exv10w22



 



Exhibit 10.22


[FORM OF MODIFICATION AGREEMENT]



MODIFICATION AGREEMENT



     THIS MODIFICATION AGREEMENT (as it may be amended from time to time, this
“Agreement”), effective as of the 26th day of September, 2003, by and between
NII HOLDINGS, INC., a Delaware corporation (the “Creditor”) and NEXTEL
TELECOMMUNICAÇÕES, LTDA., a Brazilian limited liability company (the
“Borrower”), recites and provides as follows:


RECITALS:



     (A)  Motorola Credit Corporation (the “Original Creditor”) was the creditor
under that certain Second Amended and Restated Equipment Financing Agreement,
dated as of November 12, 2002 (the “New EFA”), by and among the Original
Creditor, McCaw International (Brazil), Ltd., the Borrower, and Citibank, N.A.,
as collateral agent.


     (B)  Pursuant to the provisions of that certain Loan Assignment Agreement
dated September 26, 2003 among the Original Creditor, the Creditor, and the
Borrower (the “Assignment Agreement”), the Original Creditor assigned to the
Creditor all of the Original Creditor’s rights, title and interests in, to and
under the New EFA and the Obligations (as such term is defined in the New EFA),
including, without limitation, all collateral therefor and all guarantees with
respect thereto. Therefore, the Creditor is the sole owner, holder and
beneficiary of the Obligations.


     (C)  The Creditor and the Borrower now wish to modify the New EFA in
certain respects, all as more particularly set forth herein.


AGREEMENT:




     NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements hereafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which the parties hereby
acknowledge, the parties hereby covenant and agree as follows:


     (1)  The Note. Contemporaneously with the execution hereof, the Borrower
shall execute and deliver to the Creditor a Promissory Note in the form of
Exhibit A attached hereto (the “Note”), and the Creditor shall accept this
Agreement and the Note in full substitution for the New EFA and any and all
promissory notes (the “Prior Notes”) currently evidencing the indebtedness
thereunder (the “EFA Indebtedness”). Hereafter, this Agreement and the Note
shall be the sole evidence of the EFA Indebtedness. The parties hereto agree
that neither this Agreement nor the Note is a novation or an accord and
satisfaction of (a) the amounts due and owing to the Creditor under the Prior
Notes and the New EFA in the amount of $103,700,000.00, for which this
Agreement and the Note shall be substituted, or (b) the obligations under the


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collateral, guarantee and other documents relating to the New EFA and the Prior
Notes (collectively, the “EFA Security Documents,” and together with any and
all future security, guarantee, collateral, mortgage or other instruments and
documents relating to the Note or this Agreement, the “Security Documents”), it
being the specific intention of the parties hereto that the above referenced
obligations are not extinguished by the execution of this Agreement and the
Note. The Borrower shall remain liable to the Creditor under the Note and the
EFA Security Documents, and the rights and remedies of the Creditor under the
New EFA and the EFA Security Documents are hereby modified, extended and
brought forward but not terminated by this Agreement and the Note.


     (2)  Payment.


          (a) The Note is payable ON DEMAND, at any time and from time to time on or
after the date hereof, without interest.



          (b) The payment set forth in the Note and hereunder shall be effected by
the Borrower at the premises of the Creditor in the City of Reston, State of
Virginia, United States of America, at 10700 Parkridge Boulevard, Suite 600,
Reston, Virginia 20191, or at such other place as the Creditor shall designate
to the Borrower in writing.



     (3)  Prepayment. Any amounts due under the Note or hereunder may be
prepaid in whole or in part at any time and from time to time without premium
or penalty. No interest shall accrue on, or be payable with respect to, the
principal of the Note.


     (4)  Event of Default and Acceleration. The Note and all amounts due
thereunder and hereunder are payable by the Borrower on demand, and at the
option of the Creditor, the entire principal amount outstanding under the Note
and hereunder shall at once become due and payable. The Creditor shall have
the right to exercise all rights and remedies under the Security Documents, or
under applicable law, if any payment under the Note or hereunder is not paid
(subject to Section 7 hereof and Paragraph 10 of the Assignment Agreement)
within five (5) days of demand for payment by the Creditor (an “Event of
Default”). Failure to exercise any such option or right shall not constitute a

waiver of the right to exercise any such option or right in the event of any
subsequent Event of Default.


