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EXHIBIT 10.8
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED
CAPITAL SUBSCRIPTION AGREEMENT
AMENDMENT NO. 1 dated as of June 20, 2000, made by and among (i) NEXTEL
ARGENTINA S.R.L. (the "Borrower"), a sociedad de responsabilidad limitada
organized under the laws of Argentina, (ii) NEXTEL INTERNATIONAL (ARGENTINA),
LTD. (the "Parent"), a company incorporated under the laws of the Cayman
Islands, and (iii) NEXTEL INTERNATIONAL, INC. (the "Parent Shareholder"), a
corporation organized under the laws of the State of Washington, United States
of America.
The Borrower, the Parent and the Parent Shareholder are parties to a
Capital Subscription Agreement dated as of March 17, 1998 (as amended and
restated by the Amended and Restated Capital Subscription Agreement dated as of
May 12, 1999 and as further modified, supplemented and in effect from time to
time, the "Capital Subscription Agreement") and wish to amend certain provisions
of the Capital Subscription 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. Amendments.
1.01. Definitions. The definition of "Equity Contribution" in Section 1 of
the Capital Subscription Agreement is hereby amended to read in its entirety as
follows:
"Equity Contribution" means, as to any Person (i) the amount of cash
consideration paid to such Person in exchange for newly-issued Capital
Stock of such Person, (ii) the amount of any contribution of cash to such
Person in respect of its Capital Stock made by any then-existing
equityholder, (iii) in the case of the Borrower, the value of equipment
contributed to the Parent by the Parent Shareholder, and to the Borrower by
the Parent, in respect of its capital stock, so long as such equipment is
newly manufactured and has been purchased by the Parent Shareholder from
third party vendor(s), not an Affiliate, within 30 days prior to the date
of delivery of such equipment to the Borrower and (iv) the value of
payments made by the Parent Shareholder to third party vendors in respect
of software, software design and software licensing utilized by the
Borrower and its Subsidiaries and set forth in a certification to such
effect delivered to the Administrative Agent and signed jointly by an
officer of the Parent Shareholder and the Borrower, provided that the
aggregate amount of such payments during any single fiscal year that may be
treated as Equity Contributions shall not exceed U.S. $3,000,000. For
purposes hereof, the value of any equipment contributed to the Parent and
the Borrower as contemplated by the foregoing clause (iii) shall be valued
at the purchase price therefor reflected on the invoice of the respective
vendor, and the value of any software, software design and software
licensing referred to in the foregoing clause
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(iv) shall be the amount thereof determined in good faith as being
properly allocable to the Borrower and its Subsidiaries as set forth in the
officers' certificate referred to in said clause (iv).
1.02. New Equity Contributions. Section 2(c) of the Capital Subscription
Agreement is hereby amended to read in its entirety as follows:
"(c) New Equity Contributions. The Parent Equity Holders shall make
additional Equity Contributions to the Parent, by remitting the same in
U.S. Dollars and in immediately available funds to the Equity Contribution
Account or, alternatively, by contributing equipment as permitted by clause
(iii) of the definition of "Equity Contribution" in Section 1 (all such
additional Equity Contributions to the Parent being herein referred to as
the "New Equity Contributions"), from time to time as herein provided, to
the extent necessary so that the aggregate amount of (x) the Pre-Closing
Equity Contributions, plus (y) the New Equity Contributions, so made in the
Parent on or before the dates set forth below shall each be equal to or
greater than the respective amounts set forth below beside such dates (as
such amounts shall be adjusted in accordance with the proviso set forth
below):
Date Amount
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Amendment No. 3 Effective Date U.S.$ 65,500,000
December 31, 1999 U.S.$ 83,500,000
March 31, 2000 U.S.$ 90,500,000
June 30, 2000 U.S.$135,000,000
September 30, 2000 U.S.$180,000,000
December 31, 2000 U.S.$218,000,000
March 31, 2001 U.S.$242,000,000
June 30, 2001 U.S.$275,000,000
September 30, 2001 U.S.$306,000,000
December 31, 2001 U.S.$328,000,000
March 31, 2002 U.S.$346,000,000
June 30, 2002 U.S.$362,000,000
September 30, 2002 U.S.$406,000,000
