By /s/ Heng-Pin Kiang
------------------------------------
Title: Vice President
NEXTEL INTERNATIONAL (HOLDINGS) LTD.
By /s/ Heng-Pin Kiang
------------------------------------
Title: Vice President
8
SCHEDULE I
Commitments
[See definitions of "Lenders", "Tranche A1 Commitment",
"Tranche A2 Commitment", "Tranche B1 Commitment"
and "Tranche B2 Commitment" in
Section 1.01]
Lenders Tranche A1 Commitment Tranche A2 Commitment Tranche B1 Commitment Tranche B2 Commitment
------- ---------------------- --------------------- --------------------- ---------------------
The Chase Manhattan Bank U.S. $7,050,000 U.S. $16,450,000 U.S. $7,050,000 U.S.$16,450,000
Credit Suisse First Boston U.S. $3,750,000 U.S. $8,750,000 U.S. $3,750,000 U.S. $8,750,000
Societe Generale U.S. $2,700,000 U.S. $6,300,000 U.S. $2,700,000 U.S. $6,300,000
BHF-Bank Aktiengesellschaft U.S. $1,500,000 U.S. $3,500,000 U.S. $1,500,000 U.S. $3,500,000
TOTAL: U.S.$15,000,000 U.S.$35,000,000 U.S.$15,000,000 U.S.$35,000,000