     (5)  Covenants and Conditions. The Borrower hereby waives presentment,
demand, protest and notice of dishonor, and agrees to pay all costs and
expenses incurred by the Creditor, including reasonable attorneys’ fees, in
connection with (a) the enforcement of the Note and this Agreement or any of
the Security Documents (b) the collection of the indebtedness evidenced by the
Note and this Agreement or other sums required to be paid thereunder or
hereunder or by any Security Document, (c) the collection of any judgment
rendered with respect to the Note, this Agreement or any Security Document (d)
the preservation or disposition of any property, or the priority of any
instrument, securing the payment of the Note or this Agreement, (e) the defense
of any claim arising out of, or in any way related to, the Note, this Agreement
or any Security Document.


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     (6)  Waivers. The Note and this Agreement or any provision thereof or
hereof may be waived, changed, modified or discharged only by an agreement in
writing signed by the Borrower and the Creditor. No course of dealing between
the Creditor and the Borrower shall be effective to amend, modify or change any
provision of the Note or this Agreement. The Creditor shall have the right at
all times to enforce the provisions of the Note and this Agreement in strict
accordance with the provisions thereof and hereof, notwithstanding any conduct
or custom on the part of the Creditor in refraining or forbearing from doing so
at any time or times. The failure of the Creditor at any time or times to
strictly enforce its rights under the provisions in accordance with the terms
and conditions of the Note or this Agreement shall not be construed as having
created a custom, course of dealing, or in any way or manner having modified,
waived, or amended the terms and conditions thereof or hereof.


     (7)  Assignment Agreement. The Note evidences the indebtedness of the
Borrower pursuant to the New EFA that the Original Creditor assigned to the
Creditor pursuant to the Assignment Agreement. The Note and this Agreement are
subject to the terms of the Assignment Agreement, including but not limited to
Paragraph 10 thereof which restricts payments under the Note so long as
Motorola is the holder of that certain Master Equipment Financing Agreement
among NII Holdings (Cayman), Ltd., the Original Creditor, Nextel del Peru S.A.,
Teletransportes Integrales, S.A. de C.V., the Lenders named therein and
Citibank, N.A., as collateral agent.


     (8)  Note Subject to this Agreement. The Note is subject to the terms of
this Agreement. In the event the terms of the Note conflict with the terms of
this Agreement, the terms of this Agreement shall govern.


     (9)  Security Interest; No Novation; Intercreditor Agreement. In order to
secure the due payment and performance of the Note and this Agreement, pursuant
to the Assignment Agreement, the Note and this Agreement are and shall be
secured by the collateral in which a security interest was granted or
contemplated to be granted pursuant to the New EFA. The execution and delivery
of the Note and this Agreement shall not constitute a novation or modification
of the lien, encumbrance or security title of any of the EFA Security Documents
used to grant and effectuate the security interests contemplated under the New
EFA, nor effect the release or any modification of any collateral for, and any
guarantees of, the repayment of the EFA Indebtedness, it being the expressed

intention of the parties that such collateral and guarantees shall continue in
full force and effect. Except as expressly modified by this Agreement or the
Note, all other terms and provisions of the EFA Security Documents shall
continue in full force and effect and unchanged and are hereby confirmed in all
respects. Borrower expressly agrees that the Note and this Agreement are in
full force and effect and that Borrower has no right to setoff, counterclaim or
defense to the payment thereof or hereof. Borrower further expressly agrees
that the Note and this Agreement are subject to the provisions of that certain
Intercreditor Agreement defined in the New EFA and that all such provisions are
incorporated by reference herein with the same force and effect as if set forth
in their entirety herein.


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     (10)  Severability of Provisions. If any one or more of the provisions
contained herein or in the Note shall be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall not in any way be affected or
impaired.


     (11)  Amendment and Restatement. Upon the execution and delivery of this
Agreement and the Note, the New EFA shall be amended and restated in its
entirety by this Agreement and the Note, and the provisions of the New EFA
shall be replaced by those of this Agreement and the Note. On and after the
execution of this Agreement, each reference in any Security Document to the New
EFA or a similar term shall be deemed a reference to this Agreement and the
Note.