Amendment No. 1 to Capital Subscription Agreement
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Date Amount
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December 31, 2002 U.S.$445,000,000
provided that the amount set forth above for any date shall be reduced or
increased by the amounts set forth below in the event any of the following
conditions shall be met (reductions and increases in the following clauses
(i) and (ii) each to be independent of the other):
(i) in the event that the Borrower shall elect to reduce the
cumulative permitted amount of Capital Expenditures through any
December 31 as contemplated by clause (i) of Section 7.08(c) of the
Credit Agreement by sending a "Notice of Capital Expenditure
Reduction" to the Administrative Agent and the Lenders as provided
therein, then the amount of required New Equity Contributions as at
said December 31 and each date set forth in the schedule above after
such December 31 shall be reduced by an equivalent amount; and
(ii) in the event that the cumulative amount of EBITDA for the
period (treated for these purposes as a single accounting period)
commencing on January 1, 2000 through and including the fiscal quarter
ending on any date set forth in the schedule below shall (x) be
greater than the projected EBITDA for such period set forth in the
schedule below, then the amount of required New Equity Contributions
as at said date and each date set forth in the schedule above after
such date shall be reduced by an equivalent amount and (y) be less
than the projected EBITDA for such period set forth in the schedule
below, then the amount of required New Equity Contributions as at said
date and each date set forth in the schedule above after such date
shall be increased by an equivalent amount:
Period Ending Amount
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March 31, 2000 U.S.$ (3,653,390)
June 30, 2000 U.S.$(12,113,100)
September 30, 2000 U.S.$(17,449,154)
December 31, 2000 U.S.$(22,606,002)
March 31, 2001 U.S.$(25,675,686)
June 30, 2001 U.S.$(27,151,089)
September 30, 2001 U.S.$(27,333,601)
December 31, 2001 U.S.$(26,306,524)
March 31, 2002 U.S.$(24,903,776)
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Period Ending Amount
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June 30, 2002 U.S.$(21,556,744)
September 30, 2002 U.S.$(16,236,247)
December 31, 2002 U.S.$ (8,771,888)
The amounts set forth above in the first schedule above (as so
adjusted) shall be referred to in this Agreement as the "Equity Holder
Commitments" of the Parent Equity Holders. The Parent may from time to
time, upon not less than 10 days' prior written notice, require that the
Parent Equity Holders make the New Equity Contributions contemplated hereby
in advance of any date specified above, and if any such notice is given,
the Parent Equity Holders shall so make such New Equity Contributions on
the date and in the amount so required in such notice."
SECTION 2. Miscellaneous. Except as herein provided, the Amended and
Restated Capital Subscription Agreement shall remain unchanged and in full force
and effect. This Amendment No. 1 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 by signing nay such counterpart. Terms defined in
the Amended and Restated Capital Subscription Agreement are used herein as
defined therein. This Amendment No. 1 shall be governed by and construed in
accordance with the law of the State of New York.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to be
executed by their duly authorized signatures in counterparts all as of the date
first above written.
NEXTEL ARGENTINA S.R.L.
By:
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Name:
Title:
NEXTEL INTERNATIONAL (ARGENTINA), LTD.
By:
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Name:
Title:
NEXTEL INTERNATIONAL, INC.
By:
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Name:
Title:
Amendment No. 1 to Capital Subscription Agreement
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CONSENT AND AGREEMENT TO AMENDMENT
Pursuant to Section 3(b)(ii) of the Amended and Restated Consent Agreement
dated as of May 12, 1999 between the Parent, the Parent Shareholder and The
Chase Manhattan Bank, as administrative agent (the "Administrative Agent") for
the Lenders party to the Credit Agreement referred to therein, the undersigned
hereby consents to the amendments provided for in this Amendment No. 1.
THE CHASE MANHATTAN BANK
By
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Title:
Amendment No. 1 to Capital Subscription Agreement
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