     (12)  Governing Law. This Agreement, and the rights and obligations of the
parties hereunder, shall be governed by and construed in accordance with the
laws of the State of New York. The Note shall be governed by and construed in
accordance with the laws of the Federated Republic of Brazil, and is vested of
enforceability under article 585, item 1 of the Brazilian Code of Civil
Procedure.


     (13)  Successors and Assigns. The rights and obligations created hereunder
shall inure to the benefit of, and be binding upon, the parties and their
respective successors and assigns.


     WITNESS the following signatures:



	 	 	 	 	 	 	 	 	 
	 	 	
 
	 	NEXTEL TELECOMMUNICAÇÕES, LTD.,
	 	 	 	 	a Brazilian limited liability company
	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:
	

	 	 	 	 	 	 	Its:
	

	 	 	 	 	 	 	 	 	 
	 	 	 	 	NII HOLDINGS, INC., a Delaware corporation
	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:
	

	 	 	 	 	 	 	Its:
	




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ACKNOWLEDGMENT AND CONSENT



     For the avoidance of doubt, each of the undersigned hereby (i)
acknowledges receipt of a copy of the New EFA, the Modification Agreement
effective as of the 26th day of September, 2003 by and between NII Holdings,
Inc., a Delaware corporation and NEXTEL TELECOMMUNICAÇÕES, LTDA., a Brazilian
limited liability company (the “Modification Agreement”), and the form of Note
attached to the Modification Agreement, and (ii) consents to all the terms and
provisions of the Modification Agreement and the Note, including but not
limited to the amendment and restatement of the New EFA effected thereby.


     Capitalized terms which are used herein without definition shall have the
respective meanings ascribed thereto in the Modification Agreement to which
this Acknowledgment and Consent is attached. This Acknowledgment and Consent
is for the benefit of the Creditor and its successors and assigns, and shall be
binding upon the successors and assigns of each of the undersigned. This
Acknowledgment and Consent may be executed by any of the undersigned in
separate counterparts, each of which shall be an original and all of which
together shall constitute one and the same instrument.


     IN WITNESS WHEREOF, each of the undersigned has duly executed and
delivered this Acknowledgment and Consent effective as of September 26, 2003.


Nextel International (Services), Ltd.

Nextel International Investment Company

McCaw International (Brazil), Ltd.

Airfone Holdings, Inc.

Nextel International (Mexico), Ltd.

Nextel International (Uruguay), Inc.

Nextel International (Indonesia) LLC

Nextel International (Peru) LLC

Centennial Cayman Corp.

Nextel International (Argentina), Ltd.

NII Holdings (Cayman), Ltd.




	 	 	 	 	 
	By:	 	


	 	 
	 	 	
Robert J. Gilker	 	 
	 	 	
Vice President	 	 



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Transnet del Peru S.R.L.

Comunicaciones Nextel de Mexico, S.A. de C.V.

Sistemas de Comunicaciones Troncales, S.A. de C. V.

Prestadora de Servicios de Radiocomunicacion, S.A. de C.V.

Radiophone, S.A. de C.V.

Fonotransportes Nacionales, S.A. de C.V.

Servicios Protel, S.A. de C.V.

Nextel de Mexico, S.A. de C.V.

Inversiones Nextel de Mexico, S.A. de C.V.

Nextel Communications Argentina S.A.

Servicios de Radiocomunicacion Movil de Mexico, S.A. de C.V.

Multifon, S.A. de C.V.

Nextel del Peru, S.A.

Teletransportes Integrales, S.A. de C.V.




	 	 	 	 	 
	By:	 	


	 	 
	 	 	
Robert J. Gilker	 	 
	 	 	
Attorney in Fact	 	 



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Nextel S.A.

Promobile Telecommunicações, Ltda.

Telemobile Telecommunicações, Ltda.

Master-Tec Telecommunicações Industria e Comercio de Productos Electronicos Ltda.

Telecommunicações Brastel S/C Ltda.




	 	 	 	 	 
	By:	 	


	 	 
	 	 	
Robert J. Gilker	 	 
	 	 	
Attorney in Fact	 	 




	 	 	 	 	 
	By:	 	


	 	 
	 	 	
Mercedes M. Barreras	 	 
	 	 	
Attorney in Fact	 	 




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